Administrative Law (Australia) - Research Paper Example

?Com Insert Insert Insert Administrative decision judicial review is the ity vested to review laws, court decisions, policies, or executive powers relevant to subjudice matters. The judicial reviews have been imposed in many states in search of equity and fair judgments. Judicial review has been made part of Australia’s legal process although there are no clear provisions in the constitution. According to Mark Tunshets,( Jones, Ian. The anisminic revolution in Australian administrative law: an analysis of extended jurisdictional error. Turramurra, N.S.W.: Local Legal, 1998. Print.) Judicial review in Australia has a lot of authority since it is only the high court that can interpret the constitution. Judicial review in Australia is complicated by clause 5 of the constitution. This clause provides that all the amendments done by the commonwealth parliament are binding to Australia. This is because the courts mandated to interpret the law must decide if the law is binding to Australia (Canberra, 2005). The chief justice Marshall asserted that judicial review is incredibly paramount in the Australian legal system(Fordham, Michael. Judicial review handbook. 5th ed. Oxford: Portland, OR :, 2008. Print.). In 1951, justice Fellugar proposed that the principle of Madison v. Marbury is adopted as axiomatic(Johnston, Richard E.. The effect of judicial review on federal-state relations in Australia, Canada, and the United States. Baton Rouge: Louisiana State University Press, 1969. Print.). This is because the many criticisms of the principle were accepted and justified. Despite an express implication in the constitution of Australia, judges and scholars have proposed that judicial review is paramount and has immense effects on the legal system. Judicial review is mostly done by the high courts since it is at the top of the legal structure. Though the other courts can deal with some constitutional issues, they are under the supervision by the high court. The essential jurisdiction which is conferred to High Court in section 75 is to issue prerogative and constitutional writs. This has been expanded in section 75(iii) whereby a person suing on behalf of the Commonwealth, is bonafied party.  Section 33 in the judiciary Act 1901 extends the authority of High Court to question public law (Le?tourneau 1976). A chief factor that has affected the levels of court review in High Court is the alternative remedies available which are not subject to the same limitations.  Declarations and injunctions are the key illustrations.  For instance, the declaration made by the high court that the commission on Queensland Justice did not observe fair procedures where mandamus was not appropriate and that certiorari did not mislead. Judicial decision reviews in Australia and other nations has seen the development of the legal systems. This is characterized by fair judgments, timely judgments, and equitable treatment of individuals by the judicature (Leon 1951). Though the other courts can deal with some constitutional issues, they are bound by the high court. The essential jurisdiction which is conferred in the High Court in section 75 is to issue prerogative and constitutional writs. The judicial reviews should be done with a lot of integrity because it might lead to a constitutional crisis as well as violence. No party should be biased or favored by a judicial review. The parties involved should be treated equally (Kanigsberg 1952). A) Compare the breadth and flexibility of ADJR “order of review “remedy with prerogative writs plus injunction and declaration. The judicial review remedies can be classified into three categories. These are prerogative writs, equitable remedies of injunction and declaration, and the statutory remedies. Though the other courts can deal with some constitutional issues, they are under supervision by the high court. The essential jurisdiction of the High Court in section75 (v) is to issue prerogative and constitutional writs Constitutional writs of the high court are also available under section 75(V) of the Australia constitution. Under this section, the high court has jurisdiction of granting prohibition, injunction, or mandamus against the officers of the commonwealth. These remedies have a limited effect since the courts should stop re-exercising administrator’s discretion. The limit is also due to the fact that there is no compensation on the ground of judicial review. To get damages or compensation, the complaint should be framed by a contract or tort. The remedy is discretionary and may be objected even if unlawfulness is detected. Most judgments say that there isn’t discretion when vitiating errors are manifest on the records, and the aggrieved person is the applicant. According to the high court jurisdiction this was resolved by the Refugee Review Tribunal (Ely, John Hart. Democracy and distrust: a theory of judicial review. Cambridge: Harvard University Press, 1980. Print). The mandamus prerogative writs are judicial commands addressed to compel a respondent to do a public duty. This remedy is not widely used since it contains significant technicalities. Mandamus is widely applied in the high court jurisdiction pursuant to section 75 of the constitution. It is seen in the case of Randall v Northcote Corporation (1910) 11 CLR 100. Mandamus has become exceptionally popular since it has discretion fro high court (Simpson 1995). Unlike prohibition and certiorari, mandamus has not been considered as limited because the power of the respondent is portrayed as quasi-judicial or judicial. Thus, it is clear that mandamus is present in respect to a decision by a magistrate whether to commit a defendant to trial even when the decision is immune from prohibition or certiorari. Generally mandamus is an order to do positive acts rather than not to do anything. These acts should not be of a continual nature. This remedy does not have a squashing effect (Kanigsberg 1952). A declaratory judgment or order is a courts statement or declaration resolving disputes as to the application or meaning of law appropriate to situations where the applicants have sufficient interest. The order has no mandatory effect at all. The views by the Orthodox are that declarations are mostly accompanied by consequential relief ordering certain conduct. Theoretically, declarations neither restrain nor command an action. This is the only applicable antidote to all the challenges involving the legality of government decisions. This is proved by the case of Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421. The high courts only grant injunctions to public law when a statute is viewed as having the intention to give statutory rights. Though the other courts can deal with some constitutional issues, they are bound by the high court. The essential jurisdiction which is conferred in the High Court in section75 (v) is to issue prerogative and constitutional writs. The courts have been extremely reluctant in granting injunctions to private individuals’ rights. The high court has suggested that some justices have been more flexible and broader for public law injunctions as seen in the case of Cooney v Ku-ring-gai Corporation (1963) 114 CLR 582 (Delany 2009). B) Compare ADJR error of law ground with common law concept of jurisdictional error (the latter is narrower in various respects); Australia has had problems in distinguishing jurisdictional errors from non-jurisdictional error due to administrative decision judicial review. It is the mandate of the Australian high court to deal with both jurisdictional and the administrative decision judicial review errors. Jurisdiction errors arises when decisions are affected by errors of law which influences it to identify wrong issues, ignore useful materials, ask wrong questions, to make erroneous conclusion (Clinton 1989). Most decision makers find themselves into a jurisdictional error because of reasoning and procedural ground as well as misplacing and misunderstanding substantive law. This is imperative to the litigants since some remedies are available for jurisdictional errors. In the case of the judicial review errors, there are remarkably few chances of amendment or review since there are constitutional procedures to be followed. The errors are likely to be caused by misunderstanding and misplacement of jurisdictional facts (Commonwealth Guide 1996). A jurisdictional error if not well analyzed can lead to a constitutional crisis or even spur violence in a nation. Individuals can claim compensation or damages on the grounds of administrative decision judicial review errors. Contrary to that, it will be exceptionally hard for an individual to claim compensation on the ground of jurisdictional error. This is because the legal procedure of correcting a jurisdiction error is easier and the error can be easily corrected (Simpson 1995). C) ADJR right to written reasons – importance thereof and what is required for adequate reasons; Most of the political philosophers such as Plato(Kanigsberg, R. A.. Prerogative writs: a paper delivered at the annual convention of the Nova Scotia Barristers' Society, held at the Pines, Dig by, N.S., on June 26, 27, 28, 1952. Halifax?: Nova Scotia Barristers' Society, 1952. Print.) thought that justice is the only significant foundation to the society. Slavery, conquest, and authoritarianism were seen as the only rule in the history of humans. In Marbury, (Johnston, Richard E.. The effect of judicial review on federal-state relations in Australia, Canada, and the United States. Baton Rouge: Louisiana State University Press, 1969. Print.) Justice Marshall raised his idea and said that the constitution puts a limit on the majority power. In the Australian legal system, the high court has the powers to declare acts that are unconstitutional and make the necessary changes (Hall 1990). Enforcing an unconstitutional law will be a breech of their constitutional oath. Marshal did not intend to claim that the courts have exclusive rights to pronounce a law unconstitutional but, this has been the interpretation of the statement. Marshall invalidated congress acts that purported to grant the courts such authority. Thus, the court acquired authority to issue mandamus writ. The judicial review powers and john Marshall’s idea of its legitimacy and existence has raised endless debate. Marshall’s argument was that judicial reviews were implicit in the written constitutions which had limited powers. The practice and theory of judicial review has been challenged regularly to make it democratic but, there has been a speculation that the results will not change. The most certain legitimacy of the judicial reviews is that they produce results that offend everyone. The importance of judicial review has been to determine if the new law is consistent with the constitution, as well as the commonwealth laws. The new laws are only evaluated when they are relevant to a law or are challenging the constitution. Judicial review has always ensured that all the laws are consistent to the constitution or other international standards (Ely 1980). Administrative judicial review is paramount since it allows different levels of the legal system to check executive powers. This ensures that all the people adhere to the constitution. This is a fundamental protection of people from the government. For instance, in the case of Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, an entrepreneur whose reputation was not seen to be good enough to participate in porker in Queensland got a declaration that he had bee denigrated unlawfully without being heard. To that effect the courts accepted claims of apprehend bias. According to Marbury v. Madison (Johnston, Richard E.. The effect of judicial review on federal-state relations in Australia, Canada, and the United States. Baton Rouge: Louisiana State University Press, 1969. Print.), the case established the importance of judicial review since it is only the courts that can declare the acts of the executive as unconstitutional. For example, in the case of Hylton v. America(Edwards, Harry T., and Linda A. Elliott. Federal standards of review: review of the district court decisions and agency actions. St. Paul, Minn.: Thomson West, 2007. Print) where legislation was a challenge by judicial review to repeal carriage tax imposed. The courts declared the tax as unconstitutional. This is because Hylton viewed the legislation as judicial reviews. The second case is ware v. Hylton,( Edwards, Harry T., and Linda A. Elliott. Federal standards of review: review of the district court decisions and agency actions. St. Paul, Minn.: Thomson West, 2007. Print.) This held that the Paris treaty superseded the Virginia statute and nullified the law by use of the supremacy clause. D) Analyse case law on some aspects of ADJR suggesting stultifying effect of legislatively defining the common law review grounds In reference to the constitution principles section 77, 122 and the case of Minister for Immigration and Ethnic Affairs v Conyngham(1986) 11 FCR 528, the ADJR act applies in the exercise of fundamental government powers, but it doesn’t apply in the exercise of state legislation powers. ADJR has prevented many judges from doing their duties in the right way. This is because there decisions can be challenged via a judicial review or on the grounds of judicial and jurisdictional error. The Australian law is not very rigid since it is subject to judicial reviews in the event there is a sign of unconstitutionality (Johnston 1969). The legal system of Australia has been very low in making changes in the legal system since the high court has a monopoly of authority dealing with the constitutional matters. Judicial review has been made part of Australia’s legal process although there have been no clear provisions in the constitution. According to Mark Tunshets,( Johnston, Richard E.. The effect of judicial review on federal-state relations in Australia, Canada, and the United States. Baton Rouge: Louisiana State University Press, 1969. Print. ) judicial review in Australia has a lot of authority since it is only the high court that can interpret the constitution. Judicial review in Australia has been complicated by clause 5 of the constitution. This clause provides that all the amendments made by the commonwealth parliament are binding to Australia. This is because the courts mandated to interpret the law must decide if the law is binding to Australia. This has derailed the justice system compared to the United Kingdom which has unwritten law and very minimal judicial reviews if any (Fordham 2008). Conclusion Administrative decision judicial review is the authority vested in courts to review laws, court decisions, policies, or executive powers relevant to subjudice matters. The judicial reviews have been imposed in many states in search of equity and fair judgments. The judicial review remedies can be classified into three categories. These are prerogative writs, equitable remedies of injunction and declaration, and the statutory remedies. Judicial review has been made part of Australia’s legal process although there have been no clear provisions in the constitution. ADJR has prevented many judges from doing their duties in the right way. This is because there decisions can be challenged via a judicial review or on the grounds of judicial and jurisdictional error (Jones 1998). Works Cited Canberra, A.C.T.: Administrative law horizons. Australian Institute of Administrative Law, 2005. Print. Clinton, Robert Lowry. Marbury v. Madison and judicial review. Lawrence, Kan.: University Press of Kansas, 1989. Print. Delany, Hilary. Judicial review of administrative action: a comparative analysis. 2nd ed. Dublin: Round Hall, Thomson Reuters, 2009. Print. Edwards, Harry T., and Linda A. Elliott. Federal standards of review: review of the district court decisions and agency actions. St. Paul, Minn.: Thomson West, 2007. Print. Ely, John Hart. Democracy and distrust: a theory of judicial review. Cambridge: Harvard University Press, 1980. Print. Fordham, Michael. Judicial review handbook. 5th ed. Oxford: Portland, OR :, 2008. Print. Guide to commercialization in the Commonwealth public sector. Canberra: The Dept., 1996. Print. Hall, Julia. The AD (JR) Act: comments on its workings in the field of broadcasting. Kensington, N.S.W.: Communications Law Centre, University of NSW, 1990. Print. Johnston, Richard E.. The effect of judicial review on federal-state relations in Australia, Canada, and the United States. Baton Rouge: Louisiana State University Press, 1969. Print. Jones, Ian. The anisminic revolution in Australian administrative law: an analysis of extended jurisdictional error. Turramurra, N.S.W.: Local Legal, 1998. Print. Kanigsberg, R. A.. Prerogative writs: a paper delivered at the annual convention of the Nova Scotia Barristers' Society, held at the Pines, Dig by, N.S., on June 26, 27, 28, 1952. Halifax?: Nova Scotia Barristers' Society, 1952. Print. Leon, Peter S. G.. Jurisdictional error in administrative law: a case study. S.l.: s.n., 1981. Print. Le?tourneau, Gilles. The prerogative writs in Canadian criminal law and procedure. Toronto: Butterworths, 1976. Print. Melbourne, Vic. Fighting the government in tax and commercial law disputes: the ADJR Act, freedom of information, Administrative Appeals Tribunal.. Melbourne: Business Law Education Centre, 1986. Print. Simpson, A. W. B.. Leading cases in the common law. Oxford: Clarendon Press;, 1995. Print. 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