Australian administrative law define the extent of the powers and responsibilities held by administrative agencies of the Australian government. It is a common law system, with a highly significant statutory overlay that has shifted focus to generalist tribunals and codified judicial review.
Australia possesses well-developed ombudsman systems, and Freedom of Information laws, both influenced by comparable overseas developments. Its notice and comment requirements for the making of delegated legislation has parallels to the United States. Australia's borrowings from overseas are still largely shaped by its evolution within a system of parliamentary democracy that loosely follows a Westminster system of responsibility and accountability.
The development of administrative law over the past three decades has been described as a "quiet revolution".[1] Administrative law's application are currently being influenced by the shift toward deregulation, and privatisation.
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The constitutional framework and development of administrative law in Australia was highly influenced by legal developments in the United Kingdom and United States. At the end of the 19th century, The British constitutional theorist A. V. Dicey argued that there should be no separate system of administrative law such as the droit administratif which existed in France. As a result, Australian administrative law before World War II developed in an unplanned way.
The present administrative law is largely a result of growing concern about control of bureaucratic decisions in the 1960s. In response a set of committees were established in the early 1970s, whose recommendations constituted the basis for what became known as the "New Administrative Law". The most important of these, the Kerr Report, recommended the establishment of a general administrative tribunal which could review administrative decisions on the merits, codification and procedural reform of the system of judicial review, and the creation of an office of Ombudsman. These proposals were put into practice with the passing of the Administrative Decisions (Judicial Review) Act 1977; the Administrative Appeals Tribunal Act 1975; the Freedom of Information Act 1982; and the Ombudsman Act 1976.
The grounds for challenging administrative action were developed at common law and have been codified in the Administrative Decisions (Judicial Review) Act 1977.[2]
One of the most important features of common law systems is that judicial review is conducted by the "ordinary courts of the land" and there are no special administrative or constitutional courts. This principle, prized by A. V. Dicey, is that there must be "equality before the law".[3] Superior courts of general jurisdiction are traditionally regarded as having inherent jurisdiction to review administrative actions.
Section 75 of the Constitution of Australia provides that the High Court shall have original jurisdiction in matters "in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party",[4] and "in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth."[5] Section 75 prevents the federal government from removing the jurisdiction of the High Court without amending the Constitution via a referendum. It also substantially prevents the High Court's original jurisdiction being ousted by a privative clause that purports to prevent any judicial review of an administrative action. Over recent years, a number of High Court decisions have taken a more expansive view of section 75.[6]
Under the doctrine of a strict separation of powers, courts can only review the legality of decisions and actions, not their merits. The distinction between legal review and merits review is sometimes difficult to make.
Unlike the United States, there is no "political questions" doctrine forbidding the courts from reviewing political questions.[7] Whilst no specific exclusion exists as in the United Kingdom,[8] it is likely that the courts would be reluctant to intervene in certain matters. Historically, the courts have generally not inquired into certain classes of administrative actions, such as decisions made under the vice-regal "prerogative powers", foreign policy, declarations of war, national security and the award of royal honours. In recent years, the High Court has refused to rule on an Attorney-General's decision not to intervene in a case,[9] and to intervene in the politically sensitive area of national security.[10]
The common law traditionally requires a plaintiff to show standing - a sufficient interest in the matter - before being given the right to take action. Public interest standing, or the right of any citizen to take action to enforce a public duty, has been ruled out.[11] While a more liberal approach appeared to be gaining traction in the 1990s, the High Court has shown a reluctance to embrace 'open' standing as favoured by Canadian courts.[12]
The AAT was established by the Administrative Appeals Tribunal Act 1975 (Cth) as a hybrid between court and administrative agency. The most significant underlying changes introduced with the AAT are the availability of review on the merits, and a right to obtain reasons for decisions.
Some of the States also have tribunals, which vary in terms of the degree of formality, focus on mediation, procedure and jurisdiction. Victoria set up an administrative tribunal in 1984, followed by New South Wales (1998), Western Australia (2004), and Queensland (2009). In South Australia and Tasmania, some of the functions of the tribunals are performed by the courts.
The workload of the AAT has grown substantially from 275 applications in 1977-1978. In the period 2004-2005, the number was 7679.[13] The major jurisdictions include taxation, veterans' benefits, social security and workers' compensation.
The AAT was designed to be accessible. Applications, once free, now cost A$777,[14] except for veterans, social security beneficiaries, students, health concession card holders and the indigent - who account for about 80 to 85 percent of applicants. Fees are refundable in the case of victory.
Both at Commonwealth and State level, there is an office of Ombudsman, with wide power to investigate action that relates to matters of administration.
In recent times the office of the Ombudsman has been the subject of tight budgetary constraints. Privatisation of formerly government functions has also removed many activities from the jurisidiction of the Ombudsman.
Australia was the first country with a Westminster system government to introduce freedom of information legislation, following the model established in the United States in 1966. The Freedom of Information Act 1982 (Cth) provides access to government information. Similar legislation is now in force in the Australian Capital Territory (ACT) and the individual States of Australia.
Freedom of information is designed to allow individuals access to personal and governmental information, and to allow individuals the opportunity to challenge and where appropriate have their personal information amended. It is also intended to provide open government.
A party may lodge an application under the Act to seek access to a document, being either a document of an agency or a Minister. Applications are made to the agency or Minister concerned.
There is a fee involved in making that application to the Commonwealth Government, although similar State legislation has often made access to personal information free.
In the 1999 Needs to Know report, the Ombudsman reported that the average charge per request rose from $123 in 1994-1995 to $239 in 1997-1998.[15] There is evidence that these charges are being used to discourage applicants from pursuing claims.
A basic principle involved in the FOI regime is that standing is not an issue: that all members of the public should be entitled to access of government information irrespective of the purpose for which the information is sought. However, one obvious exception has been in the disclosure of personal information. Personal information is almost always exempted from disclosure, in order to protect individuals private information.
Another very important object underlying the Act is the general intention of Parliament that government information should be disclosed and to encourage this disclosure. Accordingly, the Act uses language which indicates the discretion to deny access to information is just that: a discretion, and thereby encourages agencies to disclose documents or matter even where it may be exempt. There has also been an acknowledgement that general public interest arguments also should influence an agency decision to disclose.
| General exemptions to FOI |
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There is a long list of general exemptions to freedom of information. Certain agencies, such as the Australian Security Intelligence Organisation, are given a blanket exemption. Exemptions also apply to documents held by contractors and those relating to commercial activities.
Most exemptions are subject to a public interest test, with the onus on the agency to show that it would be contrary to the public interest to release a document coming under one of these heads.
Ministers can issue conclusive certification that a document or documents are exempt because disclosure would not be in the public interest.[16]
Parties unhappy with the decision of the agency or Minister may go to the next stage of external review, where the original decision to disclose or not disclose will be reconsidered. Under the Commonwealth Act, this external review function is undertaken by the Administrative Appeals Tribunal. Some States have this external review function vested in an Information Commissioner. Appeals from the AAT would be to the Federal Court, and would ordinarily only be on errors of law.
Decision-making or regulation-making power must be clearly authorised by statute. The High Court has applied the principle that no general power enables a government, the Governor-General or any other delegated legislation-maker to make regulations "which go outside the field of operation which the Act marks out for itself".[17]
Administrative decisions, including those exercising a discretionary power, must be designed to achieve a purpose or object authorised by the empowering legislation.
The doctrine of procedural fairness, or natural justice, stems from common law and was associated with the jurisprudential tradition of natural law. The courts have emphasised its flexible character, with Justice Brennan referring to the "chameleon-like" character of its rules.[18]
The right to procedural fairness is assumed to exist in administrative decision-making environments, except where it is clearly excluded by statute. Since the 1960s, the courts have tended to extend the right to procedural fairness to matters where not only legal rights are at stake but also the "legitimate expectations" of protection of various interests, notably commercial interests, employment, individual liberty and reputation.
At common law, the traditional remedies are the prerogative writs, principally certiorari, prohibition, and mandamus, and the former equitable remedies, declarations and injunctions.
The main statutory remedies are those available at the federal level under the Administrative Decisions (Judicial Review) Act 1977 (Cth), or under similar judicial review legislation at the State level in Victoria, Queensland, Tasmania, and the Australian Capital Territory.