An Introduction to Administrative Law

By Peter Cane | Go to book overview

21
Judicial Review and the Administrative Process

JUDICIAL REVIEW AND GOOD ADMINISTRATION

THE bulk of this book has been concerned with judicial control of administrative action. We have seen that different views can be held of the role of the courts in this area, but all these views have one thing in common: they see the prime function of judicial control as essentially negative, namely to ensure that governmental bodies do not overstep the proper bounds of their powers and to protect the rights of individuals and the interests of groups and of the public against undue encroachment by government agencies. The function of the courts is not seen as being to ensure, in a positive way, that administration is well conducted, that government policy objectives are achieved and that the country well run.1 In other words, the judicial function is complaint or grievance handling rather than complaint avoidance.

There are, indeed, two features of judicial review which make it less than ideally adapted to the function of ensuring administrative efficiency and securing that the policy goals which the powers of the administration are designed to effectuate are achieved as thoroughly as possible. The first is the unsystematic nature of judicial review: the courts will review the activities of government only when asked to do so, within time, by an applicant with the required interest in the outcome of the review. Judicial review cannot be used to conduct wide-ranging and coordinated investigations into the conduct of government business.2 Secondly, judicial review is essentially retrospective: it is primarily concerned with past conduct, and its effect on the future conduct of the administration is incidental. The importance of this point should not, however, be over-estimated. Judicial decisions in individual cases may have a direct knock-on effect in other similar cases and a widespread

____________________
1
T. G. Ison ( 1985-6) 10 Adelaide LR1, 1-4.
2
By contrast with the US where courts have become involved in large-scale reform of prisons, for instance, and in social engineering such as school desegregation. See e.g. P. J. Cooper , Hard Judicial Choices ( New York, 1988).

-378-

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An Introduction to Administrative Law
Table of contents

Table of contents

  • Clarendon Law Series ii
  • Title Page iii
  • Preface v
  • Contents vii
  • Contents xxxv
  • Part I - Rules and Principles of Judicial Review 1
  • 1 - The Nature of Judicial Review 3
  • 2 - The Scope of Judicial Review Public Law and Private Law 12
  • 3 - Applicants 42
  • 4 - Remedies Uses and Availability 62
  • 5 - Procedures 89
  • 6 - Authority 109
  • 7 - The Decision-Making Process (i) 133
  • 8 - The Decision-Making Process (ii) 160
  • 9 - The Output 208
  • 10 - Estoppel 218
  • Part II - Rules and Principles of Liability II 231
  • II- Introduction 233
  • 12 - Liability in Tort 241
  • 13 - Government Contracts 257
  • 14 - Restitution 276
  • Part III- Information 279
  • 15 - Information and Litigation 281
  • 16 - Government Secrecy and Freedom of Information 292
  • Part IV - Non-Judicial Control 301
  • 17 - Parliament the Constitutional Functions of Parliament 303
  • 18 - Investigating Complaints 314
  • 19 - Tribunals 331
  • Part V - Wider Perspectives on Judicial Control 345
  • 20 - Constitutional and Political Background 347
  • 21 - Judicial Review and the Administrative Process 378
  • Index 393
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