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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 intensified? 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 evaluate the
state of substantive review in Australia and South Africa
respectively. The second theme concerns the broader (Canadian)
sense of substantive 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.
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 intensified? 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 evaluate the
state of substantive review in Australia and South Africa
respectively. The second theme concerns the broader (Canadian)
sense of substantive 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.
Professor Bruce Harris has left an indelible mark on public law in
New Zealand and across the common law world. In particular, his
suggestion that there exists a 'third source' of executive action,
in addition to statutory and prerogative powers, has influenced
scholarship and judicial decisions in New Zealand, the United
Kingdom, and elsewhere. In this Festschrift, leading commentators
explore key themes from his work. The first theme is the nature of
executive power. Claire Charters argues that the future New Zealand
constitution must pay greater attention to Maori legal concepts and
substantive protections for tangata whenua. She suggests that a
pressing concern is holding the Executive to account and
restraining its power, particularly vis-a-vis Maori. Edward Willis
examines the legitimate extent of 'third source' powers in the
context of constitutional pragmatism. Three sections discuss issues
concerning the judiciary. In the first section, Nicola Wheen
discusses the problems inherent in ambiguous standards of
environmental protection. The second section deals with judicial
method and creativity. John Ip argues that the remedy of
declarations of inconsistency with enumerated rights amounts to
justifiable judicial creativity; Taylor Burgess critiques courts'
unwillingness to lead social change, while Paul Rishworth examines
the creativity inherent in judicial restraint. Caroline Foster
extends the volume's analysis to international law, arguing that
creativity by international courts and tribunals has given rise to
global regulatory standards. The third section addresses judicial
appointment and accountability. Sir Edmund Thomas argues that more
independence is required in judicial appointments' processes, while
ATH Smith argues that more protections are needed to protect
judicial independence. The final theme concerns the future of the
unwritten constitution. John Dawson explores the place of Te Tiriti
o Waitangi (the Treaty of Waitangi), the founding agreement between
the Crown and Maori, in New Zealand's constitutional arrangements.
Paul Craig explores the difference in the modalities of
constitutional change between written and unwritten constitutions.
Finally, Sam Bookman discusses the role of constitutional scholars
in the unwritten constitution. As courts and legislatures around
the world grapple with the changing demands made of public law,
this volume addresses important questions about the powers of the
state, the role of judges, and Crown-Indigenous relations. This
book engages with these questions through a distinctive approach
that is both pragmatic and nuanced. This volume is indispensable
for students, scholars and practitioners engaged in the study of
common law constitutions in New Zealand and beyond.
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