Judicial review of non-statutory executive action / Amanda Sapienza ; foreword The Hon William Gummow AC.

Alexandria, N.S.W. : The Federation Press, 2020.

1st edition

90142

Judicial review -- Australia.

Constitutional law -- Australia.

Constitutional history -- Australia.

1. Introduction

2. The non-statutory executive power of Australia’s governments

I. Introduction

II Legislative predominance over the executive

III. Section 61 of the constitution

IV. Prerogatives

V. Non-prerogative capacities

VI. Non-statutory powers are discretionary

VII. Conclusion

3. Jurisdiction

I. Introduction

II. Jurisdiction to conduct judicial review: States and Territories

III. Jurisdiction to conduct judicial review: Commonwealth

IV. Statutory judicial review jurisdiction

V. Other courts

VI. Conclusion

4. Justiciability – general principles

I. Introduction

II. The separation of powers

III. The historical development of justiciability of non-statutory action

IV. Justiciability of the exercise of prerogatives

V. Justiciability of the exercise of non-prerogative capacities

VI. Conclusion

5. Justiciability – statutory aspects

I. Introduction

II. Justiciability of statutory provisions in respect of prerogative powers

III. Justiciability of non-statutory action directed to the exercise of a statutory discretion

IV. Justiciability under statutory provisions for judicial review

V. Conclusion

6. The basis for applying judicial review standards to non-statutory action

I. Introduction

II. The relationship between judicial review standards and legal obligations

III. The source of judicial review standards

IV. Common law principles underlying relevant rules of statutory construction

V. The role of the constitution

VI. The common law principles of lawfulness, reason and fairness in Australia

VII. Conclusion

7. Reconciling grounds of review with non-statutory action

I. Introduction

II. Absence of jurisdictional facts

III. Principle against further delegation

IV. Acting for an unauthorised purpose;

V. Ignoring mandatory considerations and taking into account prohibited considerations

VI. Procedural fairness

VII. The role of policies in executive decision-making

VIII. Unreasonableness

IX. Evidentiary issues

X. Conclusion

8. Remedies and standing

I. Introduction

II. The relationship between remedies, standing and jurisdiction

III. Constitutional writs

IV. Prerogative writs currently performing a public law function

V. Equitable remedies

VI. Discretionary considerations

VII. Conclusion

9. Conclusions.

In Australia, the Commonwealth and State governments are authorised to exercise power that is neither conferred by legislation nor expressly provided for in a constitution: non-statutory executive power. Where non-statutory executive power is exercised, questions arise as to the role of the courts in keeping the government accountable for this action. Although intermediate appellate courts at the Commonwealth and State levels have applied the House of Lords’ decision in Council for Civil Service Unions v Minister for the Civil Service to permit judicial review of non-statutory action in an appropriate case, it is unclear what cases are “appropriate” and how the traditional grounds of review and remedies might apply to action that is not authorised by legislation. Dr Sapienza’s ground-breaking book attempts to bring clarity to this area of law by assessing the extent to which Australian judicial review principles are capable of application to an exercise of non-statutory executive power. It begins by categorising non-statutory executive power according to the manner in which an exercise of it is capable of having a legal effect. It then examines each element of judicial review – jurisdiction, justiciability, grounds of review, standing and remedies – to determine which aspects of each element are likely to pose an obstacle to a successful judicial review application in respect of each category of non-statutory action. In so doing, it lays a conceptual and doctrinal foundation from which legal practitioners and the courts can navigate this complex area of law on a case-by-case basis, as they are increasingly being called on to do. As the first treatise to thoroughly explore this area, it is an invaluable resource for governments and those advising them. It will also be the starting point for lawyers seeking to challenge an exercise of non-statutory executive power as well as for the courts they call on to review the action. - Publisher's website.

Includes bibliographical references and index.

9781760022518

xxiv, 228 pages ; 25 cm