ADMINISTRATIVE LAW

TOPIC LIST:

TOPIC 1 – INTRODUCTION TO ADMIN LAW……………………………………………………………… -27

TOPIC 2 – INTRODUCTION TO JUDICIAL REVIEW…………………………………………………….. -56

TOPIC 3 – LIMITS ON JUDICIAL REVIEW..…………………………………………………………………. -78

TOPIC 4 – INTRODUCTION TO GROUNDS OF REVIEW AND PROCEDURAL FAIRNESS..79-97

TOPIC 5 – DETERMINING THE SCOPE OF A POWER……………………………………………… -121

TOPIC 6 – IMPROPER EXERCISE OF POWER…………………………………………………………. -143

TOPIC 7 – CONSEQUENCES OF JUDICIAL REVIEW………………………………………………… -159

TOPIC 8 – MERITS REVIEW AND ADMINISTRATIVE LAW TRIBUNALS……………………. -181

TOPIC 9 – ACCOUNTABILITY MECHANISMS THAT INVESTIGATE GOVERNMENT

ACTIONS……………………………………………………………………………………………………………… -198

TOPIC 10 – REVISION………………………………………………………………….……………………….. -234

TOPIC 1: INTRODUCTION TO ADMIN LAW

Primary focus is on the legal accountability of the executive branch of government.

WHY DO WE NEED ADMIN LAW:

POWER OF THE EXECUTIVE:

Executive has lots of power and its decisions affects people far more often and more

directly than other arms of government.

o Eg decisions relating to:

Conferring, altering and abolishing legal rights;

The use of force, eg police/military;

Threats to individual liberty.

o Consequently there is a need for rigorous regime of accountability.

LACK OF ACCOUNTABILITY:

Admin law provides accountability measures against the executive.

o Cf judiciary

Courts conduct cases in open court;

Provide reasons;

Appeal.

o Cf parliament

In public;

Bicameralism;

Accountability to people;

Judicial review of legislative action.

o Cf executive

Private;

Traditionally no direct accountability (cf responsible government);

But concerns about role of Parliament including party discipline;

Increased size and complexity of modern government.

Hence, there is a need for judicial review of executive action and other accountability

mechanisms such as:

o Merits review (eg Administrative Appeals Tribunal – Cth version of VCAT);

o Ombudsmen etc.

Rationale for admin law is accountability of the executive.

o Focus is on external (cf internal – eg writing to Centrelink to change its decision)

accountability.

…the construction of an agreed language or currency of discourse about

conduct and performance, and the criteria that should be used in

assessing them .

Ie, the language of accountability of government is supplied by

administrative law.

Primary focus of admin law is on legal accountability, but other forms will have impact.

Eg:

o Justi ia ilit → e o d black letter law to soft law.

Eg policies and guidelines; non remediable legal error/non-jurisdictional

legal error; non enforceability of tribunal decision.

WHY SHOULD GOVERNMENTS BE ACCOUNTABLE?

Four reason why governments should be accountable:

o Enhances the democratic process;

o Enhances the Rule of Law – holds the government to account;

o It is consistent with the SOP; and

o To protect individual rights.

DEMOCRACY:

Administrative law strengthens the democratic process.

o Allows government action to be scrutinised and investigated;

o Publicises government action;

o Admin law demands reasons from the Executive for their actions;

o Disclosure of information;

o Ensures that the government remains within limits of law made by

democratically elected representatives in parliament.

RULE OF LAW:

Rule of law states that we are governed by law, not men .

o Administrative law imposes procedural requirements; eg clear, public, consistent

that are integral to rule of law.

Some people also argue admin law has a substantive content (eg

fundamental rights based on natural law) rather than just purely

procedural requirements, however this is far more controversial.

o One way of dividing up grounds of review is substantial or procedural.

Generally procedural

o Constitutional assumption (eg s 75(v)).

SEPARATION OF POWERS:

Distribution of power to protect individual liberty.

o Splitting and checking of governmental powers ensures individual freedom

would be protected.

SOP is necessary for federalism to have independent judiciary.

o SOP applies at the Cth level, however has expanded through the Kable principle

to States.

Also need independent judiciary to hold executive to account.

INDIVIDUAL RIGHTS:

To keep government within its bounds to protect individual against abuse.

o Liberalism and commitment to liberty of individual.

Emphasises need for individual redress.

o Judiciary best placed to protect individual against majoritarian oppression.

o Individual complaints (cf systemic review).

Individual rights approach to administrative law hampered by lack of bill of rights (cf

Victoria).

ADMIN LAW VALUES:

In terms of an administrative law decision, we expect the decision/decision making

process to be:

o Legal;

o Fair;

o Rational;

o Integrity (expected that a public institution will exercise their powers with

integrity – apply the law as best as they understand it/not apply it for an

improper purpose);

o Efficient; and

o Effective.

These values are reflected in:

o Grounds for review (a decision maker makes a decision so unreasonable no

reasonable decision maker could make it) – ie rationality.

o Accountability to parliament for efficiency and policy; and

o Accountability to courts for legality.

There is often tension between values – eg efficiency vs fairness (eg Centrelink robot

debt recovery – it is efficient but arguably not fair).

ADMIN LAW AND STATUTORY INTERPRETATION:

Majority of executives powers are sourced in statute.

o Democratic reasons why the executive should interpret legislation correctly in

accordance with law parliament has made (as opposed to making its own laws

contrary to Rule of Law) (deference).

o Statutory interpretation is a critical fulcrum of administrative law cases .

It is a way to determine legal boundaries of power.

HISTORICAL & CONSTITUTIONAL CONTEXT:

Australia has a hybrid system.

o Influences of both British inheritance, US inheritance and distinctly Australian

features.

BRITISH INHERITANCE:

British inheritance:

o Responsible Government;

o Westminster s ste ; politi al a ou ta ilit re Legislature ↔ E e utive f US system);

o Collective cf individual ministerial responsibility; and

o Legislature commands the purse taxation (ie expenditure).

How does the British inheritance impact on admin law? Does so in a number of ways:

o Through the emphasis of political accountability on the executives.

o Cabinet secrecy and political accountability – non justiciability .

We don t know why Cabinet makes its decisions.

o Individual ministerial responsibility has retarded the development of

administrative law.

Because we have a Westminster system (and thus an emphasis on

political accountability) that means historically we haven t placed much

emphasis on legal accountability for government decisions.

Dicey – administrative law is undesirable because it means there are special courts that

apply to governments.

o Argued English system was better because there is one uniform law that applies

to everyone.

Equality before the law – the same law should apply to both government

and individuals alike (ie same law for governors and governed

administered and enforced by independent judiciary).

o Admin law is unnecessary as the executive is held accountable to the legislative.

o Influence of Dicey that arguably hampered the development of Australian

administrative law.

PEROGATIVE WRITS & EQUITABLE REMEDIES:

When Australia was settled ( terra nullius ) , it inherited English legal system.

o System of writs as tool of governance for Westminster to supervise local

officials (eg justices of the peace ) in 17th

century.

Habeas corpus;

Certiorari;

Prohibition; and

Mandamus.

Certiorari writ:

o Court of King s/Queen s Bench – certification of the record of the decision.

All the record would say is eg convicted and fined 300 pounds .

Court scrutinised the record to ascertain whether disclosed legal error.

If the record disclosed a legal error, the superior court would quash the

decision (ie it would cease to have any legal effect).

o Relevance today:

Commonwealth jurisdiction and orders in the nature of certiorari (eg

Victoria);

Superior court judicial scrutiny re error of law – manifest legal error or

error of law on the face of the record .

Cf transcript or reasons or evidence (cf appeal de novo or

miscarriage of justice ).

Prohibition writ:

o Court is prohibited from making unlawful decision or engaging in unlawful

activity, before the matter is even heard.

Eg being tried in Magistrates for an offence that should be in the

Supreme Court. You can stop proceedings and have it be heard in the

correct court.

Mandamus writ:

o Order a person to perform some legal duty (eg licence applications).

Ie want something from a public official but didn t get it so you compel

the justice of peace to make the decision according to law (and not

some other reason).

Eg magistrate refuses your application for a liquor licence as the

magistrate is also an innkeeper and wants to maintain his monopoly

over alcohol on the village. You could apply for a mandamus to compel

the magistrate to make the decision according to law and grant your

application.

For a prohibition or a mandamus writ to be obtained there needed to be a jurisdictional

error .

o Jurisdictional error – an error that is serious.

Certiorari was available for not just jurisdictional errors, but also errors manifest on the

face of the record.

Prerogative writ procedure:

o Decree (called order nisi o tai ed e parte →

o Hearing where respondent must show cause →

o Court then orders the writ absolute (applicant successful) or discharged

(applicant unsuccessful).

Eg R v Kirby; Ex parte Boilermakers Society of Australia – BSA sought a

writ of prohibition against K, who was president of the Industrial

Relations Commission. BSA was a union. BSA found to be in contempt of

IRC and went to the HC seeking an ex parte decree nisi for prohibition.

HC finds they have a case, and issues a decree nisi against K who is head

of the IRC. HC found Kirby is exercising judicial power in finding BSA

acted in contempt. Judicial power can only be exercised by a court and

thus K acted outside of the constitution, thus the prohibition writ was

successful and prevented any further proceedings on the finding of BSA

in contempt of the IRC.

Deployment of equitable remedies (eg declarations and injunctions) in public law to

avoid technicalities of prerogative writs.

o Strict formula needed to be satisfied in order to obtain writes.

Eg jurisdictional error (for prohibition and mandamus writs), and

mandamus – must prove someone had a public duty and the public duty

related to you.

US INHERITANCE:

Federalism – eg separate (but integrated: see Kirk) administrative law systems.

o Intergovernmental co-operation

Separation of Powers – however not States

o Eg VCAT could exercise judicial functions if given power under legislation,

because there is no SOP at state level. The Cth Administrative Appeals Tribunal

( AAT ) could not be given such power however due to the SOP that operates at

Cth level (as AAT is not a court it thus cannot exercise judicial power).

DISTINCTLY AUSTRALIAN FEATURES:

Post federation to 1970s

o Australian Constitution provides framework.

o Creation of High Court as ultimate court of appeal in relation to both state and

federal jurisdictions (cf US Supreme Court) (s 73 Constitution)

o Insertion of s 75(v) (cf Marburg v Madison)

o S 75(iii), (v) as making explicit the constitutional assumption of the Rule of Law.

Other distinctly Australian features:

o Federalism & role of the High Court re appellate jurisdiction from States and

original jurisdiction;

o SOP and accommodation of tribunals within executive branch of government;

o Recognition of innominate functions that could be performed by either court or

tribunal (ie chameleon principle ).

REFORMS:

Number of key reforms have occurred in Australia that shape administrative law today:

o Establishment of Federal Court

Federal Court Act 1976 (Cth);

Appellant jurisdiction to hear matters from AAT.

o Establishment of the Administrative Appeals Tribunal (AAT).

Administrative Appeals Tribunal Act 1975

Jurisdiction to review a decision conferred by enactment (i.e. opt in )

(s 25(1));

Flexible procedure & rules of evidence (s 33(1));

Powers on review ie …the Tri u al a e er ise all the powers a d dis retio s that are o ferred…o the perso who ade the de isio (s

43(1)) including powers to make decision in substitution of original

decision (s 43(1)(c)(I));

Appeal on question of law to Federal Court (s 44(1)).

o ADJR Act.

Focus on grounds of review rather than remedies (ss 5,6) ;

Order for review (can review a decision or conduct relating to that

decision) (ss 5, 6);

Dichotomy between decision (s 5) and conduct related to making of

decision (s 6);

Declaratory of common law and ambulatory eg natural justice

ground (ss 5(1)(a), 6(1)(a)) but note key reforms eg got rid of:

Jurisdictional error (ss 5(1)(c), 6(1)(c)),

Record (see s 5(1)(f)) and

Requirement to give reasons on request (s 13; note also AAT

Act, s 28);

Opt out (applies to everyone unless otherwise stated – cf AAT Act.

NEW ADMINISTRATIVE LAW (ORTHODOX) PROCEDURE:

Due to the reforms outlined above, a new admin law (orthodox) procedure was created:

o 1st Instance Decision;

o Internal (Merits) Review;

o External (Merits) Review (AAT)

o S 44 appeal relating to error of law or ADJR Act order for review relating to

(legal) grounds ;

o Federal Court (single justice/Full Court); then

o High Court appellate jurisdiction.

Complications with the new admin law (orthodox) procedure:

o Statutory (eg compulsory internal review? Interposition of specialist tribunals

such as Social Security Appeals Tribunal?);

If the statute isn t there you can t use it.

o ADJR Act review of decisions pre AAT?;

o Original jurisdiction of High Court ie s 75(v) re officer of Commonwealth;

o Conferral of constitutional (aka conferred common law ) jurisdiction on Federal

Court (Judiciary Act, s 39B).

Constraints:

o Efficacy of merits review as opposed to judicial review;

o Costs of judicial review as opposed to merits review; and

o Judicial review remedies are discretionary.

MORE RECENT TRENDS:

More recent trends:

o Sidelining of ADJR Act (more focus being put back on the prerogative writs);

o Privative clauses (restricting judicial review);

o Migration decisions;

Most, if not all, decisions under the Migration Act are now excluded

under the ADJR Act (ADJR Act is a statutory scheme and can be

excluded);

Merits review also excluded – forces people into HC and relying on

constitution.

o Return to prerogative remedies;

o Constitutionalisation of administrative law;

Occurs by the government basically forcing people to the HC and to rely

on the constitution in winning a case (eg arguing a migration case).

o Reconvergence and integration;

Commonality between the jurisdictions (states).

o Integrity;

Ombudsman, privacy commissions etc – largely independent bodies that

ensure Parliament/judiciary etc act with integrity.

o Privatisation outsourcing; management of commercial government enterprises

(eg Medibank Private) – wicked problems eg climate change disagreement; co-

ordinated action.

FOI and life of Commonwealth Information Commissioner.

Integrity Agencies eg Victoria; NSW.