Human Rights and Judicial Review in Australia and Canada: The Newest Despotism?

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. Volume 16 in the series Hart Studies in Comparative Public Law Foreword Acknowledgements Contents Table of Cases Table of Legislation 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 Index