May 15

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. Malaysia: The Court of Appeal declined making a declaration, sought by Maljis Perbandaran Subang Jaya, a local town-planning authority, that a Building Plan was mistakenly approved, holding that “the court will not allow under any circumstances for the courts to be used as a tool for a public body to find redress for its own purported mistake”.
  2. Malaysia: The Petaling Jaya High Court allowed a legal challenge against the decision of the Registrar of Societies’ provisional disband order by opposition party Parti Pribumi Bersatu Malaysia (PPBM), therein allowing PPBM to continue as a political party.
  3. Malaysia: The Melaka High Court has granted leave in two separate actions for a judicial review of the Election Commission’s redelineation exercise which sets out the new boundaries for constituencies in the 2018 general elections.
  4. Malaysia: The Kuala Lumpur High Court dismissed an application for leave for a judicial review filed by 16 now-former UMNO members, who are seeking the quashing of the decision by the Registrar of Societies to allow UMNO extend its party elections until April 2019 and challenging the legality of the party for not having internal elections for almost five years and [?]
  5. Australia: The High Court upheld the government’s fast-track refugee assessment process after finding that the Immigration Assessment Authority, set up to review the claims of people who arrived by boat, does not have to adhere to all the requirements of the Migration Act.
  6. US: The Supreme Court, in a 5-4 decision, held that a provision in US law requiring the deportation of immigrants convicted of crimes of violence is unconstitutionally vague. 
  7. UK: The Court of Appeal granted leave to appeal to the Campaign Against Arms Trade challenging a decision by the High Court in 2017 over the legality of the government’s decision not to suspend export licenses for the sale of arms to Saudi Arabia and its decision to grant new licenses for arms exports.
  8. Canada: The Federal Court of Canada rejected the government’s appeal against the decision of a Tribunal constituted under Chapter Eleven of NAFTA on the basis that the NAFTA Tribunal had inappropriately decided questions of Canadian law.
  9. UK: Campaigners have been granted leave to review Sheffield’s strip club licensing policy, following Sheffield Council’s renewal of the license of one strip club despite almost 100 objections.
  10. UK: A victim of historical institutional abuse has won the right to a full judicial review of the Northern Ireland secretary and Executive Office’s failure to implement a financial redress or compensation scheme, which was recommended by a judicial inquiry in 2017 but has yet been implemented since the collapse of devolution.

Recent Scholarship

  1. Rahman, Sabeel, K., Reconstructing the Administrative State in an Era of Economic and Democratic Crisis, Harvard Law Review, 131 Harv. L. Rev. 1671 (reviews the book by Michaels, D. Jon (2017) ‘Constitutional Coup: Privatization’s Threat to the American Republic’ (Cambridge, Mass: Harvard University Press) and considers the implications of privatization and centralisation for administrative processes and democratic accountability).
  2. Seifter, Miriam, Further from the People? The Puzzle of State Administration, NYU Law Review, 93 N.Y.U. L. Rev. 107 (identifies and theorizes the role of civil society oversight at the state level and concludes that state agencies frequently lack the civil society check that is celebrated on a federal level).
  3. McKinley, Maggie, Petitioning and the Making of the Administrative State, The Yale Law Journal, 127(6) Yale L.J. 1448 (explores the petition process, which allows individuals and minorities to participate in the law-making process, and connects this process to the theory and law that structure the practice).
  4. Aroney, Nicholas; Saunders, Benjamin, B., On Judicial Rascals and Self-Appointed Monarchs: The Rise of Judicial Power in Australia, University of Queensland Law Journal, (2018) 36(2) UQLawJL 221 (examines the extent to which there has been a rise in judicial power in Australia and consider whether there is a ‘judicialisation of politics’ in Australia).
  5. Grégoire Webber, Judicial Power and Judicial Responsibility, University of Queensland Law Journal, (2018) 36(2) UQLawJL 206 (considers how institutions can be designed to exercise legislative and adjudicative powers well to fulfil their constitutional roles).
  6. Elliot, Mark, Judicial Power and the United Kingdom’s Changing Constitution, University of Queensland Law Journal, (2018) 36(2) UQLawJL 273 (explores how the proper limits of judicial power in the UK may be identified).
  7. Ireton, Emma, How Public is a Public Inquiry, Public Law, (2018), Spring 2018 (examines the tensions between the demand for public scrutiny of public inquiries and open justice on the one hand, and conflicting pressures such as the protection of individual privacy and national security on the other).
  8. Jones, Brian, C. The Rule of Law in UK Public Law Textbooks: From Critique to Acceptance, Public Law (forthcoming) (examines the reasons for the minimal emphasis on the principle of the rule of law in the twentieth century in the UK).
  9. Varuhas, Jason, N.E., Administrative Law and Rights in the UK House of Lords and Supreme Court, forthcoming in Daly, Paul, Apex Courts and the Common Law (University of Toronto Press: 2018) (examines the interrelationship between administrative law and ideas of rights within the House of Lords and Supreme Court).

Current Events

  1. Malaysia: Tian Chua, vice-president of opposition party Parti Kadilan Pakyat, is appealing against the High Court’s dismissal of his legal challenge against the decision of the Election Commission’s to disqualify him from running in the 2018 General Elections on the basis that the Court had no jurisdiction on the validity of the returning officer’s decision to reject the nomination.
  2. US: The US Supreme Court heard arguments over a challenge to the constitutionality of the Securities and Exchange Commission’s selection of in-house Administrative Law Judges to enforce investor protection laws.
  3. US: Texas and six Republican-led states have brought an action to end the Deferred Action for Childhood Arrivals programme, which could potentially result in a conflicting lower-court judgment, therein compelling the Supreme Court to hear and make a determination on the matter.
  4. UK: The High Court heard arguments in a challenge against the refusal of the Home Office to issue gender-neutral passports.
  5. India: The Supreme Court agreed to examine a petition filed by former union law minister Shanti Bhushan to declare that the authority of the Chief Justice of India as ‘master of roster’ should not be reduced to an absolute, singular and arbitrary power.
  6. Singapore: The Accounting and Corporate Regulatory Authority had refused an application to register OSEA Pte Ltd, a company set up to provide editorial services to the website New Naratif, on the grounds that New Naratif – a website established for political purposes – “would appear to be funded by a number of foreigners” and allowing the registration would “amount to allowing a foreign entity or foreigners to found and influence political activities in Singapore”.
  7. Australia: Judicial review has been sought against the Australian Federal Police’s execution of search warrants to prevent them from assessing files seized during a raid following corruption investigations against Snowy Mountain Engineering Corporation, the lead contractor on the government’s Snowy 2.0 program.