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  • Janina Boughey (a1)

It is trite to observe that the past three decades have seen an ‘explosion’ in comparative law. Equally well-worn territory is the fact that constitutional law has been a particular beneficiary of the comparative trend, despite the fact that for much of the twentieth century comparative lawyers tended to avoid public law topics. However, one field of law that has been conspicuously absent from the boom in comparison, at least outside of Europe, is administrative law. This article analyses why the use of comparison has been so vastly different between the two areas of public law. It then surveys some recent developments in administrative law and points to a number of aspects of the field that would benefit from the wider use of comparative methods across the world.

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1 Smits, JM, ‘Preface’ in Smits, JM (ed), The Elgar Encyclopedia of Comparative Law (Edward Elgar Publishing 2006) xvii.

2 See eg Legrand, P, ‘How to Compare Now’ (1996) 16 Legal Studies 235–8; Reimann, M, ‘The Progress and Failure of Comparative Law in the Second Half of the Twentieth Century’ (2002) 50 AmJCompL 671; Samuel, G, ‘Epistemology and Comparative Law: Contributions from the Sciences and Social Sciences’ in Hoecke, M van, Ost, F and Wintgens, L (eds), Epistemology and Methodology of Comparative Law (Hart Publishing 2004) 378.

3 This article uses a broad, functional definition of administrative law encompassing any laws, rules or principles that govern or control the exercise of government or executive power. A functional definition allows administrative law to be analysed using the conventional methodology of comparative law, and avoids some of the difficulties associated with legal taxonomy (see section II). The definition is designed to be sufficiently broad to include systems of governing the exercise of government power that are not premised on the supremacy or rule of law. It is outside the scope of this paper to explore these issues in detail. For a discussion in relation to East Asian law see J Ohnesorge, ‘Administrative Law in East Asia: A Comparative Historical Analysis’ in Rose-Ackerman, S and Lindseth, PL (eds), Comparative Administrative Law (Edward Elgar 2011) 7982.

4 T Ginsburg, ‘Written Constitutions and the Administrative State: On the Constitutional Character of Administrative Law’, in Rose-Ackerman and Lindseth (eds), (n 3) 117.

5 The terms ‘public law’ and ‘private law’ are ambiguous, and mean different things in different jurisdictions. Even within legal systems there is no consensus on what constitutes ‘public law’. See eg Woolf, H, ‘The Role of the English Judiciary in Developing Public Law’ (1986) 27 William and Mary Law Review 669–71 (in relation to the distinction in English law). In this article the term ‘public law’ is used broadly to refer to laws applying to government bodies (including administrative law, constitutional law, human rights law and criminal law), while ‘private law’ is understood to mean the law regulating relationships between individuals (as well as other non-government entities). More specific terminology is used throughout this article as context requires.

6 See eg Blanc-Jouvan, X, ‘Centennial World Congress on Comparative Law: Opening Remarks’ (2001) 75 TulLRev 862; Sacco, R, ‘One Hundred Years of Comparative Law’ (2001) 75 TulLRev 1164; E Örücü, ‘Methodology of Comparative Law’ in Smits (n 1) 442. There is disagreement amongst comparative lawyers as to whether comparative law is a method or a distinct discipline. This article refers to comparative administrative law as both a method and a discipline, consistent with the approach of Pierre Legrand on the issue: Legrand, P, ‘Comparative Legal Studies and Commitment to Theory’ (1995) 58 ModLRev 264.

7 J Ziller, ‘Public Law’ in Smits (n 1) 603.

8 Nessen, P von, The Use of Comparative Law in Australia (Lawbook Co 2006) 2730; Mousourakis, G, Perspectives on Comparative Law and Jurisprudence (Pearson 2006) 24–5; HP Glenn, ‘Aims of Comparative Law’ in Smits (n 1) 57–8; Reimann, ‘The Progress and Failure of Comparative Law’ (n 2) 693.

9 Clarke, D, ‘Nothing New in 2000? Comparative Law in 1900 and Today’ (2001) 75 TulLRev 882.

10 See eg discussions in Örücü, E, The Enigma of Comparative Law: Variations on a Theme for the Twenty-First Century (Martinus Nijhoff Publishers 2004) 179; Saunders, C, ‘Apples, Oranges and Comparative Administrative Law’ (2006) Acta Juridica 426; Seerden, R and Stroink, F, ‘Comparative Remarks’ in Seerden, R and Stroink, F (eds), Administrative Law of the European Union, Its Member States and the United States: A Comparative Analysis (Intersentia 2002) 345.

11 HP Nehl, ‘Administrative Law’ in Smits (n 1) 18. See also Örücü, The Enigma of Comparative Law (n 10) 172.

12 von Nessen (n 8) 27–30; Sacco, R, ‘Legal Formants: A Dynamic Approach to Comparative Law’ (1991) 39 AmJCompL 26; Reimann, M, ‘Stepping Out of the European Shadow: Why Comparative Law in the United States Must Develop Its Own Agenda’ (1998) 46 AmJCompL 643–5.

13 Hirschl, R, ‘The Rise of Comparative Constitutional Law: Thoughts on Substance and Method’ (2008) 2 Indian Journal of Constitutional Law 11.

14 ibid 11–13.

15 The most obvious example is S v Makwanyane, 1995 [3] SALR 391 (CC) in which the South African Constitutional Court considered jurisprudence from a range of overseas jurisdictions. Other South African examples are discussed in Choudhry, S, ‘Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation’ (1999) 74 IndLJ 819.

16 The Canadian Supreme Court frequently cites judgments of foreign courts, particularly from the European Court of Human Rights, US Supreme Court and UK superior courts. See eg Alberta v Hutterian Brethren of Wilson Colony [2009] 2 SCR 567, [90]–[91] and Charkaoui v Canada (Citizenship and Immigration) [2007] 1 SCR 350, [124]–[128].

17 The European Court of Human Rights (ECtHR) frequently refers to Member States’ laws and practices in interpreting the European Convention on Human Rights. See Dzehtsiarou, K, ‘Comparative Law in the Reasoning of the European Court of Human Rights’ (2010) 10 University College Dublin Law Review 109. Recent examples include Burden and Burden v United Kingdom [2008] 47 EHRR 38 [25]–[26] and K.U. v Finland [2009] 48 EHRR 52.

18 See discussion of recent references to foreign constitutional law by the US Supreme Court in DS Law, ‘Generic Constitutional Law’ (2005) 89 Minnesota Law Review 653–7.

19 Hirschl (n 13) 13.

20 See eg Hirschl (n 13) 14; Ackerman, B, ‘The Rise of World Constitutionalism’ (1997) 83 VaLRev 772; Tushnet, M, ‘The Possibilities of Comparative Constitutional Law’ (1999) 108 YaleLJ 1226–8; Law (n 18) 658–9; Choudhry (n 15) 821.

21 Hirschl (n 13) 14.

22 United States Constitution amend I–X.

23 Canada Act 1982 (UK) c 11, sch B Pt 1; Choudhry (n 15) 821–2.

24 Hirschl (n 13) 14.

25 ibid 15.

26 Choudhry (n 15) 822.

27 See eg Choudhry (n 15).

28 Law (n 18).

29 Zweigert, K and Kötz, H, An Introduction to Comparative Law (3rd edn, Clarendon Press 1998) 33; Reimann, ‘The Progress and Failure of Comparative Law’ (n 2) 687–90. Examples of comparative constitutional lawyers engaging with methodological challenges include: Hirschl (n 13); Tushnet (n 20), in particular his critique of functionalism at 1265–9.

30 See eg Örücü, The Enigma of Comparative Law (n 10) 173; JL Mashaw, ‘Explaining Administrative Law: Reflections on Federal Administrative Law in Nineteenth Century America’ in Rose-Ackerman and Lindseth (eds), (n 3) 44.

31 Legrand, ‘How to Compare Now’ (n 2) 235–6.

32 Hirschl (n 13) 27.

33 ibid 28.

34 ibid 26–37. See also Kamba, WJ, ‘Comparative Law: A Theoretical Framework’ (1974) 23 ICLQ 487–8; Legrand, ‘How to Compare Now’ (n 2); Markesinis, B, ‘Comparative Law in Search of an Audience’ (1990) 53 ModLRev 262; Reimann, ‘The Progress and Failure of Comparative Law’ (n 2); Samuel (n 2).

35 Including Maurice Hauriou, Frank Goodnow, Albert Venn Dicey and Otto Mayer.

36 Rose-Ackerman, S and Lindseth, P, ‘Comparative Administrative Law: Outlining a Field of Study’ (2010) 28 Windsor Yearbook of Access to Justice 435.

37 Nehl (n 11) 18.

38 Ziller (n 7) 604.

39 There are obviously exceptions. The work of the late Michael Taggart, for instance, contained much valuable and insightful comparison, see for example Taggart, M, ‘Australian Exceptionalism in Judicial Review’ (2008) 36 Federal Law Review 1. There are also a number of comparative administrative lawyers in North America, many of whom are cited throughout this article.

40 The establishment of a number of research groups and forums, including the Research Network on EU Administrative Law ( and European Group of Public Law ( are evidence of the growing interest in comparison in Europe over the past two decades.

41 Caranta, R, ‘Pleading for European Comparative Law: What is the Place for Comparative Law in Europe?’ (2009) 2 Review of European Administrative Law 168–75; Hofmann, H, ‘Seven Challenges for EU Administrative Law’ (2009) 2 Review of European Administrative Law 37–8.

42 Ginsburg (n 4) 117.

43 ibid.

44 Mannori, L and Sordi, B, ‘Science of Administration and Administrative Law’ in Becchi, P et al. (eds), A History of the Philosophy of Law in the Civil Law World: 1600–1900 (Springer 2009). Though it should be noted that many elements of the English system of administrative law, such as its traditional remedies, can be traced back to well before the twentieth century. For a history of the origins of the various elements of English administrative law see: Jaffe, L and Henderson, E, ‘Judicial Review and the Rule of Law: Historical Origins’ (1956) 72 LQR 345.

45 Nehl (n 11) 18.

46 Reimann, ‘Stepping out of the European Shadow’ (n 12) 640.

47 Ohnesorge (n 3) 89.

48 M Mota Prado, ‘Presidential Dominance from a Comparative Perspective: The Relationship between the Executive Branch and Regulatory Agencies in Brazil’ in Rose-Ackerman and Lindseth (eds), (n 3) 225.

49 A few of the many discussions of this issue include: P Craig, EU Administrative Law (2nd edn, Oxford University Press 2012) ch 1 and 2; Nieto-Garrido, E and Delgado, IM, European Administrative Law in the Constitutional Treaty (Hart Publishing 2007) ch 4; Hofmann, H and Türk, A, ‘The Development of Integrated Administration in the EU and its Consequences’ (2007) 13 ELJ 253; Kingsbury, B, Krisch, N and Stewart, RB, ‘The Emergence of Global Administrative Law’ (2005) 68 Law&ContempProbs 15.

50 Ziller (n 7) 604.

51 Constitutional conventions play a particularly important role in English constitutional law, which famously lacks a written constitutional text. However, they can also play an important role in countries with written constitutions, such as the United States and the Netherlands: M Claes, ‘Constitutional Law’ in Smits (ed), (n 1) 189.

52 For example Canada's Supreme Court Act, RSC 1985, c S-26 arguably forms part of the Canadian Constitution, but was enacted by Parliament as ordinary legislation. For a discussion of this issue see Cheffins, R, ‘The Constitution Act, 1982 and the Amending Formula: Political and Legal Implications’ (1982) 4 Supreme Court Law Review 53–4 (who argues that the Supreme Court Act is entrenched in the constitution); P Hogg, Constitutional Law of Canada (5th edn, Thompson/Carswell 2010) vol 1, 8-2–8-3, 11-9 (who argues that it is an ordinary act of Parliament).

53 There are exceptions—for instance Canada's Constitution is not found in one core document, but comprises a series of statutes, amendments, orders and proclamations.

54 Verwaltungsverfahrensgesetz [Administrative Procedure Act] (Germany) (VwVfg).

55 Verwaltungsgerichtsordnung [Administrative Procedure Code] (Germany) (VwVGo).

56 Seerden and Stroink (n 10) 347.

57 ibid.

58 General statutes have been adopted at the federal level and in the Australian Capital Territory, Queensland, Tasmania and Victoria: Administrative Decisions (Judicial Review) Act 1977 (Cth); Administrative Decisions (Judicial Review) Act 1989 (ACT); Judicial Review Act 1991 (Qld); Judicial Review Act 2000 (Tas); Administrative Law Act 1978 (Vic). There is no general judicial review legislation in New South Wales, South Australia, Western Australia or the Northern Territory.

59 For discussion of some of the issues raised by the codification of judicial review in Australia see Aronson, M, Dyer, B and Groves, M, Judicial Review of Administrative Action (4th edn, Lawbook Co 2009) 259–65. Aronson, M, ‘Is the ADJR Act Hampering the Development of Australian Administrative Law?’ (2004) 15 Public Law Review 203; Groves, M, ‘Should the Administrative Law Act 1978 (Vic) Be Repealed?’ (2010) 34 MelbULReview 452.

60 Human Rights Act 2004 (ACT), s 40B; Charter of Human Rights and Responsibilities Act 2006 (Vic), section 38.

61 Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 221.

62 Ziller (n 7) 604.

63 J Bell, French Administrative Law (5th edn, Clarendon Press 1998) 44–50.

64 R v Sussex Justices; ex parte McCarthy [1924] 1 KB 256, 259 (Lord Chief Justice Hewart).

65 See eg Procola v Luxembourg (1995) 22 EHRR 193; Kleyn and Ors v The Netherlands [GC] (ECtHR, nos 39343/98, 39651/98, 43147/98 and 46664/99, 6 May 2003) [190]–[198]; Sacilor Lormines v France (EctHR, no 65411/01, 9 November 2006) [59]–[74].

66 See the submissions of the French Government in Sacilor Lormines v France (EctHR, no 65411/01, 9 November 2006), paras 52–58; J Bell, French Administrative Law (n 63) 66. M Patrick Frydman, ‘Administrative Justice in France’, (Keynote Address delivered at the 11th Australasian Institute of Judicial Administration Tribunals Conference, Surfers Paradise, 5 June 2008) < > .

67 Harlow, C, ‘Global Administrative Law: The Quest for Principles and Values’ (2006) 17 EJIL 208.

68 Parliamentary Ombudsman, ‘History’ < > .

69 Levin, PT, ‘The Swedish Model of Public Administration: Separation of Powers – the Swedish Style’ (2009) 4 Journal of Administration and Governance 41.

70 AV Dicey, Introduction to the Study of the Law of the Constitution (9th edn, MacMillan and Co 1939) 388.

71 ibid 193.

72 Marshall, G, ‘The Franks Report on Administrative Tribunals and Enquiries’ (1957) 35 Public Administration 349–50.

73 Creyke, R and McMillan, J, Control of Government Action: Text, Cases and Commentary (2nd edn, LexisNexis Butterworths 2009) 155–9.

74 Report of the Committee on Administrative Tribunals and Enquiries, Report Cmnd 218, (1957) [40].

75 Sir A Leggatt, ‘Tribunals for Users: One System, One Service’ (2001) < > .

76 Department for Constitutional Affairs, ‘Transforming Public Services, Complaints, Redress and Tribunals’, Report Cm 6243 (2004) < >.

77 Sir W Wade and C Forsyth, Administrative Law (10th edn, Oxford 2009) 776–7.

78 ibid 777–8.

79 ibid 780.

80 P Cane, ‘Judicial Review and Merits Review: Comparing Administrative Adjudication by Courts and Tribunals’ in Rose-Ackerman and Lindseth (eds), (n 3) 440.

81 See generally RH Fallon Jr, ‘Of Legislative Courts, Administrative Agencies, and Article III’, (1988) 101 HarvLR 916–8; RJ Pierce Jr, Administrative Law Treatise (5th edn, Wolters Kluwer 2010) 132–45.

82 The law on precisely which decisions require judicial oversight, and the level of oversight required is not settled: Fallon ibid; Pierce ibid 132–45. The requirement for oversight of ‘essential elements’ of administrative decisions by Article III courts, based on the principle established in Marbury v Madison 5 US (1 Cranch) 137 (1803), has been influential throughout the common law world: see Tushnet, M, ‘Marbury v Madison Around the World’ (2004) 71 TennLRev 251. Yet, interestingly, the exception to this doctrine in the US appears to have largely gone unnoticed elsewhere.

83 Fallon (n 81).

84 Constitution of the Republic of South Africa 1996 (South Africa).

85 JM Ackerman, ‘Understanding Independent Accountability Agencies’ in Rose-Ackerman and Lindseth (eds), (n 3) 271–4.

86 Auby, J, ‘Comparative Approaches to the Rise of Contract in the Public Sphere’ (2007) PublL 40.

87 See eg B Jones and K Thompson, ‘Administrative Law in the UK’ in Seerden and Stroink (eds), (n 10) 218–9 (regarding the English position); Seddon, N, Government Contracts: Federal State and Local (Federation Press 1995) (regarding the Australian position); Emmanuelli, P, Government Procurement (2nd edn, Butterworths 2008) (regarding the Canadian position).

88 Auby, ‘Comparative Approaches to the Rise of Contract in the Public Sphere’ (n 86) 46.

89 R Seerden and F Stroink, ‘Administrative Law in the Netherlands’ in Seerden and Stroink (eds) (n 10) 145.

90 Since 1998, German law has recognized a relatively small category of administrative contracts which are dealt with in administrative courts. See Huber, P, ‘The Europeanization of Public Procurement in Germany’ (2001) 7 EPL 33.

91 ‘Comparative Approaches to the Rise of Contract in the Public Sphere’ (n 86) 47–8.

92 ibid 48.

93 Ginsburg (n 4) 117.

94 ibid 117.

95 Hofmann (n 41) 37–8.

96 Ginsburg (n 4) 119–21.

97 ibid 121–3.

98 ibid 117.

99 ibid 119.

100 Go, J, ‘Globalizing Constitutionalism? Views from the Postcolony, 1945–2000’ (2003) 18 International Sociology 91.

101 ibid 80–1.

102 Z Elkins, T Ginsburg and B Simmons, ‘Constitutional Convergence in Human Rights? The Reciprocal Relationship Between Human Rights Treaties and National Constitutions’ (Bar-Ilan University Conference, ‘60 Years Since the Adoption of the Universal Declaration of Human Rights and Genocide Convention: Evaluating the Record’, December 2008) < > .

103 Ginsburg (n 4) 119.

104 ibid 123.

105 A Vermeule, ‘Our Schmittian Administrative Law’ (2009) 122 HarvLRev 1097.

106 Ginsburg (n 4) 119.

107 Go (n 100) 80.

108 See generally US State Department, ‘Country Reports on Human Rights Practices 2010’ < > ; Amnesty International, ‘Report 2011: The State of the World's Human Rights’ < > .

109 Wilson, W, ‘The Study of Administration’ (1887) 2 PolSciQ 211, quoting Barthold Niebuhr (no reference provided).

110 Ginsburg (n 4) 122.

111 ibid 117.

112 See eg Hirschl (n 13) 26; Legrand, ‘How to Compare Now’ (n 2); Reimann, ‘The Progress and Failure of Comparative Law’ (n 2); Samuel (n 2).

113 This article makes no judgment as to the desirability or otherwise of the global diffusion of this particular Western administrative law model. For such a discussion see Harlow (n 67) 207–14.

114 Auby, ‘Comparative Approaches to the Rise of Contract in the Public Sphere’ (n 86) 40.

115 Galabert, JM, ‘The Influence of the Conseil D'Etat outside France’ (2000) 49 ICLQ 704–5.

116 Ohnesorge (n 3) 78–91.

117 ibid 82–9.

118 Örücü, E, ‘Conseil D'Etat: The French Layer of Turkish Administrative Law’ (2000) 49 ICLQ 679.

119 Creyke and McMillan (n 73) 245.

120 Kingsbury, Krisch and Stewart (n 49); Chiti, E, ‘EU and Global Administrative Organizations’ in Chiti, E and Mattarella, BG (eds), Global Administrative Law and EU Administrative Law: Relationships, Legal Issues and Comparison (Springer, 2011).

121 GA Bermann, ‘A Restatement of European Administrative Law: Problems and Prospects’ in Rose-Ackerman and Lindseth (eds), (n 3) 595.

122 See generally European Union, ‘Agencies’ < > .

123 See eg Council Regulation 58/2003 of December 19, 2002, which sets out procedural and operational rules for executive agencies responsible for operating Community programmes, including reporting structures (Articles 8 and 9), auditing (Article 20) and public access to documents (Article 23).

124 Treaty on the Functioning of the European Union (adopted 7 February 1992, entered into force 1 November 1993) [2009] OJ C 115/119, Articles 263–267.

125 Bermann (n 121) 598.

126 See discussions in Schwarze, JEuropean Administrative Law in the Light of the Treaty of Lisbon’ (2012) 18 EPL 287–8; Caranta, R, ‘Evolving Patterns and Change in the EU Governance and their Consequences on Judicial Protection’ in Caranta, R and Gerbrandy, A (eds), Traditions and Change in European Administrative Law (Europa Law Publishing 2011) 21–3; R Widdershoven, ‘European Administrative Law’ in Seerden and Stroink (eds) (n 10) 260.

127 Treaty on the Functioning of the European Union (adopted 7 February 1992, entered into force 1 November 1993) [2009] OJ C 115/119, Articles 263–7.

128 Caranta, ‘Evolving Patterns’ (n 126) 21–2; Craig, Paul and Búrca, Gráinne de, EU Law: Text, Cases and Materials (5th edn, Oxford University Press 2011) ch 15; Widdershoven (n 126) 278–86.

129 Schwarze (n 126) 288.

130 ibid.

131 European Ombudsman, ‘The European Code of Good Administrative Behaviour’ (2005) < > . See also De Leeuw, ME, ‘The European Ombudsman's Role as a Developer of Norms of Good Administration’ (2011) 17 EPL 349.

132 Schwarze (n 126) 289.

133 ibid.

134 See Hilson, C, ‘The Europeanization of English Administrative Law: Judicial Review and Convergence’ (2003) 9 EPL 125.

135 See eg Eliantonio, M, Europeanisation of Administrative Justice? The Influence of the ECJ's Case Law in Italy, Germany and England (Europa 2009).

136 For further references on this issue see Caranta, ‘Pleading for European Comparative Administrative Law’ (n 41) 155–7.

137 See generally Harlow (n 67) 198–204; Kingsbury, Krisch and Stewart (n 49) 34.

138 Kingsbury, Krisch and Stewart ibid.

139 ibid 37.

140 [2000] OJ C 364. The ChFR was given the same legal value as Treaties of the EU by the Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community (adopted 13 December 1997, entered into force 1 December 2009) [2007] OJ C 306/1, Article 6(1).

141 See further Wakefield, J, The Right to Good Administration (Kluwer Law 2007).

142 This section is based on the data compiled by Z Elkins, T Ginsburg and J Melton, ‘Comparative Constitutions Project’ < > .

143 Constitution of the Republic of South Africa 1996 (South Africa), section 33.

144 Constitution of the Republic of Ghana 1992 (Ghana), section19(13).

145 Constitution of the Islamic Republic of Iran 1979 (Iran), sections 138(1) and 156(3).

146 Constitution of the Kingdom of Cambodia 1993 (Cambodia), Article 39.

147 ‘Comparative Constitutions Project’ (n 142).

148 For a discussion of this point see Harlow (n 67) 204–7; Bradley, AW, ‘Administrative Justice: A Developing Human Right?’ (1995) 1 EPL 347; Wakefield (n 141).

149 The UK is an obvious example of a jurisdiction where the courts do not have the power to declare legislation unconstitutional, though in recent years a minority of the House of Lords has hinted that the traditional doctrine of parliamentary sovereignty may be subject to limits in ‘exceptional circumstances’: see Jackson v Attorney-General [2006] 1 AC 262, [102] (Lord Steyn), [104] (Lord Hope); [159] (Baroness Hale). For discussion of the possible wider implications of the minority views in Jackson see Mullen, T, ‘Reflections on Jackson v Attorney General: questioning sovereignty’ (2007) 27 Legal Studies 15.

150 ‘Comparative Constitutions Project’ (n 142).

151 The best example is the US Supreme Court's decision in Marbury v Madison 5 US (1 Cranch) 137 (1803). Similar decisions establishing the supremacy of the courts in matters of constitutional interpretation were made in Germany (Southwest, Bundesverfassungsgericht [German Constitutional Court], (1951) 1 BVerfGE 14; France (Conseil Constitutionnel [French Constitutional Court], decision no 71-44 DC, July 16, 1971; and the EU (NV Algemene Transporten Expeditie Onderneming van Gend en Loose v Nederlandse Administratis der Belastingen(C-26/62) [1963] ECR 1: Hirschl (n 13) 15–6.

152 Hirschl (n 13) 15.

153 Ginsburg (n 4) 120. See also Harlow, C and Rawlings, R, Law and Administration (3rd edn, Cambridge University Press 2009) 46.

154 Caranta, ‘Pleading for European Comparative Administrative Law’ (n 41) 170–1.

155 See generally Taggart, M, ‘The Province of Administrative Law Determined?’ in Taggart, M (ed), The Province of Administrative Law (Hart Publishing 1997) 1.

156 J Auby, ‘Contracting Out and ‘Public Values’: A Theoretical and Comparative Approach’ in Rose-Ackerman and Lindseth (eds), (n 3) 512.

157 Dickinson, LA, ‘Public Law Values in a Privatized World’ (2006) 31 YaleJIntlL 383.

158 ‘Public Contracts in Legal Globalization’, < > .

159 Noguellou, R and Stelkens, U (eds), Droit comparé des Contrats Publics (Bruylant 2010).

160 See for instance J Bell, French Administrative Law (n 63); Bell, J, French Legal Cultures (Butterworths 2001); Bell, J, ‘Administrative Law’ in Bell, J, Boyron, S and Whittaker, S, Principles of French Law (2nd edn, Oxford University Press 2008).

161 Caranta, ‘Pleading for European Comparative Law’ (n 41) 171.

162 R v Criminal Injuries Compensation Board, ex parte Lain [1967] 2 QB 864 (Lain) (decisions by a government board, established under the prerogative power, which exercised non-statutory power were held to be reviewable); Council for Civil Service Unions v Minister for the Civil Service [1985] AC 374 (CCSU) (the Prime Minister exercise of non-statutory, prerogative powers in the form of an order banning union membership was found to be reviewable—although in this case the decision was not justiciable).

163 See generally M Hunt, ‘Constitutionalism and Contractualisation of Government in the United Kingdom’ in Taggart (n 155) 27–8.

164 [1987] QB 815.

165 ibid 824.

166 ibid 838 (Donaldson MR); 847 (Lloyd LJ); 850 (Nichols LJ).

167 ibid 838 (Donaldson MR).

168 Hunt (n 163) 32. See also Woolf, H, ‘Droit Public—English Style’ (1995) PublL 62–4.

169 See eg R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan [1993] 2 All ER 853. See generally Hunt (n 163) 33; Campbell, C, ‘The Nature of Power as Public in English Judicial Review’ (2009) 68 CLJ 90. Datafin has also influenced the approach that UK courts have taken to the phrase ‘public authority’ and the scope of the Human Rights Act 1998 (UK) (HRA). The cautious approach to applying Datafin is also reflected in HRA cases: see R (Beer) v Hampshire Farmers’ Markets Ltd [2004] 1 WLR 233.

170 R v Servite Houses and the London Borough of Wandsworth Council, ex p Goldsmith and Chatting (2000) 2 LGLR 997, 1021.

171 See eg Craig, P, ‘Contracting Out, the Human Rights Act and the Scope of Judicial Review’ (2002) 118 LQR 566.

172 [2003] ICR 599.

173 ibid [13].

174 See eg the recent discussion in Canada's Federal Court of Appeal of these issues: Air Canada v Toronto Port Authority [2011] FCA 347, [53]–[60].

175 For a discussion of cases see Aronson, Dyer and Groves (n 59) 146–9. Australian state and territory supreme courts all have the inherent power at common law to engage in judicial review of administrative action by their respective state and territory governments. However, as the jurisdiction of state supreme courts remains unwritten, there is no equivalent to the ‘officer of the Commonwealth’ restriction that applies to the High Court's jurisdiction under the Australian Constitution.

176 Though it should be noted that the Migration Act 1958 (Cth), section 46A provides that ‘offshore entry persons’ are not entitled to apply for a visa unless the Minister has made a written determination that it is in the public interest for them to do so. As a result the process described is largely based on policies and is not set out in legislation.

177 In a 2010 case the High Court avoided addressing this question by construing the review process as a part of the Minister's decision-making process under the Migration Act 1958 (Cth). This meant that the review process was required to be conducted in accordance with the principles of natural justice and that it was amenable to judicial review under section 75(v): see Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319. For further discussion see Groves, M, ‘Outsourcing and section 75(v) of the Constitution’ (2011) 22 Public Law Review 3.

178 Aronson, Dyer and Groves (n 59) 40; Groves (n 177) 9.

179 For a list of bodies that the Federal Court has found to be beyond the scope of judicial review under section 75(v) see Aronson, Dyer and Groves (n 59) 38.

180 Griffith University v Tang (2005) 221 CLR 99, 130–1 [89] (Gummow, Callinan and Heydon JJ).

181 Aronson, Dyer and Groves (n 59) 146, 149.

182 (2003) 216 CLR 277, [54]–[64] (McHugh, Hayne and Callinan JJ).

183 (2005) 221 CLR 99, 130–1 [89] (Gummow, Callinan and Heydon JJ).

184 For detailed discussion of the problems presented by contracting out in the US see Freeman, J, ‘The Contracting State’ (2000) 28 Florida State University Law Review 155.

185 And indeed in the US, the constitution has been found to require that control over certain aspects of some services remain within the control of agencies. See Freeman, J, ‘Private Parties, Public Functions and the New Administrative Law’ (2000) 52 Administrative Law Review 813, 823–4.

186 ibid 825.

187 For discussion of case law on this point see Guttman, D, ‘Public Purpose and Private Service: the Twentieth Century Culture of Contracting Out and the Evolving Law of Diffused Sovereignty’ (2000) 52 Administrative Law Review 891926.

188 See eg Metzger, GE, ‘Privatization as Delegation’ (2003) 103 Columbia Law Review 1367; Freeman, ‘The Contracting State’ (n 184).

189 Auby, ‘Contracting Out and Public Values’ (n 156) 522.

190 Bell, ‘Administrative Law’ (n 160) 172.

191 ibid. Public authorities in France can also enter into private law contracts.

192 Bermann, G and Picard, E, ‘Administrative Law’ in Bermann, G and Picard, E (eds), Introduction to French Law (Wolters Kluwer 2008) 86.

193 Auby, ‘Contracting Out and Public Values’ (n 156) 522.

194 ibid 520.

195 ibid, citing Conseil d'Etat, Syndicat des propriétaires et contribuables du quartier Croix-de-Seguey-Tivoli, 21 December 1906, Rec p 962.

196 Auby, ‘Comparative Approaches to the Rise of Contract in the Public Sphere’ (n 86) 48.

197 Auby, ‘Contracting Out and Public Values’ (n 156) 515.

198 ibid.

199 Deregulation and Contracting Out Act 1994 (UK), s 71 lists functions that cannot be contracted out, including: judicial functions; functions that interfere with or otherwise affect individual liberty; powers to enter, search or seize property; and the power to make subordinate legislation. Federal Activities Inventory Reform Act of 1998 Pub L No 105-270, 112 Stat 2382 (USA), section 5(2) defines ‘inherently governmental functions’, as ‘a function that is so intimately related to the public interest as to require performance by Federal Government employees’, including: interpreting and executing the law so as to bind the government; actions determining the interests of the US by military or diplomatic action, civil or criminal judicial proceedings; actions that significantly affect the life, liberty or property of private persons; the appointment of officials; and actions affecting government property.

200 Auby, ‘Contracting Out and Public Values’ (n 156) 515.

201 ibid.

202 Ombudsman Act 1976 (Cth), section 3BA.

203 Auby, ‘Contracting Out and Public Values’ (n 156) 518–9.

204 ibid.

205 Aman, AC, ‘Privatization, Prisons, Democracy and Human Rights: the Need to Extend the Province of Administrative Law’ (2005) 12 Indiana Journal of Global Legal Studies 519.

206 Auby, ‘Comparative Approaches to the Rise of Contract in the Public Sphere’ (n 86) 41.

207 Canada Act 1982 (UK) c 11, sch B pt 1.

208 Hogg (n 52) 36–9.

209 Constitution of the Republic of South Africa 1996 (South Africa), ch 2.

210 See eg Government of the Republic of South Africa and Others v Grootboom and Others [2001] 1 SA 46 (Constitutional Court).

211 See eg Tavita v Minister of Immigration [1994] 2 NZLR 257 (NZCA); Mil Mohamed v Minister of Immigration [1997] NZAR 223 at 228 (High Court).

212 AS Sweet and J Mathews, ‘Proportionality Balancing and Global Constitutionalism’ (2008) 47 ColumJTransnatlL 98–111.

213 ibid 101.

214 ibid 102–10; Grimm, D, ‘Proportionality in Canadian and German Constitutional Jurisprudence’ (2007) 57 University of Toronto Law Journal 385–7.

215 R Widdershoven (n 126) 280.

216 Sweet and Mathews (n 212) 139, citing Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratstelle fur Getreide und Futtermittel (C-11/70) [1970] ECR 1125, 1146.

217 The Supreme Court of Canada's decision in Doré v Barreau du Québec (2012) SCC 12 indicates Canada's ‘reasonableness’ standard of review may develop into a proportionality standard whenever Charter rights are involved.

218 Grimm (n 14), discussing what Canadian courts might learn from the German experience of proportionality.

219 Cooke, R, ‘The Road Ahead for the Common Law’ (2004) 53 ICLQ 274.

220 That test arose from Associated Provincial Picture Houses v Wednesbury Corporation [1947] 1 KB 223.

221 See Boyron, S, ‘Proportionality in English Administrative Law: A Faulty Translation’ (1992) 12 OJLS 237.

222 Smith and Grady v UK (1999) 29 EHRR 493.

223 Poole, T, ‘Between the Devil and the Deep Blue Sea: Administrative Law in an Age of Rights’ in Pearson, L, Harlow, C and Taggart, M (eds), Administrative Law in a Changing State: Essays in Honour of Mark Aronson (Hart Publishing 2008) 35.

224 R v Secretary of State for the Home Department, ex p Daly [2001] AC 532.

225 See eg Huang v Secretary of State for the Home Department [2007] 2 AC 167, [19]; R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368, [20].

226 Hickman, , Public Law after the Human Rights Act (Hart Publishing 2010) 52–4.

227 ibid 55.

228 Canada Act 1982 (UK) c 11, sch B pt 1.

229 Blencoe v British Columbia (Human Rights Commission) [2000] 2 SCR 307, 407–7 [189] (LeBel J). See also similar concerns expressed earlier by Evans, JM, ‘The Principles of Fundamental Justice: The Constitution and the Common Law’ (1991) 29 OsgoodeHallLJ 73.

230 Slaight Communications Inc v Davidson [1989] 1 SCR 1038, 1049 (Dickson CJ for Wilson, LaForest and L'Heureux-Dubé JJ).

231 Fox-Decent, E, ‘The Charter and Administrative Law: Cross-Fertilization in Public Law’ in Flood, C and Sossin, L (eds), Administrative Law in Context, (Edmond Montgomery Publications 2008) 182.

232 See eg Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817, 832 [11] (L'Heureux-Dubé J for Gonthier, McLachlin, Bastarache and Binnie JJ).

233 Multani v Commission scolaire Marguerite-Bourgeouys [2006] 1 SCR 256, 310–11 [113] (Deschamps and Abella JJ).

234 Doré v Barreau du Québec (2012) SCC 12. The effect of this decision on the reasonableness standard is an issue that will need to be clarified in future Canadian decisions.

235 Hickman (n 226) 52–6; Joseph, PA and Joseph, T, ‘Human Rights in the New Zealand Courts’ (2011) 18 Australian Journal of Administrative Law 80.

236 D Mullan, ‘The Canadian Charter of Rights and Freedoms: a ‘Direct Driver’ of Judicial Review of Administrative Action in Canada?’ in Pearson, Harlow and Taggart (eds), (n 223) 145.

237 A good example of this is the Australian National Human Rights Consultation, the report on which barely considered the implications of a bill of rights for administrative law, nor the role of administrative law in enforcing human rights in Australia in the absence of statutory protections: see ‘National Human Rights Consultation Committee Report’ (Brennan Report) (2009) < > . In response to the Brennan Report, the Australian government has introduced a number of human rights measures which have the potential to influence administrative decision-making as well as the content of federal legislation. These include the appointment of the President of the Australian Human Rights Commission an ex officio member of the Administrative Review Council (which makes recommendations to the Attorney-General on administrative law in Australia) and the enactment of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) which establishes various mechanisms for parliamentary oversight of the human rights implications of new bills.

238 C Huang, ‘Judicial Deference to Legislative Delegation and Administrative Discretion in New Democracies: Recent Evidence From Poland, Taiwan, and South Africa’ in Rose-Ackerman and Lindseth (eds), (n 3) 466; Ginsburg (n 4) 120.

239 Harlow and Rawlings (n 153) ch 1.

240 There are a few exceptions to this principle, such as jurisdictional fact doctrine and the no-evidence rule, however the law-fact distinction applies as a general rule to limit the scope of review by courts. See generally Aronson, Dyer and Groves (n 59) ch 4.

241 Taggart, M, ‘Proportionality, Deference, Wednesbury’ (2008) New Zealand Law Review 425.

242 467 US 837 (1984).

243 Tolley, MC, ‘Judicial Review of Agency Interpretation of Statutes: Deference Doctrines in Comparative Perspective’ (2003) 31 The Policy Studies Journal 424–5.

244 [1979] 2 SCR 227.

245 [2008] 1 SCR 190 (Dunsmuir).

246 Dunsmuir [2008] 1 SCR 190, 221–2 [49] (Bastarche and LeBel JJ, for McLachlin CJ and Fish and Abella JJ). The majority also restated that the jurisdiction of superior courts to review the actions and decisions of administrative bodies is constitutionally entrenched: at 212–13 [31].

247 Pushpanathan v Canada (Minister for Citizenship and Immigration) [1998] 1 SCR 982, 1006 [30]–[31] (Bastarache J for L'Heureux-Dubé, Gonthier and McLachlin JJ).

248 Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748, 773 [50]. See also Pushpanathan v Canada (Minister for Citizenship and Immigration) [1998] 1 SCR 982, 1006–8 [32]–[35] (Bastarache J for L'Heureux-Dubé, Gonthier and McLachlin JJ); United Brotherhood of Carpenters and Joiners of America, Local 579 v Bradco Construction Ltd [1993] 2 SCR 316, 335 (Sopinka J for L'Heureux-Dubé, Gonthier and McLachlin JJ).

249 National Corn Growers Association v Canada (Import Tribunal) [1990] 2 SCR 1324, 1336 (Wilson J for Dickson CJ and Lamer CJ).

250 Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748, 773 [37].

251 Craig, P, ‘Judicial Review, Intensity and Deference in EU Law’ in Dyzenhaus, D (ed), The Unity of Public Law (Hart Publishing 2004) 339–42.

252 ibid 340.

253 Philip Morris Holland BV v Commission (C-730/79) [1980] ECR 2671.

254 ibid [19].

255 ibid [25].

256 ibid [24].

257 Craig (n 251) 340–1.

258 For instance Australia's High Court has expressly rejected the doctrine: Enfield City Corp v Development Assessment Commission (2000) 199 CLR 135. Justice Hayne has argued extrajudicially that the concept of deference is both unhelpful and incompatible with Australia's constitutional structure: see Hayne, KM, ‘Deference—An Australian Perspective’ (2011) Public Law 75.

259 Huang (n 238).

260 Dunsmuir [2008] 1 SCR 190.

261 United States v Mead Corporation, 533 US 218 (2001).

262 Hirschl (n 13) 11.

I am very much indebted to Matthew Groves for his insightful comments on earlier drafts of this article. I am also grateful to the anonymous reviewers for their helpful suggestions. All errors and omissions remain my own.

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