Judicial Review of Federal Administrative Action: Quest for the Optimum Forum

This book is about judicial review of public administration. Many have regarded this as dividing European legal orders, with judicial review of administrative action in the general courts or specialized administrative courts, or with different distance from the executive. There has been considerably less comparison of the basic procedural and substantive principles. The comparative study in this book of procedural fairness and propriety in the courts reveal not only differences but also some common and connecting elements, in a ‘common core’ perspective. The book is divided into four parts. The first explains the nature and purpose of a comparison to understand the relevance and significance of commonality and diversity between the legal systems of Europe, and which considers other legal systems which are more or less distant and distinct from Europe, such as China and Latin America. The second part contains an overview of the systems of judicial review in these legal orders. The third part, which is the heart of the ‘common core’ method, contains both a set of hypothetical cases and the solutions, according to the experts of the legal systems selected for our comparison, to the cases. The fourth part serves to examine the answers in comparative terms to ascertain not so much whether a ‘common core’ exists, but how it is shaped and evolves, also in response to the influence of supranational legal orders as the European Union and the Council of Europe.

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Institutional Structures

10.1093/oso/9780192896919.003.0002 ◽

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.

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

Administrative Justice Fin de siècle ◽

10.1093/oso/9780198867562.003.0002 ◽

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.

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14. The Effectiveness and Impact of Judicial Review

Public Law ◽

10.1093/he/9780198765899.003.0014 ◽

2017 ◽

Author(s):

Mark Elliott ◽

Robert Thomas

Keyword(s):

Judicial Review ◽

Legal Aid ◽

Legal Advice ◽

Administrative Action ◽

Review Procedure ◽

Legal Costs ◽

The Impact

This chapter examines the effectiveness and impact of judicial review in terms of the accessibility of judicial review, the competence and capacity of the courts to review administrative action, and the impact of judicial review on government. Access to judicial review is constrained in various ways. Legal costs, restrictions on legal aid, uneven access to legal advice and services, the variable operation by the court of the permission to proceed requirement, and delays within the court can limit the accessibility and effectiveness of the judicial review procedure.

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The Reasonableness of Proportionality in the Australian Administrative Law Context

Federal Law Review ◽

10.22145/flr.43.1.3 ◽

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.

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Defending Administrative Law

10.1093/oso/9780192896919.003.0009 ◽

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.

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