Judicial Review: Changing The Behavior Of Public Authorities

With the young nation of America entered into the 19th century, there were still major issues when it came to the balance of powers of the different government branches. The status of judicial review in the Supreme Court was never pressed upon or given any real structure to. The power of judicial review had appeared many times in history before the set up of the Supreme Court as, in England, Chief Justice of the Common Pleas Sir Edward Coke made the originated the idea . During the ruling of the case of Dr. Bonham’s Case, Coke found that the London College of Physicians had no right to levy fines against anyone who violated their rules. He would later go on to state that, “no person should be a judge in his own case” (Fletcher 12). The act was revolutionary at the time as it set the notion of that an official body of government was needed to give fair governess to the people. The idea would pop up once in a while in events such as the Constitutional Convention where records that were kept by the textbook University of Chicago Law Review saw that “13 out of the 15 delegates made statements that were in support of the idea of judicial review” (Prakash 123). The interesting part about the quote is that it states that the idea of judicial review was in place in America many years before the actually case of Marbury v. Madison. Even in the Federalist Papers No. 78 which was published in May 28, 1788, by Alexander Hamilton, went into lengthy discussion about judicial review. In

Critically assess the applicability of this statement as an analysis of the current approach of the judiciary to statutory interpretation in Australia.

Disputes between individuals can be resolved through mediation, tribunals and courts are sought depending on the complexity and nature of the dispute. Their effectiveness in achieving justice for and between individuals to varying extents will be assessed by their ability to uphold notions of fairness, equality, access, timeliness, enforceability and resource efficiency.

The Australian Constitution is a rich amalgam of various classical political principles. The concepts of the Rule of Law and the doctrine of the Separation of Powers evident in Montesquieu’s Spirit of the Laws are both salient examples of political theses that are central to Australian Constitutional Law. The structure of the Constitution itself and decisions of the High Court of Australia unequivocally validate the entrenchment of the doctrine separation of powers in the Commonwealth Constitution . In particular, the High Court has applied this with relative rigour with respect to the separation of judicial power. The separation of the judicial power is fundamentally critical to upholding the rule of law. The High Court in Wilson v Minister for Aboriginal Affairs noted that “the separation of the judicial function…advances two constitutional objectives: the guarantee of liberty and, to that end, the independence of Chapter III judges” . Kitto J in R v Davidson also identified that the judiciary should be subject to no other authority but the law itself . This is a critical aspect ensuring the concept of legal equality is upheld. Therefore, its role clearly extends to providing checks and balances on the exercise of power by the legislative and executive arms of government . This ensures the liberty of the law and limits the abuse of the judicial system. Judicial Power is defined as “the power which every sovereign must of necessity have to decide between its subjects

The approach of judicial restraint seeks to only act when there is a clear violation of connotational law. The idea is that the way the constitution was written represents a clearly defined law and that unless there is a compelling and glaring violation based on fact not emotion or political view, that the law need not be “reinterpreted”. When judicial activism is used the emotions and political views of the justices may have influence over their decision making and rulings. The idea is that constitutional law must be reviewed and reevaluated because each case is different and the law being challenged must be

It is widely recognised that Australia’s System of decision making in the court is in need of significant reform, if the nation’s present and future need for fair justice is to be met.

There is nothing controversial about saying, as Alexander Bickel did in The Least Dangerous Branch in 1962, “that judicial review is a counter-majoritarian force.” When one gives an unelected judiciary the power to declare null and void laws enacted by popularly elected representatives, there automatically exists the possibility that those jurists will rule counter to the wishes of a majority. To be sure, the existence of this judicial power creates fundamental problems in a constitutional democracy, and many forests have been felled in the scholarly quest to analyze those problems. As Bickel observed, the counter-majoritarian nature of judicial review is “the root difficulty” in the American judicial system. He also noted, however, that this force is an “ineluctable reality.” It is therefore misleading to argue that, “empirical studies of judicial review have consistently found that Bickel’s ‘difficulty’ does not actually exist.” The difficulty of which Bickel wrote did, and most definitely does continue to exist. Unpacking the socio-political factors that influence the way in which the “difficulty” manifests itself in judicial decision-making has prompted the aforementioned studies. However, those studies have never shown, because they never could show, that the “difficulty,” as Bickel defined it, “does not actually exist.”

In any case, you might find this article interesting, where it suggests a slightly different approach in constitutional analysis, referred to as purpose scrutiny. In the past the Court have failed “to pass judgment on the legitimacy of legislative ends”, instead focused on the rationale of the “means

A judge or court engages in a policy of judicial restraint, by contrast, may have a history of the defense of the laws as written, and adherence to precedent. The political composition of a restraint-based court should have little effect on decisions, because the judges will

Lord Dyson begins by referring to the judgment of Lord Diplock in the Council of Civil Service Unions v Minister for Civil Service, in 1985. In that case, Lord Diplock underlined the fact that the courts were not concerned with the question of whether the decision-maker reached the “correct” decision, but rather with the question of whether sensible decision-makers, properly directed in law and properly applying their minds to the matter, could have regarded the conclusion under review as a permissible one. This was a very restrictive approach with a high threshold to cross if a JR application was to be successful on the grounds of

This essay will explore the changes that Article 263 TFEU has had to the accessibility of judicial review before the CJEU as well as assessing whether the reforms introduced were sufficient enough in improving a private parties ability to bring government decisions under scrutiny. In addition, the judgments of the Court in Inuit and Microban will be considered. This essay will analyse present criticisms of the definition set out in the two cases and the overall effect of the new article.

The power to strike down Acts of Parliament is defined as the power to declare legislation invalid because it is unconstitutional. This paper will critically assess sections 3 and 4 of the HRA 1998 by defining them, reviewing case law surrounding their use, and by evaluating the powers that they give to the judiciary. By doing so, it will demonstrate that section 3 gives judges powers that are not significantly different from the power to strike down Acts of Parliament, whereas section 4 does not.

Some judges in their obiter dicta have declared their inclination to disregard the Parliament’s legislative objectives, and therefore limit parliamentary sovereignty if the rule of law is vulnerable or if the circumstances demand “a principle established on a different hypothesis of constitutionalism” . They have also suggested that, while the British Constitution is dominated by parliamentary sovereignty, “The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based” . This represents a possibility of stretching the dominance of the rule of law in constitutional law so that it becomes more powerful than parliamentary sovereignty in the British Constitution .

This essay will provide a detailed examination of what Alternative dispute resolution (ADR) is, particularly mediation, the various techniques of ADR, the advantages and disadvantages of ADR; and whether or not courts should have the authority to compel individuals into undertaking mediation or other forms of ADR. This essay argues against courts having the power to compel litigants into mediation but may be afforded powers to encourage parties to go through mediation at first instance. This essay will base its arguments on whether courts should compel civil litigants to follow the ADR route upon the perceived advantages of ADR and its success rate. The contention of this essay is not that mediation is inappropriately used to settle

In Li CJ’s judgment in A Solicitor v Law Society of Hong Kong [2008] 2 HKC 1, he commented in paragraph 9 that the “rigid and inflexible adherence by this Court to the previous precedents may unduly inhibit the proper development of the law and may cause injustice in individual cases. The great strength of the common law lies in its capacity to develop to meet the changing needs and circumstances of the society in which it functions.” In this essay, this statement would be discussed with reference to the role of the courts and their relationship to the legislature.