Structured Proportionality, Unreasonableness and Managing the Line between Executive and Judicial Functions

Abstract

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 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.