Melbourne Law School - Theses
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ItemConstitutional constraints on the reasonableness ground of judicial review: a wrong turning in the High Court of Australia?( 2009)Australian law imposes a duty to exercise statutory discretions reasonably, but Australian courts are circumspect about developing the duty's content. The application of the unreasonableness ground of review requires an assessment of the quality of discretionary decisions, and the ground is therefore seen to carry a risk of shading into review on the merits. While the need for restraint in reasonableness review is clear, there are divergent views on how to ensure appropriate, principled limits on the ground are observed. One area of difficulty is the scope for consideration of the rationality of discretionary decision-makers' reasons. Another is the scope for consideration of any injustice or substantive unfairness that may be involved in the outcome of the exercise of statutory discretions. Australian authorities emphasise that the scope for consideration of these matters is extremely limited. This is generally understood to mean that it is confined to extreme cases, i.e. that the standard of review is high. In this thesis, the author identifies a second sense in which the scope for consideration of these matters is confined in Australian law. Specifically, the author argues that there is support in High Court authorities for two restrictions on judicial development of the grounds of review: (i) it is not a ground of review that material "discretionary' determinations are irrational, assessed against the judge-made standards that apply to determinations that are' preconditions to power'; and (ii) it is not a ground of review that a decision's impact on expectations engendered by the decision-maker's conduct or representations is unreasonable, assessed against judge-made standards that apply to review of decisions' impact on ‘interests'. The judicial theory of the restrictions is that they ensure that review against judge-made standards focuses solely on considerations mandated ‘by statute'. What this seems to mean in practice is that review excludes consideration of matters whose relevance is implied from a course of dealing by the executive. The doctrinal expression of the restriction is that 'expectations' engendered by executive conduct or representations do not attract the protection of the duty of reasonableness. It is not clear whether this restriction commands majority support in the High Court, but the author argues that it underpins three influential reasons for judgment handed down in the period of the Gleeson Court. The author argues that the emergence of support for these restrictions on judicial power to develop the grounds of review is troubling. The inflexible nature of the restrictions impedes the evolution of the reasonableness ground to ensure that discretionary decision-making complies with minimum standards of rationality, proportionality and equal treatment. Further, the author argues that constitutional constraints on the courts' role in judicial review of executive action do not support these restrictions on review. The constitutional principles do not support an inflexible judgment that terminates analysis upon determination that a matter, said to bear on the reasonableness of a decision, emerges from a course of dealing by the executive. In examining the judicial claim that the restrictions are required by constitutional principle, the author looks at the operation of the principle of legislative supremacy, and further engages with the idea that distinctive limits on judicial review of federal executive action can be derived from the text and structure of the Constitution.
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ItemThe regulation of research involving human embryos and cloning in the United Kingdom and Australia( 2009)This thesis analyses the nature, rationale, and implementation of United Kingdom and Australian regulation of research involving human embryos and cloning using legal materials, other documents and qualitative interviews with researchers, practitioners and regulators. It considers how law-makers have decided upon what to regulate and where to draw the line between permissible and prohibited activities, and the type of regulatory design strategies and enforcement approaches adopted in each jurisdiction (the ‘how to regulate’ question). It is argued that both jurisdictions have effectively decided upon permissible and prohibited activities as a result of thorough public consultation, research, reviews and the parliamentary process, and have appropriately balanced competing rationales for regulation. However, the type of regulation used in relation to those who are licensed to research in this area is unsuitable due to an over-emphasis on deterrence and the authoritarian approach taken by the regulatory bureaucracies. The central thesis is that a responsive regulatory system for licence-holders should be adopted. It is proposed that such a system would maintain the top level ‘command and control’ design strategies and deterrence approaches present in the current regulatory systems for breaches of legislation by non-licence holders and serious breaches by licence holders. However, greater use of co-regulatory design strategies and cooperative, educative and persuasive enforcement approaches should be used for regulating licensed research activities.