Two stage test for invalidating a law australia


18-Oct-2019 06:58

The court repeatedly held that it was irrational to not take into account the historic pattern of breaches of international humanitarian law on the part of the coalition while making the decision about granting the licenses (paras 35, 57-59, 62, 139, 144, 145, 153).The court relied on (1977) that established the proposition that a public body has a duty to carry out a sufficient inquiry prior to making its decision.With respect, arguing that it is unreasonable or irrational to not take all relevant considerations into account is conceptually confusing and in fact misguided.It is not more helpful than arguing that it is unreasonable or irrational to take irrelevant considerations into account, act in bad faith, be in a state of conflict of interests, act for an improper purpose etc.(6) ‘Instrumental rationality’ that requires logical or causal relation between means and end.Instrumental rationality is in fact part of the principle of proportionality.It is common to refer to the principle of proportionality as a four-stage test which includes legitimate aim; suitability (or rational connection); necessity (or applying the least intrusive measure); and proportionality in the narrow sense (proportionality stricto sensu).

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The problem is that not taking all relevant considerations into account is a distinct, well-established ground of judicial review in public law.If there is no rational connection of any kind between the means and the end, that is, if the means cannot or does not achieve the end, then this is a decision that no rational person could have made.



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