Reform of Administrative Law Remedies — Method or Madness?
| DOI | 10.1177/0067205X7500600205 |
| Author | David Mullan |
| Published date | 01 June 1975 |
| Date | 01 June 1975 |
| Subject Matter | Article |
REFORM OF ADMINISTRATIVE LAW REMEDIES
METHOD OR MADNESS?
BY
DAVID
MULLAN*
In the past
few
years, the subject
of
administrative
law
remedies
has been studied intensively
in
many common
law
jurisdictions. In
this article, David Mullan examines the various reforms and
proposals
for
reform and concludes that none
is
completely
satisfactory and indeed that some compound previous problems and
create new ones
as
well. Nevertheless, he sees some merit in the
New South Wales and Nova Scotia solutions which emerged
as
part
of
a general reform
of
the civil procedure rules and not
as
a
separate statutory enactment.
Introduction
Reform of the law relating to judicial review of administrative action
has been the subject of much attention in a number of Commonwealth
jurisdictions in recent years.1 Often at the forefront, and always an
integral part of these considerations, have been the remedial aspects of
the law. Two general reasons for this prominence suggest themselves
immediately. First, the remedial side of the law has sometimes been seen
as
more in need of legislative attention than the substantive aspects.
Secondly, I think that it
is
probably true that in a sense legislative
reform of the remedies
is
an easier and certainly less controversial
exercise than the preparation of a statute dealing with the substance of
judicial review. Everyone seems generally agreed about the need for
remedial reform but the substance of judicial review
is
for many not the
proper subject of a general statute, and, even if a statute
is
seen
as
desirable, then the debate becomes,
if
anything, fiercer: the protagonists
being those wanting more review, those wanting less and those wanting
* LL.M. (Well.) LL.M. (Queen's); Associate Professor, Faculty
of
Law, Dalhousie
University, Halifax, Nova Scotia. This article
is
a revised version
of
a paper pre-
sented to the Government Law Interest Group of the Australian Universities' Law
Schools' Association
at
the 29th Annual Conference held
at
Monash Law School,
10-21 August 1974. The paper was prepared while Professor Mullan was a Visiting
Lecturer
at
Victoria University
of
Wellington, and certain aspects
of
the paper
have been developed more fully by him
in
the following articles: "The Federal
Court Act: A Misguided Attempt
at
Administrative Law Reform?" (1973)
23
University
of
Toronto Law Journal 14; "Reform of Judicial Review
of
Adminis-
trative
Action-The
Ontario Way" (1974)
12
Osgoode Hall Law Journal 125;
"Confusion Perpetuated: The Judicial Review Procedure Act Before the Divisional
Court" (1974) 22 Chitty's Law Journal 297; "The Declaratory Judgment: its
Place as an Administrative Law Remedy in Nova Scotia" (1975) 2 Dalhousie
Law Journal 91, and "Judicial Review
of
Administrative Action" [1975] New
Zealand Law Journal 154.
1
To
my knowledge, in England, Scotland, New Zealand and federally
in
both
Canada and Australia as well as in the Provinces of Quebec, Ontario, Nova Scotia
and British Columbia and
in
the States
of
New South Wales and Victoria.
340
1975] Reform
of
Administrative Law Remedies 341
a codification of the status quo. Of course, this has not deterred some
jurisdictions from dealing with both aspects together,
as
witness the
Ontario legislation,2 the Federal Court Act of Canada3 and the recom-
mendations of the Commonwealth of Australia Administrative Review
Committee.4 Indeed, the English Law Commission was perhaps justi-
fiably frustrated at its inability, because of its limited terms of reference,
to deal with remedial and substantive reform together.5
This article
is
confined to a consideration of the narrower technical
subject of remedial reform. Like the English Law Commission, I have
chosen to regard the law relating to standing
as
being part of remedies,6
and I will not, except in passing, deal with the arguments concerning
a separate administrative court.7 However, also like the Law Commis-
sion, I have considerable doubts about the utility of reforming remedies,
either before or apart from a consideration of the substance of judicial
review of administrative action.8 Indeed, I have a feeling that ultimately
a great deal of time spent discussing remedial reform may prove to
have been wasted in the sense that I believe that the only appropriate
way of proceeding with a reform exercise in this area
is
by a detailed
consideration of all statutory decision-making powers and working out
in the context of that consideration what should be the appropriate role
of
the courts in relation to particular decision-making functions. This
type of exercise leads almost inevitably to a situation where access to
2
Ss.
2(2)
and
(3)
of The Judicial Review Procedure Act, 1971, 20 Eliz.
II,
c.
48 (Ontario), ostensibly increase from the common law position the ability
of the newly-created Divisional Court to review for error
of
law and an absence
of evidence. The Ontario remedial reforms were accompanied not only by the
creation
of
a new court (The Judicature Amendment Act, 1970
(No.4),
19
Eliz.
II,
c.
97
(Ontario), as amended by The Judicature Amendment Act, 1971, 20
Eliz. II,
c.
57
(Ontario)),
but also by three statutes dealing with administrative
procedure: The Statutory Powers Procedure Act, 1971, 20 Eliz. II,
c.
47 (Ontario),
The Public Inquiries Act, 1971,
20
Eliz. II,
c.
49 (Ontario), and The Civil Rights
Statute Law Amendment Act, 1971, 20 Eliz. II,
c.
50
(Ontario).
3 1970, 19-20-21 Eliz. II,
c.
1 (Canada),
ss.
28(1)(b)
and (c) are also designed
to increase the common law power
of
the courts to review for error of law and
an absence
of
evidence.
4 Parliamentary Paper No. 144, 1971, 77. The Committee (hereinafter called
"the Kerr Committee") recommends a codification of the existing common law
grounds for judicial review
of
administrative action.
5 Published Working Paper No. 40: Remedies in Administrative Law (1971)
2-3.
On
this matter, the ultimate view
of
Professor
S.
A. de Smith, one
of
the
co-authors
of
the Paper, was expressed in the following terms: "One suspects,
however, that a mere rationalisation of remedies without any legislative reform
of the substantive law (including the law
of
damages and compensation) is not
going to make a great deal of difference. This
is
not to say that supersession
of
existing remedies by a uniform application for review would have no beneficial
side-effects
at
all. I believe it would prove beneficial." de Smith, Judicial Review
of
Administrative Action (3rd ed. 1973) 336.
6 The Law Commission Published Working Paper No. 40: Remedies in Adminis-
trative Law (1971) 3.
7Jd.
4.
8 Supra
n.
5.
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