Chapter 12 discusses accountability in regulation. Accountability is part of a family of concepts that relate to the exercise of power and its abuses. It construes the relationship between regulators and regulatees according to principal-agent theory and explains how accountability can be an important mechanism for requiring answerability, ensuring that agents (regulators) do not drift from the interests of regulatees. The chapter explains that accountability consists of four elements: (i) a duty to explain; (ii) exposure to scrutiny; (iii) a potential ‘sanction’ or a consequence of some kind; and (iv) the possibility of being subject to independent review.

This chapter addresses the history of the refugee oral hearing in Australia and Canada. It explains how and why the oral hearing became a central event within RSD processes in each jurisdiction and traces the role of refugee testimony up until the introduction of a quasi-independent administrative process for RSD and into the present day. In both countries, the introduction of statutory RSD procedures and an oral hearing represented a shift toward enhanced administrative rights and justice for onshore refugee arrivals. However, it also occurred in the context of an increasing state focus on the ‘genuineness’ of refugees and major reforms that sought to limit and control onshore refugee arrivals in both jurisdictions. The chapter then traces more recent reforms to RSD processes in Australia and Canada. This later history reveals that the ‘right’ to fair and independent decision-making processes has become increasingly constrained in both jurisdictions, and that limiting access to RSD has become a key means by which states enact policies of refugee deterrence and exclusion.

This chapter addresses, as a first component of the proposed framework, the first constituent expectation of trust in the citizen-government relationship: goodwill. It defines the expectation as consisting of two sub-expectations: an expectation of procedural fairness – which includes elements of transparency, citizen participation and respect for citizens’ right to equality – and an ‘expectation of good intentions’, which translates into an expectation that the elected branches’ staff will not act intransigently in exercising their control over social goods and services. The chapter also details how the courts can enforce the expectation. It explains that for this component, the courts, first, demand a fair decision-making procedure from the elected branches, and, secondly, respond to government intransigence by escalating to progressively less trusting judicial interventions. The chapter uses cases from various jurisdictions, including Canada, Colombia, Germany, Kenya, South Africa and the UK, to illustrate.

This chapter complements Chapter 12 of Government Accountability: Australian Administrative Law, third edition. Many significant administrative law decisions concern the rules of procedural fairness. The cases in this chapter have been chosen for their significance in establishing key principles or because they provide striking illustrations of trends in the High Court’s approach to procedural fairness. The content of each case extract has been selected to show not only the High Court’s exposition of legal principles, but also the application of those principles to factual situations. Although the rules of procedural fairness apply to a wide range of administrative and judicial decisions, many of the leading cases (especially in relation to the hearing rule) have arisen in the context of migration. This is reflected in the subject matter of the cases extracted in this chapter.

This chapter complements Chapter 12 of Government Accountability: Australian Administrative Law, third edition. Many significant administrative law decisions concern the rules of procedural fairness. The cases in this chapter have been chosen for their significance in establishing key principles or because they provide striking illustrations of trends in the High Court’s approach to procedural fairness. The content of each case extract has been selected to show not only the High Court’s exposition of legal principles, but also the application of those principles to factual situations. Although the rules of procedural fairness apply to a wide range of administrative and judicial decisions, many of the leading cases (especially in relation to the hearing rule) have arisen in the context of migration. This is reflected in the subject matter of the cases extracted in this chapter.

With suggestions that settlements reached through mediation lack the ‘legitimacy’ of authoritative judicial decisions, the mediation process has elicited criticism. The referral of commercial disputes to mediation gives rise to the understandable concern that mediation could inhibit the development of commercial law. The benefit of mediation over litigation and arbitration – its private and informal nature – can also create potential risks; given the absence of judicial due process safeguards, opportunities can exist for manipulative and oppressive behaviour. Courts and tribunals play an important role in defining the appropriate limits of the mediation process. The primary controversies relating to the commercial mediation process can be categorised into three groups: substantive fairness, procedural fairness and public interest concerns. Much of the criticism of mediation stems from the fact that many different processes are, regrettably, characterised collectively as ‘mediation’. The judicial system and mediation should be viewed as having a symbiotic relationship, with each contributing different principles to an interconnected and increasingly integrated justice framework.

This chapter discusses IST itself as well as the research design of the book. It provides a detailed exposition of the key variables of the theory: the status-seeking strategies of rising powers, institutional openness, and procedural fairness. It discusses the causal mechanism that explains the impact of openness and fairness on a rising power’s status and corresponding choice of strategy. It generates four possible strategies a state may follow: cooperate, challenge, expand, and reframe. On research design, the chapter describes the scope conditions of the theory, definitions of key concepts, case selection, research methodology and sources, and the observable implications of the theory and how they differ from the observable implications of alternative (materialist) explanations.

This chapter seeks to explain the Trans-Pacific Partnership (TPP) Agreement’s Competition Policy Chapter by providing negotiating context and background. The context is important as Chapter 16 needs to be understood as a Chapter to an agreement of twenty-nine other Chapters. It is also important to understand that it is a Chapter negotiated between twelve economies in the Asia-Pacific with varying competition law and stages of policy development. The chapter will then step-through the Chapter 16 provisions, and outline how the TPP competition policy achieves competition law convergence through upholding fundamental WTO principles of non-discrimination and transparency. It also considers the likely impact of the TPP Competition Policy Chapter on world and regional trade policy-making and rules, regardless of whether the TPP enters into force in the near future. Whilst the TPP contains other new and novel provisions that seek to enhance competition in the region, this chapter focuses on Chapter 16.

Proper testing of evidence, including witness testimony, is key to ensuring due process and procedural fairness, and affirms the legitimacy of systems of international dispute settlement resolution. In this regard, commentators have emphasised that, in international dispute settlement, less weight should be given to witness testimony that has not ‘undergone the interrogation of the court and the cross-examination by the opposing party’. The WTO dispute settlement system sees some of the most active and complex litigation across international tribunals. Yet, the WTO’s standard procedural rules provide no opportunity for the adjudicator or parties to (1) request the appearance of a witness, or (2) pose live questions to the witness. Consequently, most WTO disputes do not involve any in-person testing of witnesses. In this context, this chapter sets out to suggest an approach to fill the gap in the WTO rules on in-person witness testing.

This chapter looks at how the fair trial guarantees under EU law are implemented and scrutinised in civil matters. It argues that the normative and institutional framework for the implementation of these guarantees in the field of civil judicial cooperation is structurally deficient insofar as their application and assessment by domestic courts remain largely exempt from EU oversight. This deficiency is attributed to the limited scope of CJEU jurisdiction over fundamental rights. It is nevertheless suggested that recourse to Article 19(1)(2) TEU by the CJEU as a benchmark for judicial organisation may give the Court a tighter grip and enhance the quality of civil justice across the EU.

UN Security Council Resolution 1373 is rightly viewed as the most significant international instrument pertaining to countering terrorism. Two features of the resolution are of concern to us: the sharing of security intelligence and other information, and, restrictions to human mobility. These two dimensions of global counterterrorism dovetail within the dark underbelly of the securitization of migration. There have been several high-profile instances where the United Kingdom and Canada have been directly involved in deportation to torture. Victims have faced numerous obstacles securing remedies for human rights violations. Perhaps most significant is the unwillingness of states to disclose relevant information during civil litigation, owing to national security or more broadly public interest privilege.

The United Kingdom has approached this problem by instituting “Closed Material Proceedings” (CMPs), where courts may base decisions on secret evidence, with the benefit of security-cleared Special Advocates mandated to represent the interests of plaintiffs. Canadian authorities have considered similar measures, having a rich history of secret hearings. Clearly, the use of secret evidence raises serious rule of law issues, as well as many practical, professional, and ethical challenges. This chapter explores these issues in the context of civil litigation of state responsibility for torture and other human rights abuses. As part of an ongoing socio-legal study on CMP in Canada and the UK, this chapter presents documentary and empirical findings, including interviews with judges, Special Advocates, and court administrators in both jurisdictions.

The constitutionalisation of Irish public law – first on independence in 1922 and then in 1937 on the adoption of the Irish Constitution – has had a marked effect on the development of Irish administrative law. My two objectives here are, first, to describe the constitutional influences on the development of Irish administrative law and, second, to demonstrate that Ireland has an indigenous administrative law. I begin in Part I with a brief historical introduction before moving in Part II to a discussion of the influence of the Constitution. In some areas, notwithstanding the adoption of the Constitution, legal life has gone on as before. The supervisory role of the superior courts has continued mostly unaltered, despite constitutional language that might be thought to justify a more intrusive judicial review jurisdiction. The law in relation to procedural fairness has been constitutionalised – and has a bespoke term, “constitutional justice” – but is not markedly different in substance from the English equivalent. However, there have been some important changes. With sovereignty residing in the People, rather than the Crown, the prerogative has been held not to have survived the transition to a new constitutional order. The permissible scope of delegation of power by the legislature has also been circumscribed. The constitutionalisation of judicially enforceable fundamental rights, meanwhile, meant that Irish administrative lawyers followed a ‘rights-based’ approach before their counterparts elsewhere in the common law world began to think in such terms. Finally, even though the supervisory role of the superior courts remains intact, it now has constitutional protection, such that limitations on access to judicial review are strictly policed and, potentially, unconstitutional. In Part III, I will tentatively suggest that the existence of the Constitution, and thus of an identifiably indigenous Irish administrative law, has prompted Irish judges to be self-confident enough to refuse to follow settled English law. There are some important areas where Irish administrative law has not tracked English administrative law, most notably in relation to error of law and procedural exclusivity (which has had a particular effect on the development of the law of legitimate expectations). In these areas, the Irish courts have operated in the shadow of English law but have sought to develop an indigenous approach.