Judicial Review as a Mechanism by Which People Can Hold the Government to Account for Its Actions - Research Paper Example

Judicial review provides a mechanism by which people can hold the government to account for its actions. In considering a case in which a person alleges that there has been fraud or some other defect in the decision-making process, the court should not limit itself to assessing only whether the decision maker himself or herself is personally to blame.” 1. The Principle of Natural Justice The common law of principles of natural justice have been developed by the courts where there are no or inadequate statutory roles to provide for fair procedures. Fundamental to any action taken by someone in authority is the attitude of those who may be affected by such action that such action should be fair or correct or just, words scarcely any of which can be succinctly formulated by the person in the street, but which add up to a sense of fairness or justice. Underlying the processes of administration of the state is the fact that the ordinary citizen, who may be asking for a particular benefit or permission to carry out a particular form of activity or having his or her property or livelihood harmfully affected by the state, will be face to face in most cases with a complicated rule structure and a monolithic bureaucracy. There ought not to be added to whatever other grievance he or she may feel, the grievance of being treated unfairly. Rights of this sort were called ‘natural’ because they were derived from the concept of natural law which has its origins in ancient Greece and was an important part of the philosophy of the Stoic in particular. It was the Roman lawyers who first applied the principles of natural law and natural justice. The rules of natural justice are the most basic standards of fair decision making. It provide that no person shall be judge in his own cause and that each party must be given a fair hearing. The first rule demands that the adjudicator must have no bias. The second rule has two limbs. No person may be penalised by a decision of an adjucating body unless she has be given prior notice of the charge to be met and a fair opportunity to answer the case against here and to put forward her own case. The purpose of the rules of is to ensure that where an accusation is made, the accused has a right to be heard and to defend himself. In the case of Hefferen v the Committee of the UKCC 1998, a nurse gave a child the wrong injection but then realised her mistake and reported it to the doctor. She told the mother and also made a record in the child’s notes. However, she failed to write to the health visitor and sister in charge of the clinic. Consequently, when the error was discovered, they informed the health authority and the nurse was summarily dismissed. She was also removed from the register because of that mistake. When she made an appeal, the court found that the procedure followed by the Conduct Committee was unfair and reversed the decision. A change in the UKCC rules brought in new allegations at a later stage in the action against the nurse, thereby preventing her from defending her case adequately. In other situation, the court may decide to send the case back to the UKCC for the facts to be heard and decided on again (Fletcher and Holt 1995). “The ideas of natural justice are regulated by no fixed standard; the ablest and the purest men have differed upon the subject” (Crane 2002, p.40). In English law, the rules of natural justice comprise two fundamental rules. No one shall be condemned unheard and no shall be a judge in his own cause. It is a fundamental presumption of interpretation of statutes that no statute excludes natural justice unless the exclusion is expressly stated. The rules of natural justice had been applied to the criminal, common law and chancery courts for a long time (Pollard et. al. 2007). In the case of Ridge v. Baldwin, a borough watch committee dismissed a chief constable on the ground of misconduct. He challenged the decision arguing that the watch committee dismissing him did not observe the rule of natural justice, which requires that an applicant is given an opportunity to be heard before the decision of dismissal, is taken. The borough watch committee had a duty to uphold the professional and moral level of the borough constables, as it was put in the relevant legal rule that says “through appointment, suspension or dismissing any borough constables whom they think negligent in the discharge of his duty, or otherwise unfit for the same” (Shytov 2001, p.151). In the present case, the chief constable had been on trial in connection with conspiracy to obstruct the course of justice, the watch committee thought that it should take the appropriate course of action. Therefore, the issues was not whether the watch committee can dismiss or not but whether the watch committee is restricted in the exercise of its function by the rules of natural justice. The watch committee, as soon as the charge became known to it, immediately reacted and suspended the chief constable from his position. Although a jury on the criminal charges against him finally acquitted the chief constable, the watch committee decided that the he had been negligent in the discharge of his duties as chief constable and dismissed him from that office. No specific charge was formulated against him, although his solicitor was allowed later to address the committee. However, the decision had been already taken and the watch committee refused by a majority to reconsider its decision. The chief constable brought an action against members of the watch committee for a declaration that his dismissal was illegal, ultra vires, and void because the dismissal was contrary to natural justice. However, the judge in the court of first instance held that the watch committee was restricted by the principles of natural justice, but that in this case these principles were observed. The Court of Appeal also took a different view and held that the watch committee was not bound by the principles of natural justice to hold an inquiry of a judicial and quasi-judicial nature in taking the executive action of dismissing their chief constable. Finally, the House of Lords held that the dismissal was invalid as dismissing the appellant on the ground of neglect of duty, the watch committee was bound to observe the principles of natural justice by informing the appellant of the charges made against him and giving him an opportunity of being heard (Shytov 2001). The principles of natural justice were applicable in the case of office-holders, where there must be something against a man to warrant his dismissal and more generally, where a person’s existing rights were at stake. If dismissed, Ridge stood to lose the police pension he had already accumulated, thus his existing rights were at stake. It was argued for the watch committee that allowing him to address the committee would serve no purpose, as in the circumstance he could not remain Chief Constable. However, the Lords concluded that he could have been required to retire as an alternative to dismissal, which would not have cost him his pension. Since Ridge v Baldwin, case law has established that the principles of natural justice must be observed where a person has a ‘legitimate expectation’ that he will be granted a right, commonly in circumstance where a grant has been granted for a time-limited period, renewable on application (Herling and Lyon 2004). 2. SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 In the case of SZFDE v Minister for Immigration and Citizenship [2007] HCA 35, a Lebanese family was seeking asylum in Australia when they were defrauded into not appearing before the RRT. The Lebanese asylum seekers arrived in Australia in 2002 because of fear of persecution because of the wife’s published views questioning the position of women in the Islamic tradition. However, the Immigration Department refused to grant the family protection visas and they sought a review by the RRT. In the family’s formal statement, they claimed that Fahmi Hussain whose practicing certificate and registration was cancelled by the Council of the Law Society of New South Wales and Migration Agents Registration Authority in December 2001 and March 2002 respectively, represented himself to be a solicitor and licensed migration agent. SZFDE paid Mr. Hussain $8,400 for him to act for the family and lent him another $5,000. Mr. Hussain adviced the wife not to accept the RRT’s invitation to attend a hearing and instead write to the Minister because she might say something conflicting with what Hussain wrote. Hussain told the SZFDE that she would be certainly refuse as no visa applications were being accepted at that time. Mr. Hussain wrote to the Minister seeking a favourable decision but his requests were rejected. After a year, in October of 2003, the RRT affirmed the Immigration Department Decision because the SZFDE had not appeared before it and there were matters the RRT would have wished to explore with her. The Federal Magistrates Court in 2004 upheld the family’s application for judicial review because the family was actually dissuaded from appearing before the RRT by Mr. Hussains’s fraud. Consequently, it quashed the RRT’s decision and remitted the matter for reconsideration and in October 2006, the Full Court of the Federal Court allowed an appeal by the Minister in a 2-1 majority decision. When the family appealed to the High Court, the court held that on the evidence fraud had been perpetrated on both the family and on the RRT. Hence, the jurisdiction of the RRT remained unexercised and the Federal Magistrates Court was correct to grant the writ of certiorari to quash the RRT’s decision and the writ of mandamus to compel the RRT to re-determine the review of Immigration Department’s refusal of the family’s visa applications. The High Court held that Mr. Hussain’s conduct had the effect of obscuring the operation of the legislative scheme for the review of refugee decisions and denying the family natural justice. The RRT will then invite the family one more time to appear before it (High Court of Australia 2007). 3. Judicial Review In judicial review, the court’s primary role is to evaluate the way other policies have attempted to reconcile interest which are similar to those affected by whatever law is under review should be as helpful to those who press forward and defend claims of constitutional rights as to the judges who have the duty to decide. From the perspective of the litigants, the idea that the essential task of the court is to evaluate the strengths and weaknesses of competing policies and social programmes against fixed principles of fairness and justice would allow them to participate in the process of review in precisely the way many legal theorist think the process of adjudication works best. Rid of legal jargon and abstract definitions of legal concepts, persons who are not trained in the law would no be prejudiced or alienated in any way. Litigants would be directed to adducing proofs and reasoned arguments comparing definable states of affairs. Alternative policies and past decisions would be examined for the social benefits they would be expected to accomplish and the restrictions on human freedom they would entail. Claimants who adduced cogent to a Government or about how similar interest had been reconciled in the past, would be entitled to succeed. In the way, the parties to constitutional challenge would be called on to address the courts, judicial review would mirror exactly the way in which adjudication as a form of social ordering works best (Beatty 1994). “Judicial review is simply giving preference to the rule of the constitution over any legislative or executive act that conflicted with it” (Wolfe 1994, p.4). Judicial review or judicial control can be defined as the competence or power of courts to control that the other state branches do not overstep the limits of their powers; thereby influencing upon the prerogatives of other organs and that they do not infringe the rights of individuals. It is corollary of the very essence of the rule of law, a principle that is recognized in all western democracies, namely that the exercise of State power is limited. The State and all its organs, whether legislative, executive, administrative or judicial, are subjected to the law. The principle would be deficient without control on the respect of it by an independent organ, a court. All modern Western constitutions provide for some form of judicial control of State action by independent courts, even though the extent to which this judicial control can exercised varies in other States (Bakker et. al. 1995). “Judicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interest of the individual are protected accordingly” –Former Chief Justice of Australia in Groves and Lee (2007, p.7). 4. Administrative Law Administrative law according Halliday (2004) might be used to refer to the common law principles, which police the lawfulness of government behaviour. It can also be used to refer to the law of the administration, the substantive powers and duties of public agencies. It deal with the legal control of government and related administrative powers. This means that a significant emphasis on the subject is the control exercised by the High Court over the use of statutory powers by a wide range of administrative agencies (Hawke 1999). Administrative is law governing the legal authority of administrators to do anything that affects private rights and obligations (Lorch 1980). It provides specific rules which ‘concretise’ the overall purposive rationality of state action and rationalise state interventions into the social sphere (Thomas 2000). In reviewing government decisions, the courts may apply the common law principles of administrative law, but they may also consider agency’s compliance with statutory duties, which is both procedural and substantive. The legal control of government and other administrative powers also occurs in other ways, through the vast array of general appeals to the courts and, in particular, the inferior courts below the High Court (Hawke 1999). In Australia, administrative law has it own distinctive character. The influences that have shaped Australian administrative law are as divers as the values that have driven this process, but three are of particular importance. One influence is the English common law heritage, from which fundamental common law doctrines and interpretive principles are drawn. The Australian model of judicial review originated from the principles that governed English courts in their exercise of their supervisory jurisdiction to conduct judicial review. Australian and English judicial review have become increasingly different, particularly with the radical effect that the Human Rights Act 1998 in UK has had on English public law, but Australian administrative law still cannot be fully understood without reference to its English heritage. The Commonwealth Constitution is another significant influence upon Australian administrative law. The adoption of a written constitution marked a crucial point of difference between Australia and England. The constitution introduced a division or separation of powers that underpins the role of the courts and many other consequences that flow from that separation, such as the constitutional limitations on judicial power. A further key influence is the body of reforms, known as the ‘New Administrative Law’, which were adopted at the Commonwealth level in the 1970s and replicated in whole or in part in most states and territories. These reforms signalled the birth of uniquely Australian system of administrative law that continues to evolve (Groves and Lee). In Australia, administrative law means the legal principles governing the relationship between the government and the governed. The exercise of power by administrators, including the state, ministers, departmental officers, tribunal, boards and commissions must be based on legal authority. A system by which people can challenge government administrative activity and a scheme of rights in relation to government information handling. It must balance individual and collective interest because it is concerned with the legality of administrative behaviour, and legality is to a considerable extent determined by what the executive and parliament decide the law is to be. 5. Analysis of the Statement and Conclusion Judicial review as a mechanism for holding any government agency accountable for its action is undeniably essential since complicated rule structure and monolithic bureaucracy will confront an ordinary citizen pursuing such case through standard legal process. However, in considering a case particularly when a person claim that there has been fraud or some other inadequacies in the decision-making process, the court presiding a judicial review must at all times consider all relevant factors associated with the case. – TO CONTINUE 6. Reference List -TO FINALIZE LATER Read More