Remedial Discretion in the Vavilov Era and the Theoretical Foundations of Judicial Review

The contemporary public law jurisprudence of the High Court has transformed the basis of judicial review of executive action, removed traditional restraints on the scope of executive power, reinforced the separation of powers, and transformed the federal compact by identifying new constitutional limits on State institutions. The High Court has, over the last two decades, emphasised the constitutional dimension of a number of terms found in the Constitution by characterising them as “constitutional expressions”. These expressions have been imbued with substantive force by identifying a bundle of essential characteristics of each such expression, being characteristics that Parliament cannot alter. The impact of this new approach on executive power has been the emergence of a constitutional foundation for Commonwealth and State administrative law, a renewed focus on the constitutional foundation of executive authority, and the extension of the separation of powers doctrine to State institutions. This development is of profound significance for the entire range of interaction between the judiciary and executive government.

The state policy has shifted away from the laissez-faire ideology that advocated minimal interference of government in the financial affairs of the state and individualism, in favor of the welfare state theory, which emphasizes collective action, socio economic rights, and state-directed policy. The discretionary, regulatory, and managerial powers of the administrative authorities are enormous. Since there is no codified body of administrative law, the administration's discretion in exercising its powers is subject to its own interpretation, rather than being constrained by any objective standards. Judicial review aids in maintaining checks and balances to prevent the abuse of power by other government organs. In India, the laws in relation to the judicial review of administrative actions have been derived from the common law. The author asserts that judicial control of administrative actions refers to courts oversight on actions of the government based on the norms established by the court.

The substantive law of judicial review of administrative action has grown in leaps and bounds in recent decades. However, the procedural law has lagged behind. On issues such as the content of the record on judicial review applications, the extent to which administrative decision-makers can participate in judicial reviews of their decisions, superior court review of federal prison decisions and tribunals’ capacity to reconsider their decisions, Canadian courts have recently come under pressure to update the procedural law to bring it into line with the substantive law. I develop a set of considerations which courts ought to keep in mind when updating the procedural law. Courts should not automatically assume that the procedural law of judicial review must move in lockstep with its substance. Wary of the dynamic relationship between procedure and substance in the common law tradition, mindful of constitutional fundamentals and sensitive to the need to develop the common law in an incremental fashion, consistent with those values that are immanent in the law, the judges should exercise caution in reshaping the procedural law of judicial review of administrative action. I apply the set of considerations to four areas of procedural law, concluding that Canadian courts have struggled with some issues – tribunal reconsideration and tribunal standing – but have done reasonably well on others – superior court jurisdiction over federal prisons and the content of the record. Indeed, the latter provides a model for the future development of the procedural law of judicial review of administrative action by Canadian courts.

Since the late 1990s it has become increasingly clear that the Commonwealth Constitution is the dominant influence upon judicial review of administrative action in Australia. The Constitution provides for a minimum entrenched provision of judicial review by recognising and protecting the supervisory jurisdiction of the High Court. This protection comes at a price because the separation of powers doctrine and the division and allocation of functions it fosters impose many limits upon the reach and content of judicial review of administrative action. This protective and restrictive effect of the separation of powers upon judicial review of administrative action arguably reflects a wider tension in the separation of powers, in which the powers and limits of each arm of government are balanced in a wider sense.The extent to which these competing principles apply to judicial review at the State level has long been unclear. There seemed good reason why judicial review at the State level should not be subject to the restrictions that have arisen at the federal level. After all, the various State constitutions did not adopt an entrenched separation of powers like that of the Commonwealth Constitution.

I focus in this essay on judicial review of administrative action, looking at the subject “from the inside, trying to make sense of lawyers’ reasons and arguments as they are actually presented and defended”. Rather than starting from the constitutional basis of judicial review and working backwards to practice, I start by identifying the core values revealed by the practice of administrative law and then work forwards to analyze how they influence the shape and trajectory of the law.My focus is on administrative law doctrine. I contend that administrative law in this sense is best understood by reference to several core values: the rule of law, good administration, democracy and separation of powers. I trace the contours of these values in Part II. These values inform doctrinal choices that courts make in the areas of process, substance and remedial discretion, a body of law considered in Part III. Occasionally they must be complemented by institutional considerations, discussed in Part IV, centering on the need to conserve scarce judicial resources but taking account also of the role of judges in the common law tradition. I take the time in this paper to discuss important areas of administrative-law doctrine and determine whether judicial decisions are influenced by a set of values. Identifying these values is a useful task. Explaining doctrinal rules and outcomes in particular cases is valuable, all the more so if common themes can be traced across very different areas of administrative law. A values-based framework is capable of accommodating the development of doctrine over time, an urgent matter given the rapid growth of the administrative state and legal constraints on it in recent decades. It may also help to account for convergence and divergence across the common-law world: Commonwealth countries have (largely) a common heritage, one which they treat in different ways, but (generally) in a fashion that is comprehensible to all common lawyers, not just the natives of a particular jurisdiction.

This chapter provides a comparison of the discipline of judicial review of administrative action in Latin America and in Europe. In terms of judicial review in Latin America, international organizations did not exercise an 'integrative influence' as the Council of Europe and the European Union did in Europe. It may be said that the relative homogeneity of the systems of judicial review in Latin America is mainly the result of the cultural polity formed by many states resulting from the disintegration of the Spanish and Portuguese domains. The chapter then considers the main points of the general part of Professor Brewer-Carias's report on the discipline of judicial review of administrative action in Latin America, which shows a situation very similar to the European one. These include the nature of judicial review; administrative procedure and judicial review; procedural infringements; administrative appeals; monism and dualism; and judicial proceedings.

The law relating to the scope of judicial review of administrative action is somewhat unclear and has a particular tendency to be decided on a case-by-case basis. Indeed, amenability to judicial review will often turn on the application of particular constitutional, statutory or regulatory provisions: in Australia and Canada, for instance, there are multiple judicial review jurisdictions, at federal and state/provincial/territorial level, each with their own idiosyncrasies. This chapter argues, nonetheless, that administrative law values are helpful in understanding the decided cases, with individual self-realisation, good administration, electoral legitimacy and decisional autonomy providing meaningful guidance in navigating the jurisprudence. This chapter also offers some suggestions as to how the law relating to scope of judicial review could be improved, further underscoring how useful it is to understand the law of judicial review of administrative action in terms of administrative law values.

This chapter studies administrative procedure and judicial review in Hungary. Section (1) of Article XXVIII of the Basic Law of Hungary (the Constitution of 2011) regulates the right to a fair trial reproducing the text almost word-for-word as found in Article 6 of the European Convention on Human Rights (ECHR). Consequently, anyone effected by an administrative measure has the (constitutional) right to judicial review. Section (7) guarantees the right to legal remedy against decisions of the courts, the public administration, or other authorities that infringe their rights or demonstrable interests. The two regulations are effective even separately, but their combined effect is that the judicial review of administrative action is an incontestable constitutional right. Administrative courts decide on the legality of the administrative action from the point of view of substantive and procedural administrative law, the judicial review is regulated by Act I of 2017 on the Code on Judicial Review of Administrative Actions, while a lawsuit for damages is heard by the ordinary court in a civil law procedure regulated by Act CXXX of 2016 of the Code of Civil Judicial Procedures.

In his classic text, Judicial Review of Administrative Action, Professor de Smith drew out from the prerogative writs a body of general principles relating to judicial review of administrative action. Published in 1959, de Smith’s book wove a principled pattern from disparate strands of jurisprudence. His landmark work set the scene for the development of a common law tapestry of judicial review of administrative action, which by the end of the century had definitively replaced the earlier patchwork quilt of case law. I begin with an introduction to the author of the text and a description of the 1959 text (“The Work”). Subsequently, I explain the background against which the text was written (“The Context). I then consider its importance in the development of contemporary administrative law (“The Significance”). I conclude by considering the evolution of Judicial Review of Administrative Action in the decades after its progenitor’s death and the evolution of the law of judicial review of administrative action (“The Legacy”). In both its creation and its evolution in the hands of others, Judicial Review of Administrative Action has been of central importance to the common law tradition of administrative law.

Looking at Swiss administrative law from a Quebec perspective, this paper outlines some aspects of the Swiss system that provide useful models or references for the discussion and resolution of current issues in Canadian and Quebec administrative law. These issues are identified as (1) the proliferation of independent administrative agencies, and the means to control or at least systematize the growth of such structures ; (2) the desirability and feasibility of enacting general standards of procedure for administrative action ; (3) the simplification of remedies in the field of judicial review of administrative action ; (4) the desirability and feasibility of allocating judicial review powers to a specialized court, either within or outside the Superior Court ; and (5) the desirability and form of a procedure allowing for political intervention in the decision-making process of independent agencies. In the light of these issues, the paper describes the allocation of review functions between administrative and judicial bodies in Swiss federal law. The structure and activity of the Swiss Federal Court (Tribunal fédéral), and especially of the division of the Court that deals with most administrative law cases, are outlined in some more detail. A short historical sketch leads to a discussion of the corresponding features of the law in some of the cantons, and to consideration of the special position given to social security matters in the general scheme of administrative law. The paper then focusses on administrative action itself, commenting on the most significant provisions in the Federal Administrative Procedure Act (Loi fédérale sur la procédure administrative) of 1968. Special attention is paid to the process of review within the administration, up to the level of the federal cabinet (Conseil fédéral). Corresponding provisions in the law of some of the cantons are also briefly discussed. The description of the federal review process is then completed by an outline of the procedure for judicial review of administrative action by the Federal Court (Recours de droit administrative). Finally, notice is again taken of the special position of social security as regards administrative procedure. The paper draws attention, in its concluding part, to the most interesting insights provided by Swiss law into the current problems of Canadian and Quebec administrative law. The growth of administrative tribunals has been brought under control by structural arrangements, especially in the field of social security. The introduction of general standards of procedure has brought greater uniformity and clarity, has emphasized the unity of administrative process including the review phase before administrative or judicial authorities, and has strenghtened the rule of law over government action. The existence of a single procedure to invoke judicial review eases access to the court. While in many cases review by the court is excluded, these exclusions have to be specific, and leave full opportunity for review within the administration, with adequate safeguards provided by the Administrative Procedure Act. Specialization occurs within the Federal Court, and does not involve a rigid separation between judges applying administrative law and judges applying other branches of the law, as in France or Germany. Finally, ultimate political control over certain types of decisions is admitted as a part of life in Swiss federal law, but is at the same time subjected to a quasi-judicial procedure which makes it an acknowledged source of administrative justice.

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.

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.

The Constitution introduced judicial review of administrative action as a separate jurisdiction distinguishable from every other judicial process. By confining the competence and jurisdiction of the Supreme Constitutional Court of Cyprus to judicial review of action or inaction of the Administration, the purity of the system of separation of powers is preserved as well as that of the judicial process. The public domain is contrasted to the private domain of law. Public administration operates as a rule in the public domain but its competencies do not end there. The Constitution introduces a strict time limit within which acts or decisions of the Administration can be challenged by way of judicial review. Decisions of the Court under Article 146.4 are binding upon all organs and authorities of the Republic.Keywords: administrative action; Cyprus; judicial review; public administration; public domain; Supreme Constitutional Court

Judicial review is the power of a court to examine legislative, executive, and judicial activities to ensure that they are constitutionally valid. It is one of the best instances of constitutionalism, which promotes the concept of power restraint. The paper would be focusing on the judicial review of administrative acts, which are actions taken by government agencies. These agencies are governmental bodies that have an impact on people's rights by setting rules, adjudicating cases, and conducting investigations, among other things. It can take many different forms, such as a board, office, officer, or company. The article will include a comparison of India with the United Kingdom in terms of judicial review of administrative action. As far as the Indian situation is concerned, this paper would address certain grounds of judicial review, followed by many significant theories such as the notion of legitimate expectation, public responsibility, and proportionality in the justification of judicial review. In addition, the author shall also deal with the judicial review in the United Kingdom and the various related principles such as the Wednesbury principle. And at the last, the paper would look at the practice of judicial review of administrative actions and practical implications in light of various legal precedents

Owing to its focus on statutory interpretation, judicial review of administrative action in Australia has been perceived to be ‘formalist’, particularly when compared with review in comparable nations such as England. This led Michael Taggart to characterise review in Australia as ‘exceptionalist’. The judgment of Brennan J in Attorney-General (NSW) v Quin, in which Brennan J emphasised the importance of courts remaining away from ‘the merits’ of administrative decision-making while exercising the supervisory jurisdiction has become closely associated with the view that review in Australia is rigid and formalist. In this article, I re-evaluate the judgment of Brennan J and place it in the context of its facts and of its time. This helps to reveal that the approach to judicial review of administrative action set out by Brennan J in Quin should not be seen as formalist. Rather, both Brennan J’s approach and the contemporary ‘statutory approach’ to judicial review can be seen as informed by values connected with what are understood to be the appropriate functions of each institution of government found within the Australian political system.