| Summary: | <p>This thesis studies the principle of legality in English and Australian administrative law relating to their legal systems’ legal culture and the determination of the scope of judicial review of administrative action. It demonstrates that the distinctive constitutional orders that are embedded in legal culture of England and Australia, influence the courts’ deep understanding of what legality means and covers. These different understandings result in the English and Australian courts applying different doctrinal approaches when determining the grounds of judicial review, namely, error of law, jurisdictional error, jurisdictional fact, rationality, proportionality and substantive legitimate expectations.</p> <p>On the one hand, the English courts have flexibility to apply various justifications, doctrines and applications in their determination of the mentioned grounds of judicial review. These are products of the English legal culture based on the absence of a written constitution, the balancing process between parliamentary sovereignty and the rule of law, and the fluid separation of powers between court and executive. On the other hand, the Australian courts apply relatively fixed doctrinal approaches to determine these grounds under a central approach of jurisdictional error. This is because, whether empowered or limited, they rigidly follow the framework of separation of powers prescribed in the written constitution, discussed as distinctive elements of Australian legal culture.</p> <p>Rather than supporting the way of one legal system over the other, this thesis upholds a comprehensive understanding of the English and Australian determination of the grounds of judicial review in the light of their deep understanding of legality and legal cultures. The implications of these methodological approaches constitute an in-depth explanation of the way common law judicial reviews are embedded in different legal systems.</p>
|
|---|