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38536 results in Cambridge Textbooks

Page 1576 of 1927

  • 6 - Statutory interpretation and administrative law

  • from Part 1 - The Structure and Themes of Administrative Law
  • Edited by Matthew Groves, Monash University, Victoria
  • Book:
    Modern Administrative Law in Australia
    Published online:
    12 August 2019
    Print publication:
    13 February 2014, pp 119-139

  • Summary

    Introduction: The Mona Lisa of the law

    In a television documentary discussing Da Vinci’s Mona Lisa, the renowned Australian art critic, the late Robert Hughes, observed:

    The Mona Lisa, the most famous painting in the world…Her image is so familiar that it has been deprived of meaning.

    This comment has an unexpected resonance with statutory interpretation. Statutory interpretation is similarly ‘so familiar’ to all those with an acquaintance with the law. Statutory interpretation is a necessary element in the court’s identification of the substantive or procedural statute law it is called upon to apply. It thus ‘keys into the whole system of law’. It is particularly entwined in administrative law. Indeed, Professor D G T Williams once opined that ‘administrative law is for the courts largely an exercise in statutory interpretation’. Although administrative law in total is much more than statutory interpretation, there cannot be any doubt about their close connection. Chief Justice French of the High Court has suggested that statutory interpretation is central to administrative law because:

    The exercise by public officials of powers conferred upon them by statute is subject to review by the courts where it is asserted that an official has exceeded his or her powers or has purported to exercise the power in a way that is not authorised by the statute. This again involves the judiciary in the exercise of statutory interpretation.

  • 7 - Standing for environmental groups: Protecting public and private interests

  • from Part 1 - The Structure and Themes of Administrative Law
  • Edited by Matthew Groves, Monash University, Victoria
  • Book:
    Modern Administrative Law in Australia
    Published online:
    12 August 2019
    Print publication:
    13 February 2014, pp 140-162

  • Summary

    Introduction: Standing and interests

    The general principle of Australian standing laws is that an applicant is to have a special interest in the subject matter of the proceedings. This is easily satisfied when the applicant has suffered harm to their private rights and interests – particularly if the harm relates to property or financial concerns. Issues tend to arise when applicants bring proceedings claiming to represent other persons with rights and interests that are affected, or when they claim to represent the public interest. This chapter examines the difficulties under the basic rules of standing for environmental groups in bringing proceedings to challenge administrative decisions. It also examines reforms that facilitate environmental groups’ access to the courts.

    It is convenient to mention at the outset that, technically, there is a variety of standing rules in Australia – the rules vary depending on the remedy being sought. While it is doubtful whether standing rules should differ according to the remedy, it is also commonly accepted that the different tests for standing are converging. The common thread in standing laws is that the applicant has an ‘interest’ that is regarded as worthy of protection – reflected in Australian law in the special interest test established in Australian Conservation Foundation v Commonwealth.

  • 3 - Symmetries

  • Alessandro Bettini, Università degli Studi di Padova, Italy
  • Book:
    Introduction to Elementary Particle Physics
    Published online:
    28 May 2018
    Print publication:
    13 February 2014, pp 87-115

  • Summary

    ‘Symmetry’ comes from the Greek word συμμετρος, meaning well-ordered. Symmetry is present in many fields. Several objects in Nature are geometrically symmetrical, for example a butterfly, or a flower, or a fullerene molecule.

    Symmetry is used in physics in several different ways, exploiting its mathematical description. In modern physics, it is used as a powerful instrument to constrain the form of equations. The equations are assumed to be invariant under the transformation of a group, which may be discrete or a continuous Lie group. This approach is of fundamental importance, in particular, for particle physics.

    This chapter begins with a simple classification of the various types of symmetry, introducing the concepts that will be used in later sections. The reader should already be familiar with Lorentz invariance, i.e. the invariance of the equation of motion under the Poincaré group, as well as the Noether theorem, at least in classical physics. The situation is not different in quantum physics.

    The concept of spontaneous symmetry breaking is also introduced. It will evolve into the Higgs mechanism, which gives origin to the masses of the vector bosons that mediate the weak interactions, of the quarks and of the charged leptons. This fundamental aspect of the Standard Model has been experimentally verified by the LHC experiments in 2011–2012, as will be discussed in Chapter 9. The student will meet a simpler example of spontaneous symmetry breaking in the chiral symmetry of the strong interaction, in Section 7.11.

  • 9 - Australia’s codification of judicial review: Has the legislative effort been worth it?

  • from Part 2 - Judicial Review
  • Edited by Matthew Groves, Monash University, Victoria
  • Book:
    Modern Administrative Law in Australia
    Published online:
    12 August 2019
    Print publication:
    13 February 2014, pp 180-204

  • Summary

    Introduction

    In Australia, at the federal, State and Territory levels, legislative steps have been taken to enhance the efficacy of judicial review over administrative action. The purpose of statutory codification of judicial review was twofold: first, to enhance access to justice for individuals aggrieved by government action or inaction; and, second, to promote, and affirm the importance of, legal accountability for public administration. This was to be achieved by, inter alia:

  • Simplifying the procedures for accessing the courts and applying for judicial review;

  • Codifying the common law grounds for review; and

  • Providing for a right to written reasons in respect of certain administrative decisions.

    • This chapter examines whether legislative codification has been ‘worth it’, in view of the rationale underpinning it. Put another way, has codification constrained, or hampered, the law of judicial review in Australia?

    Chapter 1 has assessed the role that the Kerr and Ellicott committees played leading up to the enactment of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘ADJR Act’). The ADJR Act was ‘an important milestone in the evolution of Australian administrative law’. It was the irst attempt in Australia ‘to codify both the law and much of the procedure of judicial review’. The ADJR Act has been judicially described as ‘one of the most important Australian legal reforms of the last century’. Groves has observed that ‘during the irst decade after its enactment, the ADJR Act was the leading avenue of judicial review and clearly exerted great inluence over Australian administrative law’. This assessment is supported by the Administrative Review Council (‘ARC’) in a report issued in 1989. In that report, the ARC set out statistics regarding judicial review applications federally under the ADJR Act but also via s 39B of the Judiciary Act 1903 (Cth) which corresponds to the High Court’s jurisdiction under s 75 of the Commonwealth Constitution (see Figure 9.1). The preponderance of ADJR Act applications is striking.

  • 8 - The constitutional dimension

  • from Part 2 - Judicial Review
  • Edited by Matthew Groves, Monash University, Victoria
  • Book:
    Modern Administrative Law in Australia
    Published online:
    12 August 2019
    Print publication:
    13 February 2014, pp 165-179

  • Summary

    Introduction

    The Australian Constitution came into existence in 1901 in fulfilment of what Sir Henry Parkes had described in his Tenterfield Oration in 1889 as the aspiration to create a ‘great national government for all Australia’ under which ‘great national questions’ ‘would be disposed of by a fully authorised constitutional authority’. Writing soon after, Professor Harrison Moore noted the ‘extraordinary and peculiar’ nature of the jurisdiction of courts to ‘control’ administrative decision-making by ‘public officers’ and went on to consider ‘how far the exercise of judicial control is affected by the existence of a dual system of government over the same persons and territory’.

    Given that it is in the nature of a constitution to establish a system of governance, it is hardly surprising that the Australian Constitution should have implications for the development of not only the institutional design of the repositories of administrative power but also that branch of Australian administrative law which is concerned with the judicial review of administrative action. What might be thought surprising in hindsight is that, but for the early insight of Professor Harrison Moore and occasional glimpses in reasons for judgment of which his one-time student Sir Owen Dixon was an author or co-author, those constitutional implications went largely unheralded for almost a century, coming to prominence only in the two decades between 1990 and 2010.

  • 13 - Privative clauses: Politics, legality and the constitutional dimension

  • from Part 2 - Judicial Review
  • Edited by Matthew Groves, Monash University, Victoria
  • Book:
    Modern Administrative Law in Australia
    Published online:
    12 August 2019
    Print publication:
    13 February 2014, pp 276-298

  • Summary

    Introduction

    Privative clauses are essentially a legislative attempt to limit or exclude judicial intervention in a certain field. They have been deployed by parliaments over many years for many reasons – a desire for finality or certainty, a concern about sensitivity or controversy, a wish to avoid delay and expense, or a perception that a matter requires specialist expertise and/or awareness of executive context. Yet a common response from observers is that a broad and undiscerning use of such legislation promotes temporary and specific convenience, and perhaps political expediency, over fundamental legal values.

    It has long been acknowledged that to accompany the conferral of a specified public function with a privative clause is something of a contradiction. Parliament is on the one hand conferring (probably well-defined) functions and powers, whilst also providing, in effect, that the recipient may act however it wishes, free from judicial supervision and control. The contradiction here is not trivial. The Diceyan conception of the rule of law sits squarely in one corner and is easily agitated in a system where the executive not only holds administrative power but also tends to dominate the legislature. Also, even the vaguest notion of a ‘separation of powers’ suggests that there should ultimately be some limit on ouster of judicial intervention in executive decision-making. Yet by the same token, the principles of parliamentary supremacy and the floating ideals of a parliamentary democracy suggest that a clear legislative intention should be respected. Not surprisingly then, the history of privative clauses in Australia is one of acute legal tension. The courts have long read such clauses narrowly, often reciting the relevant foundational legal tenets and presumptions about non-interference with rights or access to the judicial system. Perhaps inevitably, the resistance has been somewhat conceptually scattered.

  • 3 - The public/private distinction and the reach of administrative law

  • from Part 1 - The Structure and Themes of Administrative Law
  • Edited by Matthew Groves, Monash University, Victoria
  • Book:
    Modern Administrative Law in Australia
    Published online:
    12 August 2019
    Print publication:
    13 February 2014, pp 49-69

  • Summary

    Introduction

    Writing in 1992, Geoffrey Airo-Farulla offered a strong critique of the ‘public-private’ distinction and its inability to clearly define the reach of administrative law. He described the dichotomy between the public and private spheres as ‘formalist’ and as ‘one of the basic premises of traditional liberal political philosophy’. Airo-Farulla argued that this distinction was untenable and should be replaced by a focus on ‘the appropriate decision making standards that should be applied by (and to) bureaucracies generally’.

    This critique of the public/private divide came in the wake of the privatisation and outsourcing movement which began in the United Kingdom in the 1980s and swept through Australia in the 1990s. The ideology of ‘new managerialism’ and the mantra of ‘private sector efficiency’ which accompanied those changes gave birth to many other academic calls to reconsider the proper scope of administrative law. Despite these calls, however, little has changed in the 20 years since this challenge to the traditional conception of the reach of administrative law. Government continues to reinvent itself and thus to challenge traditional understandings of the public/private divide. Courts continue to wrestle with an all-or-nothing classification of organisations as either ‘public’ or ‘private’, rather than recognising, as Airo-Farulla hoped, that they actually lie along a continuum, from the highly public to the very private, with many bodies comprising a mixture of each. At the highest, courts have occasionally grappled with the idea that the ‘public’ or ‘private’ classification might not be wholly determined by the proximate source of the power being exercised. Even here, however, their ultimate conclusions have seldom strayed from the traditional.

  • 2 - Administrative law in Australia: Themes and values revisited

  • from Part 1 - The Structure and Themes of Administrative Law
  • Edited by Matthew Groves, Monash University, Victoria
  • Book:
    Modern Administrative Law in Australia
    Published online:
    12 August 2019
    Print publication:
    13 February 2014, pp 24-48

  • Summary

    Introduction: The search for simplicity

    The search for a simple pattern underlying apparent complexity is the perennial quest of science. It is rewarded from time to time when, from masses of apparently uncorrelated data, a pattern is discerned and underlying rules deduced. The periodic table of elements and the standard model in particle physics are examples. Law, whether statutory or judge-made, is the product of untidy historical processes. Simple patterns are not so readily discernible. Sir Owen Dixon, writing in 1933, saw ‘the methods of a modern representative legislature and its pre-occupations’ as an obstacle to ‘scientific or philosophical reconstruction of the legal system’. It is still the position that much important legislation is the result of political compromises between interests and purposes which are in tension with each other. Legislation affecting the jurisdiction and powers of courts in the supervision of executive action sometimes reflects such tension. A leading example can be found in the history of the provisions relating to judicial review of decisions made under the Migration Act 1958 (Cth).

    The common law is the product of a historical process whereby legal doctrines and principles emerge out of judicial decisions on particular cases. The pragmatic and non-systematic processes by which the common law evolves can generate a degree of obscurity in its doctrines, its principles and their terminology.

  • 10 - The evolution and entrenchment of natural justice

  • from Part 2 - Judicial Review
  • Edited by Matthew Groves, Monash University, Victoria
  • Book:
    Modern Administrative Law in Australia
    Published online:
    12 August 2019
    Print publication:
    13 February 2014, pp 205-223

  • Summary

    Introduction

    Natural justice comprises two closely related rules – the rule against bias and the hearing rule. This chapter examines the hearing rule, which governs the procedures that must be adopted in the course of administrative decision-making. The hearing rule requirements have a long common law heritage. They remain crucial to securing the rights of people to fair treatment in the administrative process, but they are limited.

    The Australian conception of natural justice is procedural and regulates the fairness of the decision-making process rather than its outcomes. This focus is why some judges have suggested that the doctrine is better described as ‘procedural fairness’. The procedural focus of natural justice also reflects the absence in Australia of anything like the ‘due process’ rights that are constitutionally entrenched in the United States. Australian constitutional principles give far less protection to the rules of fairness. The High Court has accepted that the Australian Constitution precludes legislative exclusion of core features of natural justice from the exercise of judicial power. There are, however, no such constitutional prohibitions on legislation excluding or restricting the obligation to observe some or all requirements of procedural fairness outside the courts; but the courts deploy a range of interpretive assumptions against such legislation.

  • Foreword

  • Edited by Matthew Groves, Monash University, Victoria
  • Book:
    Modern Administrative Law in Australia
    Published online:
    12 August 2019
    Print publication:
    13 February 2014, pp v-vi

  • Summary

    It is an enticing book title - Modern Administrative Law in Australia. Why is it modern? How is it different from the system of Australian administrative law that has been familiar over decades to practitioners, teachers and students?

    There are three characterising or long-standing elements of Australian administrative law. The irst is the constitutional foundation. The separation of powers in the Australian Constitution both anchors the judiciary’s role in controlling the legal exercise of executive power and places implied constraints on legislative freedom to immunise executive power from judicial scrutiny. Section 75 supplements that arrangement by giving the High Court a guaranteed jurisdiction to adjudicate legal claims against the Commonwealth and to restrain unlawful conduct by Commonwealth oficers.

    The second feature is that many foundation principles of Australian administrative law are drawn less from the Constitution than from the common law. Key concepts - the principle of legality, natural justice, principles of statutory interpretation, remedies and standing - were well developed before constitutional essentials became more pronounced in the last two decades. Indeed, books on Australian administrative law written before that time devoted little attention to the Constitution and focused instead on common law principles of judicial review, with a strong emphasis on landmark decisions of British courts.

Page 1576 of 1927