Table Of ContentTHE SCOPE AND INTENSITY OF
SUBSTANTIVE REVIEW
Inspired by the work of Professor Michael Taggart, this collection of essays
from across the common law world is concerned with two separate but
related themes. First, to what extent and by what means should review on
substantive grounds such as unreasonableness be expanded and i ntensified?
Jowell, Elliott and Varuhas all agree with Taggart that proportionality should
not ‘ sweep the rainbow’ , but propose different schemes for organising and
conceptualising substantive review. Groves and Weeks, and Hoexter e valuate
the state of substantive review in Australia and South Africa respectively.
The second theme concerns the broader (Canadian) sense of substan-
tive review including the illegality grounds, and whether deference should
extend to these grounds. Cane and Aronson consider the relevance and
impact of different constitutional and doctrinal settings. Wilberg and Daly
address questions concerning when and how deference is to operate once it
is accepted as appropriate in principle.
Rights-based review is discussed in a separate third part because it raises
both of the above questions. Geiringer, Sales and Walters examine the
choices to be made in settling the approach in this area, each focusing on a
different dichotomy.
Taggart ’ s work is notable for treating these various aspects of substantive
review as parts of a broader whole, and for his search for an appropriate
balance between judicial scrutiny and administrative autonomy across this
entire area. By bringing together essays on all these topics, this volume seeks
to build on that approach.
Volume 8 in the series Hart Studies in Comparative Public Law
Hart Studies in Comparative Public Law
Recent titles in this series:
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Edited by Tania Groppi and Marie-Claire Ponthoreau
Israeli Constitutional Law in the Making
Edited by Gideon Sapir, Daphne Barak-Erez and Aharon Barak
Judicial Decision-Making in a Globalised World
A Comparative Analysis of the Changing Practices of Western
Highest Courts
Elaine Mak
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David Haljan
Parliaments and Human Rights
Redressing the Democratic Deficit
Edited by Murray Hunt, Hayley Hooper and Paul Yowell
The Right to Freedom of Assembly
A Comparative Study
Orsolya Sal á t
An Inquiry into the Existence of Global Values
Through the Lens of Comparative Constitutional Law
Edited by Dennis Davis, Alan Richter and Cheryl Saunders
The Scope and Intensity
of Substantive Review
Traversing Taggart’ s Rainbow
Edited by
Hanna Wilberg and Mark Elliott
OXFORD AND PORTLAND, OREGON
2015
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Foreword
When Michael Taggart died prematurely in 2009, the world of legal scho-
larship suffered a double loss. For many of us, the loss was that of a personal
friend, for Mike had an unusual talent for friendship and even those of us
who knew him for a comparatively short time felt the opening of a gap
that would be hard to fill. This sense of loss was represented at the time
in the number of obituaries and festschrifts that quickly followed. Equally,
however, there was a diminishment in the wider world of legal scholar-
ship because Mike was himself a considerable and innovative legal scholar
with an unusually broad set of interests. He wrote as well on legal history
as on modern judicial review and tackled uncommon subjects, ranging
from an in-depth study of the purely domestic and private law topic of the
nineteenth-century nuisance case of Bradford v Pickles to the impact of
apartheid and globalisation on administrative law.
But this collection of essays is emphatically not a further festschrift. Its
aim is something very different. It adopts a determinedly forward-looking
perspective on Mike ’ s achievements and uses the questions he was never
tired of asking as a starting-point for further questions about the way the
law is developing. In the Editors ’ own words, the impetus for the collec-
tion has been ‘ a desire to engage with and build on Taggart ’ s work ’ . In so
doing, they have wisely decided to concentrate on a narrow segment of
Mike ’ s wide interests, homing in on his work on judicial review. On this he
wrote several provocative essays, challenging the formalist and revisionist
character of Australian judicial review but also questioning and critiquing
the often flabby reasoning of rights-based judicial review as it emerged in
Canada and the UK. This collection concentrates on two particular themes:
the development of reasonableness review into something deeper and more
intensive than the classical Wednesbury formula would seem to allow and
the relationship between courts and legislature as formulated in the doc-
trine of judicial deference.
This collection also represents two further concerns dear to Mike ’ s
heart. Mike was a comparative lawyer of a particular kind, interested in
and concerned for the development of the common law throughout the
Commonwealth and anxious to stimulate dialogue throughout the com-
mon law world, an enterprise in which he was remarkably successful. Mike
had a particular gift for initiating such encounters and would undoubt-
edly have welcomed, participated in and seized upon the possibilities of
the recent conference held under the aegis of the Cambridge Centre for
Public Law and attended by visitors from throughout the Commonwealth.
vi Foreword
On a smaller scale, this collection too strongly reflects the dialogue theme
with contributions from Australia, Canada, South Africa and the United
Kingdom, as well as Mike ’ s own country of New Zealand.
Mike was an inspiring and devoted teacher, dedicated to developing
the young and his interest in youth and the ideas of the young is also rep-
resented in this collection. Many of the contributors were longstanding
friends of Mike ’ s and, like Mark Aronson, Cora Hoexter, Jeffrey Jowell and
Peter Cane, are well-established in their professional careers, as was Mike
himself. It is pleasant, however, to see a younger generation of rising legal
scholars, some of them his students or colleagues, engaging with Mike ’ s
work and helping to carry it forward. In this way it will stand as a bench-
mark for future scholarship and token of friendship across the common law
world in which we all work and believe.
Carol Harlow
January 2015
Preface and Acknowledgements
The concept for this book was suggested to us by our reading of Professor
Mike Taggart ’ s work — a debt which we have sought to acknowledge in the
book ’ s subtitle. We are similarly indebted to our wonderful contributors for
agreeing to join us in this project; for their varied and thought-provoking
contributions to this book; for reviewing other contributions; and for their
advice and support along the way.
We are grateful to Richard Hart for agreeing to our proposal and for his
advice. The public law community has been so very fortunate in having
had Richard as a publisher, and he will be sadly missed following his well-
earned retirement from this endeavour. We also thank Rachel Turner of
Hart Publishing for all her help in shepherding the book from the proposal
through to publication — she has been a joy to work with.
During 2014, Hanna was on research leave first at the University of
Cambridge and then at the University of Toronto, when most of the work
on this book was completed. Her thanks go to Mark Elliott for being a
wonderful host in Cambridge; the Cambridge and Toronto law faculties
and Clare Hall, Cambridge, for providing such a conducive working envi-
ronment; Herbert Smith Freehills for funding the faculty ’ s visitor scheme
at Cambridge; the University of Auckland for granting her leave; and her
colleagues at the Auckland law faculty for shouldering her usual teaching
and administration duties.
Mark ’ s involvement in this project came about as a result of his being
the New Zealand Legal Research Foundation Visiting Scholar in 2011, in
which capacity he was based at the University of Auckland. He is grateful
to the Legal Research Foundation for funding his visit to New Zealand; to
Hanna Wilberg for being instrumental in the organisation of his visit and
for being an outstanding host; and for the many opportunities afforded by
the Faculty of Law in Auckland to discuss ideas relevant to his own chapter
in this book and to the wider project that subsequently developed into this
co-edited volume.
Hanna Wilberg
Mark Elliott
November 2014
Table of Contents
Foreword ..................................................................................................v
Preface and Acknowledgements ..............................................................vii
List of Contributors .................................................................................xi
1. Introduction .........................................................................................1
Mark Elliott and Hanna Wilberg
Part A: Modern Extensions of Substantive Review
2. M odern Extensions of Substantive Review: A Survey
of Themes in Taggart’ s Work and in the Wider Literature .................19
Mark Elliott and Hanna Wilberg
3. Proportionality and Unreasonableness: Neither
Merger nor Takeover .........................................................................41
Jeffrey Jowell
4. From Bifurcation to Calibration: Twin-Track
Deference and the Culture of Justification..........................................61
Mark Elliott
5. Against Unification ............................................................................91
Jason NE Varuhas
6. Substantive (Procedural) Review in Australia ...................................133
Matthew Groves and Greg Weeks
7. A Rainbow of One Colour? Judicial Review
on Substantive Grounds in South African Law ................................163
Cora Hoexter
Part B: Deference on Questions of Law ?
8. Deference on Questions of Law: A Survey of Taggart’ s
Contribution and Themes in the Wider Literature ...........................197
Hanna Wilberg and Mark Elliott
9. Judicial Control of Administrative Interpretation in
Australia and the United States ........................................................215
Peter Cane
