22 August 2007

From Professing to Advising to Judging: a conference in honour of Sir Kenneth Keith

Tomorrow I'm speaking at the NZ Centre for Public Law and Faculty of Law at Victoria University of Wellington's conference honouring Sir Kenneth Keith (I am also one of the organisers of the conference). A link to my paper is below: > Dean R Knight, "A Murky Methodology: Standards of Review in Administrative Law" It's a bit dry from pages 8-19 but you can probably skip over that stuff. And perhaps a touch too long as well but, as you'll see, it's a pretty vast and difficult area.


Anonymous said...

Do you think the asymmetry of the "balanced" constitution (courts interpretation function a counterweight to parliament's ability to legislate, but judges' decisions on the scope or extent of judicial review in essence reviewed only by other judges) supports heightened deference by the judicial arm?

Dean Knight said...


1. I think it's clear courts don't just "interpret" law. They are law-making just as much as parliament - albeit in different ways and spheres...

2. One of the basic themes is my article is that, if the courts are more aggressive with their scrunity, we need to more creatively identify the different controls on their power. They are implicit in the system, but they depend on transparency and honesty in expression of judicial methodology... hence my claim that we need a more open and robust framework for identifying standards of review.

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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