March 01

Administrative Law Digest

This post contains a roundup of recent developments (in and out of courts) and recent 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 held that Courts do not have the power to review adjudication determinations made under the Building and Construction Industry Security of Payment Act (NSW) for non-jurisdictional error of law.
  2. The Federal Court of Malaysia held that the Registrar of Muallaf had no jurisdiction to issue certificates of In doing so, the Federal Court stated that the power to review actions of public authorities was within the jurisdiction of the civil courts.
  3. The Supreme Court of Appeal of South Africa allowed an application for judicial review to review a decision to dismiss an application for the recusal of two members of the Health Professions Council of South Africa on the grounds that the internal remedy available to the applicant to challenge the refusal was ineffective and inadequate.
  4. The United States District Court has blocked President Donald Trump’s executive order to end the Deferred Action for Childhood Arrivals Program, holding inter alia that the Plaintiffs are likely to succeed on the merits of their claim in showing that the decision to end the programme was substantively arbitrary and capricious.
  5. The Supreme Court of Canada upheld a decision by the Specific Claims Tribunal that found that Canada had breached their legal obligation to the Williams Lake Indian Band’s to protect the land of these indigenous people. The majority held that it was reasonable for the Tribunal to hold that there remained a fiduciary obligation between the Indigenous people and Canada to protect indigenous land from encroachment by settlers and to adequately remedy any wrongs that eventuated.
  6. The UK High Court allowed a legal challenge to proceed over whether 21st Century Fox is “fit and proper” to hold a broadcasting license under the control of Rupert Murdoch as assessed by Ofcom.
  7. The Hong Kong Court of Final Appeal quashed the jail terms of three pro-democracy activists involved in the “Occupy Central” movement on the basis that, inter alia, the new sentencing structure formulated by the Court of Appeal could not be applied retrospectively even though they agreed with the stricter sentencing guidelines for unlawful protests to be applied to subsequent cases for deterrence purposes.
  8. The Indian Supreme Court has prohibited caste councils (Khap Panchayats), which exercise de facto quasi-judicial power in villages, from interfering in marriages between two consenting adults.
  9. The UK High Court allowed an application for judicial review of reforms to the Government’s universal credit rollout program which is claimed to leave severely disabled people in significant financial difficulty.
  10. The Indian Supreme Court quashed all iron ore mining permits in Goa following a petition by the Goa Foundation for the mining to halt in the area on the basis that, inter alia, there was a prior court order for the granting of ‘fresh leases’ instead of the granting of a second renewal of the mining leases, and that the second renewal of the mining leases was unduly hasty and did not take all relevant material into consideration and ignoring available relevant material, and was therefore not in the interests of mineral development.
  11. An appeal will be made to the Supreme Court of New Zealand by Fairfax and NZME against a High Court decision that affirmed the decision not to approve the merger of the two businesses on the basis that the benefits were outweighed by the loss of plurality in the journalism industry.

Recent Scholarship

  1. Parrillo, Nicholas R., The Endgame of Administrative Law: Governmental Disobedience and the Judicial Contempt Power, Harvard Law Review, 131 Harv. L. Rev. 685, (explores the US Federal government’s compliance with court orders and argues that there is unwillingness within the higher courts to follow through on contempt sanctions, but recognises that these contempt findings have a shaming effect which acts to some extent as a form of deterrence).
  2. Zoldan, Evan, Is the Federal Judiciary Independent of Congress, Stanford Law Review Online, 70 Stan. L. Rev. Online 135 (2018) (explores the question of whether Congress can command a federal court to rule in favour of a particular party in a pending case, Patchak v. Zinke (No. 16-948 (U.S. argued Nov. 7, 2017), Supreme Court of the United States).
  3. Robin Creyke, Judicial Review and Merits Review: Are the Boundaries Being Eroded, Federal Law Review, 45 Fed. L. Rev. 627 (2017) (explores the accuracy of the suggestion that courts are increasingly tending towards intruding into the province of tribunals).
  4. KM Hayne, Non-statutory Executive Power, Public Law Review (2017) 28 PLR 236 (explores the inadequacies of justification for “non-statutory executive power”).
  5. Crawford, Lisa, B., The Entrenched Minimum Provision of Judicial Review and the Limits of ‘Law’, Federal Law Review, 45 Fed. L. Rev. 569 (2017) (explores the ways in which statutory conferrals of very broad executive powers can diminish the rule of law).
  6. Boughey, Janina, Re-Evaluating the Doctrine of Deference in Administrative Law, Federal Law Review 45 Fed. L. Rev. 597 (2017) (argues that Australian law may benefit from greater attention to the conceptualisation of deference in order to better calibrate judicial review of administrative discretion).

Current Events

  1. In Singapore, the opposition Workers’ Party opposed a recent amendment to the Criminal Law (Temporary Provisions) Act, which included a finality clause which ousted judicial review of a Minster’s detention order. The Act was passed by Parliament (by a vote of 79-10, with 2 abstentions).
  2. The Trump administration adopted new limits on the use of “guidance documents” by federal agencies. Such documents offered the agency’s interpretation of laws.  Non-compliance with such guidance documents may not be used as a basis for proving violations of applicable law.