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Report No. 92

Chapter 5


5.1. Reforms in the Commonwealth.-

The recommendations which we have made may seem very modest, in comparison with some of the more ambitious schemes concerning administrative law, introduced elsewhere. Professor De Smith has summarised some of them as under1-

"A number of notable reforms to the procedural and remedial aspects of the law of judicial review of administrative action had already been introduced over the last few years in several common law Commonwealth jurisdictions. For instance, legislation passed in New Zealand in 1972 conferred jurisdiction upon the Administrative Division of the Supreme Court to administer the new remedy of an application for review in which an applicant may request any relief to which he would be entitled in proceedings for an order of certiorari, prohibition or mandamus, or for an injunction or declaration2. A broadly similar scheme had been introduced in Ontario in 1971 as part of a larger legislative package of reforms covering a wide range of administrative law issues3.

Also in Canada, the federal Parliament had enacted in the previous year important legislation establishing a Federal Court whose jurisdiction included supervisory and appellate review of administrative agencies created by federal legislation4; for our purposes the most interesting aspect of this Act is that it creates a new statutory remedy, the application for judicial review, complete with a statutory list of grounds upon which the remedy will be granted5. And more recently, important statutory reforms relating to the judicial review of federal administrative tribunals have been introduced by the Parliament of the Commonwealth of Australia6."

1. S.A. De Smith Judicial Review, (1980), p. 565.

2. Judicature Amendment Act, 1972; see also Judicature Amendment Act, 1977, sections 10-15.

3. Judicial Review Procedure Act, 1971; see J.M. Envas, (1977) 55 Can Bar Rev 148.

4. Federal Court Act, 1970.

5. Section 28. For a critical analysis, see David J. Mullan The Federal Court Act: Administrative Law Jurisdiction, (1977), a background paper published by the Law Reform Commission of Canada.

6. Administrative Decisions (Judicial Review) Act, 1977. For a comment on this legislation, and the work of the Administrative Tribunal, see G.D.S. Taylor (1977) 51 ALJ 804; H. Witmore and M. Aronson Review of Administrative Action, (1978) 15-29.

5.2. Those are far reaching and exhaustive reforms. In the present Report we have limited ourselves to the narrow question posed at the outset, for reasons already stated.

Damage in Applications for Judicial Review - Recommendations for Legislation Back

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