The use and Enforcement of Soft Law by Australian Public Authorities

2014 ◽  
Vol 42 (1) ◽  
pp. 1-37 ◽  
Author(s):  
Greg Weeks
Keyword(s):  
Judicial Review ◽  
Public Law ◽  
Soft Law ◽  
Private Law ◽  
Public Authorities ◽  
Regulatory Aspects ◽  
Highly Effective ◽  
Judicial Remedies

Soft law is a pervasive phenomenon which is highly effective as a means of regulation in Australia, as it is in many other jurisdictions. This article will not focus on the regulatory aspects of soft law, but will examine the capacity of individuals to obtain remedies where public authorities fail to adhere to the terms of their published soft law. The available judicial remedies apply in very limited circumstances, both in private law actions (in tort or equity) and public law (judicial review) actions. Ultimately, the most effective ways to remedy breaches of soft law appear also to be ‘soft’, such as recommendations of the Ombudsman and discretionary schemes for ex gratia payments.

scholarly journals The possibilities of consensual resolution of judicial conflicts with the Public Administration

2018 ◽  
Vol 18 (72) ◽  
pp. 31-50
Author(s):  
Gabriel Perlingeiro
Keyword(s):  
Public Interest ◽  
Judicial Review ◽  
A Priori ◽  
Public Law ◽  
Clear Understanding ◽  
Private Law ◽  
Public Authorities ◽  
Public And Private ◽  
The Public ◽  
Legal Studies

This text endeavors to define the theoretical limits of the capacities of the public administrative authorities to reach consensual solutions to disputes within the framework of judicial review. It is motivated by the lack of a clear understanding in Brazilian law of the border area between the legal relations of public and private law involving the public authorities, and the expressions “inalienable right” (or “inalienable interest”) and “public interest” as shown by the inexplicable asymmetry between what the public administrative authorities can do within a judicial proceeding and outside one. Based on a comparative study of common law versus civil law legal systems and an examination of the treatment of the subject in Brazilian statutes, case law and legal studies, this article reviews the relationship between the public interest and inalienability, demonstrating, in conclusion, that the possibility of the administrative authorities to enter into settlements or follow similar practices should not be rejected a priori, even in cases of public law. According to the author, there are three possible scenarios in which public administrative authorities may resort to consensual dispute resolution in the context of the judicial review: in private-law relationships, in public-law relationships with respect to the exercise of administrative actions prescribed by law and public-law relationships with respect to the exercise of discretionary powers.

13. The nature of judicial review

2020 ◽  
pp. 277-308
Author(s):  
Neil Parpworth
Keyword(s):  
Decision Making ◽  
Judicial Review ◽  
Public Law ◽  
Executive Power ◽  
Decision Making Process ◽  
Private Law ◽  
The Public ◽  
Procedural Reform ◽  
Actual Decision ◽  
Public Bodies

Judicial review is a procedure whereby the courts determine the lawfulness of the exercise of executive power. It is concerned with the legality of the decision-making process as opposed to the merits of the actual decision. Thus it is supervisory rather than appellate. Emphasis is also placed on the fact that the jurisdiction exists to control the exercise of power by public bodies. This chapter discusses the supervisory jurisdiction of the courts, procedural reform, the rule in O’Reilly v Mackman, the public law/private law distinction, collateral challenge, and exclusion of judicial review. The procedure for making a claim for judicial review under the Civil Procedural Rules (CPR) 54 is outlined.

13. The nature of judicial review

2018 ◽  
Author(s):  
Neil Parpworth
Keyword(s):  
Decision Making ◽  
Judicial Review ◽  
Public Law ◽  
Executive Power ◽  
Decision Making Process ◽  
Private Law ◽  
The Public ◽  
Procedural Reform ◽  
Actual Decision

Judicial review is a procedure whereby the courts determine the lawfulness of the exercise of executive power. It is concerned with the legality of the decision-making process as opposed to the merits of the actual decision. Thus it is supervisory rather than appellate. This chapter discusses the supervisory jurisdiction of the courts, procedural reform, the rule in O’Reilly v Mackman, the public law/private law distinction, collateral challenge, and exclusion of judicial review. The procedure for making a claim for judicial review under the Civil Procedural Rules (CPR) 54 is considered.

Public Law Sources and Analogies of International Law

2018 ◽  
Vol 49 (4) ◽  
pp. 533
Author(s):  
Eirik Bjorge
Keyword(s):  
International Law ◽  
Judicial Review ◽  
Public Law ◽  
Executive Power ◽  
Private Law ◽  
Legal Basis ◽  
State Action ◽  
Legitimate Expectations ◽  
General Principles Of Law ◽  
Principle Of Legality

Are the "general principles of law recognised by civilized nations" capable of adjusting to the progress and needs of the international community? This article argues that they are, and that international law needs, to a larger degree than what has been the case, to draw on principles of public law. Those principles of public law are not to supplant, but to supplement, those of private law. The article analyses four principles: the principle of legality; the principle requiring positive legal basis for state action; the principle that even the highest emanation of the executive power cannot escape judicial review; and the principle of protection of legitimate expectations. If one takes account of the needs of international law, there is no reason whatever why today we should accede to the orthodoxy that the intention behind the concept of general principles is only to authorise a court to apply the general principles of municipal jurisprudence, in particular of private law, in so far as they are applicable to relations of states – if for no other reason than the fact that international law no longer governs only relations of states. 

Administrative Law

2021 ◽  
Author(s):  
Timothy Endicott
Keyword(s):  
Judicial Review ◽  
Common Law ◽  
Administrative Law ◽  
Public Law ◽  
First Century ◽  
Government Agencies ◽  
Private Law ◽  
The Subject ◽  
The Common ◽  
Twenty First Century

Administrative Law explains the constitutional principles of the subject and their application across the range of twenty-first-century administrative law. The focus on constitutional principles is meant to bring some order to the very diverse topics with which you need to deal if you are to understand this very complex branch of public law. The common law courts, government agencies, and Parliament have developed a wide variety of techniques for controlling the enormously diverse activities of twenty-first-century government. Underlying all that variety is a set of constitutional principles. This book uses the law of judicial review to identify and to explain these principles, and then shows how they ought to be worked out in the private law of tort and contract, in the tribunals system, and in non-judicial techniques such as investigations by ombudsmen, auditors, and other government agencies. The aim is to equip the reader to take a principled approach to the controversial problems of administrative law.

10. Judicial review: access to review and remedies

Public Law ◽  
2018 ◽  
Author(s):  
John Stanton ◽  
Craig Prescott
Keyword(s):  
Judicial Review ◽  
Case Law ◽  
Public Law ◽  
Private Law ◽  
Legal Basis ◽  
Legal Requirements ◽  
The Public ◽  
Meaning And Purpose

This chapter provides an introduction to judicial review and its various features and requirements. It starts by exploring the meaning and purpose of judicial review, explaining the particular functions of the courts and the jurisdiction that justifies their scrutiny of administrative matters. It then sets out the legal basis for judicial review and the process through which applications proceed, which while rooted in statute, has developed incrementally through both case law and the 1998 Woolf Reforms. The chapter considers issues relating to access to review, exploring the legal requirements that must be fulfilled before an application for judicial review can be entertained by the Administrative Court. This includes a discussion of standing, which determines who can bring a claim, and consideration of the issues relating to the public law/private law divide, which concerns against whom a claim can be brought and the matter upon which that claim can be founded.

Hunting the Chimera–the end of O'Reilly v Mackman?

Legal Studies ◽  
1993 ◽  
Vol 13 (2) ◽  
pp. 183-203 ◽  
Author(s):  
John Alder
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Public Law ◽  
Private Law ◽  
Public And Private ◽  
The Supreme Court ◽  
Review Procedure

The rule in O’Reilly u Mackman is well known. As a result of Lord Diplock’s speech in that case, the scope of the application for judicial review procedure under s 31 of the Supreme Court Act 1981 and RSC Ord 53, has been dominated by attempts to distinguish between public and private law. According to Lord Diplock, public law cases must normally be pursued under the special Ord 53 procedure whereas private law cases even though involving substantive principles of judicial review must be pursued in ordinary courts. There are also hybrid cases - chimeras which combine features both of public and private law. In such cases the challenger is apparently free to proceed either under Ord 53 or by way or ordinary action or defence. These hybrids are not easy to reconcile with the purposes and policies behind the O’Reilly rule.

Constitutional Principles and Judicial Remedies in Switzerland

2020 ◽  
pp. 77-79
Author(s):  
Thierry Tanquerel
Keyword(s):  
Judicial Review ◽  
General Principle ◽  
Administrative Authority ◽  
Public Authorities ◽  
Federal Level ◽  
Administrative Procedure ◽  
Civil Court ◽  
Federal Constitution ◽  
Judicial Remedies ◽  
Federal Structure

In Switzerland, the law concerning the liability in tort of public authorities is complex, due to the federal structure of government, and it is still evolving. Until twenty years or so ago, the Federal Constitution had no such thing as a general principle of damages liability, but such liability has been governed by statute since 1958. Now Article 146 of the Federal Constitution of 1999 provides that the ‘Confederation shall be liable for damage or loss unlawfully caused by its organs in the exercise of official activities.’ This provision solidifies the liability of all bodies discharging public functions and powers on behalf of the Confederation, but it is cantonal law that governs the liability of cantons and municipalities. There is thus a potentiality for differentiation, though actually all cantons regulate public liability along the lines of Article 146. There is, however, a mixture of commonality and diversity concerning administrative procedure. There is still another element of differentiation concerning judicial review, because in some cantons (and on the federal level) the claim for damages must be brought to an administrative authority, while in others it must be brought to an administrative or to a civil court.

13. The Judicial Review Procedure

2016 ◽  
Author(s):  
Mark Elliott ◽  
Jason Varuhas
Keyword(s):  
Human Rights ◽  
Judicial Review ◽  
Public Law ◽  
Private Law ◽  
Review Procedure ◽  
The Impact

This chapter examines the judicial review procedure, with particular emphasis on two issues: first, what judicial review procedure which claimants seeking a prerogative remedy are required to use; second, the extent to which a claimant seeking to raise a public law matter may avoid having to use the judicial review procedure by issuing a claim for an injunction or declaration. After providing a background on the origins of today's judicial review procedure, the chapter discusses the nature of the judicial review procedure and the impact of human rights claims on judicial review procedure. It also considers when the judicial review procedure must be used, focusing on procedural exclusivity, waiver of exclusivity, defensive use of public law arguments, and the connection between private law rights and public law.

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