Administrative Law Administrative Law & &

Judicial Review of Judicial Review of Administrative Administrative

DecisionsDecisions141011141011

Administrative law in Administrative law in common law countriescommon law countries

Most countries that follow the Most countries that follow the principles of common law have principles of common law have developed procedures for judicial developed procedures for judicial review that limit the reviewability of review that limit the reviewability of decisions made by administrative law decisions made by administrative law bodies. bodies.

Often these procedures are coupled Often these procedures are coupled with legislation or other common law with legislation or other common law doctrines that establish standards for doctrines that establish standards for proper rulemaking.proper rulemaking.

Administrative law may also apply Administrative law may also apply to review of decisions of so-called to review of decisions of so-called semi-public bodies, such as non-semi-public bodies, such as non-profit corporations, disciplinary profit corporations, disciplinary boards, and other decision-boards, and other decision-making bodies that affect the making bodies that affect the legal rights of members of a legal rights of members of a particular group or entity.particular group or entity.

While administrative decision-While administrative decision-making bodies are often making bodies are often controlled by larger governmental controlled by larger governmental units, their decisions could be units, their decisions could be reviewed by a court of general reviewed by a court of general jurisdiction under some principle jurisdiction under some principle of judicial review based upon due of judicial review based upon due process (United States) or process (United States) or fundamental justice (Canada).fundamental justice (Canada).

Judicial review of administrative decisions, Judicial review of administrative decisions, it must be noted, is different from an it must be noted, is different from an administrative appeal. administrative appeal.

When sitting in review of a decision, the When sitting in review of a decision, the Court will only look at the method in which Court will only look at the method in which the decision was arrived at, whereas in an the decision was arrived at, whereas in an administrative appeal the correctness of administrative appeal the correctness of the decision itself will be examined, the decision itself will be examined, usually by a higher body in the agency.usually by a higher body in the agency.

This difference is vital in appreciating This difference is vital in appreciating administrative law in common law administrative law in common law countries.countries.

The scope of judicial The scope of judicial reviewreview

The scope of judicial review may be limited The scope of judicial review may be limited to certain questions of fairness, or whether to certain questions of fairness, or whether the administrative action is the administrative action is ultra vires.ultra vires.

In terms of ultra vires actions in the broad In terms of ultra vires actions in the broad sense, a reviewing court may set aside an sense, a reviewing court may set aside an administrative decision if it is unreasonable administrative decision if it is unreasonable (under Canadian law, following the rejection (under Canadian law, following the rejection of the "Patently Unreasonable" standard by of the "Patently Unreasonable" standard by the Supreme Court in Dunsmuir v. New the Supreme Court in Dunsmuir v. New Brunswick), Brunswick), WednesburyWednesbury unreasonable unreasonable (under British law), or arbitrary and (under British law), or arbitrary and capricious (under U.S. Administrative capricious (under U.S. Administrative Procedure Act and New York State law). Procedure Act and New York State law).

Administrative law, as laid down Administrative law, as laid down by the Supreme Court of India, by the Supreme Court of India, has also recognized two more has also recognized two more grounds of judicial review which grounds of judicial review which were recognized but not applied were recognized but not applied by English Courts viz. legitimate by English Courts viz. legitimate expectation and proportionality.expectation and proportionality.

The powers to review The powers to review administrative decisionsadministrative decisions

usually established by statute, but were usually established by statute, but were originally developed from the royal originally developed from the royal prerogative writs of English law, such as the prerogative writs of English law, such as the writ of mandamus and the writ of certiorari.writ of mandamus and the writ of certiorari.

In certain Common Law jurisdictions, such as In certain Common Law jurisdictions, such as India or Pakistan, the power to pass such India or Pakistan, the power to pass such writs is a Constitutionally guaranteed power. writs is a Constitutionally guaranteed power.

This power is seen as fundamental to the This power is seen as fundamental to the power of judicial review and an aspect of the power of judicial review and an aspect of the independent judiciary.independent judiciary.

United StatesUnited States In the United States, many In the United States, many

government agencies are organized government agencies are organized under the executive branch of under the executive branch of government, although a few are part government, although a few are part of the judicial or legislative branches.of the judicial or legislative branches.

In the federal government, the In the federal government, the executive branch, led by the executive branch, led by the president, controls the federal president, controls the federal executive departments, which are led executive departments, which are led by secretaries who are members of by secretaries who are members of the United States Cabinet. the United States Cabinet.

The many important independent The many important independent agencies of the United States agencies of the United States government created by statutes government created by statutes enacted by Congress exist enacted by Congress exist outside of the federal executive outside of the federal executive departments but are still part of departments but are still part of the executive branch.the executive branch.

Congress has also created some Congress has also created some special judicial bodies known as special judicial bodies known as Article I tribunals to handle some Article I tribunals to handle some areas of administrative law.areas of administrative law.

The actions of executive The actions of executive agencies and independent agencies and independent agencies are the main focus of agencies are the main focus of American administrative law. American administrative law.

In response to the rapid creation In response to the rapid creation of new independent agencies in of new independent agencies in the early twentieth century, the early twentieth century, Congress enacted the Congress enacted the Administrative Procedure Act Administrative Procedure Act (APA) in 1946. (APA) in 1946.

Many of the independent agencies Many of the independent agencies operate as miniature versions [operate as miniature versions [citation citation neededneeded] of the tripartite federal ] of the tripartite federal government, with the authority to government, with the authority to "legislate" (through rulemaking; see "legislate" (through rulemaking; see Federal Register and Code of Federal Federal Register and Code of Federal Regulations), "adjudicate" (through Regulations), "adjudicate" (through administrative hearings), and to administrative hearings), and to "execute" administrative goals "execute" administrative goals (through agency enforcement (through agency enforcement personnel). personnel).

Because the United States Because the United States Constitution sets no limits on this Constitution sets no limits on this tripartite authority of tripartite authority of administrative agencies, administrative agencies, Congress enacted the APA to Congress enacted the APA to establish fair administrative law establish fair administrative law procedures to comply with the procedures to comply with the constitutional requirements of constitutional requirements of due process.due process.

Administrative law in civil law countriesAdministrative law in civil law countries

Administrative courtAdministrative court the majority of civil law jurisdictions the majority of civil law jurisdictions

have specialized courts or sections to have specialized courts or sections to deal with administrative cases which, deal with administrative cases which, as a rule, will apply procedural rules as a rule, will apply procedural rules specifically designed for such cases specifically designed for such cases and different from that applied in and different from that applied in private-law proceedings, such as private-law proceedings, such as contract or tort claims.contract or tort claims.

FranceFrance In France, most claims against the In France, most claims against the

national or local governments are national or local governments are handled by administrative courts, handled by administrative courts, which use the which use the Conseil d'État Conseil d'État (State (State Council) as a court of last resort. Council) as a court of last resort.

The main administrative courts are The main administrative courts are the "Tribunaux Administratifs" and the "Tribunaux Administratifs" and appeal courts are the "Cours appeal courts are the "Cours Administratives d'Appel".Administratives d'Appel".

GermanyGermany

Judiciary of GermanyJudiciary of Germany In Germany, the highest In Germany, the highest

administrative court for most matters administrative court for most matters is the federal administrative court is the federal administrative court BundesverwaltungsgerichtBundesverwaltungsgericht. .

There are federal courts with special There are federal courts with special jurisdiction in the fields of social jurisdiction in the fields of social security law (security law (BundessozialgerichtBundessozialgericht) ) and tax law (and tax law (BundesfinanzhofBundesfinanzhof).).

The NetherlandsThe Netherlands In The Netherlands, administrative law In The Netherlands, administrative law

provisions are usually contained in separate provisions are usually contained in separate laws. laws.

There is however a single General There is however a single General Administrative Law Act ("Administrative Law Act ("Algemene wet Algemene wet bestuursrecht" or Awbbestuursrecht" or Awb) that applies both to ) that applies both to the making of administrative decisions and the making of administrative decisions and the judicial review of these decisions in the judicial review of these decisions in courts. courts.

On the basis of the Awb, citizens can oppose On the basis of the Awb, citizens can oppose a decision ('a decision ('besluitbesluit') made by a public body ') made by a public body ('('bestuursorgaanbestuursorgaan') within the administration ') within the administration and apply for judicial review in courts if and apply for judicial review in courts if unsuccessful.unsuccessful.

Unlike France or Germany, there are Unlike France or Germany, there are no special administrative courts of no special administrative courts of first instance in the Netherlands, but first instance in the Netherlands, but regular courts have an administrative regular courts have an administrative "chamber" which specializes in "chamber" which specializes in administrative appeals. administrative appeals.

The courts of appeal in administrative The courts of appeal in administrative cases however are specialized cases however are specialized depending on the case, but most depending on the case, but most administrative appeals end up in the administrative appeals end up in the judicial section of the Council of State judicial section of the Council of State (Raad van State).(Raad van State).

In addition to the system described In addition to the system described above there is another part of above there is another part of administrative law which is called administrative law which is called "administratief beroep" (administrative "administratief beroep" (administrative appeal). appeal).

This procedure is available only if the This procedure is available only if the law on which the primary decision is law on which the primary decision is based specifically provides for it and based specifically provides for it and involves an appeal to a higher ranking involves an appeal to a higher ranking administrative body. administrative body.

If administrative appeal is available, no If administrative appeal is available, no appeal to the judicial system may be appeal to the judicial system may be made.made.

SwedenSweden

The Stenbockska Palace is the The Stenbockska Palace is the seat of the seat of the Supreme Supreme Administrative CourtAdministrative Court of Sweden of Sweden there is a system of administrative there is a system of administrative courts that considers only courts that considers only administrative law cases, and is administrative law cases, and is completely separate from the completely separate from the system of general courts. system of general courts.

This system has three tiers, with This system has three tiers, with 12 county administrative courts 12 county administrative courts ((förvaltningsrättförvaltningsrätt) as the first tier, ) as the first tier, four administrative courts of four administrative courts of appeal (appeal (kammarrättkammarrätt) as the ) as the second tier, and the Supreme second tier, and the Supreme Administrative Court of Sweden Administrative Court of Sweden ((RegeringsrättenRegeringsrätten) as the third tier.) as the third tier.

Migration cases are handled in a two-Migration cases are handled in a two-tier system, effectively within the tier system, effectively within the system general administrative courts. system general administrative courts.

Three of the administrative courts Three of the administrative courts serve as migration courts serve as migration courts ((migrationsdomstolmigrationsdomstol) with the ) with the Administrative Court of Appeal in Administrative Court of Appeal in Stockholm serving as the Migration Stockholm serving as the Migration Court of Appeal Court of Appeal ((MigrationsöverdomstolenMigrationsöverdomstolen).).

BrazilBrazil there is no specialized court or there is no specialized court or

section to deal with section to deal with administrative cases. administrative cases.

In 1998, a constitutional reform, In 1998, a constitutional reform, lead by the government of the lead by the government of the President Fernando Henrique President Fernando Henrique Cardoso, introduced regulatory Cardoso, introduced regulatory agencies as a part of the agencies as a part of the executive branch. executive branch.

Since 1988, Brazilian Since 1988, Brazilian administrative law has been administrative law has been strongly influenced by the judicial strongly influenced by the judicial interpretations of the interpretations of the constitutional principles of public constitutional principles of public administration (art. 37 of Federal administration (art. 37 of Federal Constitution): legality, Constitution): legality, impersonality, publicity of impersonality, publicity of administrative acts, morality and administrative acts, morality and efficiency...efficiency...

ChileChile The President of the Republic exercises the The President of the Republic exercises the

administrative function, in collaboration with administrative function, in collaboration with several Ministries or other authorities with several Ministries or other authorities with ministerial rankministerial rank. .

Each Ministry has one or more under-Each Ministry has one or more under-secretary that performs through public secretary that performs through public services the actual satisfaction of public services the actual satisfaction of public needs. needs.

There is not a single specialized court to deal There is not a single specialized court to deal with actions against the Administrative with actions against the Administrative entities, but instead there are several entities, but instead there are several specialized courts and procedures of review.specialized courts and procedures of review.

People's Republic of ChinaPeople's Republic of China Administrative law in the People's Administrative law in the People's

Republic of China was virtually non-Republic of China was virtually non-existent before the economic reform existent before the economic reform era initiated by Deng Xiaoping. era initiated by Deng Xiaoping.

Since the 1980s, the People's Since the 1980s, the People's Republic of China has constructed a Republic of China has constructed a new legal framework for new legal framework for administrative law, establishing administrative law, establishing control mechanisms for overseeing control mechanisms for overseeing the bureaucracy and disciplinary the bureaucracy and disciplinary committees for the Communist Party committees for the Communist Party of China. of China.

However, many have argued that the However, many have argued that the usefulness of these laws is vastly usefulness of these laws is vastly inadequate in terms of controlling inadequate in terms of controlling government actions, largely because government actions, largely because of institutional and systemic obstacles of institutional and systemic obstacles like a weak judiciary, poorly trained like a weak judiciary, poorly trained judges and lawyers, and corruption.judges and lawyers, and corruption.

In 1990, the Administrative In 1990, the Administrative Supervision Regulations and the Supervision Regulations and the Administrative Reconsideration Administrative Reconsideration Regulations were passed. Both Regulations were passed. Both regulations have since been amended regulations have since been amended and upgraded into laws.and upgraded into laws.

The 1993 State Civil Servant The 1993 State Civil Servant Provisional Regulations changed the Provisional Regulations changed the way government officials were way government officials were selected and promoted, requiring that selected and promoted, requiring that they pass exams and yearly they pass exams and yearly appraisals, and introduced a rotation appraisals, and introduced a rotation system. system.

In 1994, the State Compensation Law In 1994, the State Compensation Law was passed, followed by the was passed, followed by the Administrative Penalties Law in 1996Administrative Penalties Law in 1996

Austria Judicial SystemAustria Judicial System The judicial system is independent of The judicial system is independent of

the executive and legislative the executive and legislative branches. branches.

The constitution establishes that The constitution establishes that judges are independent when acting judges are independent when acting in their judicial function. in their judicial function.

They cannot be bound by They cannot be bound by instructions from a higher court instructions from a higher court (except in cases of appeal) or by (except in cases of appeal) or by another agency.another agency.

In administrative matters, judges are In administrative matters, judges are subordinate to the Ministry for subordinate to the Ministry for Justice. Justice.

A judge can be transferred or A judge can be transferred or dismissed only for specific reasons dismissed only for specific reasons established by law and only after established by law and only after formal court action has been taken. formal court action has been taken.

The Austrian judiciary functions only The Austrian judiciary functions only at the federal level, and thus there is at the federal level, and thus there is no separate court system at the no separate court system at the provincial level. provincial level.