April 19

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 Singapore Court of Appeal has recently dismissed an application for judicial review of a Law Society review committee’s decision. The applicant claimed that the review committee had made errors of law in dismissing his wife’s complaint that her lawyers had made grossly excessive claims for party and party costs against her.

2. The UK Supreme Court has unanimously dismissed an application for judicial review of a decision taken by the Scottish Criminal Cases Review Commission. The applicant had challenged the Commission’s earlier decision not to refer the applicant’s rape conviction to the supreme criminal court in Scotland. The Supreme Court found that the Commission did not commit any of the alleged errors in law.

3. The Supreme Court of India is currently hearing a case challenging the validity of a 2016 legislation to provide all citizens with a unique identity number. The Act had been classified as a money bill, which allowed the bill to pass with a simple majority in the lower house. The government has argued that the Speaker’s decision to classify the legislation as a money bill is immune from judicial review and that, in any event, the Bill fulfils the constitutional requirements of a money bill.

4. A New Zealand High Court has dismissed a Maori tribe trust’s application for judicial review of two decisions by the Minister of Conservation, which granted concessions for guided tours to two reserves. The court placed heavy reliance on the Treaty of Waitangi, which imposes a duty on the Crown to actively protect the economic interests of Maori. The court held that the Minister and his delegates, notwithstanding their misstatements of law, did give effect to the Treaty principles.

5. The Malaysian Court of Appeal has allowed an appeal by “Sisters in Islam” against a High Court’s dismissal of its application to initiate a judicial review challenging a Selangor fatwa (edict) labelling the organisation as deviant. The case has been remitted back to the High Court for hearing.

6. By a majority, the South African Constitutional Court has enforced a contract, that it had earlier declared invalid, between the South African Social Services Agency (SASSA) and Cash Paymaster Services (CPS). The contract was for the latter to pay social grants on SASSA’s behalf. The Court declared that SASSA and CPS are both under a constitutional obligation to ensure payment of social grants to beneficiaries.

Recent Scholarship

1. Trevor W. Ezell, If Goliath Falls: Judge Gorsuch and the Administrative State, Stanford Law Review (2017) (conducts an analysis of Supreme Court nominee Neil Gorsuch’s administrative law decisions).

2. Joanna Bell, The Privy Council and the Doctrine of Legitimate Expectations Meet Again, The Cambridge Law Journal (2016) (describes and analyses the Privy Council’s decision on the doctrine of legitimate expectations in United Policyholder Group v Attorney General of Trinidad and Tobago).

3. Denise Wong and Mokoto Hong, Raising the Bar: Amending the Threshold for Leave in Judicial Review Proceedings Singapore Academy of Law Journal (2016) (argues for a higher threshold to be imposed in judicial review proceedings, where leave will be granted only where it is clear to the judge that the case is arguable based on the information and evidence available before the judge).

4. Michael Asimow and Yoav Dotan, Open and Closed Judicial Review of Agency Action: The Conflicting US and Israeli Approaches American Journal of Comparative Law (2016) (compares the US and Israeli approaches in terms of the materials that a reviewing court is permitted to consider and provides reasons for the differences that arise).

 

Current Events

1. The Trump administration has appealed a federal court’s partial temporary stay of his revised travel ban. This federal order, issued by Maryland’s southern district court, covers only the part of Trump’s travel ban relating to visa issuances from six Muslim-majority countries.

2. UK Prime Minister Theresa May is now empowered to begin the Brexit process under Article 50, as the EU withdrawal bill has now received royal assent. This was done on 29 March 2017.

3. Former Chief Executive of Hong Kong Donald Tsang was found guilty of misconduct in public office and sentenced to 20 months. He will appeal his conviction and sentence.

4. The Law Council of Australia has launched the Justice Project, a comprehensive national review into the impediments of justice in Australia. The Justice Project will focus particularly on the social and economic disadvantages that Australians face in the justice system.

5. The New Zealand Regulations Review Committee had previously made 11 recommendations to strengthen its Parliament’s legislative response to national emergences. The Government has recently released its response to the recommendations, generally agreeing with the recommendations but noting that the ability to respond flexibly and appropriately to each national emergency must be retained.

6. A Canadian federal judge who had asked a complainant in a rape trial inappropriate questions has resigned. The Canadian Judicial Council, which oversees federally appointed judges, had earlier recommended that he be removed from the bench.