Australian Administrative Law Essay

Question:

Administrative Law mechanisms are largely ineffective and don't provide real avenues for review. To obtain justice, a person should call upon the power of the Courts and ignore the Administrative law framework altogether Do you agree or disagree?

Answer:

Australian administrative law sets out the degree of responsibility and powers provided to the Australian administrative agencies. It is fundamentally a common law system which has enhancing legislative overlay which have transferred its emphasis towards extensive jurisdiction tribunals and fixed system of judicial review. The rule of law had been established since the Magna Carta of 1215 It has been followed thoroughly in the jurisprudence after the re-drafting of the concept in the late 13th century. Section 75 of the Australian constitution states that original jurisdiction is vested in the high court in the matters where the person being sued or suing is the commonwealth, or on behalf of the commonwealth and in matters where the writ of prohibition or mandamus is claimed against any person related to the commonwealth. Such jurisdiction cannot be altered as it has been provided by the constitution itself and is only possible through amendment by national referendum. The fundamental idea in relation to the rule of law is that the application of law has to be made equal to the persons who rule and those who are ruled. The purpose of this paper is to find out whether the mechanisms of administrative law are ineffective largely and do not allow appropriate revenue for the purpose of review and in order to attain justice, people should take the help of the courts and do not consider the framework of administrative law at all. The paper throws a light on the rule of law on which both the frameworks are based. The paper than discusses judicial review in relation to administrative law. The paper discusses the advantages and disadvantages of administrative law and compares it to the court system to analyze the effectiveness of administrative law.

The relationship between the people and the government is established by the rule of law. According to Douglas, Roger and head (2014) the stage at where law ends, tyranny is initiated[1]. In addition the concept of the rule of law states that the law in sense is applicable on the behavior and conduct of both public and private officials. The significant sub principles of the rule of law states that no person in the land is bigger than the law, no person on land is inferior to another for law, legal redress is available through courts and the law is always applied. However the concept of the rule is not very simple and can be explained in the best way through the collection of many sub-principles. A comprehensive survey is conducted by the Administrative Review Council in relation to the federal review for the purpose of Administrative Action regularly to analyze the effectiveness of administrative law. As described by Don (2013) the rule of law is a “noble lie” which is present in the British constitution[2]. As mentioned above then purpose of the rule of law is to make sure that no person can be bigger than the law. The implication of this principle is that all persons are bound to the law. Law is not only applicable to the members of the society but also on the ministers and other administrative officials.[3]

Administrative law is the organ of law through which the activities of the administrative agencies made by the government are governed. Actions which are allowed by administrative law to the government agencies include adjudication, rulemaking or enforcing a particular regulatory agenda. Administrative law is a part of public law. As administrative law is a part of public law it is concerned with decision-making related to the administrative units of the government such as commissions, boards and tribunals which are an organ of national regulatory schemes in domain such as international trade, police law, broadcasting, environment taxation and transport. The expansion of administrative law had been triggered significantly in the twentieth century as during this time various government authorities had been created by legislative bodies around the world in order to govern economic, political a social sectors of human interaction.[4] Countries which are governed by civil law have their own special administrative courts which review the decisions of the agencies. On the other hand most of the countries which abide by the principles of common law have enacted a procedure of judicial review which restricts the capacity to be reviewed in relation to the decisions which are made by the administrative bodies[5]. The process is often added with statues and other common law principles which provide a standard rule making process. The review of decisions made by semi-public bodies like disciplinary boards, non-profit corporation and other bodies of decision making which have an effect on the rights of the members of an entity or particular group is also facilitated through administrative law.[6] The judicial review in relation to the decisions of administrative bodies is not as same as the process of administrative appeal. While making a review of the decisions made by the administrative bodies the process in which the decision had been made will only be considered by the court and in case of an administrative appeal the correctness of the decision is verified by a higher body in the hierarchy. The significance of this system is very much in order to appreciate administrative law in the common wealth countries.[7]


Parties who are not satisfied with the decision of an agency or minister can take the support of the external review system where the appropriateness of the original decision is determined. The Administrative law in the Australia is a part of the public law which is related to the procedures, powers, duties, liabilities and rights of public bodies through which public policies are administered. The common principle of administrative law states that the administrator or a government officials must be fair and reasonable and in accordance to law while discharging their duties. This concept is the essence of administrative law and the rest is all machinery.[8] The history of administrative law review in the Australia can be traced from the since 1960s which resulted out of the problems from bureaucratic decisions[9]. As a result a committee of selected people had been established in the year 1970 and the recommendations of the company set the foundations for administrative law in Australia. The most significant of these recommendations were in relation to the Kerr report which provided for the establishment of the administrative tribunal which had the authority to review administrative decisions on codification, merit and procedural reforms in relation to the judicial review system and the initiation of the ombudsman office. The proposals had been brought into practical use through the passing of the number of federal legislations like the Ombudsman Act 1976, the Administrative Appeals Tribunal Act 1975, the Freedom of Information Act 1982 and the Administrative Decisions (Judicial Review) Act 1977.

The process of administrative law initiates from the doctrine of delegated legislation. The law which is not passed through the act of the parliament is known as delegated legislation. Instead a powering act provides the authority to the bodies, person or minister to make delegated legislations. Compared to only a few acts of parliament thousands of delegated legislations are enacted every year by the local bodies. The use of delegated legislation can be in relation to a broad scope of purposes such as technical and narrow matters like setting fees level for a public service to filling details about how a legislation setting out wide principles would in practice be implemented. Delegated legislation in form of administrative law has several advantages and disadvantages. Firstly the enactment of delegated legislation does not is done without the utilization of a lot of time as the various processes which are involved in relation to the cats of a parliament does not have to be observed[10]. It does not take up the precious time of the parliament in relation to deciding small matters such as traffic signs, details of pension schemes thus giving the time to the parliament to focus on significantly broad policies and principles. Secondly, the system ensures that the rules and regulations related to technical matters are designed by those who are experts in such area. Thirdly, the flexibility which is provided through delegated legislations ensures that changing circumstances are dealt which speedily such as increasing service costs, scientific scheme development and minor changes required by policies.[11] On the other hand the process of delegated legislation is often criticized for not been subjected to adequate scrutiny of the parliament as compared to parliament legislations and thus could be used by the bodies in such way which have not been intended or power for which has not been conferred by the parliament to the bodies. In addition a few matters which are very significant and controversial to the public are taken away from the control of the parliament and put in the hands of the government. Another problem with administrative delegated legislation is the number of laws which are passed by the bodies. The number is so large that the public does not get the chance to be aware of the changes.

Judicial review is a procedure through which the courts regulate the exercise of power by a public body. If an exercise of power seems unlawful, one may apply to the Administrative Court which is a division of the High Court, for the judicial review of a decision. If the court finds the decision to be violate of any law, it may quash the decision, or award monetary compensation or even may impose an injunction upon the public body[12].

In the case of Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, as summarized by Lord Diplock, the grounds of judicial review that can revert an administrative decision are Illegality, Procedural impropriety, Irrationality, Legitimate expectation. According to Diplock, the proper and correct understanding of the law, by the decision-maker, that regulates the decision-making power to the decision-maker, is required and it should be effected in the same sense, as obtained from the intent of the law. In the case Bromley Council v Greater London Council (1983), the local council, acted outside the purview of its authority. It was held that the ground of illegality as a ground of judicial review applies to this case.


In Australia independent merit reviews of the decisions provided by administrative id done by the Administrative Appeals Tribunal according to the rules of the commonwealth. AAT has been provided the authority to review decisions made by the commonwealth departments, agencies and ministers. The decisions which are made by the non-government bodies and the state governments can also be reviewed by the AAT in specific circumstances. The AAT has been imposed with the duty of making correct and preferred decisions in every case which is brought before it. The establishment was AAT was under the Administrative Appeals Tribunal Act 1975 as a body between administrative agencies and courts. It is based on the principles of being informal quick economic and fair. The most significant change which has been introduced in Australian through AAT is the right of reviewing a decision based on its merits along with the right to gain information about the reasons behind the decisions[13].

The failure by the decision-maker to observe procedural rules that are provided in the legislation expressly, that confers it it's jurisdiction, faltering to observe rules of natural justice, not acting in accordance with procedural fairness etc. are all included within the purview of procedural impropriety. The Aylesbury Mushroom Case (1972) bears example of such procedural impropriety.

A legitimate expectation is said to arise when a person or an association of persons, has been made to understand, by a policy, promise or representation of a public body that, certain steps will be followed in reaching a decision. For instance when an individual or a group has been made to think that certain steps will apply, when an individual or a group relies on a policy or rules by which an area of past executive action is governed. In the case of R v Liverpool Corporation, ex parte Liverpool Taxi Fleet Operators (1972), this has been considered. The court may emphasize that a public body would follow certain procedures ("procedural" expectations), on an expectation of some substantive benefits and not only on a legitimate expectation.

The court may emphasize that a public body would follow certain procedures ("procedural" expectations), on an expectation of some substantive benefits and not only on a legitimate expectation. Speaking technically, the judicial function and powers are the primary the work of the courts The High Court is the highest appellate court in the Australia. The principles related to judicial review are provided through Administrative Decisions (Judicial Review) Act 1977 (Cth) in Australia.


Due to the concept of parliamentary sovereignty followed in the Australia, the High Court is much more restricted in its powers of judicial review in comparison to that of the Constitution or Supreme Courts of some other countries. It is incapable of changing entirely, any primary legislation made by Parliament. However, if any secondary legislation is found to be out of the scope of the powers in primary legislation, the Supreme Court can revert such legislation.[14] Under provisions of Administrative Decisions (Judicial Review) Act 1977 (Cth), the High Court, may make a declaration of incompatibility, that is, the legislation subject to the declaration is incompatible with one of the rights in the Australian Constitution. Such a declaration can apply to legislation, irrespective of it being primary or secondary legislation. Traditionally a plaintiff is required to show standing under common law before a right is provided to them to take an action as provided by Australian Conservation Foundation v Commonwealth [1979] HCA[15]. In case the proceedings are brought under Administrative Decisions (Judicial Review) Act 1977 (Cth) the claimant can be any person who has suffered by a decision which is reviewable[16].

A provided by the doctrine of separation of powers in Australia the powers of the courts are only limited to challenge the validity of the decisions made by the executives and not the nature of the decision. The context had been made clear by the High Court in the case of Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40[17]. However it is not easy to make a distinction between legality and merit matters. In Australia unlike the US or the UK no doctrine exists which prevents the courts from reviewing political questions. Under ordinary circumstances, the courts cannot invalidate legislation and no Parliament can pass laws which the future Parliaments cannot absolutely change[18].

The doctrine of Parliamentary sovereignty does not leave much scope for the judicial review of the Acts of Parliament. The judicial review is thus limited to the decisions of officials and public bodies, and secondary legislation or delegated legislation in Australia .However, ordinary common law remedies, special prerogative orders, etc. are available in certain circumstances against these, where judicial review is not available[19].

The doctrine of ultra vires, dominates the constitutional theory of judicial review. According to the doctrine, the decision of a public authority that exceeds the powers given to it by Parliament can be reviewed. The enforcement of “will of Parliament", in accordance with the doctrine of Parliamentary sovereignty, was seen to be the aim of the courts. However, the interpretation of the doctrine has been allowed to be expanded to include errors of law and of fact. The courts have also declared that the rulings under the Royal Prerogative, are subject to judicial review. Therefore, the need to obstruct the abuse of power by the executive along with the need to protect rights of the individuals, determine the contemporary constitutional position of the judicial review[20].


In the case of Batemans Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49 it was provided by the High Court of Australia that it is not within the scope of judicial review to review matter which are politically sensitive and related to National security[21]y. In addition with respect to prerogative decisions justifiability cannot initiated through administrative decisions (Judicial Review) Act 1977 (Cth) because the Act is only limited to decision which are provided under an legislation of the commonwealth. The system is comparatively young in form of an organized system of rules which are focused upon the rule of law. Generally, most of the scholarly interest in the system is related to judicial review as a form for mediation relations among the state and the individuals. Going towards a few main mechanisms which underline the functioning of administrative justice it can be stated that there are four for consideration which include consultation requirements, tribunals, parliamentary ombudsmen and judicial review. These mechanisms provided that how disputes can be addressed before the need of increased formal mechanisms are applied. Taking the example of judicial review a well-established pre action protocol exists which has to be observed in most of the cases before any proceeding can be directed towards the High Court[22]. Consultation requirements are in the Australia are provided through traditional common law principles of fairness which is also known as the rule of natural justice and the value which include informed decision making. The principles of common law provide a right to fair hearing to all individuals which was liked historically to a more constrained protection of rights and interest are now potentially applicable whenever anything is decided. The winding of the scope related to a fair trial has been a part of the narrative doctrine which has developed in around the system of judicial review where the importance of hearing rights have been provided to the persons even in case of complex national security cases. However, according to the consultation requirement is not the only thing which ensures common law principles as they can also be applied by a legislation which delegates an authority of decision making to public decision makers. The bodies are also involved with the concept of soft law where the views of those affected by decision making are taken into consideration[23].

The debate which stands now is that whether administrative law should be used or it should be totally eradicated and a structured court system should be the only platform for problem solving in Australia. As discussed above there are several advantages and disadvantages which the administrative law system is subjected to just as there are several limitations to the process of judicial review by the courts. Considering, the system of justice provided through the court is also not only limited to advantage, one may conclude that the system of courts is not reasonable to be relied upon independently without the administrative framework supplementing it.

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