Australian administrative law

Australian administrative law defines the extent of the powers and responsibilities held by administrative agencies of Australian governments. It is basically a common law system, with an increasing statutory overlay that has shifted its focus toward codified judicial review and to tribunals with extensive jurisdiction.

Australia possesses well-developed ombudsman systems and Freedom of Information legislation, both influenced by comparable overseas developments. Its notice and comment requirements for the making of delegated legislation have 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. At the same time, its application has been limited by a shift toward deregulation and privatisation.

History

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 a package of federal statutes: the Administrative Appeals Tribunal Act 1975, the Ombudsman Act 1976, the Administrative Decisions (Judicial Review) Act 1977 and the Freedom of Information Act 1982. Some of those have since been replicated in states and territories.

Judicial review

The grounds for challenging administrative action were developed at common law^[1] 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] Since this jurisdiction is conferred by the Constitution, it can be removed only by amending the Constitution, which requires a national referendum.^[6] Nor, by the same token, can it be restricted; for example, jurisdiction over decisions made under a particular statutory provision cannot be ousted by a privative clause.^[7] Constitution section 76 allows the Commonwealth parliament to legislate for additions to the High Court's original jurisdiction; such additions can be removed or altered by repealing or amending that legislation.

"Matters"

The High Court's original jurisdiction is over "matters" as provided in Constitution sections 75 and 76. The Court has held, with a view to separation of powers, that the category "matter" is confined to issues that are appropriate for judicial determination, although the justices have taken a range of views upon what is appropriate.^[8] In general, however, the issue will constitute a "matter" if it requires an immediate determination of the legal rights and interests of an individual.^[9] In addition, hypothetical issues are not regarded as justiciable, since not involving a "matter".^[10] Further, whether a claim is justiciable may depend on whether the decision would rely upon "legal grounds" rather than "political considerations".^[11]

Justiciability

Under the doctrine of a strict separation of powers, courts can review only the "legality" (the legal validity) of executive decisions and actions, and not their "merits".^[12][13] This was emphasised by the High Court in Attorney-General (NSW) v Quin (1990), where Brennan J stated:

The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.^[14]

However, the distinction between legality and merits can be difficult to make.^[15]

Unlike in the United States, there is no doctrine forbidding the courts from reviewing "political questions".^[16] While no specific exclusion exists as in the United Kingdom,^[17] 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 exercising the vice-regal "prerogative powers"^[18] or that involve foreign policy,^[19] a declaration of war, national security or the award of official honours. The High Court has refused to rule on an Attorney-General's decision not to intervene in a case,^[20] and to intervene in the politically sensitive area of national security.^[21] Furthermore, the justiciability of prerogative decisions cannot arise under the Administrative Decisions (Judicial Review) Act 1977 (Cth) as the Act is limited to decisions made "under an enactment" of the Commonwealth.^[22]

Standing

Australian Conservation Foundation v Commonwealth [1979] HCA 1

The common law traditionally requires a plaintiff to show standing - a sufficient interest in the matter - before being given the right to take action.^[23] Public interest standing, an emotional concern or the right of any citizen to take action to enforce a public duty, has been ruled out.^[24] While a more liberal approach appeared to be gaining traction in the 1990s,^[25] the High Court has shown a reluctance to embrace 'open' standing as favoured by Canadian courts.^[26]

Future

The Administrative Review Council was to deliver a comprehensive survey of judicial review of administrative action by the end of 2011; as of 9 March 2012, the report has not appeared. This report has been released called report 50: http://www.arc.ag.gov.au/Publications/Reports/Documents/ARCReport50-FederalJudicialReviewinAustralia-2012.PDF

Administrative Appeals Tribunal

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.^[27]

The AAT has a standing requirement that must be satisfied before an application for review can be accepted. An application for review can be made by, or on behalf of, "any person or persons...whose interests are affected by the decision."^[28] A leading authority on the meaning of the phrase "interests are affected" is McHattan and Collector of Customs (NSW).^[29]

The workload of the AAT has grown substantially from 275 applications in 1977-1978. In the period 2004-2005, the number was 7679.^[30] 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,^[31] 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 if the application is successful.

State administrative law tribunals

Some of the states and territories of Australia also have tribunals similar to the AAT. They vary in terms of the degree of formality, focus on mediation, procedure and jurisdiction.

Victoria

Victoria established the Victorian Civil and Administrative Tribunal in 1998.^[32][33]

New South Wales

The Administrative and Equal Opportunity Division of the New South Wales Civil and Administrative Tribunal was established in 2014.^[34] It replaced the Administrative Decisions Tribunal of New South Wales, previously established in 1998,^[35] alongside 21 other tribunals.^[36]

Western Australia

The State Administrative Tribunal of Western Australia was established in 2004.

Queensland

The Queensland Civil and Administrative Tribunal was established in 2009.

In other states and territories

In South Australia and Tasmania, some of the functions of the tribunals are performed by the courts.

Ombudsman

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 jurisdiction of the Ombudsman.

Freedom of information

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)^[37] 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.^[38] It is also intended to provide open government.

Every person has a legally enforceable right to obtain access to a document of an agency or Minister, other than an exempt document, in accordance with the Act.^[39] Whether an item can be classified as a document for FOI purposes is assessed with regard to their relation to "the affairs of an agency or department."^[40] This means that many political, administrative and personal documents are beyond the reach of an application. 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.^[41] 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.^[42]

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.

Exemptions

There is a long list of general exemptions to freedom of information.^[43] 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.^[44] Even within the scope of permitted material, there must be regard to the statutory boundary that Parliament has imposed.^[45]

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.^[46]

Ministers can issue conclusive certification that a document or documents are exempt because disclosure would not be in the public interest.^[47]

Review

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,^[48] and would ordinarily only be on errors of law.^[49]

Ultra vires

Simple ultra vires

A member of the executive wishing to exercise a decision-making or regulation-making power must have some law or legal authority that empowers or excuses their actions.^[50] This 'authority to decide' is known as jurisdiction.^[51] 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".^[52] This ultra vires, known as jurisdictional error is where the decision maker either: exceeds the jurisdiction, by ‘flouting a statutory limitation, breaching natural justice, asking the wrong question or being wrongly constituted’^[53] i.e. the decision is invalid; or fails to exercise its jurisdiction to make a particular decision.^[53]

Abuse of power

Administrative decisions, including those exercising a discretionary power, must be designed to achieve a purpose or object authorised by the empowering legislation.^[54]

Procedural fairness

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.^{[55][56][57][58]}

Procedural fairness encompasses the prior hearing rule and the bias rule. The right to procedural fairness is assumed to exist in administrative decision-making environments, except where it is clearly excluded by statute.^[59] 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"^[60] of protection of various interests, notably commercial interests, employment, individual liberty and reputation.^[61][62] In particular, procedural fairness applies when an administrative decision-maker has made an allegation that is credible, relevant and damaging and when a decision is made that will affect a right, interest or legitimate expectation of a person.^[63] However, there is no obligation to accord natural justice beyond the statute.^[64] An example of procedural fairness, is the right that a defendant has in being able to respond to a case being made against oneself.^[65]

Judicial remedies

At common law, the traditional remedies are the prerogative writs — the preferable term being "constitutional writs"^[66] — principally certiorari,^[67][68] prohibition,^[69] and mandamus,^[70][71] and the former equitable remedies, declarations and injunctions.^[72] For certiorari to be issued it must "be possible to identify a decision which has a discernible or apparent legal effect upon rights".^[73]

The main statutory remedies are those available at the federal level under the Administrative Decisions (Judicial Review) Act 1977 (Cth),^[74] or under similar judicial review legislation at the State level in Victoria, Queensland, Tasmania, and the Australian Capital Territory.

See also

• Canadian administrative law
• United States administrative law

References

See also, Re Bineshri Prasad v Minister of Immigration and Ethnic Affairs [1985 ] FCA 47; (1985) 6 FCR 155 (26 February 1985),^[1] Austlii

Further reading

• Creyke, Robin; McMillan, John (2009). Control of Government Action: Text, Cases and Commentary (2 ed.). Chatswood (Sydney): LexisNexis. ISBN 978-0-409-32367-2.  |access-date= requires |url= (help)
• Douglas, Roger (2009). Douglas and Jones's Administrative Law (6 ed.). Leichhardt (Sydney): Federation Press. ISBN 978-1-86287-722-1.  |access-date= requires |url= (help)
• McDonald, Peter Cane, Leighton (2012). Principles of administrative law : legal regulation of governance (2nd ed.). South Melbourne, Vic.: Oxford University Press. ISBN 9780195576092. 

External links

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