March 09

Administrative Law Digest


This post contains a roundup of recent developments (in and out of courts) and scholarship in the area of administrative law around the common law world. To submit content for our next update, please email us at alawblogorg@gmail.com.

 

Judicial Developments in Administrative Law

  1. The English Court of Appeal recently discussed the scope of the common law duty to give reasons.

  2. The Supreme Court of India held that the process of appointment of a Principal in an educational institution for minorities is open to judicial review. The autonomy of a minority institution does not dispense with the requirement to act fairly and in a transparent manner.

  3. The Federal Court of Canada rejected an application for judicial review of a decision by the Minister of Foreign Affairs, approving permits for the export of light armoured vehicles to Saudi Arabia. While the court held that the applicant had the necessary public interest standing, they ultimately concluded that the Minister did not commit a reviewable error. Under the relevant statute, the Minister is free to issue an export permit if he concludes that it is in Canada’s interest to do so, considering all relevant factors.

  4. The High Court of Australia dismissed the Construction Forestry Mining and Energy Union’s application for an order to show cause. The applicant had applied, inter alia, for a writ of prohibition to prohibit the respondent from taking action against the applicant in reliance on earlier court decisions (where the applicant’s officers had been found to be in contravention of fair work legislation).

  5. The New Zealand Court of Appeal found that the prosecution’s decision not to offer evidence in support of charges against an executive for the 2010 Pike River coal-mine explosion and the district court’s decision to dismiss the charges were amenable to judicial review. However, the court ultimately found the prosecution acted lawfully and dismissed the appeal.

 

Recent Scholarship

  1. Jason Buhi, Autonomy with Portuguese Characteristics: A Primer on the Privilege of Portugal’s Autonomous Regions for the Special Administrative Region Audience, Hong Kong Law Journal (2016) (analyses the relationship between Portugal and its’ two autonomous archipelagos with a view to understanding autonomy for Hong Kong and Macau).

  2. Niels Petersen, Legislative Inconsistency and the “Smoking Out” of Illicit Motives, American Journal of Comparative Law (2016) (undertakes a comparative study of consistency considerations in rights’ cases in five different constitutional or supreme courts to understand the ultimate function of such constituency considerations: to understand if the legislature has pursued different aims than the ones which were stated explicitly).

  3. Rayner Thwaites, The Changing Landscape of Non-Justiciability, New Zealand Law Review (2016) (argues that the contemporary Australian and British approaches to justiciability, although developed in very different contexts, are presently converging and situates New Zealand case law in relation to these developments).

  4. Rebecca Williams, Structuring Substantive Review, Public Law (2017) (examines the debate over whether the Wednesbury ground of review should be replaced by proportionality and argues for a third approach, focusing on the substance of what is allegedly wrong in the decision and how intensively it should be reviewed).

  5. Richard Kirkham, JR55, Judicial Strategy and Limits of Textual Reasoning Public Law (2017) (discusses with reference to a recent UK Supreme Court case, the judicial strategies that may be used to exert control over the exercise of discretionary power and assesses their limits).

  6. Preston Wong, Watchman, Watchdog, Warden and What More? The Constitutional Role and Autochtony of the Singapore Auditor-General Singapore Academy of Law Journal (2016) (the article seeks to plug the gap in local public law literature concerning public finance accountability through a case study of the accountability of the Singapore Auditor-General).

 

Current Events 

  1. Following broader constitutional changes to the elected presidency system, the Singapore Parliament passed proposed changes to the Presidential Elections Act of Singapore. Following these changes, the next Presidential election in Singapore will be reserved for Malay candidates.

  2. Paul Daly analyses President Donald Trump’s Executive Order on immigration and notes the problems of interpretation that surround the Order.

  3. The House of Lords Constitution Committee recently sat to hear evidence on the constitutional implications of disentangling UK and EU law. More recently, the House of Lords debated the need to guarantee the right to remain to EU nationals in the UK after Brexit.

  4. Meanwhile, the UK Supreme Court is seeking new judges who will help to “improve its diversity”. Currently, out of the court’s 11 members, 10 are men.

  5. Following an earlier court ruling that it was unlawful (on, inter alia, equality grounds) to cut a male prisoner’s hair during his incarceration, the Hong Kong Correctional Services Departments is considering the introduction of a compulsory policy on haircuts for both male and female prisoners.

  6. The South African Social Security Agency is expected to approach the Constitutional Court to ask for permission to validate and extend that contract of a company that it currently uses to pay grants to millions of South Africans. The Constitutional Court had previously made a ruling that the contract was invalid and had ordered a re-run of the tender process.

  7. The New Zealand State Services Commissioner has appointed a former Solicitor-General to investigate allegations that former staff members of the Canterbury Earthquake Recovery Authority used their positions to advance their private business interests.