Legal Culture, Legality and the Determination of the Grounds of Judicial Review of Administrative Action in England and Australia

This book presents a navigating framework of legal culture and legality to facilitate a comprehensive understanding of the English and Australian determination of the grounds of judicial review. This book facilitates tangible process of how and why jurisdictional error, jurisdictional fact, proportionality and substantive legitimate expectations are debatable in English law, while they are either completely rejected or firmly entrenched in Australian law. This book argues that these differences are not just random. Legality is not just a fig-leaf, but is profoundly rooted in legal systems’ legal culture; hence, it dictates the way in which courts empower, justify, constrain or limit the scope of judicial review. This book presents evidence that courts differ in legal systems and apply diverse ways to determine the scope of judicial review based on their deep understanding of legality, which is embedded in the legal culture of their legal system. This book uses comparative methodology and develops this framework between English and Australian law. Although obvious and important, this book presents a kind of examination that has never been undertaken in this depth and detail before. Preface Table of Cases UK Cases Australian Cases Other Jurisdiction Table of Legislation English Law Australian Law Acknowledgements Contents Abbreviations Chapter 1: Comparing the Determination of the Grounds of Judicial Review in the Light of Deep-Water Legality and Legal Culture: A Navigating Framework 1.1 Arc of Arguments 1.1.1 Legal Culture and the Determination of the Grounds of Judicial Review 1.1.2 Surface and Deep-Water Legality 1.1.3 English and Australian Law as a Case Study 1.2 Structure of the Book 1.2.1 Comparative Analysis of English and Australian Legal Cultures 1.2.2 Comparative Analysis of the Grounds of Judicial Review in Case Law 1.2.2.1 Selection of the Examined Grounds of Judicial Review 1.2.2.2 Legal Reasoning of Leading Cases 1.2.2.3 Doctrinal Approaches 1.2.2.4 Grounds and Leading Cases Selected for Chapters 3 to 6 1.2.3 Example of a Combination of the Two Parts 1.3 Main Contributions of the Book 1.3.1 Legal Culture Rather than Pragmatism and Formalism 1.3.2 Detailed Unpacking Process of Analysing the Determination of the Grounds of Judicial Review 1.3.3 Bigger Picture of English and Australian Judicial Review 1.3.4 Exploration Through the Eyes of an Outsider 1.4 Scope and Caveats 1.5 Conclusion Chapter 2: Differences Between the English and Australian Legal Cultures 2.1 Introduction 2.2 Concept of Legal Culture: A Navigating Methodology 2.2.1 Variations in Using Legal Culture 2.2.2 Judicial Review Constitutionalism 2.2.3 Elements of Legal Culture 2.2.3.1 Constitutional Framework 2.2.3.2 Constitutional Value 2.2.3.3 Way of Justification and Limitation of Judicial Review 2.2.4 Legal Mentality 2.2.5 Proposed Approaches 2.2.5.1 Evidence of Legal Culture 2.2.5.2 Unit of Legal Culture 2.2.5.3 An Outsider Perspective 2.2.5.4 Descriptive Approach 2.2.5.5 Non-monolithic Nature 2.2.6 Summary 2.3 Flexible Legal Mentality of English Judicial Review Constitutionalism 2.3.1 English Constitutional Frameworks and Values 2.3.2 Justification for the English Courts to Conduct Judicial Review 2.3.3 Fluid Separation of Powers Between Court and Executive 2.3.4 Integrating Influences from Interrelated Legal Cultures 2.3.5 Substantive Conclusion 2.4 Rigid Legal Mentality of Australian Judicial Review Constitutionalism 2.4.1 Australian Constitutional Frameworks 2.4.2 Australian Constitutional Values That Justify Judicial Review 2.4.3 Australian Constitutional Values That Limit Judicial Review 2.4.4 Rigidly Reading the Framework of Separation of Powers Prescribed in the Written Constitution 2.4.5 Unwelcoming Influences from Interrelated Legal Cultures 2.4.6 Substantive Conclusion 2.5 Snapshots of English and Australian Rivers Chapter 3: Influence of the Legal Cultures on Error of Law and Jurisdictional Error 3.1 Introduction 3.2 Error of Law and Jurisdictional Error at Surface and Deep Levels 3.2.1 Two Complicated Factors Limiting Scope of Judicial Review 3.2.2 The Adjudicative Monopoly of the Courts 3.2.3 Understanding the Complications Through Legal Culture 3.3 English Doctrinal Approaches 3.3.1 Prior to Cart 3.3.2 Cart 3.3.3 Privacy International 3.3.4 Products of the English Legal Culture 3.4 Australian Doctrinal Approaches 3.4.1 Prior to Kirk 3.4.2 Kirk 3.4.3 After Kirk 3.4.4 Products of the Australian Legal Culture 3.5 Conclusion Chapter 4: Influence of the Legal Cultures on Jurisdictional Fact 4.1 Introduction 4.2 Judicial Review of Factual Issues at Surface and Deep Levels 4.2.1 Distinction Between Law and Fact 4.2.2 Courts’ Reviews of Some Kinds of Fact 4.2.3 Understanding Jurisdictional Fact by Means of Deep-Water Legality 4.3 English Doctrinal Approaches 4.3.1 Prior to E 4.3.2 E 4.3.3 After E 4.3.3.1 R (A) v Croydon 4.3.3.2 Jones 4.3.4 Products of the English Legal Culture 4.4 Australian Doctrinal Approaches 4.4.1 Timbarra 4.4.2 Enfield 4.4.3 After Timbarra and Enfield 4.4.4 Products of the Australian Legal Culture 4.5 Conclusion Chapter 5: Influence of the Legal Cultures on the Grounds Relating to Substantive Exercise of Discretion 5.1 Introduction 5.2 Judicial Review of Administrative Discretion at Surface and Deep Levels 5.2.1 Discretion: Power to Choose 5.2.2 Courts Review Some Exercises of Discretion 5.2.3 Extent of Judicial Review of Administrative Discretion 5.3 English Doctrinal Approaches 5.3.1 Choices in English Law 5.3.2 Kennedy 5.3.3 Pham 5.3.4 Other Elements in the English Picture 5.3.5 Products of the English Legal Culture 5.4 Australian Doctrinal Approaches 5.4.1 S20/2002 5.4.2 SZMDs 5.4.3 Li 5.4.4 Other Elements in the Australian Picture 5.4.5 Products of the Australian Legal Culture 5.5 Conclusion Chapter 6: Influence of the Legal Cultures on Legitimate Expectations 6.1 Introduction 6.2 Legitimate Expectations at Surface and Deep Levels 6.2.1 General Concepts Supporting and Rejecting the Ground 6.2.2 Understanding Legitimate Expectations Through Legal Culture 6.3 English Doctrinal Approaches 6.3.1 Prior to Coughlan 6.3.1.1 Richmond-Upon-Thames 6.3.1.2 Hamble Fisheries 6.3.1.3 Hargreaves 6.3.2 Coughlan 6.3.3 After Coughlan 6.3.4 Products of the English Legal Culture 6.4 Australian Doctrinal Approaches 6.4.1 Prior to Lam 6.4.1.1 Kioa v West 6.4.1.2 Quin 6.4.1.3 Teoh 6.4.2 Lam 6.4.3 After Lam 6.4.4 Products of the Australian Legal Culture 6.5 Conclusion Chapter 7: Conclusion 7.1 Mapping the Book in Administrative Law Scholarship 7.2 English Law Standing on the Edge of Two Boats 7.3 Australian Law’s Choice of One Boat for a Journey 7.4 Standing and Further Implications of Deep-Water Legality and Legal Culture 7.5 Concluding Remarks Bibliography Textbooks Contribution to Edited Books Journal Articles Speeches Conference Papers and Websites Policy Documents Others