Between the Devil and the Deep Blue Sea : Administrative Law in an Age of Rights

Abstract

This paper reflects on the impact of the new jurisprudence of rights on administrative law. It does so by examining two approaches: that adopted by the English courts since 1998, and that followed by Australian courts over roughly the same period. The Australian response has been to sideline human rights and foreign developments relating to them. Rules are preferred to principles, and strict textual exegesis is prized above contextsensitive adjudication. The analysis of English developments presents a contrasting picture of courts almost awash on a sea of principles. Pre-existing rules have been partially abandoned or downgraded. Principles have sprung up in their place and courts have opened themselves up to international law and the decisions of foreign courts. The paper argues that we are far from seeing the realisation of a normatively unified 'common law of judicial review' anticipated by some. Normative heterogeneity within a shared but relatively loose juridical framework in part produced by trasnational dialogues is a more likely future for common law jurisdictions.