Remedies

2021 ◽  
pp. 145-173
Author(s):  
Paul Daly
Keyword(s):  
Judicial Review ◽  
Procedural Fairness ◽  
Administrative Law ◽  
Judicial Discretion ◽  
Institutional Structures ◽  
Individual Self ◽  
Different Characteristics

When an applicant for judicial review succeeds in demonstrating that an administrative decision was unlawful because it breached the principles of institutional structures, procedural fairness or substantive review, the court must then decide whether to grant a remedy. This Chapter first discusses the nature of the remedies available to a reviewing court, explaining how the different characteristics of the so-called ‘prerogative writs’ and their successors can be understood in terms of the values of individual self-realisation, good administration, electoral legitimacy and decisional autonomy. It highlights how judges’ choices whether to issue a remedy and how to structure a remedy can also be understood as being influenced by these values. The chapter then addresses several aspects of judicial discretion not to grant a remedy and the ability to sever problematic aspects of a decision, again demonstrating the influence of administrative law values.

Institutional Structures

2021 ◽  
pp. 32-64
Author(s):  
Paul Daly
Keyword(s):  
Decision Making ◽  
Decision Maker ◽  
Judicial Review ◽  
Decision Makers ◽  
Administrative Action ◽  
Institutional Structures ◽  
General Aspects ◽  
Individual Self ◽  
Personal Interests ◽  
Or History

This chapter is concerned with the structure of administrative decision-making institutions. Two general aspects of this important topic are particularly relevant to the law of judicial review of administrative action. First, the no-bias principle ensures that decision-making is impartial, by preventing decision-makers from acting where their personal interests, conduct or history could conceivably raise a concern about their ability to make a dispassionate decision on the merits. Second, the principle that a decision-maker must retain their discretion prevents decision-makers from delegating their powers (subject to an exception in the case of government ministers) and limits the scope for the development of policies about how discretionary powers will be exercised in the future. These principles can be understood as being structured by the values of individual self-realisation, good administration, electoral legitimacy and decisional autonomy.

14. Procedural Grounds of Judicial Review

2018 ◽  
Author(s):  
Ian Loveland
Keyword(s):  
Rule Of Law ◽  
Judicial Review ◽  
Procedural Fairness ◽  
Case Law ◽  
Administrative Law ◽  
The Rule Of Law ◽  
Partial Picture ◽  
The Law ◽  
Modern Era ◽  
Do So

This chapter examines the procedural grounds of judicial review. It discusses how the courts have used the procedural fairness doctrine by reviewing a number of leading cases to identify the values that appear to be shaping the content of the law. The analysis focuses on case law drawn from the ‘modern’ (ie post-1960) era, but several seminal decisions from earlier periods are also considered. The concept of procedural fairness has generated a vast body of case law in the modern era and will continue to do so in future. But the law on this point, even when seen in conjunction with the law relating to the traditional substantive grounds on which government action can be held unlawful, offers only a partial picture of the way in which administrative law fits into the broader constitutional principles of the rule of law and the sovereignty of Parliament.

14. Procedural Grounds of Judicial Review

2021 ◽  
pp. 374-404
Author(s):  
Ian Loveland
Keyword(s):  
Rule Of Law ◽  
Judicial Review ◽  
Procedural Fairness ◽  
Case Law ◽  
Administrative Law ◽  
The Rule Of Law ◽  
Partial Picture ◽  
The Law ◽  
Modern Era ◽  
Do So

This chapter examines the procedural grounds of judicial review. It discusses how the courts have used the procedural fairness doctrine by reviewing a number of leading cases to identify the values that appear to be shaping the content of the law. The analysis focuses primarily on case law drawn from the ‘modern’ (ie post-1960) era, but several seminal decisions from earlier periods are also considered. The concept of procedural fairness has generated a vast body of case law in the modern era and will continue to do so in future. But the law on this point, even when seen in conjunction with the law relating to the traditional substantive grounds on which government action can be held unlawful, offers only a partial picture of the way in which administrative law fits into the broader constitutional principles of the rule of law and the sovereignty of Parliament.

Scope of Judicial Review of Administrative Action

2021 ◽  
pp. 200-223
Author(s):  
Paul Daly
Keyword(s):  
Judicial Review ◽  
Administrative Law ◽  
Administrative Action ◽  
Turn On ◽  
The Law ◽  
Individual Self ◽  
Case Basis

The law relating to the scope of judicial review of administrative action is somewhat unclear and has a particular tendency to be decided on a case-by-case basis. Indeed, amenability to judicial review will often turn on the application of particular constitutional, statutory or regulatory provisions: in Australia and Canada, for instance, there are multiple judicial review jurisdictions, at federal and state/provincial/territorial level, each with their own idiosyncrasies. This chapter argues, nonetheless, that administrative law values are helpful in understanding the decided cases, with individual self-realisation, good administration, electoral legitimacy and decisional autonomy providing meaningful guidance in navigating the jurisprudence. This chapter also offers some suggestions as to how the law relating to scope of judicial review could be improved, further underscoring how useful it is to understand the law of judicial review of administrative action in terms of administrative law values.

Procedural Fairness

2021 ◽  
pp. 65-103
Author(s):  
Paul Daly
Keyword(s):  
Public Administration ◽  
General Structure ◽  
Procedural Fairness ◽  
Administrative Law ◽  
Legal Representation ◽  
Natural Justice ◽  
The Right ◽  
Individual Self ◽  
Procedural Rights ◽  
Elected Representatives

The object of discussion in this chapter is the contemporary form of the second of the two rules of natural justice mentioned in the introduction to Chapter 2: audi alteram partem. First, the general structure of procedural fairness is discussed, noting how individual interests, effective and efficient public administration, respect for the decisions of elected representatives and the maintenance of distinct roles for distinct bodies illuminate the general structure of the duty of fairness. Second, exclusions to the duty of fairness, again presented in terms of administrative law values are briefly discussed. Third, the chapter discusses individual procedural rights—such as the right to notice and the right to legal representation—with a view to highlighting how these too can be understood in terms of individual self-realisation, good administration, electoral legitimacy and decisional autonomy.

Judicial Review and Merits Review: Are the Boundaries Being Eroded?

2017 ◽  
Vol 45 (4) ◽  
pp. 627-652
Author(s):  
Robin Creyke
Keyword(s):  
Judicial Review ◽  
Administrative Law ◽  
Federal Level ◽  
Law System

Courts and tribunals have distinct roles within the Australian administrative law system at the federal level, and to a lesser extent, in the states and territories. Questions of law are for the courts, and questions of fact are for the executive and tribunals. From time to time this orthodoxy is questioned. Suggestions are made that the courts are increasingly tending to intrude into the province of tribunals. Using cases as illustrations, this article explores five relevant jurisdictional areas —from appeals on a question of law to deference under the Administrative Decisions (Judicial Review) Act 1977 (Cth) s 10(2)(b)(ii)—to test the accuracy of the suggestion.

Liberating Malawi's Administrative Justice Jurisprudence from Its Common Law Shackles

2011 ◽  
Vol 55 (1) ◽  
pp. 105-127 ◽  
Author(s):  
Danwood Mzikenge Chirwa
Keyword(s):  
Judicial Review ◽  
Common Law ◽  
Administrative Law ◽  
The Common ◽  
The Right ◽  
Administrative Justice

AbstractThe 1994 Malawian Constitution is unique in that it, among other things, recognizes administrative justice as a fundamental right and articulates the notion of constitutional supremacy. This right and the idea of constitutional supremacy have important implications for Malawi's administrative law, which was hitherto based on the common law inherited from Britain. This article highlights the difficulties that Malawian courts have faced in reconciling the right to administrative justice as protected under the new constitution with the common law. In doing so, it offers some insights into what the constitutionalization of administrative justice means for Malawian administrative law. It is argued that the constitution has altered the basis and grounds for judicial review so fundamentally that the Malawian legal system's marriage to the English common law can be regarded as having irretrievably broken down as far as administrative law is concerned.

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