Human Rights And Judicial Review In Australia And Canada
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| Author | : Janina Boughey |
| Publisher | : Bloomsbury Publishing |
| Total Pages | : 321 |
| Release | : 2017-06-15 |
| Genre | : Law |
| ISBN | : 1509907882 |
It is commonly asserted that bills of rights have had a 'righting' effect on the principles of judicial review of administrative action and have been a key driver of the modern expansion in judicial oversight of the executive arm of government. A number of commentators have pointed to Australian administrative law as evidence for this 'righting' hypothesis. They have suggested that the fact that Australia is an outlier among common law jurisdictions in having neither a statutory nor a constitutional framework to expressly protect human rights explains why Australia alone continues to take an apparently 'formalist', 'legalist' and 'conservative' approach to administrative law. Other commentators and judges, including a number in Canada, have argued the opposite: that bills of rights have the effect of stifling the development of the common law. However, for the most part, all these claims remain just that – there has been limited detailed analysis of the issue, and no detailed comparative analysis of the veracity of the claims. This book analyses in detail the interaction between administrative and human rights law in Australia and Canada, arguing that both jurisdictions have reached remarkably similar positions regarding the balance between judicial and executive power, and between broader fundamental principles including the rule of law, parliamentary sovereignty and the separation of powers. It will provide valuable reading for all those researching judicial review and human rights.
| Author | : Matthew Groves |
| Publisher | : Bloomsbury Publishing |
| Total Pages | : 448 |
| Release | : 2019-11-14 |
| Genre | : Law |
| ISBN | : 1509919821 |
How do you protect rights without a Bill of Rights? Australia does not have a national bill or charter of rights and looks further away than ever from adopting one. But it does have a range of individual elements sourced from common law, statute and the Constitution which, though unsystematic, do provide Australians with some meaningful rights protection. This book outlines and explains the unique human rights journey of Australia. It moves beyond the criticisms long made of the Australian position – that its 'formalism', 'legalism' and 'exceptionalism' compromise its capacity for rights protection – to consider how the many elements of its novel legal structure operate. This book analyses the interlocking legal framework for the protection of rights in Australia. A key theme of the book is that the many different elements of a fragmented scheme can add up to something significant, albeit with significant gaps and flaws like any other legal rights protection framework. It shows how the jumbled influences of a common law heritage, a written constitution, differing paths taken by jurisdictions within a single federal state, statutory and common law innovations and a strong dose of comparative legal influences have led to the unique patchwork of rights protection in Australia. It will provide valuable reading for all those researching in human rights, constitutional and comparative law.
| Author | : Janina Li Boughey |
| Publisher | : |
| Total Pages | : 447 |
| Release | : 2014 |
| Genre | : |
| ISBN | : |
It is commonly asserted that bills of rights have had a 'righting' effect on the principles of judicial review of administrative action and been a key driver of the modern expansion in judicial oversight of the executive arm of government. In making this argument, many point to the apparent 'formalism', 'legalism' and 'conservatism' of Australian administrative law as evidence, noting that Australia is an outlier amongst common law jurisdictions in having neither a statutory nor a constitutional framework to expressly protect human rights. Various other claims about the interaction between bills of rights and the scope of judicial review of administrative action have also been made by commentators and judges. However, for the most part these claims remain just that-as there has been limited detailed analysis of the issue, and no detailed comparative analysis. This thesis makes a contribution to this relatively under-analysed topic by comparing the development of the principles of judicial review of administrative action in Australia and Canada in recent decades. It examines the procedural and substantive limits that courts in each jurisdiction place on administrative powers, as well as the intensity of judicial scrutiny of administrative action, with the aim of assessing whether Canadian administrative law shows evidence of having become 'righted' or 'stifled' as a result of Canada's extensive human rights framework.
| Author | : Janina Boughey |
| Publisher | : Bloomsbury Publishing |
| Total Pages | : 357 |
| Release | : 2017-06-15 |
| Genre | : Law |
| ISBN | : 1509907874 |
It is commonly asserted that bills of rights have had a 'righting' effect on the principles of judicial review of administrative action and have been a key driver of the modern expansion in judicial oversight of the executive arm of government. A number of commentators have pointed to Australian administrative law as evidence for this 'righting' hypothesis. They have suggested that the fact that Australia is an outlier among common law jurisdictions in having neither a statutory nor a constitutional framework to expressly protect human rights explains why Australia alone continues to take an apparently 'formalist', 'legalist' and 'conservative' approach to administrative law. Other commentators and judges, including a number in Canada, have argued the opposite: that bills of rights have the effect of stifling the development of the common law. However, for the most part, all these claims remain just that – there has been limited detailed analysis of the issue, and no detailed comparative analysis of the veracity of the claims. This book analyses in detail the interaction between administrative and human rights law in Australia and Canada, arguing that both jurisdictions have reached remarkably similar positions regarding the balance between judicial and executive power, and between broader fundamental principles including the rule of law, parliamentary sovereignty and the separation of powers. It will provide valuable reading for all those researching judicial review and human rights.
| Author | : Stephen Gardbaum |
| Publisher | : Cambridge University Press |
| Total Pages | : 275 |
| Release | : 2013-01-03 |
| Genre | : Law |
| ISBN | : 1107009286 |
Stephen Gardbaum proposes and examines a new way of protecting rights in a democracy.
| Author | : Jeffrey Goldsworthy |
| Publisher | : Routledge |
| Total Pages | : 323 |
| Release | : 2017-11-30 |
| Genre | : Law |
| ISBN | : 1351151223 |
Australia is now the only major Anglophone country that has not adopted a Bill of Rights. Since 1982 Canada, New Zealand and the UK have all adopted either constitutional or statutory bills of rights. Australia, however, continues to rely on common law, statutes dealing with specific issues such as racial and sexual discrimination, a generally tolerant society and a vibrant democracy. This book focuses on the protection of human rights in Australia and includes international perspectives for the purpose of comparison and it provides an examination of how well Australian institutions, governments, legislatures, courts and tribunals have performed in protecting human rights in the absence of a Bill of Rights.
| Author | : Nick O'Neill |
| Publisher | : Federation Press |
| Total Pages | : 804 |
| Release | : 2004 |
| Genre | : Juvenile Nonfiction |
| ISBN | : 9781862874145 |
This new edition of Retreat from Injustice has the strengths and style of its predecessor: the account of human rights in Australia is firmly grounded in historical and international contexts; the availability and limitations of rights and freedoms are clearly detailed and illustrated with cases; and a particular spotlight is placed on key current human rights issues including terrorism, indigenous issues and asylum seekers.
| Author | : Ijaiya, Hakeem Olasunkanmi |
| Publisher | : Malthouse Press |
| Total Pages | : 219 |
| Release | : 2017-05-05 |
| Genre | : Law |
| ISBN | : 9789584466 |
This book, Judicial Approach to Interpretation of Constitution: A Study of Nigeria, Australia, Canada and India, is the outcome of a doctoral study of the judicial interpretation of the constitutions in selected Commonwealth jurisdictions, and a survey of the theories of constitutional interpretation and adjudication, the rules applied by the courts in the interpretation of the provisions of the constitutions, and determined the extent to which the existing approaches to the interpretation of the constitution have hindered the development of constitutional jurisprudence in those countries. In all, the statutes and constitutions are expressed in English language and some words are prone to distortions, thereby requiring the need for the courts to discover the intention of the legislators when interpreting such statutes and constitutions. It is further observed that the theories and rules of interpretation currently adopted by the courts are conflicting, and this is partly due to vagueness and also that in many cases, where a rule appears to support a particular interpretation, there is another rule, often of equal status, which can be invoked in favour of an interpretation which could lead to different result. The general conclusion is that the existing approaches to constitutional interpretation are somewhat inefficient and inadequate to enable the courts to effectively discover the intention of the legislators, and therefore the courts should be allowed to examine all relevant parliamentary documents and debates.
| Author | : Steven Gow Calabresi |
| Publisher | : Oxford University Press |
| Total Pages | : 384 |
| Release | : 2021-04-13 |
| Genre | : Law |
| ISBN | : 0190075791 |
This two-volume set examines the origins and growth of judicial review in the key G-20 constitutional democracies, which include the United States, the United Kingdom, France, Germany, Japan, Italy, India, Canada, Australia, South Korea, Brazil, South Africa, Indonesia, Mexico, and the European Union, as well as Israel. The volumes consider five different theories, which help to explain the origins of judicial review, and identify which theories apply best in the various countries discussed. They consider not only what gives rise to judicial review originally, but also what causes of judicial review lead it to become more powerful and prominent over time. Volume One discusses the G-20 common law countries and Israel.
| Author | : Robin Creyke |
| Publisher | : Federation Press |
| Total Pages | : 274 |
| Release | : 2008 |
| Genre | : Law |
| ISBN | : 9781862877061 |
Tribunals are a flexible method of adjudication that hear disputes between citizens and by citizens against government. They come in diverse forms, and their adjudications far outnumber those of courts. For most people, tribunals are the face of justice. Increasing attention is being paid to tribunal procedures, what decisions they can make, and who are appointed as tribunal members. This book provides a contemporary snapshot of tribunals and tribunal jurisprudence in the common law world, with contributions and comparative studies from Australia, Canada, New Zealand and the United Kingdom. Contributions are drawn from a distinguished cast of international tribunal experts, judges and practitioners.
