Tribunals and Adjudication

2020 ◽  
pp. 746-769
Author(s):  
Kieran Bradley
Keyword(s):  
Judicial Review ◽  
Justice System ◽  
Administrative Law ◽  
Comparative Perspective ◽  
Administrative Action ◽  
Brief Assessment ◽  
Administrative Review ◽  
Administrative Adjudication ◽  
Broad Outline

This chapter concerns non-judicial review of administrative action, that is, review by bodies other than the judicial courts, including adjudication by the administration itself. It identifies in broad outline, and from a comparative perspective, the main attributes of administrative adjudication. These include: the variety and the origins of the bodies which carry out such review, the organization of internal and external administrative review, the principal structures of administrative tribunals and equivalent bodies, and their place in the justice system generally. A brief assessment of the perspectives for the study of administrative tribunals in the context of comparative administrative law is proffered by way of conclusion.

Standards of Judicial Review of Administrative Action (1890–1910) in the Austro-Hungarian Empire

2021 ◽  
pp. 41-72
Author(s):  
Angela Ferrari Zumbini
Keyword(s):  
Judicial Review ◽  
Administrative Law ◽  
Public Affairs ◽  
Main Theme ◽  
Administrative Procedure ◽  
Administrative Action ◽  
General Principles Of Law ◽  
Liberal Approach ◽  
The Right

This chapter argues that, if France has been the home of administrative courts, Austria has greatly contributed to the development of administrative law with regard to administrative procedure. Thanks to the Austrian Administrative Court, established in 1875, administrative law has been increasingly important in the regulation of public affairs. The chapter analyses the causes, development, and effects of these features. One main theme is, of course, the scope and purpose of judicial review of administrative action. In this respect, the chapter shows the growth of litigation and the liberal approach followed by the Court. Moreover, the role of the Court as lawmaker is examined in the light of the general principles of law that it developed. . Such principles included legality and procedural fairness, with particular regard to the right to a hearing and the duty to give reasons. Considered as a whole, they required public administrations to act reasonably rather than arbitrarily. Finally, it was judge-made law that constituted the basis for the codification of 1925.

The Reasonableness of Proportionality in the Australian Administrative Law Context

2015 ◽  
Vol 43 (1) ◽  
pp. 59-90
Author(s):  
Janina Boughey
Keyword(s):  
Judicial Review ◽  
Separation Of Powers ◽  
Administrative Law ◽  
High Court ◽  
Administrative Action ◽  
Principle Of Proportionality ◽  
Prevailing View

Although the High Court has never ruled on the issue, the prevailing view has been that unless parliaments enact bills of rights, the principle of proportionality does not and cannot play a role in judicial review of administrative decisions in Australia. Yet in Minister for Immigration and Citizenship v Li, a majority of the High Court hinted that this may not be the case. This article analyses the reasons for Australia's longstanding reluctance to embrace proportionality in the administrative law context, and whether the decision in Li has altered this position. It then explores overseas developments in proportionality review which reveal that the principle may take on many forms in the administrative law context, with differing implications for the separation of powers. The article finds that it might be possible to accommodate certain methods of applying proportionality within Australia's judicial review framework, but not without significant broader changes to judicial review of administrative action in Australia.

Defending Administrative Law

2021 ◽  
pp. 247-262
Author(s):  
Paul Daly
Keyword(s):  
Future Development ◽  
Judicial Review ◽  
Administrative Law ◽  
Moral Foundations ◽  
Administrative Action ◽  
The Core ◽  
Liberal Democratic ◽  
Interpretive Analysis ◽  
System P ◽  
Democratic System

This concluding chapter has two objectives. First, to demonstrate the robustness of the interpretation of contemporary administrative law presented in the preceding chapters, underscoring how useful this interpretive analysis is to understanding the law of judicial review of administrative action and guiding its future development. Second, the chapter defends the legitimacy of the core features of judicial review of administrative action, as these have been developed over the years by judges. In achieving these two objectives, the chapter relies on the criteria for testing the robustness of legal theories set out by Professor Stephen Smith in Contract Theory: fit, transparency, coherence and morality. The interpretation of contemporary administrative law described in this book fits the decided cases, it is reasonably transparent, it is coherent and it rests on recognisably moral foundations. In short, to conclude, contemporary administrative law facilitates the flourishing of individuals, of public administration and of the liberal democratic system.

Contextual review: the instinctive impulse and unstructured normativism in judicial review

Legal Studies ◽  
2020 ◽  
Vol 40 (1) ◽  
pp. 1-21
Author(s):  
Dean R Knight
Keyword(s):  
Rule Of Law ◽  
Judicial Review ◽  
Administrative Law ◽  
The Rule Of Law ◽  
Administrative Action ◽  
Categorical Methods ◽  
Evaluative Judgement ◽  
Judicial Method

AbstractContextual review is a judicial method that rejects doctrinal or categorical methods to guide judicial supervision of administrative action. Judges are invited to assess the circumstances of a claim in the round without any doctrinal scaffolding to control the depth of scrutiny; in other words, intervention turns on an instinctive judicial impulse or overall evaluative judgement. This paper identifies and explains the various instances where this method is deployed in judicial review in Anglo-Commonwealth administrative law. The efficacy of this style of review is also evaluated, using rule of law standards to frame the analysis. Its increasing popularity is a worrying turn, in part because its reliance on unstructured normativism undermines the rule of law.

scholarly journals Contextual Review: The Instinctive Impulse and Unstructured Normativism in Judicial Review

2020 ◽  
Author(s):  
Dean Knight
Keyword(s):  
Rule Of Law ◽  
Judicial Review ◽  
Administrative Law ◽  
The Rule Of Law ◽  
Administrative Action ◽  
Categorical Methods ◽  
Evaluative Judgement ◽  
Judicial Method

© 2020 The Society of Legal Scholars. Contextual review is a judicial method that rejects doctrinal or categorical methods to guide judicial supervision of administrative action. Judges are invited to assess the circumstances of a claim in the round without any doctrinal scaffolding to control the depth of scrutiny; in other words, intervention turns on an instinctive judicial impulse or overall evaluative judgement. This paper identifies and explains the various instances where this method is deployed in judicial review in Anglo-Commonwealth administrative law. The efficacy of this style of review is also evaluated, using rule of law standards to frame the analysis. Its increasing popularity is a worrying turn, in part because its reliance on unstructured normativism undermines the rule of law.

Part IV Separation of Powers, Ch.24 Review of Administrative Action

2016 ◽  
Author(s):  
Jalan Prateek ◽  
Rai Ritin
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Executive Power ◽  
Indian Constitution ◽  
Administrative Action ◽  
Administrative Review ◽  
Consistent Basis ◽  
Indian Supreme Court ◽  
Legislative Review

This chapter examines the concept of administrative review in the context of the Indian Constitution, with particular emphasis on how administrative actions are reviewed under Article 14. It first considers whether administrative review is different from legislative review, and especially whether the grounds of judicial review under Article 14 apply to the same extent when it comes to the validity of legislation compared with administrative action. It then discusses the scope of the power of administrative review under the concept of ‘reasonableness’ and whether this concept has been applied on a consistent basis. It also comments on the inherently abstract and imprecise nature of the concept of ‘reasonableness’ and how this has contributed to the lack of a judicially manageable test or standard for analysing the various cases adjudicated by the Indian Supreme Court. Finally, the chapter discusses the nature of executive power and how it may influence an adjudication of reasonableness.

Facticity

2020 ◽  
pp. 899-916
Author(s):  
Paul Daly
Keyword(s):  
Judicial Review ◽  
Traditional Approach ◽  
Common Law ◽  
Comparative Perspective ◽  
Evolutionary Path ◽  
England And Wales ◽  
Factual Error ◽  
Administrative Action ◽  
The Common ◽  
The Law

This chapter analyses, from a comparative perspective, the law of judicial review of administrative action as it relates to factual error. The analyses is conducted in four common law jurisdictions (Australia, Canada, England and Wales, and Ireland), which have a ‘filial relationship’ as part of the common law tradition of controlling administrative action through the ordinary courts. The chapter outlines the traditional approach to judicial review of factual error in the four jurisdictions, characterized by limited judicial oversight of issues of fact. Next, the chapter describes the recent evolution in the law of judicial review of factual error. Although the evolutionary path has not led to the same destination in each jurisdiction, there has been increased judicial willingness to examine alleged factual errors in judicial review proceedings. However, the factors which have influenced the evolution of the law are different in each jurisdiction.

Understanding Administrative Law in the Common Law World

2021 ◽  
Author(s):  
Paul Daly
Keyword(s):  
Future Development ◽  
Judicial Review ◽  
Common Law ◽  
Administrative Law ◽  
Administrative Action ◽  
The Core ◽  
The Common ◽  
The Law ◽  
Pluralist Approach ◽  
Core Features

This book has three goals: to enhance understanding of administrative law; to guide future development of the law; and to justify the core features of the contemporary law of judicial review of administrative action. Around the common law world, the law of judicial review of administrative action has changed dramatically in recent decades, accelerating a centuries-long process of incremental evolution. This book offers a fresh framework for understanding the core features of contemporary administrative law. Through comparative analysis of case law from Australia, Canada, England, Ireland and New Zealand, Dr Daly develops an interpretive approach by reference to four values: individual self-realisation, good administration, electoral legitimacy and decisional autonomy. The interaction of this plurality of values explains the structure of the vast field of judicial review of administrative action: institutional structures, procedural fairness, substantive review, remedies, restrictions on remedies and the scope of judicial review, everything from the rule against bias to jurisdictional error to the application of judicial review principles to non-statutory bodies. Addressing this wide array of subjects in detail, Dr Daly demonstrates how his pluralist approach, with the values being employed in a complementary and balanced fashion, can enhance academics’, students’, practitioners’ and judges’ understanding of administrative law. Furthermore, this pluralist approach is capable of guiding the future development of the law of judicial review of administrative action, a point illustrated by a careful analysis of the unsettled doctrinal area of legitimate expectation. Dr Daly closes by arguing that his values-based, pluralist framework supports the legitimacy of contemporary administrative law which although sometimes called into question in fact facilitates the flourishing of individuals, of public administration and of the liberal democratic system.

scholarly journals REASON AND AUTHORITY IN ADMINISTRATIVE LAW

2017 ◽  
Vol 76 (3) ◽  
pp. 507-536 ◽  
Author(s):  
James A. Grant
Keyword(s):  
Decision Maker ◽  
Judicial Review ◽  
Administrative Law ◽  
Legitimate Authority ◽  
Administrative Action ◽  
Service Conception

AbstractIn judicial review of administrative action, the pivotal distinction between decisions about “jurisdiction” (for the reviewing court) and “the merits of the case” (for the administrative decision maker) is a source of much confusion. This article argues that jurisdiction should be understood as the scope of legitimate authority, the best theory of which is Joseph Raz's service conception of authority. As well as explaining how to determine jurisdiction, this article explains that a legitimate authority's intra-vires decision “pre-empts” the reviewing court's judgment on the merits, and that the concept of jurisdiction precludes any standard of reasonableness for reviewing a legitimate authority.

scholarly journals An Overview on the Abuse of Power in the Perspective of Corruption Law and Government Administration Law in Indonesia Based on the Criminal Justice System and the State Administration of the Justice System

2017 ◽  
Vol 96 ◽  
Author(s):  
Seno Wibowo Gumbira . ◽  
Ratna Nurhayati .
Keyword(s):  
Criminal Justice ◽  
Judicial Review ◽  
Justice System ◽  
Return Loss ◽  
Administrative Law ◽  
Criminal Prosecution ◽  
Constitutional Court ◽  
Abuse Of Power ◽  
Government Administration ◽  
State Administration

The abuse of power in Indonesia has been regulated in the realm of administrative law at the Law No. 30 Year 2014 on Government Administrationand Law No. 31 Year 1999 jo Law No. 20 Year 2001 onCorruption Eradication. The arrangement in those lawshas created an overlapping, overcriminilization and disharmony of law. This can be seen in Law No 30 Year 2014 on Goverment Administration,the sanctions of the abuse of powerare simply to return loss and can also be accompanied by dismissal, while in Law No 31 Year 1999 jo Law No. 20 Year 2001 onthe Eradication of Corruption with or without loss can be imprisoned and returning the loss will not remove the criminal prosecution. Other than that, there are potential linkage in the test to determine a state officials discretions between the Administrative Court and the Constitutional Court Post Pretrial Judicial Review Decision to<br />extend the authority of the Pretrial.<br /><br />Keywords: the Abuse of Power, Goverment Administration Law, Corruption Eradication Law

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