Structured Proportionality, Unreasonableness and Managing the Line between Executive and Judicial Functions
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Open Access
Type
ArticleAuthor/s
Edgar, AndrewAbstract
In Brett Cattle Co Pty Ltd v Minister for Agriculture, Fisheries and Forestry the Federal Court applied a form of structured proportionality and more traditional unreasonableness review to determine that a regulation suspending live exports of cattle to Indonesia was invalid. The ...
See moreIn Brett Cattle Co Pty Ltd v Minister for Agriculture, Fisheries and Forestry the Federal Court applied a form of structured proportionality and more traditional unreasonableness review to determine that a regulation suspending live exports of cattle to Indonesia was invalid. The article considers the application of these forms of review to the highly polycentric context in which the challenged regulation was made. It argues that the Court's application of substantive review made its assessment indistinguishable from the policy judgments made by executive officials. The Court assessed the same risks as the Government, but it weighed the risks in a different manner. The article argues for some additions to the principles of substantive review of regulations that involve consideration of the administrative context in which decisions are made and enables courts to adjust their review by reference to that context.
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See moreIn Brett Cattle Co Pty Ltd v Minister for Agriculture, Fisheries and Forestry the Federal Court applied a form of structured proportionality and more traditional unreasonableness review to determine that a regulation suspending live exports of cattle to Indonesia was invalid. The article considers the application of these forms of review to the highly polycentric context in which the challenged regulation was made. It argues that the Court's application of substantive review made its assessment indistinguishable from the policy judgments made by executive officials. The Court assessed the same risks as the Government, but it weighed the risks in a different manner. The article argues for some additions to the principles of substantive review of regulations that involve consideration of the administrative context in which decisions are made and enables courts to adjust their review by reference to that context.
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Date
2021Source title
Public Law ReviewVolume
32Issue
3Publisher
Thomson ReutersLicence
Copyright All Rights ReservedRights statement
This article was first published by Thomson Reuters in the Public Law Review and should be cited as Edgar, A. (2021). Structured Proportionality, Unreasonableness and Managing the Line between Executive and Judicial Functions. Public Law Review, 32(3), 204-221. For all subscription inquiries please phone, from Australia: 1300 304 195, from Overseas: +61 2 8587 7980 or online at legal.thomsonreuters.com.au/search. The official PDF version of this article can also be purchased separately from Thomson Reuters at http://sites.thomsonreuters.com.au/journals/subscribe-or-purchase. This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act 1968 (Cth), no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Enquiries should be addressed to Thomson Reuters (Professional) Australia Limited. PO Box 3502, Rozelle NSW 2039. legal.thomsonreuters.com.auFaculty/School
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