September 01

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 High Court of Australia has rejected a claim that the Australian government can only lawfully exercise its powers outside of Australia for purposes that would be legal under the law of the relevant foreign country. Among other things, the court found that the plaintiff was unable to marshal authority and made no attempt to anchor this claim.
  2. The US Court of Appeals for the District of Columbia Circuit has ruled that Judge Scott Silliman should have rescued himself in a case concerning multiple defendants who were charged with aiding in the 9/11 attacks. The judge had previously expressed an opinion that the petitioner was guilty of the crimes of which he was accused.
  3. The Singapore High Court has refused to grant leave for a case involving a complaint against the former president of the Law Society. The court found that the claimant could not satisfactorily account for the delay in applying for leave and that the material before the court did not establish an arguable case or a prima facie case of reasonable suspicion in favour of granting the public law remedies sought by the plaintiff.
  4. The South African Constitutional Court has dismissed an application for leave by a trust against the Supreme Court of Appeal’s earlier decision to hold null and void a sale of site licence issued under legislation.

Recent Scholarship

  1. Daly, Paul, Brewing Up Reasons The Cambridge Law Journal (2017) (analyses the recent UK Supreme Court decision in Re Brewster’s Application, where they addressed the question of how much deference courts should afford post hoc rationalisations of decisions challenged for non-compliance with the European Convention on Human Rights)
  2. Stellios, James, The Masking of Judicial Power Values: Historical Analogies and Double Function Provisions Public Law Review (2017) (argues that in determining whether a power is judicial or non-judicial in character, the High Court of Australia uses two analytical techniques to expand judicial power: reliance upon historical analogy and viewing provisions as performing ‘double function’)
  3. Clopton, Zachary D., Diagonal Public Enforcement Stanford Law Review (2017) (explores the non-traditional form of regulatory litigation where public enforcers from one government enforce laws adopted by a second government in the second government’s courts)
  4. Harding, Andrew, Devolution of Powers in Sarawak: A Dynamic Process of Redesigning Territorial Governance in a Federal System, Asian Journal of Comparative Law (2017) (the article is based on a case study of the developing process of devolution of powers in Sarawak as an aspect of the operation of cooperative federalism in Malaysia)
  5. Suteu, Silvia, The Scottish Independence Referendum and the Participatory Turn in UK Constitution-Making: The Move Towards a Constitutional Convention Global Constitutionalism (2017) (article looks at the continued calls for popular participation in UK constitution-making following 2014 Scottish independence and 2016 Brexit referendums; discusses the prospect of a UK constitutional convention being set up to deliberate upon and make recommendations concerning constitutional reform)

Current Events

  1. The Supreme Court of India has sought the response of the National Investigating Agency and the Kerala government on a case involving a Muslim man whose marriage with a Hindu woman was annulled by the Kerala High Court.
  2. Canada’s inquiry into missing and murdered indigenous has lost another staff member, coinciding with an open letter signed by 150 indigenous leaders, activists and family members of victims calling for an overhaul of the inquiry.
  3. The President of the UK Supreme Court has called on the British government to state its position regarding rulings of the European Court of Justice after Brexit.
  4. The Prime Minister of Singapore has issued a writ election for Singapore’s first reserved election. The upcoming election is reserved for candidates from the Malay community, which hasn’t been represented by a head of state since 1970.
  5. Hong Kong’s Justice Minister has rejected “groundless” accusations that the government had an “ulterior motive” in securing tougher sentences for three young pro-democracy activities, who were jailed for six to eight months as a result last week.
  6. Meanwhile, the Court of Final Appeal of Hong Kong has dismissed an appeal by two pro-independence lawmakers contesting their disqualification from the legislature.
  7. The South African parliament has voted to keep President Jacob Zuma in office in a secret no-confidence motion.
  8. The New Zealand Motor Caravan Association has decided that it will take the Taupo District Council to the High Court over its proposed freedom camping bylaw, which bans freedom camping within a 100-meter buffer zone around Lake Taupo, if the bill goes ahead as drafted.
  9. Five unnamed transgender service members have filed a lawsuit against US President Donald Trump and various officials in his administration claiming that the president’s declaration that transgender individuals would no longer be accepted or allowed in the military violates, among other things, the Due Process clause in the constitution.