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Judicial review and human rights
journal contributionposted on 2018-01-01, 00:00 authored by Matthew GrovesMatthew Groves
Judicial review and human rights claims have a superficial similarity because each involves the review of public decisions by references to freestanding principles. This article argues that there are deep differences between the two forms of redress and many causes for those differences. One is Australia's distinctly procedural conception of judicial review. The constitutional justifications given for that procedural focus suggest that judicial review grounds will struggle to encompass adequate consideration of rights as a ground of review. A procedural focus in judicial review enables courts to consider whether rights were considered by officials but perhaps not whether they were considered adequately. This article explains how these problems are not clarified, and may in fact be made even less clear, by the remedial provisions of the Charter of Human Rights and Responsibilities 2006 (Vic). This article considers possible amendments to judicial review and human rights statutes to lessen the uncertain status of the consideration of rights within judicial review.