Human Rights and Judicial Review in Australia and Canada: The Newest Despotism?

Janina Boughey

Research output: Book/ReportBookResearchpeer-review

Abstract

It is commonly asserted that bills of rights have had a 'righting' effect on the principles of judicial review of administrative action and have been a key driver of the modern expansion in judicial oversight of the executive arm of government. A number of commentators have pointed to Australian administrative law as evidence for this 'righting' hypothesis. They have suggested that the fact that Australia is an outlier among common law jurisdictions in having neither a statutory nor a constitutional framework to expressly protect human rights explains why Australia alone continues to take an apparently 'formalist', 'legalist' and 'conservative' approach to administrative law. Other commentators and judges, including a number in Canada, have argued the opposite: that bills of rights have the effect of stifling the development of the common law. However, for the most part, all these claims remain just that – there has been limited detailed analysis of the issue, and no detailed comparative analysis of the veracity of the claims. This book analyses in detail the interaction between administrative and human rights law in Australia and Canada, arguing that both jurisdictions have reached remarkably similar positions regarding the balance between judicial and executive power, and between broader fundamental principles including the rule of law, parliamentary sovereignty and the separation of powers. It will provide valuable reading for all those researching judicial review and human rights.
Original languageEnglish
Place of PublicationPortland
PublisherHart Publishing
Number of pages288
Edition1st
ISBN (Electronic)9781509907885
ISBN (Print)9781509907861
Publication statusPublished - 2017

Publication series

NameHart Studies in Comparative Public Law

Keywords

  • administrative law
  • human rights
  • comparative law

Cite this

Boughey, J. (2017). Human Rights and Judicial Review in Australia and Canada: The Newest Despotism? (1st ed.) (Hart Studies in Comparative Public Law). Portland: Hart Publishing.
Boughey, Janina. / Human Rights and Judicial Review in Australia and Canada : The Newest Despotism?. 1st ed. Portland : Hart Publishing, 2017. 288 p. (Hart Studies in Comparative Public Law).
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Boughey, J 2017, Human Rights and Judicial Review in Australia and Canada: The Newest Despotism? Hart Studies in Comparative Public Law, 1st edn, Hart Publishing, Portland.

Human Rights and Judicial Review in Australia and Canada : The Newest Despotism? / Boughey, Janina.

1st ed. Portland : Hart Publishing, 2017. 288 p. (Hart Studies in Comparative Public Law).

Research output: Book/ReportBookResearchpeer-review

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AB - It is commonly asserted that bills of rights have had a 'righting' effect on the principles of judicial review of administrative action and have been a key driver of the modern expansion in judicial oversight of the executive arm of government. A number of commentators have pointed to Australian administrative law as evidence for this 'righting' hypothesis. They have suggested that the fact that Australia is an outlier among common law jurisdictions in having neither a statutory nor a constitutional framework to expressly protect human rights explains why Australia alone continues to take an apparently 'formalist', 'legalist' and 'conservative' approach to administrative law. Other commentators and judges, including a number in Canada, have argued the opposite: that bills of rights have the effect of stifling the development of the common law. However, for the most part, all these claims remain just that – there has been limited detailed analysis of the issue, and no detailed comparative analysis of the veracity of the claims. This book analyses in detail the interaction between administrative and human rights law in Australia and Canada, arguing that both jurisdictions have reached remarkably similar positions regarding the balance between judicial and executive power, and between broader fundamental principles including the rule of law, parliamentary sovereignty and the separation of powers. It will provide valuable reading for all those researching judicial review and human rights.

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Boughey J. Human Rights and Judicial Review in Australia and Canada: The Newest Despotism? 1st ed. Portland: Hart Publishing, 2017. 288 p. (Hart Studies in Comparative Public Law).