Introduction to Administrative Law ?· Web viewa foundational principle of Austn administrative law,…

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<p>Introduction to Administrative Law</p> <p>What is Administrative Law?</p> <p> Concerns the legal rules &amp; institutions directed at keeping the governors (principally, decision-makers in the executive arm of govt) accountable </p> <p> Executive arm </p> <p> the administration of govt </p> <p> focus of admin law is on the legal regulation of the exercise of power by the executive branch of gov. </p> <p> (Legal ctrl of the legislative branch is the core concern of constitutional law.) </p> <p>What are the Separation of Powers</p> <p> 3 arms of gov </p> <p>1. Legislature (makes law); </p> <p>2. Executive (administers law ); and</p> <p>3. Judiciary (Courts &amp; Judges - interpret and apply the law)</p> <p> Why keep them separate? </p> <p> Prevent concentration of power</p> <p> An external check on power</p> <p>What is the Rule of Law </p> <p> The law binds both govts &amp; citizens.</p> <p> No ruler is above the law</p> <p> Laws should be written &amp; public, enforced with due process</p> <p> Its core principles are:</p> <p> Clear separation of powers &amp; independence of the crts &amp; judiciary</p> <p> Legal certainty</p> <p> Principle of legitimate expectation</p> <p> Equality before the law</p> <p> The rule of law requires a fair &amp; equal application of power</p> <p>What is Judicial &amp; non-judicial modes of accountability</p> <p> Judicial (by the courts)</p> <p> is a supervisory function not to usurp powers of administration but to supervise the exercise of it (separation of powers) </p> <p> Some of the grounds for review are that the decision maker:</p> <p> breached the rules of natural justice; </p> <p> did not observe the correct legal procedures; </p> <p> did not have the authority to make the decision. </p> <p> misinterpreted or did not apply the relevant legislation.</p> <p> Non Judicial (not by the courts):</p> <p> eg administrative tribunals </p> <p> merits review </p> <p> review of an administrative decision involves considering afresh the facts &amp; law relating to that decision </p> <p> Ombudsmen</p> <p> legislation allowing access to info.</p> <p> Legislation limiting the purposes for which gov can use info. </p> <p> Public Law v Private Law</p> <p> Relations btw citizens private</p> <p> Relations btw governors &amp; the governed public</p> <p> Institutional v Functional concept of Administrative Law</p> <p> Gov functions -v - Public functions</p> <p>A Regulatory Approach</p> <p> Focus on the future - influencing human behaviour &amp; its outcomes</p> <p> 3 Components:</p> <p>1. Set of standards that tell people how they should behave </p> <p>2. System for monitoring compliance </p> <p>3. System for promoting future compliance</p> <p> Admin law a set of rules &amp; principles about how decisions ought to be made, eg:</p> <p> Procedural fairness</p> <p> Consistency</p> <p> Etc..</p> <p>Review In the Federal System</p> <p> Strict separation of powers</p> <p> HCrt has jurisidiction to undertake judicial review s75(v) Constitution </p> <p> Kerr Committee 1971 Report:</p> <p> Establishment of new Fed Crt</p> <p> Simplified procedures for Administrative Review </p> <p> Fed Crt/Fed Mags Crt</p> <p> Administrative Decisions (Judicial Review) (ADJR) Act 1977 (Cth)</p> <p> Administrative Appeals Tribunal (Administrative Appeals Tribunal Act 1975 (Cth))</p> <p> merits review of administrative decisions </p> <p> aims to provide a mechanism of review that is fair, just, economical, informal &amp; quick</p> <p> does not have a gen power to review decisions made under Cth legislation. The Tribunal can only review a decision if an Act, regulation or other legislative instrument states that the decision is subject to review by the Tribunal </p> <p>What Modes of Review Available In QLD</p> <p> Not the same constitutional/sep of powers restrictions as the Fed System </p> <p> Tribunals exercise both judicial type &amp; administrative functions </p> <p> SCrt Judicial Review Act 1991</p> <p> Queensland Civil &amp; Administrative Tribunal </p> <p> merits review (Queensland Civil and Administrative Tribunal Act 2009) </p> <p> Information Privacy Act 2009 </p> <p>Object: </p> <p> the fair collection &amp; handling in the public sector environment of personal info. &amp; a right of access to, &amp; amendment of, personal info in the govts possession or under the govts ctrl </p> <p> Ombudsman </p> <p> Freedom of Information </p> <p> From 1 July 2009, the Right to Information Act 2009 replaced the Freedom of Information Act 1992 </p> <p>Judicial Review &amp; Scope of Judicial review</p> <p>What is Administrative Law?</p> <p>What is admin law?</p> <p> Admin law is on the legal regulation of the exercise of power by the executive branch of govt</p> <p>What does it do?</p> <p> Admin Law regulates govt decision making </p> <p> Q is the decision lawful? Judicial review by crts</p> <p> Q Is the decision correct? Merits review </p> <p> External review: by tribunals, a commission, a board </p> <p> Internal review: the minister, another public servant </p> <p> For Eg: </p> <p> Applying for a licence (firearm, car, boat, builders)</p> <p> Obtaining a passport or visa</p> <p> Applying for a govt benefit </p> <p> Adopting a child</p> <p>Key Points To Remember</p> <p> What is the Separation of powers?</p> <p>1. Executive, </p> <p>2. Legislature, </p> <p>3. Judiciary therefore a crt can only supervise the executive, not make decisions for them</p> <p> Public v Private law distinction:</p> <p> Should decisions by those exercising public functions subject to Admin Law?</p> <p> Regulatory approach to Admin Law </p> <p> focus on improving govt decision making</p> <p> Federal Admin Law &amp; State Admin Law system &amp; components </p> <p> legislation, crts, tribunals, ombudsman </p> <p>What Decisions Are Subject To Judicial Review?</p> <p> Sources of judicial review powers (jurisdiction to hear an application for judicial review)</p> <p> Crt hierarchy (Fed &amp; State) </p> <p> What is the function performed by judicial review? </p> <p> Legality v Merits review</p> <p> Fed Crt: </p> <p> Sources of review jurisdiction - the ADJR Act</p> <p> What Are The Sources Of Judical Review Powers?</p> <p>1. Constitution s75(v) - High Crt using com law</p> <p>2. Com Law: Inherent jurisdiction - Supreme Crts using com law</p> <p>3. Statutes:</p> <p> Cth: </p> <p> ADJR Act (Cth) Fed &amp; Fed Mags Ct using powers under that Act</p> <p> Judiciary Act s 39B (Cth) applies to Fed Ct using com law powers</p> <p> Qld:</p> <p> JR Act (Qld) Supreme Ct using powers under that Act</p> <p>Court Hierarchy Cth System</p> <p>Court Hierarchy State System</p> <p>The Function Of Judicial Review (Appeal V Review)</p> <p> Appeal v Review</p> <p> Can the crt substitute their own decision for that of the original decision-maker? </p> <p> Appeal yes; </p> <p> Review No.</p> <p> Judicial Review v Merits Review</p> <p> Sep of Powers Doctrine</p> <p> a foundational principle of Austn administrative law, that the merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power &amp;, subject to political ctrl, for the repository alone: Attorney-General (NSW) v Quin (1990) 170 CLR 1, 36</p> <p>What Is Merits Review?</p> <p> Examines whether the correct &amp; preferable decision has been made considering all the relevant facts &amp; circumstances of the case &amp; any policy on which the decision is based</p> <p> May result in the decision of the reviewer being substituted for that of the original decision maker </p> <p> Is undertaken by members of the executive Ministers, statutory boards &amp; tribunals</p> <p> May be internal or external look at statute</p> <p>What is Judicial Review ?</p> <p> The Q is - Was the decision made in accordance with the law? i.e. look at the legality of a decision rather than the merits e.g.:</p> <p>Answer Plan:</p> <p> Did the decision maker have legal authority to make the decision? look @ the relevant legislation</p> <p> Did the decision maker apply the correct statutory criteria when making the decision? (Haneef case)</p> <p> Did the decision maker apply the rules of natural justice? ADJRA s5(1)(a)</p> <p> Did they take irrelevant considerations into account when making the decision? ADJRA s5(2)(a)</p> <p>Administrative Decisions (Judicial Review) Act 1977 (ADJRA)</p> <p> Substantially declaratory of the com law</p> <p> But:</p> <p> Com law grounds of review broadened</p> <p> Shift away from focus on remedies to whether or not a grounds of review could be established i.e. can a legal error be shown?</p> <p> Applications to either Fed Crt or Fed Mags Crt</p> <p>Scope of the Act</p> <p> Key to the scope of the ADJRA - Decision to which this Act applies</p> <p> Application for review may be bought by aggrieved persons in relation to:</p> <p> a decision to which this act applies (s5);</p> <p> proposed &amp; actual conduct engaged in for the purpose of making a decision to which this act applies (s6);</p> <p> a failure to make a decision to which this act applies (s7) </p> <p>decision to which this Act applies means:</p> <p> Decision to which this Act applies defined in s 3 Interpretation:</p> <p> "decision to which this Act applies" means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not &amp; whether bf or after the commencement of this definition): </p> <p>(a) under an enactment referred to in paragraph(a), (b), (c) or (d) of the definition of enactment ; or </p> <p>(b) by a Cth authority or an officer of the Cth under an enactment referred to in paragraph(ca) or (cb) of the definition of enactment ; </p> <p>other than: </p> <p> (c) a decision by the GovGeneral; or </p> <p> (d) a decision included in any of the classes of decisions set out in Sch1. </p> <p>enactment means:</p> <p> "enactment" means: </p> <p>(a) an Act, other than: </p> <p> (i) the Cth Places (Application of Laws) Act 1970 ; or </p> <p> (ii) the Northern Territory (SelfGovernment) Act 1978 ; or </p> <p> (iii) an Act or part of an Act that is not an enactment bc of s3A (certain legislation relating to the ACT); or </p> <p>(b) an Ordinance of a Territory other than the A.C.T or the N.T; or </p> <p>(c) an instrument (including rules, regulations or bylaws) made under such an Act or under such an Ordinance, other than any such instrument that is not an enactment because of section3A; or </p> <p>(ca) an Act of a State, the A.C.T or the N.T, or a part of such an Act, described in Sch3; or </p> <p>(cb) an instrument (including rules, regulations or bylaws) made under an Act or part of an Act covered by paragraph(ca); or </p> <p>(d) any other law, or a part of a law, of the N.T declared by the regulations, in accordance with section19A, to be an enactment for the purposes of this Act; </p> <p>&amp;, for the purposes of paragraph(a), (b), (c), (ca) or (cb), includes a part of an enactment. </p> <p>decision to which this Act applies</p> <p> A decision, (or conduct engaged in for the purpose of making a decision or a failure to make a decision);</p> <p> Of an administrative character;</p> <p> Made under an enactment.</p> <p> Decisions excluded:</p> <p> Governor General</p> <p> Schedule 1</p> <p> Report or recommendation before a decision is made - s 3(3) this is a decision to which Act applies</p> <p>What is the meaning in s5 of decision</p> <p> Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321</p> <p> A final decision (final or operative &amp; determinative) or,</p> <p> An intermediate decision if and only if legislation provides that the intermediate decision must be made before making the final decision</p> <p> Otherwise, not a decision reached as a step along the way to reaching the final decision </p> <p>of an administrative charactermean?</p> <p> Purpose is the exclusion of decisions of legislative or judicial character Griffith University v Tang (2005) 221 CLR 89 p 123. </p> <p> Subordinate legislation not reviewable but decisions under it are</p> <p> Queensland Medical Laboratory V Blewett (1988) 16 ALD 440 </p> <p> Decision to change table by Minister Health Insurance Act 1973 </p> <p> held legislative in character </p> <p>how to decide if it is an administrative decision</p> <p> Federal Airports Corporation v Aerolineas Argentinas (1997) 76 FCR 582 </p> <p> Federal Airports Corporation Act decision to change landing fees administrative in nature - FAC had to act commercially</p> <p> To help decide if it is an administrative decision:</p> <p> Administrative decisions apply gen rules to specific cases while legislation contains the content of gen rules</p> <p> Parliamentary ctrl through disallowance indicates legislative intent</p> <p> Provision of merits review indicates its administrative</p> <p>What does under enactment &amp; private decisions of statutory authoritiesmean</p> <p> Griffith University v Tang (2005) 221 CLR 89 </p> <p> The decision must be:</p> <p> Expressly or impliedly required or authorised under an enactment; &amp;</p> <p> The decision must itself confer, alter or otherwise affect legal rights or obligations</p> <p> A decision of a public body? why not reviewable?</p> <p>What is decisions on non-govt entities under statutory schemes of regulation</p> <p> NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277</p> <p> Held: the decision was not made under an enactment</p> <p> WEAs decision was the operative decision authorised by the Act</p> <p> AWBI Ltds veto power was not a decision made under the Wheat Marketing Act (1989) (Cth)</p> <p>What is Conduct engaged in for the purpose of making a decision s 6</p> <p> s3(5) definition including therefore not exhaustive </p> <p> ABT v Bond </p> <p> per Mason CJ at 342: the concept of conduct looks into the way in which proceedings have been conducted, the conduct of proceedings, rather than the decisions made along the way with a view to the making of a final determination. Thus conduct is essentially procedural &amp; not substantive in character .</p> <p> Once a final decision is made, conduct leading to it is not independently reviewable but should be considered in the context of the review of the decision itself (Minister for Immigration &amp; Multicultural Affairs v Ozmanian (1996) 71 FCR 1 at 20) therefore a s6 review cannot be made once a final decision is made (must then be a s5 review)</p> <p>failure to make a decision s 7</p> <p> s3(2) definition of making a decision</p> <p> If a duty to make a decision exists &amp; the decision is not made in the prescribed time or if no prescribed time then an unreasonable delay an applicant may request a s7 review </p> <p>Tutorial Qs</p> <p>Tutorial: Diff Approaches to the scope of administrative lawcomparing Datafin &amp; the ADJR Act</p> <p> In what sense was the Take-overs Panel a remarkable body? </p> <p> Is the Panel an example of any of the trends in contemporary governance associated with privatisation, outsourcing etc?</p> <p> How did the English Crt of Appeal define the scope or reach of administrative law (in particular, judicial review) in this case?</p> <p> Why did the crt conclude that it may in practice be difficult for aggrieved persons to get a remedy, even though the Panels decisions were in principle subject to judicial review?</p> <p> Is the extension of administrative law norms to non-State decision-makers exercising so-called public functions the only way for law to regulate their decisions? What are the alternatives? </p> <p> Tutorial: Different Approaches to the scope of administrative lawcomparing Datafin and the ADJR Act</p> <p>The ADJR Act</p> <p> What sort of actions can be reviewed under the ADJR Act?</p> <p> Is it possible that a decision made by a non-govt decision-maker could be reviewed under the ADJR Act?</p> <p> What are the main elements an applicant needs to estab to succeed under the ADJR Act?</p> <p> In what circum can applicants under the ADJR Act demand reasons be given for th...</p>


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