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
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;
o Cf parliament
Accountability to people;
Judicial review of legislative action.
o Cf executive
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
Primary focus of admin law is on legal accountability, but other forms will have impact.
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.
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.
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
Also need independent judiciary to hold executive to account.
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
ADMIN LAW VALUES:
In terms of an administrative law decision, we expect the decision/decision making
process to be:
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
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
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
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
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
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
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
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 ).
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
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
For a prohibition or a mandamus writ to be obtained there needed to be a jurisdictional
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
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.
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
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 ).
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 )
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 ferredo 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).
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
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).
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.