5 July 2010

Judicial Review: Practical Lessons, Insights and Forecasts

Earlier this year, I presented a paper to a conference of government lawyers.  It is now available as a working paper:

- Dean R Knight "Judicial Review: Practical Lessons, Insights and Forecasts" (Working Paper VUW-NZCPL-002, Wellington, April 2010)
It contains - like, I think, any good sermon - three key points:
1. The discipline of judicial review is confusing and uncertain, particularly in some key areas, such as substantive review, review involving human rights or review in areas where the state has departed from the classic model of undertaking public functions.
2. Recognising that the courts are grappling with competing tensions of vigilance and restraint is a better way of understanding the great morass of judicial review cases.
3. Across all grounds of review, there is a reasonably common set of contextual factors which feed into the balance between vigilance and restraint.
As usual, comments, feedback, or rotten tomatoes welcomed!

1 July 2010

BIG SNAPS: Courts (Remote Participation) Bill

It was pleasing to hear reports of some mature law-making last night.

Labour, Green, and Maori MPs had been arguing against the use of remote video links for substantive criminal trials without the consent of the accused.  Although the government had the numbers to pass the Bill (we assume, although the voting patterns of the ACT party are never predictable), reports are that the Minister, Hon Simon Power, was "persuaded" by the strength of the debate and proposed a handwritten SOP to amend the Bill to address this.

On its face, it looks like mature and responsive law-making, where the merits of the case are at the forefront.  An examplar for our MMP multi-party legislature.  "Big snaps" to all involved.

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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