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Judicial Review of Non-Statutory Executive Action (2020)
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Judicial Review of Non-Statutory Executive Action (2020)

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by Amanda Sapienza. Published November 2020. Hard Cover. Isbn 9781760022518
In Australia, the Commonwealth and State governments are authorised to exercise power that is neither conferred by legislation nor expressly provided for in a constitution: non-statutory executive power. Where non-statutory executive power is exercised, questions arise as to the role of the courts in keeping the government accountable for this action. Although intermediate appellate courts at the Commonwealth and State levels have applied the House of Lords’ decision in Council for Civil Service Unions v Minister for the Civil Service to permit judicial review of non-statutory action in an appropriate case, it is unclear what cases are “appropriate” and how the traditional grounds of review and remedies might apply to action that is not authorised by legislation. Dr Sapienza’s ground-breaking book attempts to bring clarity to this area of law by assessing the extent to which Australian judicial review principles are capable of application to an exercise of non-statutory executive power. It begins by categorising non-statutory executive power according to the manner in which an exercise of it is capable of having a legal effect. It then examines each element of judicial review – jurisdiction, justiciability, grounds of review, standing and remedies – to determine which aspects of each element are likely to pose an obstacle to a successful judicial review application in respect of each category of non-statutory action. In so doing, it lays a conceptual and doctrinal foundation from which legal practitioners and the courts can navigate this complex area of law on a case-by-case basis, as they are increasingly being called on to do. As the first treatise to thoroughly explore this area, it is an invaluable resource for governments and those advising them. It will also be the starting point for lawyers seeking to challenge an exercise of non-statutory executive power as well as for the courts they call upon to review the action. CONTENTS CHAPTER 1: INTRODUCTION CHAPTER 2: THE NON-STATUTORY EXECUTIVE POWER OF AUSTRALIA’S GOVERNMENTS I Introduction II Legislative Predominance over the Executive III Section 61 of the Constitution IV Prerogatives V Non-Prerogative Capacities VI Non-Statutory Powers are Discretionary VII Conclusion CHAPTER 3: JURISDICTION I Introduction II Jurisdiction to Conduct Judicial Review: States and Territories III Jurisdiction to Conduct Judicial Review: Commonwealth IV Statutory Judicial Review Jurisdiction V Other Courts VI Conclusion CHAPTER 4: JUSTICIABILITY - GENERAL PRINCIPLES I Introduction II The Separation of Powers III The Historical Development of Justiciability of Non-Statutory Action IV Justiciability of the Exercise of Prerogatives V Justiciability of The Exercise of Non-Prerogative Capacities VI Conclusion CHAPTER 5: JUSTICIABILITY - STATUTORY ASPECTS I Introduction II Justiciability of Statutory Provisions in respect of Prerogative Powers III Justiciability of Non-Statutory Action Directed to the Exercise of a Statutory Discretion IV Justiciability under Statutory Provisions for Judicial Review V Conclusion CHAPTER 6: THE BASIS FOR APPLYING JUDICIAL REVIEW STANDARDS TO NON-STATUTORY ACTION I Introduction II The Relationship Between Judicial Review Standards and Legal Obligations III The Source of Judicial Review Standards IV Common Law Principles underlying Relevant Rules of Statutory Construction V The Role of the Constitution VI The Common Law Principles of Lawfulness, Reason and Fairness in Australia VII Conclusion CHAPTER 7: RECONCILING GROUNDS OF REVIEW WITH NON-STATUTORY ACTION I Introduction II Absence of Jurisdictional Facts III Principle Against Further Delegation V Acting for an Unauthorised Purpose; Ignoring Mandatory Considerations and Taking into Account Prohibited Considerations VI Procedural Fairness VII The Role of Policies in Executive Decision-Making VIII Unreasonableness IX Evidentiary Issues X Conclusion CHAPTER 8: REMEDIES AND STANDING I Introduction II The Relationship between Remedies, Standing and Jurisdiction III Constitutional Writs IV Prerogative Writs Currently Performing a Public Law Function V Equitable Remedies VI Discretionary Considerations VII Conclusion CHAPTER 9: CONCLUSIONS
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