What’s essential? What’s reasonable? This week, we look at how straightforward words can mean different things to different people at different times.
Over the past few weeks, Australians have grappled with a greyish concept. The magic word is “essential”—which in COVID-19 days, is a close cousin of the word “reasonable”. The latter is one that lawyers are familiar with and often have plenty of arguments over.
If you spend your spare minutes reading any sort of legislation (laws that Parliaments pass) or case law (which judges write)—you’ll run into value judgments expressed in the form of “reasonableness”.
Reasonableness is the most oft-used standard in law to express what someone means, or intends to mean. Sometimes it’s obvious, but most of the time, it’s not. Like…
Reasonable people, reasonable decisions?!
A classic example is the concept of “Wednesbury unreasonableness”. It’s what every law student goes through (i.e. hell) while studying Administrative Law (the law of government administration).
Wednesbury unreasonableness originated from Lord Greene MR in the English case, Associated Provincial Picture Houses Ltd. v Wednesbury Corporation  1 KB 223.
No cinema for you kiddos
The facts of the case appear quaint from 21st-century eyes. So here goes…
Back in ye olde days of England, the year 1947 to be precise, cinemas could only operate between Mondays to Saturdays, but not Sundays under the Cinematograph Act 1909.
However, there was a little loophole in the Sunday Entertainments Act 1932. This Act legalised the opening of cinemas on Sundays, subject to certain specified conditions and other conditions that the licensing authority thought fit to impose.
A commanding officer of military forces stationed in the Wednesbury neighbourhood applied to open the cinema on Sundays. The licensing authority (Wednesbury Corporation) granted the licence on the condition that:
“No children under the age of fifteen years shall be admitted to any entertainment, whether accompanied by an adult or not”.
By today’s standards, putting aside COVID-19 measures, preventing children under 15 from entering a cinema on Sundays sounds pretty absurd. But back in the day, the Court went through this reasoning process:
- In making the decision, did the authority take into account factors that ought not to have been taken into account?
- In making the decision, did the authority fail to take into account factors that ought to have been taken into account?
- Was the decision so unreasonable that no reasonable authority would ever consider imposing it?
The third limb is what we now know at law as “Wednesbury unreasonableness” and is… kinda circular.
It’s like the babushka doll of reasoning. First, work out what is a reasonable person. Then what they, acting reasonably, would have done. Then, whether the actual reasoning/decision was SO unreasonable that it could have never happened under conditions (1) and (2)? Jeepers.
So what did the Court decide? In the authority’s favour. The Court stated that the authority was (by Parliament’s intention) the best equipped to deal with matters of public policy concerning children’s wellbeing, and had reached its decision on that basis. But it did acknowledge that reasonableness was a point of view that people would differ on:
“It is not what the court considers unreasonable, a different thing altogether. If it is what the court considers unreasonable, the court may very well have different views to that of a local authority on matters of high public policy of this kind. Some courts might think that no children ought to be admitted on Sundays at all, some courts might think the reverse, and all over the country I have no doubt on a thing of that sort honest and sincere people hold different views. The effect of the legislation is not to set up the court as an arbiter of the correctness of one view over another. It is the local authority that are set in that position and, provided they act, as they have acted, within the four corners of their jurisdiction, this court, in my opinion, cannot interfere.”
— Lord Greene MR in Associated Provincial Picture Houses Ltd. v Wednesbury Corporation  1 KB 223
The Australian High Court adopted Wednesbury unreasonableness in Parramatta City Council v Pestell (1972) 128 CLR 305. It created waves (of criticism) not unlike Shane Warne in his tweet/rant on the meaning of “essential”:
Listening to the PM like everyone here in Aust & what I understood was.
“It’s essential. Unless it’s not. Then it’s essentially not essential. I can’t be clearer” Plus people can buy a new shirt at a shopping centre ? WTF? PM just had a shocker. Surely should be in lockdown now
— Shane Warne (@ShaneWarne) March 24, 2020
Public policy wayfinding
There is a lot of scope to argue what exactly reasonableness looks like in different contexts, whether on the Wednesbury unreasonableness scale of government decision-making or in numerous other contexts that draw on societal standards.
One thing that we can confirm is that under COVID-19, the words “essential” and “reasonable” have officially met. Check out, for example, the NSW Ministerial Order, Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020, which commenced on 31 March 2020 under the Public Health Act 2010 (NSW).
At the time of this writing, there have already been amendments in the form of:
- Public Health (COVID-19 Restrictions on Gathering and Movement) Amendment Order 2020, effective 4 April 2020; and
- Public Health Amendment (COVID-19 Spitting and Coughing) Regulation 2020, effective 9 April 2020.
If you’re based in NSW, you can do all the things listed in Schedule 1 that are “reasonable excuses”. You can have essential gatherings listed in Schedule 2. And taking a holiday in a regional area is clearly out.
But beyond what the reasonable mind considers reasonable, there is certainly some scope for interpretation.
- Associated Provincial Picture Houses Ltd. v Wednesbury Corporation  1 KB 223.
- The Honourable Justice Garry Downes AM, “Reasonableness, Proportionality and Merits Review”, Paper delivered to the New South Wales Young Lawyers Public Law CLE Seminar, The Law Society, Sydney (24 September 2008).
- Stacey Stellatos, “Looking for Wednesbury’s Reasonable Interpretation” (2014) University of New South Wales Law Journal Student Series No 7.