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Introduction to Administrative Law

Introduction to Administrative Law

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Published by: intcomlaw on May 15, 2009
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07/31/2013

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In practice the court is reluctant to categorise a procedural requirement as
mandatory, even though it is stipulated that the agency ‘shall’ undertake certain
action, where this would severely prejudice the performance of public func-
tions. In the New Zealand case of Simpson v Attorney General(1955) the
Governor General failed to authorise the issue of writs required by legislation as
a pre-requisite to a general election as a result of which it was unsuccessfully
alleged that the result of the election was nullified so that any legislation by the
newly elected Parliament was of no effect. It was recognised that there was
neglect of a public duty.

... but the case is clearly such that to hold null and void the acts which were
done would work serious general inconvenience, and at the same time
would not promote the main object of the Electoral Act 1927. The main object
of that Act I conceive to be to sustain; not to destroy the House of
Representatives; and I am satisfied that those provisions ... which relate to
the times when the warrant and the writs shall be issued are directory and
not mandatory; and that neglect ... cannot invalidate the election.

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