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

Author: Janina Boughey
Publisher: Hart Publishing
ISBN: 9781509907861

Published In: June 2017
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only
Paperback Edition ISBN: 9781509933105

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Description
Contents

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It is commonly asserted that bills of rights have had a 'righting' effect on the principles of judicial review of administrative action and 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 amongst 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 of these claims remain just that-as there has been limited detailed analysis of the issue, and no detailed comparative analysis of the claims' veracity.

This book analyses in detail 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 and the separation of powers. It will provide valuable reading for all those researching judicial review and human rights.

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