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The relationship between judges and the media has changed. While the hearings and decisions of courts have long been the subject of intense media scrutiny, there was a time when this focus was not usually directed to judges in a personal sense. Judges did not engage with the media in a direct sense. Judges were also discouraged from direct or close contact with the media by many legal principles and professional conventions. The media now treats judges differently, often commenting as much about judges as the cases they decide. Much of the media commentary about judges and their decisions is unfair and inaccurate. As the media has grown more willing to criticise judges and their work, attorneys-general and other politicians have become more reluctant to speak on behalf of judges and the courts. These changes have seen the decline of many of the professional norms that discourage judges from responding to the media but the extent to which judges can or should respond to, or deal with, the media are hampered by the unique nature of the judicial function.
Ultra vires doctrine has declined in importance in Australia in tandem with the rise of constitutional principles in judicial review of administrative action. The Australian Constitution creates an entrenched right of judicial review in the original jurisdiction of the High Court. This right has led to the development of a conception of judicial review that is anchored on separation of powers principles but has not incorporated the ultra vires doctrine. This constitutional approach gained ascendancy in Australia not long after the ultra vires/common law debate arose in the United Kingdom and led Australian courts down a path that is both different and similar. The similarity lies in the issues Australian courts have faced, such as the doctrinal basis of judicial review, or whether an overarching concept might provide a coherent theoretical framework. The difference of the Australian experience lies in the terminology adopted in Australian law, such as their adoption and refinement of jurisdictional error even though that concept was disclaimed by UK courts. When the constitutional overlay of Australian is stripped away, the difference in approach to the UK clearly lessens.
Military justice systems across the world are in a state of transition. These changes are due to a combination of both domestic and international legal pressures. The domestic influences include constitutional principles, bills of rights and the presence of increasingly strong oversight bodies such as parliamentary committees. Military justice has also come under pressure from international law, particularly when applied on operations. The common theme in these many different influences is the growing role of external legal principles and institutions on military justice. This book provides insights from both scholars and practitioners on reforms to military justice in individual countries (including the UK, Canada, the Netherlands and Australia) and in wider regions (for example, South Asia and Latin America). It also analyses the impact of 'civilianisation', the changing nature of operations and the decisions of domestic and international courts on efforts to reform military justice.
Modern Administrative Law in Australia provides an authoritative overview of administrative law in Australia. It clarifies and enlivens this crucial but complex area of law, with erudite analysis and modern perspectives. The contributors - including highly respected academics from eleven Australian law schools, as well as eminent practitioners including Chief Justice Robert French AC and Justice Stephen Gageler of the High Court of Australia - are at the forefront of current research, debate and decision making, and infuse the book with unique insight. The book examines the structure and themes of administrative law, the theory and practice of judicial review, and the workings of administrative law beyond the courts. Administrative law affects innumerable aspects of political, commercial and private life, and yet is often considered difficult to understand. Modern Administrative Law unravels the intricacies and reveals how they are applied in real cases. It is an essential reference for students and practitioners of administrative law.
Natural justice comprises two closely related rules – the rule against bias and the hearing rule. This chapter examines the hearing rule, which governs the procedures that must be adopted in the course of administrative decision-making. The hearing rule requirements have a long common law heritage. They remain crucial to securing the rights of people to fair treatment in the administrative process, but they are limited.
The Australian conception of natural justice is procedural and regulates the fairness of the decision-making process rather than its outcomes. This focus is why some judges have suggested that the doctrine is better described as ‘procedural fairness’. The procedural focus of natural justice also reflects the absence in Australia of anything like the ‘due process’ rights that are constitutionally entrenched in the United States. Australian constitutional principles give far less protection to the rules of fairness. The High Court has accepted that the Australian Constitution precludes legislative exclusion of core features of natural justice from the exercise of judicial power. There are, however, no such constitutional prohibitions on legislation excluding or restricting the obligation to observe some or all requirements of procedural fairness outside the courts; but the courts deploy a range of interpretive assumptions against such legislation.