Miss Reasonableness Review of Discretion in Administrative Decisions : A Comparative Study of Australia and Thailand

Abstract

   The judicial review of the reasonableness, or rationality, of administrative discretion remains an area fraught with ambiguity and difficulty, particularly in delineating the boundary between reasonable and unreasonable exercises of power, as well as in determining the extent of judicial intervention. This article undertakes a comparative analysis of the principles governing the assessment of reasonableness in the exercise of discretion in the Commonwealth of Australia and Thailand, focusing specifically on discretionary powers intended to apply to particular cases or individuals. The findings reveal that courts in both jurisdictions subject the exercise of discretion to scrutiny for reasonableness, even where the defect in question is not so grave or manifest that no reasonable person could have so exercised it. In conducting such review, the courts take into account both the scope and the object of the relevant statutory framework, as well as the factual circumstances of the case. In the Thai context, however, the approach remains less clearly defined than in Australia, due to the absence of explicit statutory provisions stipulating criteria for the assessment of reasonableness, coupled with the tendency of the Administrative Court to decide on a case-by-case basis without articulating the principle of reasonableness or providing any definitive conclusion on this issue. It is therefore proposed that unreasonableness should be expressly codified as a ground of undue exercise of discretion under section 9, paragraph one (1), of the Act on Establishment of Administrative Courts and Administrative Court Procedure, B.E. 2542 (1999). Furthermore, it is argued that the Administrative Court may invoke the principle of reasonableness, as a general principle of administrative law, alongside other established doctrines and considerations, so as to reinforce the cogency of judicial reasoning, thereby serving the interests of both litigants and administrative authorities in the discharge of public functions.