October 23

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. Australia: The Supreme Court of New South Wales dismissed an application for the judicial review of a decision made by the Medical Assessors Review Panel, which determined that the injuries sustained by the applicant in a motor vehicle accident did not give rise to a whole person impairment which, in total, was not greater than 10%. The Court reached its decision after finding that there was no error on the face of the record, no denial of natural justice, and that adequate reasons had been given.
  1. New Zealand: The New Zealand High Court held that the Benefit Review Committees, which are responsible for reviewing decisions made on behalf of the Chief Executive of the Ministry of Social Development concerning an applicant’s entitlement to benefits under the Social Security Act 1964, required express legislative authority in order to lawfully use fictitious names and signatures when they issued decisions. The Ministry of Social Development argued that the true identifies of the members of the Committees needed to be hidden to protect them from the risk of being harassed and threatened. The High Court held, however, that the use of fictitious names and signatures by the Committees prevented an applicant from challenging the appointment of Committee members on the grounds of bias, which in turn breached his or her right to natural justice.
  1. New Zealand: The New Zealand High Court held that the then Commerce Minister’s decision not to impose duties on Chinese galvanised steel coil imports was “unlawful”. The applicants had challenged the decision on numerous grounds: including that it was based on advice containing material errors as to the proper test for determining whether an entity is a public body and eligible for subsidies and insufficient investigations into the subject goods in light of the limited cooperation from the Chinese Government and the Chinese producers.
  1. United Kingdom: The English and Wales High Court dismissed a challenge of the decision of the Dorset Clinical Commissioning Group (DCCG) which made significant changes to the configuration of health services in the Dorset area. The claimant argued that the changes were made on the back of a flawed consultation process.  The DCCG, inter alia, failed to take into account all relevant considerations and failed to adequately investigate and consider alternatives.  The changes included reclassifying a hospital in the area as non-emergency hospitals and the closure of maternity and paediatric services at that hospital.

Recent Scholarship

  1. Weinstein-Tull, Justin, State Bureaucratic Undermining. University of Chicago Law Review, Vol. 85, September 2018. (explores the bureaucratic barriers to full compliance with federal law as states administer more federal rights than ever before through intrastate coordination horizontally and vertically. This article discusses three of these barriers – agency alienation, agency conflict and role confusion by surveying in recent suits against state actors.)
  2. Manheim, Lisa Marshall and Watts, Kathryn A., Reviewing Presidential Orders (September 15, 2018). University of Chicago Law Review, Vol. 86, 2019, Forthcoming; University of Washington School of Law Research Paper No. 2018-12. (explains how the explosion of presidentially directed litigation after Donald Trump’s entrance into the White House confirms the need for a coherent legal framework to guide judicial review of presidential orders and sketches out what such a framework might look like. In doing so, it identifies critical differences between presidential action and agency action, differences which the authors think must inform any legal framework.)
  3. Biddulph, Michelle, Rethinking the Ramifications of Reasonableness Review: Stare Decisis and Reasonableness Review on Questions of Law (June 27, 2018). Alberta Law Review, Forthcoming. (discusses reasonableness review in the Canadian law of judicial review and explores the question of whether a judicial decision affirming that a provision admits of only one reasonable interpretation is strictly binding on an administrative decision-maker interpreting that provision in the future. The article concludes that should Canadian courts continue to apply reasonableness review to virtually all questions of law, a uniquely administrative law approach to stare decisis will need to be developed in order to maintain a coherent and principled system of judicial review).

Current Events

  1. Australia: Channel Seven, a broadcasting channel, has announced that it will apply for judicial review after the Australian Communication and Media Authority (ACMA), which is the national media watchdog, ruled that a panel discussion on the removal of Indigenous children from their families on the breakfast show Sunrise was “inaccurate”. 
  1. Malaysia: A voter from the Malaysian parliamentary constituency of Port Dickson has filed an application for judicial review to challenge the decision by the incumbent MP to quit his seat and force a by-election, claiming it is unconstitutional. He is seeking a declaration that the Election Commission’s decision to declare the seat vacant is wrong by law and, an injunction to stop the Election Commission from holding the by-election on Oct 13. 
  1. United Kingdom: Just for Kids Law, a charity that represents, advises and supports children facing legal difficulties, has issued a pre-action letter to the Home Office for judicial review, challenging the UK government’s use of child spies – known officially as juvenile covert human intelligence sources (CHIS). While a legal framework for this has been in place since 2000, the practice only emerged in July when concerns were raised by peers after ministers sought to increase their powers with respect to the use of CHIS with secondary legislation. 
  1. United States: A US federal district court has ruled that a lawsuit, that challenges the US Food and Drug Administration’s “Generally Recognised as Safe (Gras) rule”, will move forward. The Gras rule allows manufacturers to use a food additive without pre-market approval, provided that it meets the same safety standards as approved substances.