From the Magna Carta to Bentham to Modern Australian Judicial Review: Themes of Practicality and Spirituality

Australian Institute of Administrative Law (AIAL) Forum, Vol. 84, pp. 22-44, 2016

Sydney Law School Research Paper No. 17/11

30 Pages Posted: 9 Feb 2017  

Grant Robert Hooper

The University of Sydney Law School

Date Written: 2016

Abstract

This article considers the interplay or balance between a need to allow the government to govern and the notion that law contains a substantive content to protect the individual from arbitrary government decision making. To illustrate that this search for balance is not new, and despite 800 years is not resolved, this paper starts with the Magna Carta but then proceeds to consider influential historical figures chosen for the impact they have had, and continue to have, on the modern understanding of what limits can and should be imposed on government and how these limits may be legitimately applied by the judiciary. The historical figures chosen are Lord Coke, Blackstone, Dicey, Bentham and Austin. They in particular highlight what might be described as some of the original and core underlying values that shape the judicial response to Parliament’s modern efforts to increase governmental power. In this regard, it will be contended that while modern judicial review is essentially practical, there persists a touch of spirituality and without understanding this it is not possible to appreciate the balance that the High Court so often seeks to achieve between increased governmental power and protecting individuals from arbitrary government decision making. This “balance” will be explored by examining some examples of the modern form of the Magna Carta’s “law of the land” or “due process”, natural justice. More specifically it will touch upon three well-known modern developments, being: the judiciary’s re-birth, defence, reformulation and re-badging of natural justice; the constitutionalisation of judicial review; and the adoption of a broader “purposive” approach to statutory interpretation generally.

Keywords: Judicial Review, Rule of Law, Australia, Natural Justice, Constitutionalism, Statutory Interpretation, Magna Carta

JEL Classification: K10, K30

Suggested Citation

Hooper, Grant Robert, From the Magna Carta to Bentham to Modern Australian Judicial Review: Themes of Practicality and Spirituality (2016). Australian Institute of Administrative Law (AIAL) Forum, Vol. 84, pp. 22-44, 2016; Sydney Law School Research Paper No. 17/11. Available at SSRN: https://ssrn.com/abstract=2913991

Grant Robert Hooper (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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