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Vol 25 No 2 Feb/March 2020

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


ISBN13: 9781509933105
Published: October 2019
Publisher: Hart Publishing
Country of Publication: UK
Format: Paperback (Hardback in 2017)
Price: £40.00
Hardback edition , ISBN13 9781509907861



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The publisher will print a copy to fulfill your order. Books can take between 1 to 3 weeks. Looseleaf titles between 1 to 2 weeks.

It is commonly asserted that bills of rights have had a 'righting' effect on the principles of judicial review of administrative action and 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 amongst 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 of these claims remain just that-as there has been limited detailed analysis of the issue, and no detailed comparative analysis of the claims' veracity.

This book analyses in detail 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 and the separation of powers. It will provide valuable reading for all those researching judicial review and human rights.

Subjects:
Other Jurisdictions , Australia, Canada
Contents:
1. Introduction
I. The 'Righting' of Administrative Law?
II. This Book's Contribution
III. A Note on Methodology
IV. The Scope of this Book
V. The Structure of this Book

Part I: Constitutional and Statutory Frameworks
2. The Framework for Judicial Review of Administrative Action in Australia
I. Australia's Constitution
II. The Constitutional Status of Judicial Review
III. Statutory Judicial Review Frameworks
IV. Australia's Human Rights Framework
V. Conclusions
3. The Framework for Judicial Review of Administrative Action in Canada
I. Canada's Constitution
II. The Constitutional Status of Judicial Review
III. Privative Clauses and the Standard of Review
IV. Statutory Judicial Review Frameworks
V. Canada's Human Rights Framework
VI. Conclusions

Part II: The Effects of Canada's Rights Framework on Judicial Review
4. Procedural Fairness
I. Overview of Rights to Fairness
II. The Scope of the Common Law Duty to Afford Procedural Fairness
III. The Content of Fairness
IV. The Rationales for Fairness
V. Litigants' Use of Fairness
VI. Entrenchment of Procedural Fairness
VII. Conclusions
5. Controlling Discretion
I. A Brief History of Judicial Attitudes Towards Discretion
II. Controlling Discretion in Australia
III. Controlling Discretion in Canada
IV. Human Rights Controls on Discretion
V. Conclusions
6. Intensity of Review
I. Intensity Under the Classic Model
II. Intensity of Review in Australia
III. Intensity of Review in Canada
IV. Conclusions
7. Conclusions

Series: Hart Studies in Comparative Public Law

The Role of Monarchy in Modern Democracy: European Monarchies Compared ISBN 9781509931019
To be published August 2020
Hart Publishing
Australian Constitutional Values
Edited by: Rosalind Dixon
ISBN 9781509939510
To be published June 2020
Hart Publishing
Governance by Numbers: The Making of a Legal Model of Allegiance
Alain Supiottranslated by Saskia Brown
ISBN 9781509936977
Published March 2020
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The Federal Idea: Public Law Between Governance and Political Life ISBN 9781509935673
Published December 2019
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Principled Reasoning in Human Rights Adjudication ISBN 9781509931323
Published August 2019
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Legitimate Expectations in the Common Law World ISBN 9781509929733
Published May 2019
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Regulation in India: Design, Capacity, Performance (eBook) ISBN 9781509927739
Published April 2019
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£85.50 + £17.10 VAT
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Regulation in India: Design, Capacity, Performance ISBN 9781509927562
Published April 2019
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Trial by Jury and Counter-Terrorism ISBN 9781849465397
Published August 2018
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Soft Law and Public Authorities: Remedies and Reform ISBN 9781509922062
Published May 2018
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Administrative Law and Judicial Deference ISBN 9781509921133
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Australian Constitutional Values (eBook) ISBN 9781509918416
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Australian Constitutional Values ISBN 9781509918409
Published February 2018
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Entick v Carrington: 250 Years of the Rule of Law ISBN 9781509918324
Published December 2017
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Governance by Numbers: The Making of a Legal Model of Allegiance ISBN 9781509907748
Published November 2017
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£45.00 + £9.00 VAT
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The Right to Freedom of Assembly: A Comparative Study ISBN 9781509916016
Published August 2017
Hart Publishing
The Federal Idea: Public Law Between Governance and Political Life (eBook)
Edited by: Amnon Lev
ISBN 9781509907120
Published August 2017
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£31.50 + £6.30 VAT
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The Federal Idea: Public Law Between Governance and Political Life
Edited by: Amnon Lev
ISBN 9781509907113
Published August 2017
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£45.00 + £9.00 VAT
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Principled Reasoning in Human Rights Adjudication (eBook) ISBN 9781782259824
Published April 2017
Hart Publishing
£31.50 + £6.30 VAT
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Principled Reasoning in Human Rights Adjudication ISBN 9781782259817
Published April 2017
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£31.50 + £6.30 VAT
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Legitimate Expectations in the Common Law World (eBook) ISBN 9781509909506
Published January 2017
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£36.00 + £7.20 VAT
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Legitimate Expectations in the Common Law World ISBN 9781849467780
Published January 2017
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Soft Law and Public Authorities: Remedies and Reform (eBook) ISBN 9781782256892
Published February 2016
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£30.58 + £6.12 VAT
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Soft Law and Public Authorities: Remedies and Reform ISBN 9781782256885
Published February 2016
Hart Publishing
£35.08 + £7.02 VAT
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Administrative Law and Judicial Deference (eBook) ISBN 9781782253365
Published January 2016
Hart Publishing
£30.58 + £6.12 VAT
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Administrative Law and Judicial Deference ISBN 9781849462778
Published January 2016
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Entick v Carrington: 250 Years of the Rule of Law ISBN 9781849465588
Published September 2015
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Entick v Carrington: 250 Years of the Rule of Law (eBook) ISBN 9781509901944
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£26.08 + £5.22 VAT
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The Right to Freedom of Assembly: A Comparative Study (eBook) ISBN 9781782259862
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£31.48 + £6.30 VAT
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The Right to Freedom of Assembly: A Comparative Study ISBN 9781849467216
Published May 2015
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£34.18 + £6.84 VAT
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Human Rights Acts: The Mechanisms Compared ISBN 9781849460965
Published January 2015
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Human Rights Acts: The Mechanisms Compared (eBook) ISBN 9781782254843
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The Use of Foreign Precedents by Constitutional Judges ISBN 9781849466592
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Constitutionalising Secession (eBook) ISBN 9781782253310
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Constitutionalising Secession ISBN 9781849464376
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Israeli Constitutional Law in the Making ISBN 9781849464093
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Israeli Constitutional Law in the Making (eBook) ISBN 9781782251859
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The Use of Foreign Precedents by Constitutional Judges (eBook) ISBN 9781782251019
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The Use of Foreign Precedents by Constitutional Judges ISBN 9781849462716
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