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Vol 24 No 5 May/June 2019

Book of the Month

Cover of Remedies for Torts, Breach of Contract, and Equitable Wrongs

Remedies for Torts, Breach of Contract, and Equitable Wrongs

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Human Rights and Judicial Review in Australia and Canada: The Newest Despotism?


ISBN13: 9781509933105
To be Published: October 2019
Publisher: Hart Publishing
Country of Publication: UK
Format: Paperback (Hardback in 2017)
Price: £40.00
Hardback edition , ISBN13 9781509907861



It is commonly asserted that bills of rights have had a 'righting' effect on the principles of judicial review of administrative action and been a key driver of the modern expansion in judicial oversight of the executive arm of government.

A number of commentators have pointed to Australian administrative law as evidence for this 'righting' hypothesis. They have suggested that the fact that Australia is an outlier amongst common law jurisdictions in having neither a statutory nor a constitutional framework to expressly protect human rights explains why Australia alone continues to take an apparently 'formalist', 'legalist' and 'conservative' approach to administrative law.

Other commentators and judges, including a number in Canada, have argued the opposite: that bills of rights have the effect of stifling the development of the common law. However, for the most part, all of these claims remain just that-as there has been limited detailed analysis of the issue, and no detailed comparative analysis of the claims' veracity.

This book analyses in detail administrative and human rights law in Australia and Canada, arguing that both jurisdictions have reached remarkably similar positions regarding the balance between judicial and executive power, and between broader fundamental principles including the rule of law and the separation of powers. It will provide valuable reading for all those researching judicial review and human rights.

Subjects:
Other Jurisdictions , Australia, Canada
Contents:
1. Introduction
I. The 'Righting' of Administrative Law?
II. This Book's Contribution
III. A Note on Methodology
IV. The Scope of this Book
V. The Structure of this Book

Part I: Constitutional and Statutory Frameworks
2. The Framework for Judicial Review of Administrative Action in Australia
I. Australia's Constitution
II. The Constitutional Status of Judicial Review
III. Statutory Judicial Review Frameworks
IV. Australia's Human Rights Framework
V. Conclusions
3. The Framework for Judicial Review of Administrative Action in Canada
I. Canada's Constitution
II. The Constitutional Status of Judicial Review
III. Privative Clauses and the Standard of Review
IV. Statutory Judicial Review Frameworks
V. Canada's Human Rights Framework
VI. Conclusions

Part II: The Effects of Canada's Rights Framework on Judicial Review
4. Procedural Fairness
I. Overview of Rights to Fairness
II. The Scope of the Common Law Duty to Afford Procedural Fairness
III. The Content of Fairness
IV. The Rationales for Fairness
V. Litigants' Use of Fairness
VI. Entrenchment of Procedural Fairness
VII. Conclusions
5. Controlling Discretion
I. A Brief History of Judicial Attitudes Towards Discretion
II. Controlling Discretion in Australia
III. Controlling Discretion in Canada
IV. Human Rights Controls on Discretion
V. Conclusions
6. Intensity of Review
I. Intensity Under the Classic Model
II. Intensity of Review in Australia
III. Intensity of Review in Canada
IV. Conclusions
7. Conclusions

Series: Hart Studies in Comparative Public Law

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Constitutional Courts, Gay Rights and Sexual Orientation Equality ISBN 9781509932115
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Principled Reasoning in Human Rights Adjudication ISBN 9781509931323
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Legitimate Expectations in the Common Law World ISBN 9781509929733
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Regulation in India: Design, Capacity, Performance (eBook) ISBN 9781509927739
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Regulation in India: Design, Capacity, Performance ISBN 9781509927562
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Human Rights in the UK and the Influence of Foreign Jurisprudence ISBN 9781509904945
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£65.00
Human Rights in the UK and the Influence of Foreign Jurisprudence (eBook) ISBN 9781509904952
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Soft Law and Public Authorities: Remedies and Reform ISBN 9781509922062
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Administrative Law and Judicial Deference ISBN 9781509921133
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Australian Constitutional Values ISBN 9781509918409
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Australian Constitutional Values (eBook) ISBN 9781509918416
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The Scope and Intensity of Substantive Review: Traversing Taggart's Rainbow ISBN 9781509917044
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The Right to Freedom of Assembly: A Comparative Study ISBN 9781509916016
Published August 2017
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£33.99
The Federal Idea: Public Law Between Governance and Political Life (eBook)
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ISBN 9781509907120
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The Federal Idea: Public Law Between Governance and Political Life
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Constitutional Courts, Gay Rights and Sexual Orientation Equality ISBN 9781782256427
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Principled Reasoning in Human Rights Adjudication ISBN 9781782259817
Published April 2017
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Principled Reasoning in Human Rights Adjudication (eBook) ISBN 9781782259824
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£70.00
£31.50 + £6.30 VAT
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Legitimate Expectations in the Common Law World ISBN 9781849467780
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Soft Law and Public Authorities: Remedies and Reform (eBook) ISBN 9781782256892
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Soft Law and Public Authorities: Remedies and Reform ISBN 9781782256885
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Administrative Law and Judicial Deference ISBN 9781849462778
Published January 2016
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Administrative Law and Judicial Deference (eBook) ISBN 9781782253365
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Entick v Carrington: 250 Years of the Rule of Law ISBN 9781849465588
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Entick v Carrington: 250 Years of the Rule of Law (eBook) ISBN 9781509901944
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The Scope and Intensity of Substantive Review: Traversing Taggart's Rainbow ISBN 9781849464680
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The Right to Freedom of Assembly: A Comparative Study ISBN 9781849467216
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£80.00
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Human Rights Acts: The Mechanisms Compared (eBook) ISBN 9781782254843
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Human Rights Acts: The Mechanisms Compared ISBN 9781849460965
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The Use of Foreign Precedents by Constitutional Judges ISBN 9781849466592
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Constitutionalising Secession ISBN 9781849464376
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Constitutionalising Secession (eBook) ISBN 9781782253310
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Israeli Constitutional Law in the Making ISBN 9781849464093
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The Use of Foreign Precedents by Constitutional Judges ISBN 9781849462716
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Publication Abandoned