Substantive Legitimate Expectations in Australian Administrative Law
Monash University - Faculty of Law
November 2, 2009
Monash University Faculty of Law Legal Studies Research Paper No. 2009-10
Judicial review of administrative action has traditionally had a procedural focus. This means that courts examine the procedure by which a decision is made, rather than the decision itself. A denial of natural justice is no exception to review - a person dissatisfied with an administrative decision has long been able to complain about the fairness of the decision-making process but not the fairness of the decision itself. English law has recently developed a doctrine of ‘substantive unfairness’ by which an expectation about the outcome of a decision-making process can be protected by the courts in a strong sense. The strength of the protection given under this new doctrine seems to blur the distinction between process and outcomes, which leads judicial review in a radical new direction. This article explains the English doctrine of substantive unfairness and considers whether it can and should be adopted in Australia.
Number of Pages in PDF File: 55
Keywords: Administrative Law, substantive unfairness, judicial review
JEL Classification: K2, K23, K4, K41, K49Accepted Paper Series
Date posted: November 3, 2009
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