June 27

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. Canada: The Supreme Court of Canada unanimously rejected judicial review of the Applicant’s expulsion from a Jehovah’s Witnesses congregation, holding that judicial review was available only where state authority is involved or when there was some legal relation between the Applicant and the religious group which translated to some actionable claim.
  2. Canada: The Supreme Court of Canada held that a reasonableness standard applied to law society misconduct findings and sanctions, and that the multi-factorial, context-specific approach developed by the Appeal Panel for assessing whether a lawyer’s in-court behaviour crosses the line into professional misconduct on the basis of incivility is appropriate.
  3. Canada: The Supreme Court of Canada held that the Court must consider whether the regulation made by a regulatory body represented a reasonable exercise of the delegated power, having regard to the statute’s goal; and held that the Occupational Health and Safety Regulation adopted by the Worker’s Compensation Board was not ultra vires.
  4. Canada: The Federal Court of Appeal indicated its intention to re-consider the nature and scope of judicial review of administrative action as they have decided in Dunsmuir v New Brunswick and invited both Appellant and Respondent to “devote a substantial part of their written and oral submissions on the appeal to the question of standard of review”.
  5. US: The Supreme Court of the United States held that the Colorado Civil Rights Commission’s conduct in evaluating a cake shop owner’s reasons for declining to make a wedding cake for a same-sex couple violated the Free Exercise Clause because members of the Commission showed clear and impermissible hostility towards his religious beliefs, and did not accord him neutral treatment.
  6. Singapore: The Singapore Court of Appeal rejected a challenge against the Comptroller of Income Tax’s decision to share information about certain taxpayers with the Korean tax authorities in response to an exchange of information (EOI) request, holding that the Comptroller was expected to make reasonable inquiries where there was doubt or a lack of clarity regarding the validity of the EOI request to satisfy himself that the requirements in the Eighth schedule of the Income Tax Act has been complied with and that the “foreseeable relevance” standard had been met, which in this case the Comptroller has done so.

Recent Scholarship

  1. The Presumption of Regularity in Judicial Review of the Executive Branch, Harvard Law Review, 131 Harv. L. Rev. 2431 (explores the presumption of regularity through a basic typology of Supreme Court cases and explains how the presumption has evolved alongside the Court’s attitude toward administration).
  2. Katz, M. A., Eventual Judicial Review, Columbia Law Review, 118 Colum. L. Rev. 1139 (2018) (considers the Security and Exchange Commission’s recent choice to make more frequent use of internal enforcement actions and questions whether and questions whether federal district courts have parallel subject matter jurisdiction over constitutional challenges to an SEC internal proceeding while the proceeding is underway).
  3. Cook, E., Inadequate Interests: Critiquing the Interest-only Approach to the Threshold Stage of Procedural Fairness, Public Law Review, 29(1) PLR 24 (critiques the “interest-only” approach adopted by the Court in Plaintiff S10/2011 v Minister for Immigration and Citizenship and concludes that the approach generates uncertainty as to the scope and application of procedural fairness).
  4. Chan, C., Rights, Proportionality and Deference: A Study of Post-Handover Judgments in Hong Kong, Hong Kong Law Journal, 48(1) HKLJ 51 (explores the doctrine of deference vis-à-vis human rights cases globally and considers the frequency of deference arising in human rights cases, the jurisprudence that influences the courts’ approach to deference, and the relative impact of various factors on the degree of deference between 1997 and 2014).
  5. Huq, Z. A., Democratic Erosion and the Courts: Comparative Perspectives, New York University Law Review, 93 N.Y.U, L. Rev. 21 (2018) (considers the role of national judiciaries in resisting democratic backsliding by examining case studies from South Africa and Colombia that showcase positive models of judicial intervention).
  6. Sinnar, S. Internal Oversight and the Tenuous Protection of Norms, New York University Law Review, 93 N.Y.U, L. Rev. 21 (2018) (responds to Democratic Erosion and the Courts: Comparative Perspectives and considers the erosion of the independence and efficacy of oversight institutions within the executive branch following the corresponding erosion of unwritten conventions).

Current Events

  1. New Zealand: NZ Steel filed for judicial review over the 2017 decision of then-Commerce and Consumer Affairs minister Jacqui Dean to not impose duties on galvanised steel coil from China after finding that Chinese subsidies on the steel were too small to have an injurious effect on the domestic industry.
  2. Australia: The Human Rights Commission has lobbied against the expansion of the powers of the Home Affairs minister and department’s power to make visa cancellation decisions without a merits review, calling for them to instead be wound back.
  3. UK: Justice Secretary David Gauke ordered a review of the Parole board in England and Wales following the latter’s decision to release John Worboys, a serial sex-offender, was overturned by a judicial review so as to allow the public to challenge parole decisions with greater ease.
  4. Hong Kong: A steep decline was recorded apropos provision of legal aid for applications for judicial review, from about 20% to 2%.
  5. Malaysia: The Malaysian Bar has renewed its calls for Chief Justice Tun Md Raus Sharif to step down given the question of constitutionality of his contract extension beyond the mandatory retirement age of 66.