Page 5015 - Week 16 - Tuesday, 26 November 1991
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Lord Greene, the then Master of the Rolls, said, in a 1948 case:
It is true to say that if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the ... courts can interfere. That, I think, is quite right; but to prove a case of that kind would require something overwhelming and, in this case the facts do not come anywhere near anything of that kind.
This decision - again, this fundamentally political decision - about the appropriate split between government and non-government schooling is surely not a matter that anyone could say would come anywhere near that ground of unreasonableness for the purposes of judicial review. It is a fundamentally political decision. The decision should be taken here. We take the decision that we have made. We defend it in the public forums. You in the Opposition say that you disagree with it. We will debate that matter out on the hustings. We will debate it in this chamber. We will go to the people and the people will make a decision. Let us not make fools of ourselves by saying that that decision should go before the courts, and be held up in complex litigation. We would be seen to be deferring to the courts on that point.
There is one final point to bear in mind: Just think of what it could do to the status of the courts if such a fundamentally divisive decision - this split between government and non-government schooling - were to be abdicated by governments in favour of the courts. I would suggest that it risks politicising the courts because the loser, whichever way a judge decided, would feel aggrieved. It is perfectly appropriate that people in these circumstances take out their sense of grievance on politicians, but certainly not that they take it out on judges. This is a foolish proposal to abdicate a fundamentally political responsibility and transfer it to judges, and I would urge members of the Assembly to reject it.
MR HUMPHRIES (12.54 am): Mr Speaker, there have been few more vociferous defenders of non-government schools in this place than the Liberal Party; but even we draw the line, I think, at a measure such as this. I have to say that we will not support the amendment brought forward by Mr Collaery. The crux of this amendment is in proposed new subclause (2), where there is a reference to allocations being made which are "fair and reasonable" as between the two particular divisions that are referred to in these programs. Apart from the question of whether or not we should limit distribution of funds by government in respect of these two programs only - putting that to one side for one minute - the other question, of course, is what the words "fair and reasonable" mean in this sense.
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