The Creation of Australian Administrative Law: The Constitution and Its Judicial Gate-Keepers

Swati Jhaveri and Michael Ramsden (eds), Judicial Review of Administrative Action: Origins and Adaptations Across the Common Law World (Cambridge University Press, 2020) (Forthcoming)

ANU College of Law Research Paper No. 19.22

22 Pages Posted: 19 Sep 2019

Date Written: September 17, 2019

Abstract

For a long time judicial review in Australia was little more than a carbon copy of its English equivalent. In the period before the various Australian states became part of a unified federal nation, judicial review occurred within the inherent supervisory jurisdiction of the various Supreme Courts of those individual colonies and proceeded in a manner similar to that of English courts exercising inherent supervisory jurisdiction. The Australian Constitution is now the defining feature and dominant force of our judicial review doctrine. The key feature of the Australian Constitution that has enabled the recognition and entrenchment of judicial review of administrative action is the express creation and entrenchment of the courts. The express recognition and protection of a selection of the judicial remedies has proved equally important because the constitutional mention of some of the traditional remedies of judicial review has provided the foundation for the courts to entrench by implication that which necessarily precedes the issue of those remedies. While these and other important elements of the Australian Constitution have enabled the development of constitutionally protected avenues of supervisory review, this same constitutional foundation has also provided the source of judicial review principles that increasingly differ from their early English heritage. Many parallels between English and Australian principles remain and the one we discuss about natural justice suggests that, as happens within so many families, Australian judicial review can unwittingly replicate the mistakes of its English parent.

Keywords: Administrative Law, Judicial Review, Australia, Constitution, Remedies, Natural Justice

Suggested Citation

Groves, Matthew and Weeks, Greg, The Creation of Australian Administrative Law: The Constitution and Its Judicial Gate-Keepers (September 17, 2019). Swati Jhaveri and Michael Ramsden (eds), Judicial Review of Administrative Action: Origins and Adaptations Across the Common Law World (Cambridge University Press, 2020) (Forthcoming), ANU College of Law Research Paper No. 19.22, Available at SSRN: https://ssrn.com/abstract=3456447

Matthew Groves

La Trobe Law School

La Trobe University
Bundoora, VIC 3083 3142
Australia

Greg Weeks (Contact Author)

ANU Law School ( email )

Canberra, Australian Capital Territory 0200
Australia
6125 5420 (Phone)

HOME PAGE: http://https://law.anu.edu.au/people/greg-weeks

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