‘The Metaphysic of Nullity’* Invalidity, Conceptual Reasoning and the Rule of Law

Christopher Forsyth

in The Golden Metwand and the Crooked Cord

Published in print February 1998 | ISBN: 9780198264699
Published online March 2012 | e-ISBN: 9780191682766 | DOI:
‘The Metaphysic of Nullity’* Invalidity, Conceptual Reasoning and the Rule of Law

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This chapter presents three main arguments. The first is that unlawful administrative acts are void in law. But they clearly exist in fact and they often appear to be valid; and those unaware of their invalidity may take decisions and act on the assumption that these acts are valid. When this happens the validity of these later acts depends upon the legal powers of the second actor. The crucial issue to be determined is whether that second actor has legal power to act validly notwithstanding the invalidity of the first act. Secondly, the presumption of validity is properly restricted to determining whether interlocutory relief should be granted. In granting such relief the court has regard to the convenience of the parties and like matters and does not determine the validity of the act in question. Thirdly, the chapter argues that were unlawful administrative acts to be only voidable, it would be possible for public authorities to coerce individuals in reliance upon unlawful acts, for example by mounting prosecutions on the basis of unlawful by-laws. This is offensive to the rule of law and shows why the principle of collateral challenge is so important. Those decisions that seek to undermine this principle by restricting such challenges are rightly suspect. Judicial review is no substitute for collateral challenge, for the latter is a matter of right and the former is infused with discretion.

Keywords: administrative law; unlawful administrative acts; validity; rule of law; collateral challenge principle

Chapter.  10410 words. 

Subjects: Constitutional and Administrative Law

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