...often unique points of statutory interpretation or factual analysis.” McMillan – ‘The Role of Judicial Review in Australian Administrative Law’ AIAL Forum No.30, 47. The above quote suggests that judicial review in Australia is not based on any general principles which are capable of guiding judicial decision making or of being used to impose a coherent vision of the role of judicial review on the cases. Do you agree? Analyse the law relating to standing and access to the courts plus one of the following areas of law in order to demonstrate the extent to which the above quote...
Words: 2275 - Pages: 10
...the public that, agencies and Ministers of the Crown act fairly, consistently and transparently in making administrative decision. It is in line with these objectives that the public can obtain access to documents under Freedom of Information from various agencies. Smith has the option to apply for internal review but since his access decision was made by the Attorney General personally he has no recourse to internal review. Other than that he would have 30 days to apply for an internal review and must notify the applicant within 30 days of receiving the application and it always better and quicker to apply for internal review before resorting to external review. Anecdotal evidence suggests that internal review can be quick, cheap and most likely can lead to a reversal of a decision. You can appeal to your federal member of parliament in your constituency who may have contact with the Attorney General for assistance in this matter. Your MP would have a considerable influence if he and the Attorney General are in the same party and can possibly lobby on your behalf. This avenue should be last after judicial and merit reviews are finalised. Another subtle way is to appear or ring on a talk-on back radio to publicise your case to get into the ears and attention of the relevant authorities. Mr Smith can apply to the Information Commissioner for a reviewable decision under section 54L of the FOI Act. He has 60 days after decision was given under s 26...
Words: 2764 - Pages: 12
...DIFFERENCE, BOUNDARY, DISTINCTION BETWEEN MERITS AND JUDICIAL REVIEW Merits Review and Judicial Review are both mechanisms for one to appeal to for a review of a decision made against them. There are many differences and distinctions between the two, however, sometimes the boundaries between them are blurred. As Merits Review is undertaken at a Tribunal, which is part of the Executive arm of government, and Judicial Review is undertaken within the Courts system, part of the Judicial arm of government, their processes and jurisdiction are distinguished. However, often the role of a Tribunal is likened to one of a Court, and the lines between the separation of powers, particularly Executive and Judicial, are blurred. In terms of jurisdiction and main function of Merits Review and Judicial Review, they are easily distinguished. The jurisdiction to undertake Merits Review by applying to the Administrative Appeals Tribunal is under the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). Judicial Review, on the other hand, can be completed at common law or statute, under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). The main distinction between the two is that Merits Review considered whether decisions are substantially correct, whereas Judicial Review considers the legality of the decision. A new administrative decision-maker asks ‘Is this the best decision on the merits’, and then by undergoing do novo review, they look at the facts anew and substitute...
Words: 848 - Pages: 4
...Government of India | Headquarters | New Delhi | Agency executives | S.Y. Quraishi, Chief Election Commissioner V.S. Sampath, Election Commissioner Harisankar Brahma, Election Commissioner | Structure The commission presently consists of a Chief Election Commissioner and two Election Commissioners, appointed by the president. Until October 1989, there was just one Chief Election Commissioner. In 1989, two Election Commissioners were appointed, but were removed again in January 1990. In 1991, however, the Parliament of India passed a law providing for the appointment of two Election Commissioners. This law was amended and renamed in 1993 as the Chief Election Commissioner and other Election Commissioners (Conditions of Service) Amendment Act 1993. As of 7 April 2011, the CEC is Shahabuddin Yaqoob Quraishi. The Chief Election Commissioner can be removed from his office by Parliament with two-thirds majority in Lok Sabha and Rajya Sabha on the ground of proved misbehaviour or incapacity. The Election Commission shall consist of a Chief Election Commissioner and such other Commissioners as the President may, from time to time, fix. Other Election Commissioner can be removed by the President on the recommendation of the Chief Election Commissioner. Salary of chief election commissioner is same as justice of supreme court of India. All three commissioner have same right of taking a decision. Tenure of commissioners is 6 years or up to age of 65, whichever...
Words: 1817 - Pages: 8
...practice of untouchability an offence or conferring certain culture and educational rights on the minorities, both linguistic as well as religious. Moreover, the given rights are not absolute but subject to certain reasonable restrictions. For example, the right to freedom of speech and expression can be restricted on grounds of public order, morality or decency and national security. The fundamental rights can be suspended during national emergency (act 352), only exception being right to life. Having discussed the basic features of these fundamental rights, one can find that these rights have classified under six heads in a logical manner depending upon their scope and nature. * Right to equality (art 14-18) * Right to freedom (arts 19-22) * Right against exploitation (art 23-24) * Right to freedom of religion (art 25-28) * Cultural and educational rights (art 29-30) * Right to constitutional remedies (art 32) In 1978, right to property mentioned in art 31 was repealed by the 44th amendment act as it was found contrary to other fundamental rights particularly the right to equality. It, however, has been reallocated to Art 300a of part xii as a legal right now. History Of Emergency Provision- Emergency powers, even if parcelled out incrementally, have corrosive consequences. Indeed, incremental measures attract less attention...
Words: 9554 - Pages: 39
...apparent, the state delegates tried to revise them; but instead, constructed the Constitution. When creating the Articles of Confederation, thirteen states formed a Confederation referred to as the “League of Friendship” in order to find a solution for common problems and concerns. The Articles of Confederation created a loose Confederation of independent states that gave limited powers to the central government. Each state, regardless of population, would have one vote in the house of Congress. Members of the one-house Congress agreed that the new government should be a unicameral legislature, without an executive branch or a separate judiciary. Under the articles, there wasn’t a strong independent executive. There did not exist a judicial branch so Congress, alone, had the authority to arbitrate disputes between states. Congress was responsible for conducting foreign affairs, declaring war or peace, maintaining an army and navy and a variety of other lesser functions. But the articles denied Congress the power...
Words: 1305 - Pages: 6
... With the exponential expansion of powers of the executive arm of government and equally massive interests in civil liberties, it is therefore inevitable that we re-examine the relationship between these discretionary powers and what is essentially the rule of law. This essay seeks to analyse the role played by the courts in the limitation of this powers while ensuring that the Executive runs efficiently while ensuring that that the rights of civilians are protected. Discretionary power is the individual judgement; the power of free decision making, a public official’s power to act in a certain circumstances according to the personal judgement and conscience, often in official or representative capacity. Discretion can also be defined as powers granted to an administrator to make a decision with the highest...
Words: 3124 - Pages: 13
...The National Highway Traffic Safety Administration (NHTSA) established a frontal impact test protocol under the Federal Motor Vehicle Safety Standard (FMVSS) No. 208 (Occupant Crash Protection) in an effort to encourage manufacturers to build safer vehicles and for consumers to purchase them. FMVSS No. 208 also mandated the phasing in one of two types of passive restraints in automobiles: airbags and passive seatbelts. Prior to the deadline for complying with the standard, and after the election of a new President (Ronald Reagan) of a different political party, the newly appointed Secretary of Transportation (Andrew Lewis) reopened the rulemaking. Within two months of reopening the rulemaking, the NHTSA ordered a one-year delay in the first application of the standard and proposed the possible rescission of the entire standard. After receiving written comments and holding public hearings, the NHTSA issued a final rule rescinding FMVSS No. 208’s passive restraint requirement. In rescinding this requirement, the NHTSA stated that it could no longer find (as it had prior to the initial proposal of the rule) that such a requirement would produce significant safety benefits. The NHTSA’s judgment did not reflect a change of opinion regarding the effectiveness of the technology, but a change in plans by the automobile industry. At the time of the rescission, industry standards were in place to ensure automatic seatbelts were installed in approximately 99% of all new cars. The...
Words: 1432 - Pages: 6
...Facts This writ petition under Article 32 of the Constitution of India, raising a question of public importance involving the interpretation of Articles 74 (pari materia to Article 163) and 156 of the Constitution, has been referred to this six-judge Constitution Bench. On August 7th, 2014, President Pranab Mukherjee issued a Presidential order removing Mizoram Governor Kamla Beniwal with barely four months left of her tenure. Ms. Beniwal, who had crossed swords with PM Narendra Modi as Gujarat governor, was only recently transferred to Mizoram. According to Ms. Beniwal, she was transferred after a nudge from home secretary Anil Goswami to quit did not elicit the desired response from her. The Government has stated that the decision to advise the Presdient to sack Ms. Beniwal was taken after it came to light that she had misused the governor's office (in Gujarat) to make several unauthorized air travels, including to her home state of Rajasthan, at the expense of the state exchequer. Citing Gujarat Raj Bhavan records, the Government states that Ms. Beniwal flew out of Gujarat 63 times using the state aircraft between 2011 and 2014, with as many as 53 of these trips being to her home city of Jaipur. The Government also states that as chancellor of universities, she had allegedly started taking keen interest in appointment of vicechancellors. Ms. Beniwal denies these allegations and states that the sole motivation for her removal was political vendetta. She asks that the Court examine...
Words: 6543 - Pages: 27
...Boston College International and Comparative Law Review Volume 31 | Issue 2 Article 4 5-1-2008 India's New Constitutionalism: Two Cases That Have Reshaped Indian Law Milan Dalal Follow this and additional works at: http://lawdigitalcommons.bc.edu/iclr Part of the Constitutional Law Commons, and the Foreign Law Commons Recommended Citation Milan Dalal, India's New Constitutionalism: Two Cases That Have Reshaped Indian Law, 31 B.C. Int'l & Comp. L. Rev. 257 (2008), http://lawdigitalcommons.bc.edu/iclr/vol31/iss2/4 This Notes is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College International and Comparative Law Review by an authorized administrator of Digital Commons @ Boston College Law School. For more information, please contact nick.szydlowski@bc.edu. INDIA’S NEW CONSTITUTIONALISM: TWO CASES THAT HAVE RESHAPED INDIAN LAW Milan Dalal* Abstract: As a nation of over one billion people and the world’s largest democracy, India is sometimes confronted with situations in which its democratic institutions clash. Under the Indian Constitution, legislation concerning land reform is placed in a special category designed to immunize it from judicial scrutiny. This scheme, known as the Ninth Schedule, has been abused by legislators seeking electoral benefit. Simultaneously, the country has been rocked by a series of public corruption scandals. As Parliament has...
Words: 7761 - Pages: 32
...and violation of human rights occurred regularly. The courts were also reluctant to review these powers because, they were restricted by rules, for example there was a rule that judicial control does not extend to government’s policy decisions, another rule was that a reviewing court may not substitute it’s opinion for that of the administrative body, unless the official has acted mala fide or in bad faith. This is supported by case of Shidiack v Union Government , where it was held that, if the administrative organ has duly and honestly applied himself to the question which has been left to his discretion, it is impossible for the court of law either to make him change his mind or to substitute it’s conclusion for his own. It is true that for any government to function effectively, it must be bestowed with discretionary powers, discretionary powers involves the exercise of a choice between two or more options on the part of the decision maker. The exercise of these discretionary powers must be checked and controlled by other branches of government, but this was not the case in South Africa. In the past the only manner in which those powers could be controlled was common law basis, but as a result of a narrowly defined grounds of judicial review of government action and decisions, the system of Parliamentary supremacy allows the government to easily exclude the courts power of review via the so-called ouster clauses. The promulgation of the interim and the final constitution...
Words: 12230 - Pages: 49
...Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 101083 July 30, 1993 JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors, and represented by their parents ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE SADIUA, minor, represented by her parents CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD and PATRISHA, all surnamed FLORES, minors and represented by their parents ENRICO and NIDA FLORES, GIANINA DITA R. FORTUN, minor, represented by her parents SIGRID and DOLORES FORTUN, GEORGE II and MA. CONCEPCION, all surnamed MISA, minors and represented by their parents GEORGE and MYRA MISA, BENJAMIN ALAN V. PESIGAN, minor, represented by his parents ANTONIO and ALICE PESIGAN, JOVIE MARIE ALFARO, minor, represented by her parents JOSE and MARIA VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO, minor, represented by her parents FREDENIL and JANE CASTRO, JOHANNA DESAMPARADO, minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO JOAQUIN T. NARVASA, minor, represented by his parents GREGORIO II and CRISTINE CHARITY NARVASA, MA. MARGARITA, JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all surnamed SAENZ, minors, represented by their parents ROBERTO and AURORA SAENZ, KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and DAVID IAN, all surnamed KING, minors, represented by their parents MARIO and HAYDEE KING, DAVID, FRANCISCO and THERESE VICTORIA, all surnamed ENDRIGA, minors, represented by their parents BALTAZAR and TERESITA ENDRIGA, JOSE MA. and REGINA...
Words: 9841 - Pages: 40
...GOVERNMENT OF INDIA LAW COMMISSION OF INDIA L. Chandra Kumar be revisited by Larger Bench of Supreme Court Report No. 215 December 2008 LAW COMMISSION OF INDIA (REPORT NO. 215) L. Chandra Kumar be revisited by Larger Bench of Supreme Court Presented to Dr H. R. Bhardwaj, Union Minister for Law and Justice, Ministry of Law and Justice, Government of India by Dr Justice AR. Lakshmanan, Chairman, Law Commission of India, on 17th day of December, 2008. 2 The 18th Law Commission was constituted for a period of three years from 1st September, 2006 by Order No. A.45012/1/2006-Admn.III (LA) dated the 16th October, 2006, issued by the Government of India, Ministry of Law and Justice, Department of Legal Affairs, New Delhi. The Law Commission consists of the Chairman, the Member-Secretary, one full-time Member and seven part-time Members. Chairman Hon’ble Dr Justice AR. Lakshmanan Member-Secretary Dr Brahm A. Agrawal Full-time Member Prof. Dr Tahir Mahmood Part-time Members Dr (Mrs) Devinder Kumari Raheja Dr K. N. Chandrasekharan Pillai Prof. (Mrs) Lakshmi Jambholkar Smt. Kirti Singh Shri Justice I. Venkatanarayana Shri O.P. Sharma Dr (Mrs) Shyamlha Pappu 3 The Law Commission is located in ILI Building, 2nd Floor, Bhagwan Das Road, New Delhi-110 001 Law Commission Staff Member-Secretary Dr Brahm A. Agrawal Research Staff Shri Sushil Kumar : Joint Secretary & Law Officer Ms. Pawan Sharma : Additional Law Officer Shri J. T. Sulaxan Rao : Additional Law Officer Shri A. K. Upadhyay...
Words: 15977 - Pages: 64
...LOKPAL BILL Submitted to: Mr Ashok Mehta Submitted by: Ms Niharika Sacheti, B.A.-L.L.B. (Hons) 3rd semester Jaipur National University CONTENTS * Introduction * Origin of Lokpal * Why the need of Lokpal * History * The Lokpal Bill, 2011 * Powers of Lokpal * Advantages * Loopholes of Lokpal * Jurisdiction * Birth of Jan-Lokpal * Differences between Lokpal and Jan Lokpal * My Views: a. Should PM be under the purview of Lokpal b. Should Judiciary be under the purview of Lokpal c. Should CBI be under the purview of Lokpal d. Should Bureaucrats be under the purview of Lokpal Introduction: A Lokpal is a proposed ombudsman (Legal Representative) in India. The word is derived from the Sanskrit word "lok" (people) and "pala" (protector/caretaker), or "caretaker of people." Origin of Lokpal: The basic idea of the Lok Pal is borrowed from the office of ombudsman in Scandinavian (Sweden, Denmark, Finland, Norway) countries. The office of the ombudsman originated in Sweden in 1809 A.D. Ombudsman is a Swedish word and refers to an official whose job is to investigate complaints from the public against government officers, who is appointed by the parliament to dispose of cases relating to the executive and the judiciary. Similar institutions were established after that in many democratic republican countries as safeguards against the attitude of officials and higher government's...
Words: 4416 - Pages: 18
...others. INTRODUCTION Judges are by far the most easily recognized member of the courtroom work group, both by their conspicuous robes and by their prominent position in the courtroom. They are also the subject of many stereotypes because the public wants to believe that judges combine patience, wisdom, and compassion to arrive at fair decisions, while they eschew the character flaws that sometimes form the basis of decisions by others, including prejudice, intolerance, favoritism, and hostility. Unfortunately, judges are human and their decisions occasionally reflect such a reality. One West Virginia judge, for example, became so enraged at a defendant who began cursing at him in court that he jumped down from his bench, tore off his judicial robe, and bit the tip off the defendant’s nose (Smith, 1998). He served five days in jail on state assault charges, and was then tried in federal court for violating the defendant’s civil rights. Before he was acquitted of those charges, he acknowledged that his behavior was “bizarre and weird,” and that he had reacted poorly in an emotionally charged situation. While this incident is isolated, it shows that judges are sometimes far from the ideals to which the public holds them. We will return...
Words: 21662 - Pages: 87
