LAW FOR NON LAWYERS, SUMMATIVE ASSIGNMENT

Law for non lawyers, summative assignment

Law for non lawyers, summative assignment

Answer (a) and (b)

(a) Outline the fundamental essentials of an action based on judicial review.

Ans. Judicial Review Procedure Act to mark out that which was reviewable relying on injunctive and declaratory relief had contributed to the taking of this restrictive approach. The legislature may not have anticipated the way in which the courts read the “statutory power” requirement for injunctive and declaratory relief as also being a pre-requisite for obtaining orders in the nature of the prerogative writs. The legislature in the UK, however, plainly anticipated and intended that the “statutory power” requirement would restrict the availability of injunctive and declaratory relief. The legislature provided a detailed definition of the words “statutory power” that sought to mark out the preconditions for judicial review with greater clarity than had been the case at common law. Over the last century these common law rules and principles have gone through profound changes in both countries reflecting equally profound changes occurring in the other branches of their respective governments. The tensions that these changes have created have broader political dimensions that critical administrative law scholarship has focussed upon. The traditional search by the courts for coherence and consistency, both internally within the rules and principles of administrative law, and externally between administrative law and other areas of legal regulation, must now occur in an environment of increased legislative activity. The Australian parliament's efforts to set out the pre-requisites for judicial review under the ADJR Act appear unflattering by comparison. The equivalent requirement in the ADJR Act, namely that decisions of an administrative character must be “under an enactment”, was not the subject of any extended statutory definition. The words “under an enactment” were simply inadequate for the complex task that they were required to perform in the ADJR Act. In Griffith University v Tang, Gummow, Callinan and Heydon JJ contrasted the Kerr committee's recommendation that legislation be enacted that would authorise judicial review on legal grounds “… of decisions, including in appropriate cases reports and recommendations, of Ministers, public servants, administrative tribunals ... but not decisions of the Governor-General” with the manner in which the parliament chose to implement this recommendation: “… the adoption in the ADJR Act of the phrase 'a decision of an administrative character made ... under an enactment' directed attention away from the identity of the decision-makers, the Ministers and public servants referred to by the Kerr Committee, and to the source of the power of the decision-makers. The potential for executive and administrative decisions to affect adversely the rights, interests and legitimate expectations of the individual is now well recognised … . So, too, is the inadequacy of the prerogative writs as general remedies to compel the executive government and administrative bodies to operate within the limits of their powers … . The introduction of comprehensive statutory schemes such as that embodied in the Administrative Decisions (Judicial Review) Act 1977 (Cth) … owes much to ...