May 31

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 Indian Supreme Court has ordered the medical examination of Calcutta Justice C S Karnan. The judge is facing contempt proceedings. The Court has also restrained the judge from exercising any administrative or judicial power and has directed all courts and tribunals from taking cognisance of any orders that he has made after the initiation of proceedings.

2. The New Zealand Broadcasting Standards Authority has dismissed a complaint under Standard 8 of the Radio Code of Broadcasting Practice that a discussion on raising the youth justice age was unbalanced. The Authority found that the discussion was on a controversial issue of public importance but that alternative viewpoints had been acknowledged in the programme.

3. The High Court of Australia has found that Mr Robert John Day AO was incapable of sitting as a senator and that the vacancy opened by this seat should be filled by a special count of the ballot paper. The Constitution states that any person who has any “direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth” is incapable of being chosen as a senator.

4. The Malaysian Federal Court has declared that the 1988 amendment to the Constitution that checks the power of the judiciary is contrary to the basic structure of the supreme law of the land. This decision departs from the Court’s earlier ruling that the superior court’s powers are those conferred by Parliament.

5. The UK Supreme Court has dismissed an appeal under Article 8 of the European Convention on Human Rights in relation to prosecution decisions made by the Crown Prosecution Service.

 

Recent Scholarship

1. Daniel Freund and Alistair Price, ‘On the Legal Effects of Unlawful Administrative Action’ South African Law Journal (2017) (explores how unlawful administrative action in South Africa, being neither void nor voidable, can have legal consequences both before and after judicial review proceedings).

2. Christopher N. Lasch, The Political Attorney General, JURIST – Academic Commentary (2017 ) (discusses US Attorney General Jeff Sessions’ position on “sanctuary cities”).

3. Po Jen Yap and Eric Chan, Legislative Oaths and Judicial Intervention in Hong Kong, Hong Kong Law Journal (2017) (the authors disagree with the Court of Appeal’s decision to disqualify two newly elected members of the Legislative Council from office; they argue that after the oath is deemed invalid, it should be left to the President of the Legislative Council to determine whether a lawmaker is to be denied a second chance of retaking the oath and be disqualified).

4.Paul Daly, The Signal and Noise in Administrative Law (forthcoming, University of New Brunswick Law Journal, 2017) (discusses recent decisions by the Supreme Court of Canada in administrative law cases, setting out criteria to distinguish between cases that modify administrative law doctrine and cases that merely deal with a substantive area of law).

5. Anthea Williams, Is the Crown Expected to be a Model Litigant in New Zealand? Public Law Review (2017) (examines the use of the “model litigant” in New Zealand jurisprudence, noting the inconsistency in how it has been applied against the Crown and the lack of a broadly accepted understanding of what it requires).

6. Jenna Sapiano, Courting Peace: Judicial review and peace jurisprudence, Global Constitutionalism (2017) (exploring how judicial institutions are as important as political institutions in sustaining a political settlement for peace).

 

Current Events

1. In the UK, a report by senior lawyers has warned that the lack of diversity among senior judiciary is a “serious constitutional issue”. The report calls for structural change to ensure that the judiciary reflects the UK’s ethnic, gender and social composition.

2. The UK’s Ministry of Justice has announced plans to separate 28 “dangerous extremists” from the rest of the prison population by placing them in one of three separation centres. Prisoners who are subject to separation are those who were involved in terrorism or are considered to pose a risk to national security.

3. The New Zealand Chief Ombudsman has reported that the police should have released its tactical operations report on an incident where a man was tasered following a vehicle collision. The police were justified in withholding camera footage of the incident but not the report.

4. In Singapore, the Attorney General’s Chambers (AGC) has recently celebrated its 150th year anniversary. Prime Minister Lee Hsien Loong, speaking at the 150th anniversary dinner, has said that the AGC is critical in upholding the rule of law and is a key pillar of Singapore’s survival and prosperity.

5. A public bill on genetic privacy, once it has been given royal assent, is likely to be referred to the Supreme Court of Canada. The bill criminalises the illicit sharing of genetic information and adds genetic characteristics as a prohibited ground for discrimination under human rights and federal labour laws.

6. In July, the Malaysian Federal Court is expected to hear the government’s appeal against a landmark ruling declaring a section of the Sedition Act unconstitutional. The ruling had found that the section violated the right to freedom of speech.

7. Hong Kong Equal Opportunities Commission chairman has said that Hong Kong needs more protection for the city’s sexual minorities, highlighting a recent court ruling that declared that gay civil servants should enjoy the same benefits as their heterosexual colleagues.