The Development of Judicial Review

Abstract

This paper examines the development of judicial review. In doing so, it concentrates on the changes in New Zealand as well as in other common-law countries. The standard with which courts review the exercise of executive powers has changed over the recent decades. Beginning with the fundamental principles of judiciary, and the former judicial approach, the paper addresses these trends. While courts usually applied a restrictive standard of scrutiny and widely referred to barely or even non-justiciable fields of executive action in the past, such as national security, defence, and international relations, they have become more willing to go behind the arguments and follow a broader and deeper standard. These alterations concern, among others, claims of non-disclosure, the substantive decision-finding, the consideration of international law, and the review of legislation. Furthermore, courts have increasingly emphasised the validity of individual rights and principles of procedural fairness. The paper also outlines some existing limitations to judicial review, before analysing the current reform discussions, which most notably refer to the enhancement of judicial authority to invalidate unconstitutional legislation. In this context, an overview describing the power of the Federal Constitutional Court of Germany will be given. In the light of the fact that the research topic contains a broad thematic spectrum, a selection of key aspects was required.