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.

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.

scholarly journals The Principle of Proportionality in Comparative Perspective

2007 ◽  
Vol 8 (9) ◽  
pp. 835-869 ◽  
Author(s):  
Margherita Poto
Keyword(s):  
Member State ◽  
Political Institutions ◽  
Separation Of Powers ◽  
Administrative Law ◽  
Legal Order ◽  
Comparative Perspective ◽  
European Identity ◽  
Law System ◽  
Principle Of Proportionality ◽  
The Eu

This contribution will contain an analysis of important European dynamics, particularly at this moment when it seems to be necessary to restart the process of a unified European identity, which was, in a way, compromised after the failure of the EU Constitution and the difficulty of giving effectiveness to democracy:the EC professes democracy without being democratic. Thus the fragility of its political institutions, inherently perilous, necessarily reflects on the legitimacy of its legal order, while the constitutional balance intrinsic to the separation of powers ideal is dangerously absent. In other words, while in every Member State, the administrative law system forms part of a working system, this is not the case in the Community.

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.

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.

American Administrative Law in 1931

1932 ◽  
Vol 26 (5) ◽  
pp. 894-910
Author(s):  
Marshall E. Dimock
Keyword(s):  
Separation Of Powers ◽  
Administrative Law ◽  
State Courts ◽  
Abuse Of Power ◽  
Administrative Action ◽  
The Law

An analysis of administrative law cases which federal and state courts decided during 1931 reveals some exceptionally interesting problems and tendencies. These will be considered under the following main headings: (1) the separation of powers and administrative action, (2) principles regulating administrative determinations, (3) conclusiveness and appeal, (4) the law of officers, (5) the liability of officers, (6) community liability, and (7) the remedies against abuse of power.

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.

Judicial review and codification

Legal Studies ◽  
2000 ◽  
Vol 20 (4) ◽  
pp. 517-537 ◽  
Author(s):  
Timothy H. Jones
Keyword(s):  
United States ◽  
Judicial Review ◽  
Separation Of Powers ◽  
The United States ◽  
Democratic Legitimacy ◽  
Administrative Procedure ◽  
Advantages And Disadvantages ◽  
Administrative Action ◽  
Further Development

This article addresses the potential advantages and disadvantages of codifying the grounds of judicial review of administrative action. The four principal legal values associated with codification are described: certainty; clarity; democratic legitimacy; and rationality. The extent to which codification might further these values is considered in the light of two comparative models: the United States Administrative Procedure Act 1946 and the Australian Administrative Decisions (Judicial Review) Act 1977 (Cth). It is concluded that codification offers no solution to the practical and theoretical problems of judicial review. Codification places the content of the principles of judicial review in the hands of politicians. Australian legislation limiting the grounds of review available in migration cases shows the danger to the separation of powers inherent in codification. If it is thought desirable to foster the further development of the principles of judicial review, this can best be achieved by leaving the task to the judiciary.

Sign in / Sign up

Export Citation Format

Share Document