ADMINISTRATIVE LAW - s3. law topic list: x topic 1 t introduction to admin law yyyyyyyyyyyyyyyyyyyyyyyy -27 x topic 2 t introduction to judicial review yyyyyyyyyyyyyyyyyyyyxx -56

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  • 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