Rights, Review and Reasonableness: The Implications of Canada's New Approach to Administrative Decision-Making and Human Rights for Australia
35 Sydney Law Review 283, 2013
33 Pages Posted: 26 Jun 2014 Last revised: 29 Apr 2016
Date Written: June 1, 2013
One of the difficult issues with which courts in jurisdictions with constitutional or statutory rights protection have had to grapple is the effect of human rights on the exercise of discretion by public authorities. Rights legislation tends to be reasonably clear about the proportionality test required of legislation and regulations, but far less explicit about the role of rights in administrative decision-making. The two Australian jurisdictions with bills of rights — the Australian Capital Territory and Victoria — have largely followed the orthodox Canadian approach on the issue. However, the Supreme Court of Canada has recently cast serious doubt on much of its earlier precedent. This article examines the developments in Canadian law and the implications of the new Canadian approach for Victoria and the ACT. It argues that while the new Canadian approach may offer solutions to some of the problems faced by Australian courts, particularly in the wake of the Momcilovic litigation, it is based on principles that have no equivalent in Australian public law.
Keywords: Administrative Law, Judicial Review, Human Rights, Canadian Administrative Law, Australian Administrative Law, Public Law
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