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JUDICIAL REVIEW IN INDIVIDUAL COUNTRIES Judicial review in Australia Constitutionality Judicial review of federal and state legislation for constitutionality is established by Section 76 of the Constitution Of Australia , making the High Court Of Australia one of the first courts in the world to exercise this power, after the US Supreme Court . Australia has a unified system of state and federal courts, so state and federal constitutional issues can arise in state courts. A significant constitutional issue is almost always removed into the High Court Of Australia for a final decision. Merit Beginning with the Administrative Appeals Tribunal Act 1975 , Australia was the second Westminster System country to adopt a comprehensive system of administrative appeals on the merits of decisions. Legality Judicial review on the legality of federal administrative decisions in Australia is available under the Administrative Decisions (Judicial Review) Act 1977 or ADJR for short. An administrative act may be reviewable if it is a decision of an administrative character made, proposed to be made, or required to be made under an enactment by a Commonwealth authority or officer, excluding a decision of the Governor-General or a decision made exempt under statute. The Act provides for review of decisions (s5), conduct engaged in for the purpose of making a decision (s6) of failing to make a decision (s7). Under the Act, statutory orders of review replace the common law writs and equitable remedies (s16). The States Various Australian States also provide for statutory judicial review. In Queensland, the common law doctrines have been repealed and replaced under Part 5 (ss41-47) of the Judicial Review Act 1992 (Qld). Part 3 (ss20-30) provides the equivalent of the Commonwealth scheme, with the exception that decisions of an administrative character may also be reviewable if made under a "non-statutory scheme or program", provided it is publicly funded (s4(b)). Judicial review in Austria When the Constitution Of Austria , drafted by Hans Kelsen , was enacted in 1920 , Austria was the first country to implement what is now known as the "Austrian system" of judicial review, where a separate Constitutional Court has juridisction to review the constitutionality of Statutes and Decrees . There are various circumstances under which the Constitutional Court Of Austria can be required to review legislation, e.g.
The Constitutional Court can also review statutes which are part of the constitution on whether they are compatible with "basic principles" of the constitution, such as Democracy , Federalism , the Rule Of Law , the Republic an principle or the Separation Of Powers . Other than normal constitutional statutes, pieces of legislation seriously affecting those principles (such as Austria's accession to the EU ) require a referendum in addition to the two thirds majority normally required to change or amend the constitution. However, so far the court has only in one case found that part of the constitution was incompatible with its basic principles. Judicial review in Canada In Canada , the same principle applies as in the British Parliamentary System , though since the Constitution Of Canada created a federal state there was an issue of the Division Of Powers so while there were questions regarding judicial review when jurisdictional conflicts arose, there was no clear power to overturn laws based upon other grounds. It is important to note that the courts in each province, while provincial, are courts of plenary jurisdiction under the Canadian constitution and are held to have the traditional powers of judicial review such as in England and Wales. Regarding the review of administrative decisions by public officials the concepts of Fundamental Justice and overturning of Patently Unreasonable decisionmaking have developed along with the evolution of the royal writs as in the United Kingdom. In 1982 when the patriated Canadian Constitution came into force the Canadian Charter Of Rights And Freedoms created a clear written power of judicial review. In that document, the Supreme Court Of Canada was granted the power of judicial review beyond the power that it had prior to that date. This power can be overridden by governments with respect to certain clauses of the Charter by invoking the Notwithstanding Clause in legislation. However, it is a mechanism which is often considered dangerous politically because of public respect for the Canadian Charter of Rights and Freedoms. Judicial review in England and Wales Standing Judicial review in England is provided by virtue of section 31 of the Supreme Court Act 1981. Pursuant to s.31(3) a prospective applicant for judicial review must request 'leave' (now known as 'permission') to apply for judicial review, and permission shall not be granted unless "the High Court … considers that the applicant has a sufficient interest in the matter to which the application relates". The test of sufficient interest, or '' Locus Standi '', is fairly liberal, especially when compared to the 'victim' test adopted for claims under section 6 of the Human Rights Act 1998 . Representative applications are allowed, and have been permitted from organisations such as Greenpeace and charities such as the World Development Movement . Once leave has been granted the applicant must establish grounds for review. The main grounds for review are: illegality, irrationality, procedural impropriety, Human Rights Act section 6, and breach of EC Law . Amenability It is not just Government bodies which are susceptible to review, but also any body which operates a public function, for example the Panel On Takeovers And Mergers . In addition to this, certain aspects of private corporations' businesses can be deemed to be public in nature and can also be liable to Judicial Review. The test generally considered by the Court in deciding whether a function is public is "if the body in question did not exist would some government department assume its responsibilities?" Illegality Under the heading of 'illegality' are encompassed the following grounds of review:
Irrationality Under the heading of 'irrationality' are encompassed the following grounds of review:
Irrationality is also know as ''Wednesbury unreasonableness'' after the case of ''Associated Provincial Picture Houses Ltd v. Wednesbury Corp'' which stated that a decision would be unreasonable if it "is so unreasonable that no reasonable authority could ever have come to it" (per Lord Greene). It is very difficult to establish and rarely submitted as a ground on its own. There is also a sliding scale of intensity of review on the grounds of unreasonableness: Non-justiciable --> Ordinary Wednesbury --> Super Wednesbury --> Anxious Scrutiny Non-justiciable cases are those which involve matters best left to the Executive (such as National Security ), and courts will refuse to review such cases on the basis of irrationality. Anxious scrutiny applies to cases involving human rights. As a general rule, the further to the right of the scale the case falls, the more likely the courts are to find that a decision was unreasonable. Procedural impropriety Under the heading of 'procedural impropriety' are encompassed the following grounds of review:
Human Rights Act 1998 s.6 Section 6(1) of the Human Rights Act 1998 provides that "it is unlawful for a public authority to act in a way which is incompatible with a Convention right". The Convention referred to is the European Convention On Human Rights . An applicant may only bring a review on this ground if "he is (or would be) a victim of the unlawful act" - s.7(1)(b). Breach of EU law Since the Factortame Case EU Law has been recognised as directly effective in the UK, and it is possible to bring a review based on a breach of EU law. Judicial review in Germany In Germany , judicial review is a legal principle defined and guaranteed by the German Constitution (often referred to as the Basic Law or ''Grundgesetz''). Judicial review is indeed intended as a safeguard against Tyranny Of The Majority and has been successfully employed to challenge, for example, the national census efforts of the German government in the 1980s. In particular, article 93 states that the Federal Constitutional Court (BVerfG) shall rule: : ''1. on the interpretation of this Basic Law in the event of disputes concerning the extent of the rights and duties of a supreme federal body or of other parties vested with rights of their own by this Basic Law or by the rules of procedure of a supreme federal body;'' : ''2. in the event of disagreements or doubts respecting the formal or substantive compatibility of federal law or state law with this Basic Law, or the compatibility of state law with other federal law, on application of the Federal Government, of a state government, or of one third of the Members of the Bundesrat ;'' : ''2a. in the event of disagreements whether a law meets the requirements of paragraph (2) of Article 72, on application of the Bundesrat or of the government or legislature of a state;'' : ''3. in the event of disagreements respecting the rights and duties of the Federation and the states, especially in the execution of federal law by the states and in the exercise of federal oversight;'' : ''4. on other disputes involving public law between the Federation and the states, between different states, or within a state, unless there is recourse to another court;'' : ''4a. on constitutional complaints, which may be filed by any person alleging that one of his basic rights or one of his rights under paragraph (4) of Article 20 or under Article 33, 38, 101, 103, or 104 has been infringed by public authority;'' : ''4b. on constitutional complaints filed by municipalities or associations of municipalities on the ground that their right to self-government under Article 28 has been infringed by a law; in the case of infringement by a state law, however, only if the law cannot be challenged in the constitutional court of the state;'' : ''5. in the other instances provided for in this Basic Law.'' Also, article 93 provides that any court, as part of its proceedings, may request the Federal Constitutional Court or the appropriate land court to review a particular statute's constitutionality or compatibility with applicable international law. Similar judicial reviews The Austrian-German concept of the Constitutional Court inspired a number of new democracies in their respective constitutional reviews. Similar judicial review applies to a number of European countries where there is a traditional intellectual influence from the German jurispudence ( Bulgaria , Latvia , Lithuania , Macedonia ); which had a common constitution with Austria in the past ( Bosnia And Herzegovina , Croatia , Hungary , Slovenia , Slovakia ) and in a number of countries which found this constitutional innovation useful (See List Of Constitutional Courts ). Judicial review in France Judicial review in France is performed by the Constitutional Council . Article 61 of the Constitution Of France states that all Organic Law s, as well as those proposed Statute s that garner sufficient parliamentary opposition (in practice, most of them do) must pass before it at the end of the legislative process. The Constitutional Council can strike down the controversial bill in full or in part, and its decisions cannot be appealed. The problem with this mechanism is that in France, the Constitutional Council is the ''only'' judicial body having authority for judicial review. It cannot be seized by ordinary citizens, who also cannot invoke unconstitutionality of a law as a defense. This means that unconstitutional laws cannot be fought anymore if they somehow evade the Constitutional Council (for instance, if it is not seized by the Parliament during the one-month delay allowed by the Constitution). In practice, the French supreme courts who deal with individuals (''Conseil d'état'' and ''Cour de Cassation'') do their best to interpret the law in a manner consistent with the Constitution. In particular, french Administrative Law defines a category of case law known as principles of constitutional value (''principes à valeur constitutionnelle''), such as human dignity and continuity of the state, that rule over the executive branch of the government even if the legislator omits to say so in statute law. Judicial review in Scotland The power of judicial review of all actings of administrative bodies or courts in . There are no time limits on seeking judicial review, although if proper administration is prejudiced by delay the court may in its discretion refuse to grant it. In general, judicial review is available for any error of law by an administrative body, but it is sometimes possible to seek judicial review simply on the basis that the decision was entirely unreasonable, ignored known facts, or took irrelevant material into account. About six hundred judicial review cases are brought every year; most of these are settled by agreement and only a small minority have to be decided by the court. There is a full discussion on this site . Judicial review in Switzerland Article 191 of the Swiss Federal Constitution states that federal statutes and international law are binding on the Federal Supreme Court. In consequence, the courts are not empowered to review the constitutionality of federal statutes, but will, where possible, construe statutes so as not to create a conflict with the Constitution. The courts can suspend the application of federal statutes that conflict with international law, but tend to exercise this power cautiously and deferentially: In ''Schubert'' (BGE 99 Ib 39), the Federal Supreme Court refused to do so because Parliament had consciously violated international law in drafting the statute at issue. The reason traditionally given for the lack of judicial review is the Swiss system of popular . In this sense, it is the people themselves that exercise judicial review. The situation described above for Swiss federal law applies ''mutatis mutandis'' to the constitutional and legal systems of the individual Cantons . However, owing to the derogatory power of federal law, federal courts as a matter of course exercise judicial review on cantonal law, as well as on federal executive law (ordinances, executive orders etc.). Judicial review in the United States See Also: Judicial review in the United States The power of judicial review is held by courts in the United States which while developing out of British law is based fundamentally on the tripartite nature of governmental power as enunciated in the United States Constitution . The only explicit definition given in the Constitution is in Article III , which states: : ''"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish… The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution…" The power to strike down laws is not specifically listed, but is an implied power derived from Article III, and of federal or state law under the Constitution of the United States is the Supreme Court Of The United States . The doctrine of Judicial review was first established as part of Federal law in 1803 in the Supreme Court decision '' Marbury V. Madison ''. The ultimate court for deciding the constitutionality of state law under state constitutions is the highest appellate court in each state — usually called a Supreme Court , but also sometimes known as the Court of Appeals. Even before ''Marbury'', the doctrine of judicial review was specifically enshrined in some state constitutions, and by 1803 it had been employed in both state courts and federal courts in actions dealing with state statutes. In the Federal system, courts may only decide actual controversies; it is not possible to request the Federal courts to review a law without at least one party with Legal Standing to engage in a lawsuit. This principle means that courts sometimes do not exercise their power of review, even when a law is seemingly unconstitutional, for want of jurisdiction. In some state courts, such as the Massachusetts Supreme Judicial Court , legislation may be referred in certain circumstances by the legislature or by the executive for an advisory ruling on its constitutionality prior to its enactment (or enforcement). Pros and cons Although judicial review has become an established part of constitutional law in the United States, some people disagree with the doctrine, or believe that it is unconstitutional since it is not specifically spelled out in the Constitution. The Virginia Constitution of 1776 states, "All power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised." In a letter to William C. Jarvis in 1820 , Thomas Jefferson wrote: : ''To consider the judges as the ultimate arbiters of all constitutional questions {Link without Title} a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps… and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all departments co-equal and co-sovereign within themselves.'' The origins of judicial review in the United States can be traced back to the Constitutional Convention and the Virginia Plan 's "council of revision", which included the Supreme Court, that would exam laws and could accept or reject them. However, under this system, the legislature could pass a bill over the council's veto. By August 27 , 1787 this plan had been dropped. James Madison , the author of the Virginia plan, stated in his notes on the convention that: : ''he for he always referred to himself in the third person doubted whether it was not going too far to extend the jurisdiction of the Court generally to cases arising under the Constitution and whether it ought not to be limited to cases of a [n ature. The right of expounding the Constitution in cases not of this nature ought not to be given to that [d]epartment.'' Robert Yates , a delegate to the Constitutional Convention from New York , predicted what would happen: : '' {Link without Title} n their decisions they will not confine themselves to any fixed established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors or control their adjudications. From this court there is no appeal… They will be able to extend the limits of the general government gradually, and by insensible degrees… one adjudication will form a precedent to the next, and this to a following one.'' Therefore, the Constitutional Convention, believing that the Supreme Court would abuse their power, changed the "council of revision" into the Presidential Veto . Proponents of judicial review note that any government based on a written constitution requires some mechanism to prevent laws from being passed that violate that constitution. Otherwise, the document would be meaningless, and the legislature, with the power to enact any laws whatsoever, would be the supreme arm of government. This concept was laid out by Alexander Hamilton in Federalist No. 78 : : ''If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.'' SEE ALSO |