POLITICAL SCIENCE SEMINAR

Judicial Review
Comparative study of Norway,
South Africa, Germany and
Australia
Kanika Chhabra
SAP ID- 500028453
Roll:- 54

Introduction
Judicial review is the power of the courts to determine the constitutionality
oflegislative act in a case instituted by aggrieved person. It is the power of the
court to declare legislative act void on the grounds of unconstitutionality. It has
been defined by smith and zurcher , the examination or review by the courts , in
cases actually before them , of legislative statutes and executive or administrative
acts to determine whether or not they are prohibited by a written constitution or
are in excess of powers granted by it, and if so, to declare them void and of no
effect . It prevailed in a country having a federal constitution.

The USA gave to the world a new gleam of judicial review. The concept
ofJudicial Review as evolved in America was the reset of the continuous
thinking and growth. The doctrine of the judicial review of the USA is really the
precursor of judicial review and the other constitution of the world which evolved
after the 18th century and in India also it has been a matter of great inspiration.

Nature of judicial review

Judicial review enables a person aggrieved by an administrative decision (or

refusal to make a decision, or action, or inaction) to seek review by a court of the
lawfulness of that decision.
The court will not review a decision in order to determine whether or not it was
the right decision to make. The court will only review a decision so as to
determine whether it was a lawful decision (i.e. whether it was within the power
of the decision-maker).
If the court finds that the decision was not a lawful decision, it may set aside that
decision. Normally, the court will then remit the decision back to the original
decision-maker to be made again. (Research shows that the fresh decision is often
more favorable to an applicant than the first decision that was set aside.)
Judicial review is a complicated and specialist area of law. And to consider
seeking legal advice before commencing any judicial review proceeding.
Judicial review must normally be sought in a superior court, such as the Victorian
Supreme Court, the Federal Court of Australia or even the High Court.To seeks
judicial review proceeding there will be need to:

determine what remedies to seek

make sure to comply with any applicable time limits

make sure to have standing to challenge the action

select one or more grounds of review

Judicial Review of Norway

The Norwegian system of judicial review of the constitutionality of legislative
norms is the second oldest in the World. With no explicit basis in the
Constitution of 1814 (still in existence and hence the second oldest still in
existence in the World as well),the final decisions which mainly those of the
Supreme Court were systematically respected by the other constituted powers.
Immediately after the Supreme Court judges were forced (by a 1863 statute) to
vote individually while stating their reasons in public, the first case came (1866)
where the reasons clearly expose the doctrinal basis of judicial review on which
the activity of the judiciary (namely the Supreme Court itself) were based.
The system of judicial review in Norway is its concrete character .i.e. that judicial
review of the constitutionality of ordinary legislation can only be undertaken in
connection with individual cases brought forward by someone with sufficient
legal interest in having it resolved. Hence, it is not feasible to have the
constitutionality of a sub-constitutional norm as such, i.e. in abstracto, tested by
the judiciary.
The Norwegian system of judicial review is part of the family of American
system as opposed to the European model characterized by the existence of
specialized constitutional courts. Recently, there have been debates on the
opportunity of instituting a constitutional court in Norway especially after the
Supreme

Courts

decision

of

2010

on

the

Shipping

Tax

(rederiskattdommen).Review takes place in any case where constitutional norms

intervene and need to be addressed in order to determine the legal answer to be
given. The review system is decentralized or diffuse in the sense that any

court (and any judge) asked to decide upon a case where constitutional issues are
involved, will have to act as a constitutional judge.
CHARACTERISTICS OF THE REVIEW :Review may take place in cases of any kind (civil, administrative, and
penal/criminal).
Review operates only in individual cases (in concerto).
Review takes places only ex post that is to say after the contested provision has
been set in force and has given rise to problems of a constitutional kind (art. 83 of
the Constitution).
Constitutional questions of some importance or complexity will normally be
decided by the Supreme Court in the last instance by way of appeal (art. 88 of the
Constitution).
The courts do not have the power to try the constitutionality of a statute on their
own initiative.
When a law is declared unconstitutional, it is not applied. It is put on the side
(loven settes till side). In theory, effect of the decision = inter partes only; but
the actual effect may very well be erga omnes when/as it sets a precedent for
other cases.

Judicial Review of Australia

Judicial review plays an important role in Australias system of government as a

means of ensuring the accountability of public officials for the legality of their
actions. Judicial review at a federal level has been available under the
Constitution since the inception of the Commonwealth.
The introduction of statutory judicial review under the Administrative
Decisions (Judicial Review) Act 1977 (ADJR Act) provided a simplified
procedure for judicial review.The ADJR Act commenced in 1980 and judicial
review litigation since then has led to major developments in the legal
principles associated with judicial review.
There is the release ofConsultation Paper which examines the federal system
and raises issues about the future direction of judicial review including:

the examines the federal system, both general and specific, in light of the
fact that constitutional judicial review is entrenched and cannot be

excluded by legislation
the ambit and provisions of a general statutory review scheme, if such a

scheme is to be effective, and

The general principles that should to apply to any statutory review
scheme, and guidance as to whether and when specific statutory review
mechanisms are appropriate.

RECENT HISTORY:Before looking at the future, it might be useful to look at the way judicial review
has developed in recent years and where it now stands.
The administrative reforms of the 1970's provided the most important influence
on judicial review in recent times, but it is not the only significant influence.
Another very significant matter is the contribution ofthe High Courtto a

particularlyits contribution withrespect to what used to be called the prerogative

writs, but are now called the constitutional writs.
This development in the law is associated with the High Court's well developed
separation of powers doctrine. We should not forget, however, that developments
are ultimately driven by cultural changes flowing from the ever increasing
relevance of government decisions to the daily life of Australians.
To an extent this reflects government intrusion in private affairs; but that is not all
bad. The intrusion begins with the protection of the public interest through the
regulation of activities which might harm individuals, such as the giving of bad
financial advice. It extends to the raising of revenue and the redistribution of
wealth through social security. Although beneficial, all these matters impact on
the financial and personal interests of citizens. The increasing impact of
government decision-making (of administrative decision-making) on citizens, has
inevitably led to the development by the courts, and the government itself, of
mechanisms for more and more scrutiny of the decisions. To an extent, the courts
have simply been responding to these pressures and government activity which
addresses them.

CHARACTERISTICS OF THE REVIEW:The judicial

review is conducted by the "ordinary courts of the land" and there

are no special administrative or constitutional courts.

Superior courts of general jurisdiction are traditionally regarded as having
inherent jurisdiction to review administrative actions.

Under the doctrine of astrict separation of power, courts can only review the
legality of decisions and actions, not their merits. The distinction between legal
review and merits review is sometimes difficult to make.
The fundamental purpose of judicial review is to ensure that powers are
exercised for the purpose for which they were conferred and in the manner in
which they were intended to be exercised.
The distinction drawn by Brennan J between judicial review and merits review is
a fundamental principle of Australian administrative law.Brennan Js
formulation that judicial review is directed to enforcing the law which
determines the limits and governs the exercise of power is a widely accepted
statement of the dichotomy between legality and the merits.The law can be
statutes or the common law.

Judicial Review of South Africa

There are three types of judicial review in the South African system:1. review of the decisions of inferior courts;
2. the common-law review of decisions of administrative authorities; and
3.

A "wider" form of statutory review.

These three forms of review still exist today, but the list has been expanded as a
result of modern developments, including and most especially the Constitution.
Among the latest additions are:

automatic review, which allows the decisions of inferior courts to be

reconsidered in the absence of an application for review;

constitutional review, a form of review that did not exist in South Africa
before 1994, but which the existence of a supreme constitution with a
justifiable Bill of Rights permits; and

What used to be common-law review in administrative law but has now

largely been constitutionalised by section 33 of the Constitution and placed on
a statutory footing by the Promotion of Administrative Justice Act (PAJA).

CHARACTERISTICS OF THE REVIEW:Contains a detailed analysis of the definition of the act, the grounds of review,
remedies and procedures
Focuses on the grounds of review and the requirements of valid administrative
action

Discusses the approach of the courts to these grounds of review in terms of

thecomman law, the constitution and the act by concentrating on the courts
interpretation of the law, develops a practical approach built on a sound
conceptual basis.

Judicial Review of Germany

A major function of constitutional theory in Germany, as in the United States, is to
resolve the tension between representative democracy and constitutional review
in a way that both justifies and regulate their coexistence. Numerous
commentators have sought to mark the boundary between legislation and
constitutional ad- judicator and to comprehend the f ne line that the Federal
Constitutional Court has drawn between law and politics.
In cases involving disputes between high constitutional organs (i.e., separation of
powers, or Organstreit) or those brought by political minorities, proceedingson
abstract judicial review, the Court occasionally makes an ally of time, delaying
decision until the controversy loses its urgency or is settled by political means,
prompting the initiating party ultimately to withdraw the case. Largely because of
this tactic, through 2011 the Court has resolved 168 of 180 Organstreit
proceedings and 163 of 172 abstract judicial review proceedings.
CHARACTERISTICS OF THE REVIEW
In German law, apart from rescissory litigation, there is litigation for mandatory
injunction, litigation for performance, and litigation for declaratory judgment.
Germany adopted the principle of separation of state powers, but this did not
become a reason to deny remedies other than rescissory litigation. The system that
administrative acts are both legally binding and self-executing comes from
German administrative jurisprudence.
However, under the present German judicial review system, after a lawsuit is
lodged against the administrative act under question, the self-executing effect is

automatically suspended. The provisional remedy is based on the idea that the
fundamental rights of citizens have to be respected and protected as much as
possible.

Comparative study of judicial Review of Norway, Australia,

Germany and South Africa
The Norwegian system of judicial review of the constitutionality of legislative
norms is the second oldest in the World. Judicial review of Norway is concrete
character. The review system is decentralized.Review may take place in cases of
any kind.Review operates only in individual cases.Judicial review plays an
important role in Australias system of government. It examines the federal
system,the ambit and provisions of a general statutory review scheme andthe
general principles that should to apply to any statutory review scheme.There are
no special administrative or constitutional courts.Under the doctrine of a
strict separation of power, courts can only review the legality of decisions and
actions, not their merits. In South Africareview of the decisions of inferior courts,
the common-law review of decisions of administrative authority and a "wider"
form of statutory review are the forms of judicial review.

In which automatic review allows the decisions ofinferior courts to be

reconsidered in the absence of an application for review. Germanyadopted the
principle of separation of state powers.There is litigation for mandatory
injunction, litigation for performance, and litigation for declaratory judgment..
The provisional remedy is based on the idea that the fundamental rights of
citizens have to be respected and protected as much as possible.

REFERENCE
www.uio.no/studier/emner/jus/jus/JUR1020/.../jur1020_Lecture3PPT.ppt
www.uio.no/studier/emner/jus/jus/.../h12/.../jutintrolecture3ppt2012.pdf
www.jstor.org/stable/837741
aw.huji.ac.il/upload/Mreport-on-missing-debateUp.doc
books.google.co.in/books?isbn=0792329686
www.bizcommunity.com/Article/196/546/77871.html
onlinelibrary.wiley.com/doi/10.1111/j.1468-2230.1958.tb00497.../pdf
www.gvpt.umd.edu/lpbr/subpages/reviews/ginsburg1203.htm
www.gvpt.umd.edu/lpbr/subpages/reviews/ginsburg1203.htm