Human Rights in Administrative Law

This subject has the following teaching availabilities in 2013:

Applicants without legal qualifications should note that subjects are offered in the discipline of law at an advanced graduate level. While every effort will be made to meet the needs of students trained in other fields, concessions will not be made in the general level of instruction or assessment. Most subjects assume the knowledge usually acquired in a degree in law (LLB, JD or equivalent). Applicants should note that admission to some subjects in the Melbourne Law Masters will be dependent upon the individual applicant’s educational background and professional experience.

The Melbourne Law Masters welcomes applications from students with disabilities. The inherent academic requirements for study in the Melbourne Law Masters are:

• The ability to attend a minimum of 75% of classes and actively engage in the analysis and critique of complex materials and debate;
• The ability to read, analyse and comprehend complex written legal materials and complex interdisciplinary materials;
• The ability to clearly and independently communicate in writing a knowledge and application of legal principles and interdisciplinary materials and to critically evaluate these;
• The ability to clearly and independently communicate orally a knowledge and application of legal principles and interdisciplinary materials and critically evaluate these;
• The ability to work independently and as a part of a group;
• The ability to present orally and in writing legal analysis to a professional standard.

Students who feel their disability will inhibit them from meeting these inherent academic requirements are encouraged to contact the Disability Liaison Unit: www.services.unimelb.edu.au/disability/

The last few decades have seen a profound reconfiguration of politics and law. Human rights have been incorporated, in divergent ways and with different degrees of penetration, within almost all domestic legal orders. This development, allied with an exponential growth in judicial review, has spurred reflection on what constitutional democracy now means. Lawyers are now asked to consider, not just in the abstract as thinking citizens but because they are increasingly confronted with the question in their working lives, the role that law plays in this changed environment.

Administrative law being often at the leading edge of political and legal development, it is natural that these changes should have a particular relevance for the legal construction of public administration. This subject examines the impact of human rights jurisprudence, and the internationalisation of law and legal practice, on administrative law. Our approach will be both comparative and conceptual, covering legal developments in a number of jurisdictions, but particularly the United Kingdom, Australia, Canada and New Zealand. The main doctrinal focus will fall on judicial review of administrative action, where we analyse important changes within the practice, for instance, the rise of the concepts of proportionality and deference. We also consider wider institutional questions, such as the role that courts can play in fostering a ‘culture of rights’ within the interstices of public administration. Taught by one of the leading scholars within the field, the subject should appeal to anyone with an inquiring mind who is interested in getting to grips with important legal issues surrounding a fundamental social and political change.

Principal topics will include:

• Rights and the common Law
• The ‘Commonwealth Model’ of judicial review
• ‘Dialogue’ theories of rights protection
• Social rights and the courts
• The constitutionalisation of administrative law
• Substantive review: From unreasonableness to proportionality?
• Doctrines of deference
• Creating a culture of rights in public administration
• Rights and risk in administrative law
• Administrative law in a global(ising) world
• Transnational judicial conversations about rights.

A student who has successfully completed this subject should:

• Be familiar with the function/s of administrative law
• Be aware of the changing nature of administrative law
• Understand the principal similarities and differences between leading western systems of administrative law in relevant areas
• Evaluate the role of administrative law within a system of constitutional politics that operates under the shadow of a Bill of Rights.

Take-home examination (100%) (25–28 October)
or
10,000 word research paper (100%) (4 December) on a topic approved by the subject coordinator

Core subject materials will be provided free of charge to all students. Some subjects require further texts to be purchased. Visit the Melbourne Law Masters website for more information about this subject.

This subject is not available as a breadth subject.