Inaug.-Diss.--Giessen. / Lebenslauf. "Literatur": p. v-ix.

Thesis (L.L.M. (Law))--Rhodes University, 2006.

Some form of administrative review of executive action is accepted in the common law world for the reason that it serves certain basic values and goals. This study draws on political, legal and management theory in considering the values that underlie administrative review. It is primarily concerned with the role of tribunal review. A full range of values are considered, including fairness, justice, consistency, rationality, dignity, respect, accessibility, equity, efficiency and economy. Some are seen as fundamental to the administrative review system while others have different purposes. There is general agreement on many of the values and goals of administrative review. In their practical application however, values compete, overlap and evolve in accordance with economic, social, political and legal change. There are value tensions in, for instance, the role of independent tribunals as a check on the power of the executive while they are also within the executive, in the extent of the obligation on administrative tribunals to apply government policy and in the setting of proper limits of judicial review. There is continuing tension in demands for individual dignity and rights to fair treatment on the one hand and notions of the 'public interest' on the other. This thesis argues that the provision of tribunal review of administrative decisions is increasingly ideologically driven and focussed on 'functional' or 'management' values. At times these have trumped other values in decisions about entitlements to procedural fairness, access to review, effectiveness in public administration and the achievement of the 'correct and preferable' decision in the instant case. The focus of this thesis is a case study of migration decision-making. The importance of this area of study is evident in the potentially devastating consequences that migration decisions can have for individuals and families. In the context of Australia's history of inadequate and racially based migration policies, independent administrative review provides security against arbitrariness and discrimination in decision-making. An analysis of administrative review of decisions made under the Migration Act 1958 (Cth) by the Migration Review Tribunal, and its predecessor the Immigration Review Tribunal, illustrates the claim that values, in their application, have real, practical and local importance. Issues of tribunal independence and accountability, the normative goal of review and procedural justice are considered in depth. It is argued that where compromises are made in administrative review, underlying values should be revealed so that their practical consequences may be better understood. The need to articulate and analyze these issues has never been greater. The Australian administrative review system is in a period of change analogous to that of the introduction of the 'new' administrative law in the 1970s. If tribunals are to continue to play an effective role then it is important to think clearly about how they can, in practice, embody the right mix of administrative law values.

Thesis (Ph. D.)--Virginia Polytechnic Institute and State University, 1983. / Vita. Abstract. Includes bibliographical references (leaves 297-314). Also available via the Internet.

Thesis (doctoral)--Humboldt-Universität, Berlin, 2002.

This thesis examines three interrelated issues. The first concerns a question about the status of administrative law, namely whether administrative officials have authority to determine what the law requires under a democratic constitution. Historically, this question has not been adequately addressed in public law scholarship because neither Diceyan constitutional theory nor common law doctrine has been traditionally receptive to administrative law. In this thesis, I argue that there are good reasons for people to respect the legal authority of administrative officials and their decisions. Those reasons are rooted in respect for the democratic process by which administrative officials are empowered, and respect for the various forms of expertise that administrative officials possess. The second issue concerns the doctrinal aspect of administrative law. If there are good reasons for believing that administrative officials have legitimate legal authority, then those same reasons suggest that judges should respect administrative legal decisions. In order to better understand how the relevant reasons for respecting administrative decisions alter the practice of judicial review, I compare and contrast the traditional doctrine of jurisdictional review with the doctrine of curial deference. This comparison shows that the doctrine of curial deference provides a superior account of the legitimate legal authority of administrative officials, and that this account makes a practical difference for the practice of judicial review. The third issue concerns whether the doctrine of curial deference can be reconciled with the rule of law. Assuming that there are good reasons for respecting administrative decisions, how can judges both respect an administrative decision while ensuring that it is consistent with the rule of law? I argue that judges can both respect administrative decisions and maintain the rule of law by requiring administrative officials to justify their decisions adequately in light of public reasons which are both patent and latent in existing legal materials.

This thesis examines three interrelated issues. The first concerns a question about the status of administrative law, namely whether administrative officials have authority to determine what the law requires under a democratic constitution. Historically, this question has not been adequately addressed in public law scholarship because neither Diceyan constitutional theory nor common law doctrine has been traditionally receptive to administrative law. In this thesis, I argue that there are good reasons for people to respect the legal authority of administrative officials and their decisions. Those reasons are rooted in respect for the democratic process by which administrative officials are empowered, and respect for the various forms of expertise that administrative officials possess. The second issue concerns the doctrinal aspect of administrative law. If there are good reasons for believing that administrative officials have legitimate legal authority, then those same reasons suggest that judges should respect administrative legal decisions. In order to better understand how the relevant reasons for respecting administrative decisions alter the practice of judicial review, I compare and contrast the traditional doctrine of jurisdictional review with the doctrine of curial deference. This comparison shows that the doctrine of curial deference provides a superior account of the legitimate legal authority of administrative officials, and that this account makes a practical difference for the practice of judicial review. The third issue concerns whether the doctrine of curial deference can be reconciled with the rule of law. Assuming that there are good reasons for respecting administrative decisions, how can judges both respect an administrative decision while ensuring that it is consistent with the rule of law? I argue that judges can both respect administrative decisions and maintain the rule of law by requiring administrative officials to justify their decisions adequately in light of public reasons which are both patent and latent in existing legal materials.

Some form of administrative review of executive action is accepted in the common law world for the reason that it serves certain basic values and goals. This study draws on political, legal and management theory in considering the values that underlie administrative review. It is primarily concerned with the role of tribunal review. A full range of values are considered, including fairness, justice, consistency, rationality, dignity, respect, accessibility, equity, efficiency and economy. Some are seen as fundamental to the administrative review system while others have different purposes. There is general agreement on many of the values and goals of administrative review. In their practical application however, values compete, overlap and evolve in accordance with economic, social, political and legal change. There are value tensions in, for instance, the role of independent tribunals as a check on the power of the executive while they are also within the executive, in the extent of the obligation on administrative tribunals to apply government policy and in the setting of proper limits of judicial review. There is continuing tension in demands for individual dignity and rights to fair treatment on the one hand and notions of the 'public interest' on the other. This thesis argues that the provision of tribunal review of administrative decisions is increasingly ideologically driven and focussed on 'functional' or 'management' values. At times these have trumped other values in decisions about entitlements to procedural fairness, access to review, effectiveness in public administration and the achievement of the 'correct and preferable' decision in the instant case. The focus of this thesis is a case study of migration decision-making. The importance of this area of study is evident in the potentially devastating consequences that migration decisions can have for individuals and families. In the context of Australia's history of inadequate and racially based migration policies, independent administrative review provides security against arbitrariness and discrimination in decision-making. An analysis of administrative review of decisions made under the Migration Act 1958 (Cth) by the Migration Review Tribunal, and its predecessor the Immigration Review Tribunal, illustrates the claim that values, in their application, have real, practical and local importance. Issues of tribunal independence and accountability, the normative goal of review and procedural justice are considered in depth. It is argued that where compromises are made in administrative review, underlying values should be revealed so that their practical consequences may be better understood. The need to articulate and analyze these issues has never been greater. The Australian administrative review system is in a period of change analogous to that of the introduction of the 'new' administrative law in the 1970s. If tribunals are to continue to play an effective role then it is important to think clearly about how they can, in practice, embody the right mix of administrative law values.

Thesis (D. Sc.)--University of London. / Includes bibliographical references and index.

Thesis (S.J.D.)--Catholic University of America, 1941. / Lithographed. "Cases cited and discussed": p. [x]-xii. "Federal statutes cited or discussed": p. [xiii] "Authorities cited or discussed": p. [xiv]-xxi.