scholarly journals Ameliorating the collateral damage caused by collateral attack in administrative law

2020 ◽  
Author(s):  
Dean Knight
Keyword(s):  
New Zealand ◽  
Individual Case ◽  
Administrative Law ◽  
Collateral Damage ◽  
Criminal Proceedings ◽  
Administrative Action ◽  
Unique Character ◽  
Private Rights ◽  
Straightforward Approach ◽  
Public Bodies

Collateral attack is the indirect challenge of administrative decisions, instruments or actions in civil and criminal proceedings for the purpose of determining private rights. Collateral challenges are a common way litigants seek to contest actions of the executive or other public bodies, and represent a different mechanism for the courts to exercise their supervisory jurisdiction over administrative action. The New Zealand courts have adopted a straightforward approach to the doctrine of collateral attack, generally allowing such challenges. This paper explores the principles that underlie the doctrine of collateral attack and the potential difficulties that the doctrine creates. It is argued that the courts should take a more principled approach to determining whether collateral attack should be allowed in any individual case. A number of "touchstones" are proposed to ameliorate any collateral damage to administrative law's unique character while still ensuring that people are able to challenge the invalidity of administrative instruments, decisions or actions as and when they arise in civil and criminal proceedings

scholarly journals Ameliorating the collateral damage caused by collateral attack in administrative law

2020 ◽  
Author(s):  
Dean Knight
Keyword(s):  
New Zealand ◽  
Individual Case ◽  
Administrative Law ◽  
Collateral Damage ◽  
Criminal Proceedings ◽  
Administrative Action ◽  
Unique Character ◽  
Private Rights ◽  
Straightforward Approach ◽  
Public Bodies

Collateral attack is the indirect challenge of administrative decisions, instruments or actions in civil and criminal proceedings for the purpose of determining private rights. Collateral challenges are a common way litigants seek to contest actions of the executive or other public bodies, and represent a different mechanism for the courts to exercise their supervisory jurisdiction over administrative action. The New Zealand courts have adopted a straightforward approach to the doctrine of collateral attack, generally allowing such challenges. This paper explores the principles that underlie the doctrine of collateral attack and the potential difficulties that the doctrine creates. It is argued that the courts should take a more principled approach to determining whether collateral attack should be allowed in any individual case. A number of "touchstones" are proposed to ameliorate any collateral damage to administrative law's unique character while still ensuring that people are able to challenge the invalidity of administrative instruments, decisions or actions as and when they arise in civil and criminal proceedings

scholarly journals Rethinking Global Administrative Law: Formulating a working definition of “global administrative action”

2021 ◽  
Author(s):  
◽  
Luke Hilton
Keyword(s):  
South Africa ◽  
New Zealand ◽  
Global Scale ◽  
Administrative Law ◽  
Bottom Up ◽  
Global Institutions ◽  
Administrative Action ◽  
Working Definition ◽  
Dispute Settlements ◽  
Definition Of

<p>Global administrative law (GAL) aims to plug the “accountability deficit” in global institutions by projecting national administrative law principles onto the global scale. Global administrative action has been provisionally delineated as "rulemaking, adjudication, and other decisions that are neither treaty-making nor simple dispute settlements between parties”. But the concept has not yet been defined. The paper adopts a “bottom up” approach by analysing the domestic administrative law of America, New Zealand, and South Africa in order to construct a definition of global administrative action. The paper presents a working definition of the concept.</p>

A Values-based Approach

2021 ◽  
pp. 1-31
Author(s):  
Paul Daly
Keyword(s):  
New Zealand ◽  
Future Development ◽  
Administrative Law ◽  
Comparative Approach ◽  
Scholarly Literature ◽  
Administrative Action ◽  
The Core ◽  
The Subject ◽  
Individual Self ◽  
Core Features

This chapter introduces the means of achieving the three objectives of this book: to enhance the understanding, guide the future development and justify the core features of contemporary administrative law. First, the historical backdrop to the development, in recent decades, of general principles of administrative law is explained. Second, the four values which provide structure to the law of judicial review of administrative action are introduced: individual self-realisation, good administration, electoral legitimacy and decisional autonomy. Third, an explanation on how these values are used to interpret the core features of contemporary administrative law is given. Fourth, the chapter addresses the book’s comparative approach, justifying the choice of Australia, Canada, England, Ireland and New Zealand as its focus. Fifth, this chapter situates the book’s interpretivist approach, which relies on a plurality of values, in the existing scholarly literature on administrative law, noting that unlike others this book does not argue that there is one single meta-value, meta-principle or meta-concept around which the subject revolves. Lastly, this chapter provides an overview of the rest of this book.

scholarly journals Rethinking Global Administrative Law: Formulating a working definition of “global administrative action”

2021 ◽  
Author(s):  
◽  
Luke Hilton
Keyword(s):  
South Africa ◽  
New Zealand ◽  
Global Scale ◽  
Administrative Law ◽  
Bottom Up ◽  
Global Institutions ◽  
Administrative Action ◽  
Working Definition ◽  
Dispute Settlements ◽  
Definition Of

<p>Global administrative law (GAL) aims to plug the “accountability deficit” in global institutions by projecting national administrative law principles onto the global scale. Global administrative action has been provisionally delineated as "rulemaking, adjudication, and other decisions that are neither treaty-making nor simple dispute settlements between parties”. But the concept has not yet been defined. The paper adopts a “bottom up” approach by analysing the domestic administrative law of America, New Zealand, and South Africa in order to construct a definition of global administrative action. The paper presents a working definition of the concept.</p>

scholarly journals Procedural Safeguards under the European Convention on Human Rights in Public (Administrative) Law Matters

2018 ◽  
Vol 9 (2) ◽  
pp. 97-116
Author(s):  
Tina Sever
Keyword(s):  
National Level ◽  
Individual Case ◽  
Administrative Law ◽  
European Convention ◽  
Reasonable Time ◽  
The Rule Of Law ◽  
Administrative Procedure ◽  
Private Rights ◽  
Business Entities

Abstract The effectiveness of procedure is important for parties (e.g. citizens or business entities) to be able to exercise their rights in due time and is a key foundation of the rule of law. A State with an effective legal system provides a business-friendly environment, which is appealing for investments. The State decides on permits, licenses, taxes, etc. by applying administrative procedure. The aim of the paper is to identify and analyse such matters under public (administrative) law at the national level, which – due to their influence on private rights or obligations – fall under the civil or criminal limb of Article 6 of the ECHR and its requirements, as well as the requirements of Article 13. By means of a case study and descriptive-analytical and normative methods, the paper identifies comparatively selected cases and analyses the ECtHR test regarding reasonable time, focusing on overall procedure duration and the awarded compensations. The findings show that the ECtHR does not define reasonable time in abstracto. Therefore, the established violations among the states range from two-year procedures to nine years and more, depending on the circumstances of each individual case. Similarly, there are also variations in terms of compensation awarded.

scholarly journals La loi française du 11 juillet 1979 relative à la motivation des actes administratifs

2005 ◽  
Vol 21 (3-4) ◽  
pp. 961-984
Author(s):  
Georges Péquignot
Keyword(s):  
Prime Minister ◽  
Administrative Law ◽  
General Application ◽  
The Public ◽  
Administrative Action ◽  
Statutory Requirement ◽  
Unfavourable Effect ◽  
To Come ◽  
Made In

This paper summarizes the changes brought about in French administrative law by a law of 1979 imposing on administrative authorities a broad duty to give reasons for their decisions. Traditionally, the state of the law had been that, failing a specific statutory requirement, administrative authorities were under no obligation to provide reasons. This, however, had not prevented the Conseil d'État from reviewing administrative action — even of a clearly discretionary nature — for unlawfulness or impropriety of motives. The new law is aimed at improving communications between administrative authorities and the public. It reverses the former rule for three broad classes of decisions concerning individual cases : those having an unfavourable effect on rights and interests, those allowing for more favourable treatment than is provided under a rule of general application, and those made by social security and unemployment assistance agencies. Alleviation or disregard of the new rule is allowed in cases of emergency, where confidentiality or secrecy is required by law, or where, no decision being made in a prescribed time, a negative decision is deemed to have been rendered. Guidelines for the implementation of the new law have been issued by the Prime Minister to all Ministers; the latter have in turn issued more detailed instructions to decision-making officers in their departments. Further guidance will have to come from the administrative courts when they are called upon to review decisions for insufficiency or impropriety of reasons. Ultimately, however, achievement of the goal of improving the quality of intercourse between citizens and administrative authorities will require the development of a more open and trustful relationship between them.

scholarly journals Judicial Discretion in Sentencing: A Justice System that is No Longer Just?

2021 ◽  
Author(s):  
◽  
Sean J. Mallett
Keyword(s):  
New Zealand ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
Criminal Law ◽  
Justice System ◽  
Individual Case ◽  
Regional Disparity ◽  
Judicial Discretion ◽  
The Individual ◽  
Synthesis Approach

<p>One of the fundamental principles of the criminal law is consistency: like offenders must be treated alike. However, research has shown that when it comes to sentencing in New Zealand there is in fact substantial regional disparity in the penalty imposed on similarly situated offenders. The situation is unacceptable, and undermines the integrity of the criminal justice system. This paper will explore three different mechanisms for guiding judicial discretion in the pursuit of sentencing consistency. It will undertake an analysis of mandatory sentences and the ‘instinctive synthesis’ approach, both of which will be shown to be unsatisfactory. Instead, the paper will argue that the establishment of a Sentencing Council with a mandate to draft presumptively binding guidelines is the most appropriate way forward for New Zealand. This option finds the correct equilibrium between giving a judge sufficient discretion to tailor a sentence that is appropriate in the circumstances of the individual case, yet limiting discretion enough to achieve consistency between cases.</p>

scholarly journals 8. General principles of EU law and EU administrative law

2017 ◽  
Author(s):  
Herwig C H Hofmann
Keyword(s):  
Administrative Law ◽  
Eu Law ◽  
Applicable Law ◽  
Administrative Action ◽  
The Eu

This chapter examines the steps which take place after legislation has been passed. It also looks at the principles and rules that exist to ensure the legality and legitimacy of administrative action implementing EU law. It begins with an overview of the key institutions and agencies of the EU and what they do. It then discusses the applicable law which is key to developing notions of accountability and the protection of rights in this field.

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