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Human Rights and Judicial Review in Australia and Canada: The newest despotism?

Human Rights and Judicial Review in Australia and Canada: The newest despotism?

By Janina Boughey

It is commonly asserted that bills of rights have had a 'righting' effect on the principles of judicial review of administrative action and have been a key driver of the modern expansion in judicial oversight of the executive arm of government. A number of commentators have pointed to Australian administrative law as evidence for this 'righting' hypothesis.

Administrative Tribunals Human Rights 

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  • Full description

    It is commonly asserted that bills of rights have had a 'righting' effect on the principles of judicial review of administrative action and have been a key driver of the modern expansion in judicial oversight of the executive arm of government.

    A number of commentators have pointed to Australian administrative law as evidence for this 'righting' hypothesis.

    They have suggested that the fact that Australia is an outlier among common law jurisdictions in having neither a statutory nor a constitutional framework to expressly protect human rights explains why Australia alone continues to take an apparently 'formalist', 'legalist' and 'conservative' approach to administrative law.

    Other commentators and judges, including a number in Canada, have argued the opposite: that bills of rights have the effect of stifling the development of the common law.

    However, for the most part, all these claims remain just that – there has been limited detailed analysis of the issue, and no detailed comparative analysis of the veracity of the claims.

    This book analyses in detail the interaction between administrative and human rights law in Australia and Canada, arguing that both jurisdictions have reached remarkably similar positions regarding the balance between judicial and executive power, and between broader fundamental principles including the rule of law, parliamentary sovereignty and the separation of powers.

    It will provide valuable reading for all those researching judicial review and human rights.

  • About the author

    Janina Boughey is Senior Lecturer at the University of New South Wales Faculty of Law. Janina's research focusses on the interaction between human rights and judicial review of administrative action, comparative administrative law, statutory interpretation, and the nature and limits of the constitutional powers of the judiciary and legislature to hold the executive to account.

  • Product details

    ISBN: 9781509907861

    Published: 2017

    Format: Hardcover

     

  • Table of contents

    1. Introduction

    I. The 'Righting' of Administrative Law?
    II. This Book's Contribution
    III. A Note on Methodology
    IV. The Scope of this Book
    V. The Structure of this Book

    Part I: Constitutional and Statutory Frameworks

    2. The Framework for Judicial Review of Administrative Action in Australia

    I. Australia's Constitution
    II. The Constitutional Status of Judicial Review
    III. Statutory Judicial Review Frameworks
    IV. Australia's Human Rights Framework
    V. Conclusions

    3. The Framework for Judicial Review of Administrative Action in Canada

    I. Canada's Constitution
    II. The Constitutional Status of Judicial Review
    III. Privative Clauses and the Standard of Review
    IV. Statutory Judicial Review Frameworks
    V. Canada's Human Rights Framework
    VI. Conclusions

    Part II: The Effects of Canada's Rights Framework on Judicial Review

    4. Procedural Fairness

    I. Overview of Rights to Fairness
    II. The Scope of the Common Law Duty to Afford Procedural Fairness
    III. The Content of Fairness
    IV. The Rationales for Fairness
    V. Litigants' Use of Fairness
    VI. Entrenchment of Procedural Fairness
    VII. Conclusions

    5. Controlling Discretion

    I. A Brief History of Judicial Attitudes Towards Discretion
    II. Controlling Discretion in Australia
    III. Controlling Discretion in Canada
    IV. Human Rights Controls on Discretion
    V. Conclusions

    6. Intensity of Review

    I. Intensity Under the Classic Model
    II. Intensity of Review in Australia
    III. Intensity of Review in Canada
    IV. Conclusions

    7. Conclusions

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