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Law Notes Administrative Law Notes

Introduction To Judicial Review Ii Notes

Updated Introduction To Judicial Review Ii Notes

Administrative Law Notes

Administrative Law

Approximately 368 pages

A 197 page summarised bible of administrative law notes including detailed case and materials summaries, super summaries and flow charts intended for exam use. Structure of the summarised bible is as follows:

Class 1 - Accountability in an administrative state
Class 2 - Legality, Rules, Discretion & Policy
Class 3 - Statutory Interpretation and the Ombudsman
Class 4 - Subordinate Legislation
Class 5 - "Reasons for Decision"'; Freedom of Information
Class 6-8: Merits Review
Class 9: Stand...

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The following is a more accessible plain text extract of the PDF sample above, taken from our Administrative Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Introduction to Judicial Review II

Government in Perspective

  • The purpose of judicial review is to control government decision-making in satisfaction of the rule of law and separation of powers – but the question of what government is is vexed – e.g. government business enterprises, corporations discharging government functions

    • The line between government and private sector regulation is similar – e.g. private bodies like the ASX have legislative backing

  • No single doctrine provides an answer to the province of administrative and judicial review but courts have addressed it:

    • In General Newspapers v Telstra Corp [1993] FCA – the expression ‘under an enactment’ was the yardstick to decide whether a decision made by a government enterprise could be subject to judicial review

      • In that case it was not

      • Tang – voluntary arrangement between student/university not ‘under an enactment’

    • The question is framed differently in courts of general jurisdiction

  • In other cases it has been addressed as an issue of whether grounds of review apply to private law activity of government (Snapper) or whether public law remedies can be directed no non-government bodies

R v Panel on Take-overs and Mergers; Ex parte Datafin plc (1987) 1 QB 815

Facts: The Panel was an unincorporated association whose members were appointed by various NGOs, with the chair and deputy appointed by the Bank of England. It had devised a City Code on Take-overs and mergers that provided methods of sanction on breach (reprimand, censure, prevention of enjoyment of securities market). There was no direct authority (statutory, prerogative or common law) in support of its operation or its code but its self-regulatory role was recognized by the Dept of Trade. Datafin complained to the panel that companies breached the code; it was rejected upon which they applied for judicial review. The CA held that it had jurisdiction but dismissed the proceedings since no legal error was made.

Sir John Donaldson MR:

  • Self-regulation in this context refers to a system in which a group of people use their collective power to force themselves and others to comply with a code of conduct that they devise.

  • The panel conducts itself as such, but though lacking any authority de jure, it exercises immense power without any visible or direct legal support.

    • But it was an act of government that decided that, in relation to take-overs, such a body should exist supported and sustained by periphery statutory powers wherever non-statutory powers were insufficient

  • The Tribunal’s lack of direct statutory base is a complete anomaly and an historical ‘happenstance’

  • No factors giving rise to jurisdiction are determinative but the only essential elements are what can be described as a public element that can take many forms

  • The panel is undoubtedly performing an important public duty – this is clear from the willingness of the Sec. Of State for Trade and Industry to limit legislation and use the panel as the centrepiece of regulation.

  • It has a duty to act judicially and do equity. Its source of power is only partly based on moral persuasion – the bottom line is the statutory powers exercised by the Dept of Trade/Industry and the Bank of England. The court should hence recognize the realities of executive power at play

  • He then addressed the practical problems – decisions of the panel are fully effective unless set aside by the court (therefore the issue of speed/certainty/finality is resolved) and the court has discretion to accept only meritorious applications

Lloyd LJ:

  • Observed that the word self-regulating was misleading since the panel regulates not only itself but all others who have no alternative but to come into the market in which the code applies

  • So long as the possibility of an abuse of power exists, the court shouldn’t abdicate responsibility. Furthermroe the court should proceed in the realm of public rather than private law as they are quicker and the court can exclude unmeritorious claims

  • The sole test is not the source of power – often this will be determinative but the nature of the power is also important

    • If the power has public law consequences (the distinction is: between a domestic/private tribunal and a body of persons under a public duty; the distinction lies in the nature of the duty)

  • Even if this was incorrect, Lloyd LJ held that the power exercised was governmental in that an implied devolution of power took place

  • Datafin resolves that common law justiciability is finally determined by the nature of the power being exercised rather than the identity of the decision maker or source of the power

    • The test for defining the power was, in Forbes focussed on the impact of the decision on the rights/expectations on a member of the public

    • But in Datafin it was the governmental nature of the power being exercised

      • This has been described was subjecting bodies to judicial review if it “had been woven into the fabric of public regulation or into a system of governmental control....or was integrated into a system of statutory regulation...or is a surrogate organ of government...or but for its existence a government body would assume control”

R v Insurance Ombudsman; Ex Parte Aegon Life Insurance (Rose LJ)

  • But arguably the absence of regulation may be evince an intention to make the body beyond ht control of public law

  • The difficulty in drawing the line is evident from R v Jockey Club Disciplinary Committee; Ex P Aga Khan

    • A decision made by the Jockey Club in regulating horse racing not subject to JR since the rule being administered sprang from a contract between members and not governmental in nature

      • This distinction is assumed to apply in Australia

  • Baldwin v Everingham – The court could review whether a political party breached its rules in deciding not to endorse a candidate; rather than the focus being on contract it looked to the “substantial public function” fulfilled by the party and the...

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