Published: 11 July 2023
Last updated: 5 March 2024
NOAM GREENBERGER explains why the "reasonableness standard" is the focus of an advancing bill and increased protests in Israel this week.
Yesterday the Knesset voted on the first reading of a bill to restrict the Supreme Court’s power to review decisions made by elected officials, a move that has spurred increased protests over the past week.
The bill would remove the court’s jurisdiction to overturn government decisions on the basis that they breach a standard of reasonableness determined by the court.
The reasonableness standard has been controversial for a long time. In fact, it’s remarkable that it has survived intact until now. Its application illuminates the unique way in which the values of public accountability, the rule of law and democracy intersect in Israel and illuminates the ways in which Israeli democracy differs from Westminster systems, like Australia, or written constitutional systems, like the US.
The most recent example is the court’s ruling in January that it was extremely unreasonable for the government to appoint Shas leader Aryeh Deri as Interior Minister because of his conviction for bribery and his admission to tax offences.
The reasonableness doctrine is a product of English law. It has also been accepted into Australian law. In its original form it stands for the principle that if a government makes a decision that no reasonable person in its position would have made, the decision can be quashed by judicial review.
Since the 1980s, Israel’s High Court has taken the position that just about anything is justiciable.
However, it’s unlikely an Australian court would ever deal with the question of whether a ministerial appointment had been tainted by unreasonableness. Australian courts would likely dismiss the case from the outset on the basis of "non-justiciability" (in colloquial terms - it’s not for us to decide the matter). To determine that a matter is non-justiciable is to refrain from considering its merits either because the court has no remedy to offer or because offering any remedy would infringe upon the separation of powers. It is also, however, a self-imposed limitation on the rule of law. After all, if no court will intervene then whatever law applies cannot be enforced.
