Judicial Review

The Judicial review of laws passed could prevent a bill being passed if it is thought to be against the legislature of the United Kingdom. For example a trade union taking Government to court over trade union laws.

A. Define Judicial Review- The power of the courts authority to review the actions of the executive and legislative branch and to invalidate if their actions are contrary to the constitutional principles.

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 concept of Judicial Review is to review cases using the power of the courts over the actions of the executive and legislative branches to deem them invalid or unconstitutional. The Supreme Court has a unique position because of its broad commitment to the American People and its Constitution. The Court's principles on judicial review are that The Constitution is the supreme law of the country, they have ultimate authority on constitutional matters, and they must vote against any law that clashes with the constitution. One of the most significant cases that brought forth such convictions was the case of Marbury vs. Madison in 1803. Which was a case that brought many complications because when Jefferson ordered his Secretary of State James

-The power of the judicial review is “A court’s power to review statutes to decide if they conform to the U.S. or state constitutions”. It is important to our legal system to have the power of the judicial review as a tool to the disposal of the courts when conflicts arise within the law or constitution.

Discuss the view that the power of the Supreme Court cannot be justified in a

Judicial Review is one of the court's most important powers and arguably the most powerful one that this branch or any branch has. This is a power that allows the supreme court to make legislative and executive actions subject to review and possible invalidation. The power of Judicial Review was earned in the Supreme Court Case Marbury v. Madison. In this case it was decided that James Madison’s decisions to prevent William Marbury from taking office as justice of the peace was unconstitutional, this has extended the power and now created what is known as judicial review. This has continued to affect laws and acts presently such as in the case of United States v. Nixon when Nixon was denied the powers of absolute executive privilege due to

outweighs its prejudicial effect. People v. Albarran (2007) 149 Cal.App.4th 214, 223. We will not disturb a trial court’s exercise of discretion under Section 352 unless it exceeds the bounds of reason. People v. Funes (1994) 23 Cal.App.4th 1506, 1519.

Conversely, other judges have found the judgement in Consul Development v DPC to be inconclusive, adopting a narrow interpretation of the judgement of Stephen J and restricting the requisite knowledge only to the first three categories of the Baden scale. This tendency toward a narrow approach increased following the decision in Royal Brunei Airlines Sdn Bhd v Tan (‘Royal Brunei’) as courts attempted to reconcile the UK and Australian lines of authority. However in other cases, such as Gertsch v Atsas it was held that that the acceptance of the first four Baden categories was synonymous with accepting a standard of honesty.

The power of judicial review says that judges or people of the court have jurisdiction to decide whether a law or any others acts by government is constitutional. Judicial review started back when John Adams was serving his term as president. It applied to the Marbury v. Madison case in 1803. This case came about because at the end of John Adams he appointed 42 new justices of peace, but the new President Thomas Jefferson overlooked the commissions and decided not to send out the letters to the appointed justices. This led to one of the Federalist appointees, William Marbury to file a lawsuit against Thomas Jefferson’s secretary of state. Jefferson’s secretary of state at the time was James Madison. Marbury wanted the documents delivered so

Unlawful delegation places a restriction on the decision maker to delegate their power to make significant decisions to third party entities or other individuals. It is unlawful to act under dictation of a public body that have been given the power to make certain types of decisions if that body have not been given the statutory power to delegate.

It is through the judicial review grounds that this objective is fulfilled and remains fit for purpose. A claim of irrationality is one of the more vaguely defined grounds of judicial review and allows a lot of discretion by the judges. The Wednesbury test is often difficult to meet but that is due to how careful the review system is when considering what falls under an unreasonable decision. If the Wednesbury test was not as challenging it would open the floodgates to a wide spectrum of what could be considered reasonable. The uncertainty of the irrationality ground is why it is often paired with another ground so make sure a claim is successful. Procedural impropriety is one such ground that is easy to identify and contains a clear set of policies of what qualifies as a breach in natural justice and legal procedure. It is from this ground that legitimate expectations have a better opportunity to succeed in judicial review hearings. The grounds of the judicial review system are vital when holding the executive power accountable for their actions and offer a way to clarify what type of wrong needs to be reviewed in the decision-making

Judicial Review is the act of which gives the Supreme Court the power to determine what the constitution means. It gives the supreme court the power to evaluate the decisions of the congress and overturn them if needed. Judicial review was emphasized for the first time in the well-known case of Marbury vs. Madison. In this case, in the year 1803, William Marbury was appointed as the Justice of the Peace in the district of Columbia by president John Adams; however the secretary of the state, John Marshal failed to deliver this commission in time before the end of John Adam’s term; the new secretary of state James Madison refused to deliver the commission. Marbury reacted by suing James Madison in the supreme court, requesting a writ of mandamus. The Supreme Court found that while Madison should have delivered the commission to Marbury; their court was in no place to provide the writ of mandamus as this should be appointed in a different court, according to Article 3 of section 13 of the Judiciary act in the constitution of 1789 “The Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction.” This case was implied under the “in all other cases” which meant that Marbury should have gone to the district court instead of directly going to the Supreme Court. While in this case, the supreme court

Equity has been described as a ‘mysterious creature’ that lies distinctly alongside the common law. In considering the statement, there is an almost linear reversal in which the remedies in equity procure a type of right not necessarily available in the common law. This peculiar jurisdiction has created consistent controversy especially in regards to the fusion of the common law and equity. To understand further, this essay will consider the relationship between equity and the common law. The development of equity alongside the common law through its history and intention, and application in case law will be imperative in the discussion of the statement. In conjunction with an analysis of fusion, it will become apparent that equitable damages were enlivened, separate to, in unfair circumstances where no rights/damages existed within the common law. In trying to tread the murky waters of the distinction yet the procedural fusion of equity and common law, the contention of this essay becomes apparent. Effectively, this essay aims to highlight that the history, intention, application and fusion fallacies regarding equity, all which point to an assertion that rights in equity are indeed the product of its remedies. Whether they are merely ‘two streams of jurisdiction, though they run in the same channel, run side by side and do not mingle their waters’, is yet to be seen.

* The person or body is under a legal duty to act or make a decision in a certain way and is unlawfully refusing or failing to do so; or