Proceed, with caution: Law reform, judicial review and the judicature modernisation bill

Abstract

The Judicature Modernisation Bill 2013 re-enacts the operative provisions of the Judicature Amendment Act 1972. This paper analyses the re-enacted provisions, concluding that the reform will be largely successful relative to a goal of “non-substantive reform”. However, this paper argues that there were significant defects in the legislative process leading to reform, especially in terms of parliamentary scrutiny of judicial review. In a context of a fused executive-legislative branch of government, it is highly inappropriate to legislate for judicial review without adequate consideration of the effects on judicial review powers and processes. This paper argues that judicial review procedure should not be contained in statute in order to prevent undue legislative interference.