Australian administrative law
Encyclopedia
Australian administrative law define the extent of the powers and responsibilities held by administrative agencies of the Australian government
Government of Australia
The Commonwealth of Australia is a federal constitutional monarchy under a parliamentary democracy. The Commonwealth of Australia was formed in 1901 as a result of an agreement among six self-governing British colonies, which became the six states...

. It is a common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 system, with a highly significant statutory overlay that has shifted focus to generalist tribunal
Tribunal
A tribunal in the general sense is any person or institution with the authority to judge, adjudicate on, or determine claims or disputes—whether or not it is called a tribunal in its title....

s and codified judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...

.

Australia possesses well-developed ombudsman
Ombudsman
An ombudsman is a person who acts as a trusted intermediary between an organization and some internal or external constituency while representing not only but mostly the broad scope of constituent interests...

 systems, and Freedom of Information
Freedom of information
Freedom of information refers to the protection of the right to freedom of expression with regards to the Internet and information technology . Freedom of information may also concern censorship in an information technology context, i.e...

 laws, both influenced by comparable overseas developments. Its notice and comment requirements for the making of delegated legislation
Delegated legislation
In the United Kingdom, delegated legislation is legislation or law that is passed otherwise than in an Act of Parliament . Instead, an enabling Act confers a power to make delegated legislation on a Government Minister or another person or body...

 has parallels to the United States
United States administrative law
United States administrative law encompasses a number of statutes and cases which define the extent of the powers and responsibilities held by administrative agencies of the United States Government. The executive, legislative, and judicial branches of the U.S. federal government cannot always...

. Australia's borrowings from overseas are still largely shaped by its evolution within a system of parliamentary democracy that loosely follows a Westminster system
Westminster System
The Westminster system is a democratic parliamentary system of government modelled after the politics of the United Kingdom. This term comes from the Palace of Westminster, the seat of the Parliament of the United Kingdom....

 of responsibility and accountability.

The development of administrative law over the past three decades has been described as a "quiet revolution". Administrative law's application are currently being influenced by the shift toward deregulation
Deregulation
Deregulation is the removal or simplification of government rules and regulations that constrain the operation of market forces.Deregulation is the removal or simplification of government rules and regulations that constrain the operation of market forces.Deregulation is the removal or...

, and privatisation.

History

The constitutional framework and development of administrative law in Australia was highly influenced by legal developments in the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...

 and United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

. At the end of the 19th century, The British constitutional theorist A. V. Dicey
A. V. Dicey
- References :...

 argued that there should be no separate system of administrative law such as the droit administratif which existed in France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...

. As a result, Australian administrative law before World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...

 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
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...

, and the creation of an office of Ombudsman
Ombudsman
An ombudsman is a person who acts as a trusted intermediary between an organization and some internal or external constituency while representing not only but mostly the broad scope of constituent interests...

. 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.

Judicial review

The grounds for challenging administrative action were developed at common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 and have been codified in the Administrative Decisions (Judicial Review) Act 1977.

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
A. V. Dicey
- References :...

, is that there must be "equality before the law
Equality before the law
Equality before the law or equality under the law or legal egalitarianism is the principle under which each individual is subject to the same laws....

". Superior courts of general jurisdiction are traditionally regarded as having inherent jurisdiction to review administrative actions.

Section 75 of the Constitution of Australia
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth 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", and "in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth." Section 75 prevents the federal government from removing the jurisdiction of the High Court without amending the Constitution via a referendum
Referendum
A referendum is a direct vote in which an entire electorate is asked to either accept or reject a particular proposal. This may result in the adoption of a new constitution, a constitutional amendment, a law, the recall of an elected official or simply a specific government policy. It is a form of...

. It also substantially prevents the High Court's original jurisdiction being ousted by a privative clause
Privative clause
In administrative law, a privative clause is a provision in a statute that tries to remove a court’s ability to review decisions of a tribunal . In the UK they are known as "ouster clauses"....

 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.

Justiciability

Under the doctrine of a strict separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...

, 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 question
Political question
In American Constitutional law, the political question doctrine is closely linked to the concept of justiciability, as it comes down to a question of whether or not the court system is an appropriate forum in which to hear the case. This is because the court system only has authority to hear and...

s" doctrine forbidding the courts from reviewing political questions. Whilst no specific exclusion exists as in the United Kingdom, 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
Royal Prerogative
The royal prerogative is a body of customary authority, privilege, and immunity, recognized in common law and, sometimes, in civil law jurisdictions possessing a monarchy as belonging to the sovereign alone. It is the means by which some of the executive powers of government, possessed by and...

", foreign policy
Foreign policy
A country's foreign policy, also called the foreign relations policy, consists of self-interest strategies chosen by the state to safeguard its national interests and to achieve its goals within international relations milieu. The approaches are strategically employed to interact with other countries...

, declarations of war
Declaration of war
A declaration of war is a formal act by which one nation goes to war against another. The declaration is a performative speech act by an authorized party of a national government in order to create a state of war between two or more states.The legality of who is competent to declare war varies...

, national security
National security
National security is the requirement to maintain the survival of the state through the use of economic, diplomacy, power projection and political power. The concept developed mostly in the United States of America after World War II...

 and the award of royal honours
Australian Honours System
-History:The Commonwealth of Australia, until 1975, used the Imperial or British honours system. Only a handful of peerages were created for Australians, some in recognition of public services rendered in Britain rather than Australia. Some hereditary peers and baronets whose titles derive from...

. In recent years, the High Court has refused to rule on an Attorney-General
Attorney-General of Australia
The Attorney-General of Australia is the first law officer of the Crown, chief law officer of the Commonwealth of Australia and a minister of the Crown. The Attorney-General is usually a member of the Federal Cabinet, but there is no constitutional requirement that this be the case since the...

's decision not to intervene in a case, and to intervene in the politically sensitive area of national security
National security
National security is the requirement to maintain the survival of the state through the use of economic, diplomacy, power projection and political power. The concept developed mostly in the United States of America after World War II...

.

Standing

The common law traditionally requires a plaintiff to show standing
Standing (law)
In law, standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case...

 - 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. 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.

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.

Some of the States also have tribunals, which vary in terms of the degree of formality, focus on mediation, procedure and jurisdiction. Victoria
Victorian Civil and Administrative Tribunal
The Victorian Civil and Administrative Tribunal is a government agency in the state of Victoria, Australia. The name is pronounced 'vee-cat'...

 set up an administrative tribunal in 1984, followed by New South Wales
Administrative Decisions Tribunal of New South Wales
The Administrative Decisions Tribunal of New South Wales is responsible for reviewing decisions of some New South Wales government departments, for hearing discrimination complaints referred by the President of the New South Wales Anti-Discrimination Board, for hearing complaints about professional...

 (1998) and Western Australia
State Administrative Tribunal of Western Australia
The State Administrative Tribunal was established in Western Australia in 2005 as an independent body that makes and reviews a range of administrative decisions....

 (2004). 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. The major jurisdictions include taxation, veteran
Veteran
A veteran is a person who has had long service or experience in a particular occupation or field; " A veteran of ..."...

s' benefits, social security
Social security
Social security is primarily a social insurance program providing social protection or protection against socially recognized conditions, including poverty, old age, disability, unemployment and others. Social security may refer to:...

 and workers' compensation
Workers' compensation
Workers' compensation is a form of insurance providing wage replacement and medical benefits to employees injured in the course of employment in exchange for mandatory relinquishment of the employee's right to sue his or her employer for the tort of negligence...

.

The AAT was designed to be accessible. Applications, once free, now cost A$777, 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.

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 jurisidiction of the Ombudsman.

Freedom of information

Australia was the first country with a Westminster system
Westminster System
The Westminster system is a democratic parliamentary system of government modelled after the politics of the United Kingdom. This term comes from the Palace of Westminster, the seat of the Parliament of the United Kingdom....

 government to introduce freedom of information legislation
Freedom of information legislation
Freedom of information legislation comprises laws that guarantee access to data held by the state. They establish a "right-to-know" legal process by which requests may be made for government-held information, to be received freely or at minimal cost, barring standard exceptions...

, following the model established in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

 in 1966. The Freedom of Information Act 1982
Freedom of Information Act 1982
The Freedom of Information Act 1982 is Australian Commonwealth Freedom of Information legislation which gives members of the public rights of access to official documents of the Government of the Commonwealth and of its agencies.-Outline of the Act:...

(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
Open government
Open government is the governing doctrine which holds that citizens have the right to access the documents and proceedings of the government to allow for effective public oversight. In its broadest construction it opposes reason of state and racist considerations, which have tended to legitimize...

.

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. 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.

Exemptions

There is a long list of general exemptions to freedom of information. Certain agencies, such as the Australian Security Intelligence Organisation
Australian Security Intelligence Organisation
The Australian Security Intelligence Organisation is Australia's national security service, which is responsible for the protection of the country and its citizens from espionage, sabotage, acts of foreign interference, politically-motivated violence, attacks on the Australian defence system, and...

, 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
Public interest
The public interest refers to the "common well-being" or "general welfare." The public interest is central to policy debates, politics, democracy and the nature of government itself...

 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.

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, and would ordinarily only be on errors of law.

Simple ultra vires

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".

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.

Procedural fairness

The doctrine of procedural fairness, or natural justice, stems from common law and was associated with the jurisprudential tradition of natural law
Natural law
Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...

. The courts have emphasised its flexible character, with Justice Brennan
Gerard Brennan
Sir Francis Gerard Brennan, AC, KBE, QC , is an Australian lawyer, judge and 10th Chief Justice of Australia. He is father to Jesuit priest and lawyer Frank Brennan....

 referring to the "chameleon
Chameleon
Chameleons are a distinctive and highly specialized clade of lizards. They are distinguished by their parrot-like zygodactylous feet, their separately mobile and stereoscopic eyes, their very long, highly modified, and rapidly extrudable tongues, their swaying gait, the possession by many of a...

-like" character of its rules.

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
Commerce
While business refers to the value-creating activities of an organization for profit, commerce means the whole system of an economy that constitutes an environment for business. The system includes legal, economic, political, social, cultural, and technological systems that are in operation in any...

 interests, employment
Employment
Employment is a contract between two parties, one being the employer and the other being the employee. An employee may be defined as:- Employee :...

, individual liberty and reputation
Reputation
Reputation of a social entity is an opinion about that entity, typically a result of social evaluation on a set of criteria...

.

Judicial remedies

At common law, the traditional remedies are the prerogative writ
Prerogative writ
Prerogative writs are a class of writs which originate from English law. Originally they were available only to the Crown, but later they were made available to the monarch's subjects through the courts.The prerogative writs are:*certiorari...

s, principally certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...

, prohibition
Prohibition
Prohibition of alcohol, often referred to simply as prohibition, is the practice of prohibiting the manufacture, transportation, import, export, sale, and consumption of alcohol and alcoholic beverages. The term can also apply to the periods in the histories of the countries during which the...

, and mandamus
Mandamus
A writ of mandamus or mandamus , or sometimes mandate, is the name of one of the prerogative writs in the common law, and is "issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly".Mandamus is a judicial remedy which...

, and the former equitable remedies
Equitable remedy
Equitable remedies are judicial remedies developed and granted by courts of equity, as opposed to courts of common law. Equitable remedies were granted by the Court of Chancery in England, and remain available today in most common law jurisdictions. In many jurisdictions, legal and equitable...

, declarations
Declaration (law)
In law, a declaration ordinarily refers to a judgment of the court or an award of an arbitration tribunal is a binding adjudication of the rights or other legal relations of the parties which does not provide for or order enforcement. Where the declaration is made by a court, it is usually...

 and injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...

s.

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.

External links

The source of this article is wikipedia, the free encyclopedia.  The text of this article is licensed under the GFDL.
 
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