LLB358 Admin Law. Governs the process of Government protects us from mistakes of the Government

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1 LLB358 Admin Law Answering a Problem Question In two sentences address what happened, who did it, how they did (e.g. source of power) and what does the person want? Explain the law and apply them to the facts Make an argument on the controversial issues Conclude Contents Intro Intro pg. 1-3 Administrative Discretion pg. 3 Merits Review pg. 3-5 Judicial Review pg. 5-8 Ultra Vires pg. 8-9 Relevant Considerations pg Irrelevant Considerations pg. 11 Acting for Improper Purpose pg Inflexibility pg Duty to Exercise Discretionary Power pg Remedies pg Standing pg Unreasonableness pg Procedural Fairness pg Jurisdictional Error and Privative Clauses pg Governs the process of Government protects us from mistakes of the Government Guides administrative decision-making Provides citizens with an opportunity to have administrative mistakes identified and corrected Executive PM, cabinet, other ministers, departments, statutory authorities, local gov. and tribunals Government elected officials (ministers) who are supported by a bureaucracy (public service and statutory authority) and are accountable to the relevant minister Government provide services and infrastructure to: Support cohesive community Maintain health and safety

2 Ensure security Facilitate trade and commerce Administrative decision an action, process or refusal to act that will impact on individual or public rights and interest e.g. assessing qualification to receive Centrelink benefits or granting visas Decision may focus on broad public policy or individual interests: CASE Minister for Arts Heritage and Environment v Peko Wallsend mining company says the minister didn t consider Peko s interests when stating Kakadu national park is a world heritage area, court held they couldn t decide on the matter policy decision, Peko had no legal rights here CASE Green v Daniels G looking for work, went to many interviews etc., D was the director of social security, D brought action to the HC not to grant G social security benefits CASE SA v O Shea court recognises public policy aspect but states it effects individual rights enough to intervene, O is a prisoner for an indeterminate time, O applies to be released on licence and presents evidence etc. parole board make a positive report saying he should be released on strict restrictions, Governing council decide to decline release (close to election), O challenges stating he wasn t given an opportunity to be heard, court stated he was given enough chance to present his case no further right to be heard Administrators may make decisions: Based on information on file After holding a hearing or conducting an inquiry On the recommendation of a committee or advisor Following a policy Good decisions Bad decisions Follow the law Mistakes Fair decision making Pressure of time/budget Consider all facts and circumstances Lack of appropriate skills Have a coherent record of any facts Limited understanding Be impartial Inadequate information available Rational and reasonable Failure to consider key information Consistent with similar cases Corruption - Multiple decision makers Rule of law exercise of power by the government must follow the law: Rule of the judiciary to oversee, by judicial review, the exercise of power Separation of powers limits powers Ways to hold Gov. accountable to the rule of law:

3 Manage bureaucracy placing limits on power and stipulating how power should be exercised Provide remedies where there s been abuse/error of power Maintain accountability of government Admin law comes from statute and common law Admin law governs bureaucracy by: Merits review reconsiders the relevant facts and circumstances of the case Judicial review Access to information Freedom of Information Legislation Reasons for decisions Ombudsman Independent commissions powers of investigation Independent administrative bodies with oversight functions e.g. Auditor General Administrative Discretion Administrative officers exercise discretion Discretionary power allows Gov. to function efficiently by passing on power to other bodies e.g. TransPerth (delegated legislation) or discretionary power to make decisions CASE Sharp v Wakefield 1891 all discretionary power is to be exercised according to reason and justice, exercised within the limit Public power must be exercised reasonably, justly, lawfully and regularly Two methods to control it/correct mistakes: judicial review or merits review Wide power: the minister may do Limited power: the minister may do if satisfied that exists No discretion: if the minister is satisfied that is then the minister must do Policy sets standards for decision makers exercising discretion ensures consistent decision making Merits Review Review of the facts and circumstances of the case, the object is to determine the correct and preferable decision NOT the legality Different types of tribunals: one being the Cth Administrative Appeals Tribunal (AAT):

4 AAT President Federal court judge, they won t be sitting as a judge during their presidency at the AAT Terms of appointment are for fixed periods Tribunals have legally trained and specialist members who apply their knowledge to determine the outcome Jurisdiction is determined by the legislation, some legislation states merits review is not applicable, but it must expressly state so Tribunals have the same powers as the original decision maker s43 AAT tribunal is not limited to what the original decision maker considered to the relevant policy, facts or issues s27 AAT Person/organisation who want the AAT to review a decision need standing, they must be a person affected by the decision, the AAT has discretion to determine this s30 AAT person can apply to be a joined party to the proceedings, initiated by another party CASE Re McHattan and Collector of Customs (NSW) 1977 M custom agent, wanted to commence proceedings to have a decision to impose customs duty on the imports of a client reviewed, M was facing possible negligence action by the client regarding his advice, M was held not to be a person affected by the decision, the potential negligence was not material s33 AAT little formality or technicality CASE Re Hennessy & Secretary of the DSS 1985 structured hearing, informality, patience, tribunal is a servant not a master s32 AAT a party may appear represented or unrepresented AAT can direct parties to obtain or consider specific evidence and info CASE Australian Postal Commission v Burgazoff 1989 duty to seek out information which it regards as necessary for the determination of the case in hand s39 AAT natural justice, each party has a right to be heard and be judged impartially CASE Minister for Immigration and Ethnic Affairs v Pochi 1980 rules of natural justice will vary according to the particular proceedings and circumstances of the case s33 AAT don t follow the rules of evidence Hearsay is allowed but tribunals are cautious of it Cross examination is still valued

5 Can override/ignore policy Judicial Review Rule of law official power should be exercised according to law, Gov. is limited to the law Judicial Review to keep the rule of law standing the courts get power to scrutinise the actions and decisions of Gov., derived from common law Only the HC, FC, SC (in state matters) and Federal Mags Court (in Cth matters) can do this Only considers whether the decision-making process was lawful, unlike merits review Elements needed to begin Judicial Review: Decision must be justiciable reviewable by the court Court must have jurisdiction to review it Applicant must have standing must be the appropriate person to bring it to court Applicant must meet requirements to be eligible for the specific remedy e.g. declaration of law, injunctions etc. Applicant must prove a ground for review prove that the decision was unlawful in some way Judicial Review is neutral, courts do not have the power to stand in the shoes of the original decision maker CASE Re McBain; ex parte Australian Catholic Bishops Conference 2002 court does not have the power to initiate judicial review Courts look at whether: The decision maker was impartial The decision maker exceeded their power The decision-making process was rational and founded on probative evidence The decision maker made the decision based on relevant facts The parties had a fair opportunity to be heard If found to be an unlawful decision the court can Declare actions and decisions made by gov. invalid if it finds the gov. had exercised decision-making power improperly NOT substitute a decision of its own for the decision being reviewed If found to be invalid the decision must be taken again, the original decision maker will make the decision again on its merits using a correct process To initiate review a prerogative writ is needed

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