Australian administrative law

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". ["Re Pochi and Minister for Immigration and Ethnic Affairs" (1979) 2 ALD 33 per Justice Deane.] Administrative law's application are currently being influenced by the 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 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 which were developed at common law and have been codified in the "Administrative Decisions (Judicial Review) Act 1977". [See sections 5-7.]

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". [A. V. Dicey, "Introduction to the Study of the Law of the Constitution", 10th edition (London: Macmillan, 1959).] 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" [Section 75(iii).] , and "in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth." [Section 75(v).] 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. [See "Re Refugee Review Tribunal, Ex parte Aala" 204 CLR 82.]

Justiciability

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. ["Re Ditfort; Ex Parte Deputy Commissioner of Taxation (NSW)" (1988) 19 FCR 347.] Whilst no specific exclusion exists as in the United Kingdom, [In "Council of Civil Service Unions v Minister for Civil Service" [1985] AC 374, the House of Lords accepted that specific exclusions exist.] 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, ["Batemans Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd" (1998) 194 CLR 247.] and to intervene in the politically sensitive area of national security. ["Church of Scientology Inc v Woodward" (1982) 154 CLR 25.]

Standing

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. ["Australian Conservation Foundation Incorporated v Commonwealth" (1980) 146 CLR 493.] 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. [ For the Canadian approach, see "Finlay v Canada (Minister of Finance)" [1986] 2 SCR 607.]

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 set up an administrative tribunal in 1984, followed by New South Wales (1998) and Western Australia (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. [ [http://www.aat.gov.au/docs/Reports/2005/AR2005-Chapter3.pdf "Workload and performance", "Administrative Appeals Annual Report 2004-2005"] ] The major jurisdictions include taxation, veterans' benefits, social security and workers' compensation.

The AAT was designed to be accessible. Applications, once free, now cost AUD$639, [Standard fee as of 1 July 2006. See [http://www.aat.gov.au/FormsAndFees/Fees.htm AAT fees] .] 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 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 ACT and the States.

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 $239 in 1997-1998. [ [http://www.ag.gov.au/agd/WWW/rwpattach.nsf/viewasattachmentPersonal/(EA2F2ED7418AF8688379ED4A9743E7A1)~needs_to_know.pdf/$file/needs_to_know.pdf "Needs to Know: Own motion investigation into the administration of the Freedom of Information Act 1982 in Commonwealth agencies"] (Accessed 2 July 2006).] 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

*internal working documents or "deliberative processes"
*documents subject to legal professional privilege
*material relating to judicial functions of a court or tribunal
*documents subject to secrecy provisions in other legislation
*matter obtained in confidence
*documents affecting the economy or the financial or property interests of a State
*documents concerning management and personnel practices
*documents subject to contempt proceedings

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. [Sections 33A(2), 3(4) FOI Act.]

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.

Ultra vires

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". ["Shanahan v Scott" (1957) 96 CLR 245.]

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. The courts have emphasised its flexible character, with Justice Brennan referring to the "chameleon-like" character of its rules. ["Kioa v Minister for Immigration and Ethnic Affairs (West)" (1985) 159 CLR 550. See also G Johnson, "Natural justice and legitimate expectation in Australia" (1985) 15 "Federal Law Review" 39.]

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.

Judicial remedies

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.

References

See also

*Canadian administrative law
*United States administrative law

Further reading

*Robin Creyke et. al, "Control Of Government Action: Text, Cases And Commentary" (Sydney: LexisNexis Butterworths, 2005).
*Roger Douglas, "Douglas and Jones's administrative law", 5th edition (Annandale, NSW: Federation Press, 2006).

External links

;Tribunals
* [http://www.aat.gov.au/default.htm Administrative Appeals Tribunal]
* [http://www.mrt.gov.au/ Migration Review Tribunal]
* [http://www.nntt.gov.au/ National Native Title Tribunal]
* [http://www.rrt.gov.au/ Refugee Review Tribunal]
* [http://www.coat.gov.au/overview.htm Council of Australasian Tribunals] ;Ombudsman
* [http://www.comb.gov.au/ Commonwealth Ombudsman] ;Freedom of information
* [http://www.ag.gov.au/www/agdHome.nsf/HeadingPagesDisplay/Freedom+of+Information?OpenDocument "Freedom of information", Attorney-General's Department]
* [http://www.law.utas.edu.au/foi/foi_rev.html Freedom of Information Review] ;Research bodies
* [http://law.anu.edu.au/aial/index.html Australian Institute of Administrative Law]