Bills of rights: the newest despotism? a comparison of the development of the principles of judicial review of administrative action in Australia and Canada
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thesis
posted on 2017-03-30, 04:13authored byBoughey, Janina Li
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. In making this argument, many point to the apparent ‘formalism’, ‘legalism’ and ‘conservatism’ of Australian administrative law as evidence, noting that Australia is an outlier amongst common law jurisdictions in having neither a statutory nor a constitutional framework to expressly protect human rights. Various other claims
about the interaction between bills of rights and the scope of judicial review of
administrative action have also been made by commentators and judges. However, for
the most part these claims remain just that—as there has been limited detailed
analysis of the issue, and no detailed comparative analysis. This thesis makes a
contribution to this relatively under-analysed topic by comparing the
development of the principles of judicial review of administrative action in Australia
and Canada in recent decades. It examines the procedural and substantive limits that
courts in each jurisdiction place on administrative powers, as well as the intensity of judicial scrutiny of administrative action, with the aim of assessing whether Canadian administrative law shows evidence of having become ‘righted’ or ‘stifled’ as a result
of Canada’s extensive human rights framework.
Awards: Winner of the Mollie Holman Doctoral Medal for Excellence, Faculty of Art, Design and Architecture, 2014.