Administrative Law

Control of Government Action

Control of government action to safeguard rights of people and companies

It is one form of accountability, in addition to political, financial and integrity/ethics
Only courts can be vested with judicial power, not other bodies (like tribunals). Courts can’t exercise non-judicial power, except that incidental to their functions
Principle of Legality – all govt action requires a source of legal authority (except ordinary executive power)
Govt bodies – executive agencies (est. by executive), statutory bodies and govt corporations

Grounds on which govt action can be reviewed:

Procedures not observed
No jurisdiction
No legislative authority of decision
Error of law

Delegated/subordinate legislation: statute gives power to bodies to make regulations etc.

Not subject to normal legislative controls, so requires public consultation, publication, tabling in parliament

Accountability through Administrative Law

Review of Decisions

•Judicial/ merits review of decision

•Internal agency review

•Ombudsman or anti-discrimination agency complaint

Protection of Rights

•Freedom of information

•Whistleblower protections

Public Processes

•Anti-corruption (ICAC), human rights agencies, LRCs

Judicial Review

Review of legislative and executive actions, and also those that are public in nature
Review of a decision of an administrative nature made under an enactment
Whether the decision was invalid
Review of error of law, not fact

Assessed by Administrative Appeals Tribunal (AAT)
Can also review private decisions where linked to govt:
- Privatisation
- Commercialisation – govt enterprises
- Contracting out
Public authorities can be liable in tort
To commence an action, you need:
- Standing and justiciability – sufficient connection to the law
- Jurisdiction – of court (Federal Court), as defined by statute – ADJR Act (and associated an accrued jurisdiction, not inherent jurisdiction)
Jurisdictional error – decision-maker has exceeded their power
Jurisdictional fact – precondition
Privative clauses – clauses in legislation which attempt to restrict judicial review
Grounds of review – fact-finding errors, procedural fairness, no hearing/chance to present case, bias, compliance with statutory requirements, evidence, policy which disadvantages, relevant and irrelevant considerations, exercised for improper purpose, explicit reasonableness requirement

Merits Review

Whether the decision was wrong

Assessed by Administrative Decisions Tribunal (ADT)

Freedom of Information

Access to government documents, with some agencies and information exempt