Administrative Law A

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1 Administrative Law A Week 1 Intrductin t Administrative Law WHY DO WE NEED ADMINISTRATIVE LAW? The pwer which a multiple millinaire, wh may be my neighbr and perhaps my emplyer, has ver me is very much less than that which the smallest functinnaire pssesses wh wields the cercive pwer f the state n whse discretin it depends whether and hw I am t be allwed t live r t wrk. -> Friedrich Hayek, The Rad t Serfdm (1944) WHAT IS ADMINISTRATIVE LAW? Administrative law is a subset f Public law - public law is the bdy f law dealing with the pwers, rights, and bligatins f the gvernment and the gverned. Public law is cmpsed f cnstitutinal, administrative, envirnmental, internatinal, and criminal law. A system f rules, principles and institutinal practices that guide administrative decisin-making administrative law is the legal principles gverning the relatinship between the gvernment and the gverned. See als judicial review; prergative pwers; prcedural fairness. Administrative law is a bdy f law that regulates gvernment decisin making. Administrative law prvides a means by which an applicant can seek review f a decisin, with a view t btaining a mre favurable utcme RELEVANCE OF RULE OF LAW TO ADMINISTRATIVE LAW A V Dicey key therist in the area The rule f law accrding t Dicey cnsists f three principles: Undisputed supremacy f the law thrughut the whle cuntry in the frm f the central gvernment Gvernment and peple must act accrding t law (i.e., a persn can nly be punished in the rdinary manner befre the rdinary curts f the land if they have breached a distinct law) Equality befre the law All peple, including gvernment, are equal befre the law Judicial decisins determine the rights f peple in particular cases brught befre the curts The rights f individuals are the basis f the validity f the Cnstitutin

2 KEY PARTS OF THE CONSTITUTION: 5 Operatin f the Cnstitutin and laws This Act, and all laws made by the Parliament f the Cmmnwealth under the Cnstitutin, shall be binding n the curts, judges, and peple f every State and f every part f the Cmmnwealth, ntwithstanding anything in the laws f any State. Cnstitutin cvering clause 5 71 Judicial pwer and Curts The judicial pwer f the Cmmnwealth shall be vested in a Federal Supreme Curt, t be called the High Curt f Australia, and in such ther federal curts as the Parliament creates, and in such ther curts as it invests with federal jurisdictin. Cnstitutin s Original jurisdictin f High Curt In all matters:... (v) in which a writ f Mandamus r prhibitin r an injunctin is sught against an fficer f the Cmmnwealth; the High Curt shall have riginal jurisdictin. Cnstitutin s 75(v) Sectin 75(v) f the Cnstitutin cnfers upn this curt, as part f its riginal jurisdictin, jurisdictin in all matters in which a writ f mandamus, r prhibitin, r an injunctin, is sught against an fficer f the Cmmnwealth. It secures a basic element f the rule f law. Plaintiff S157/2002 v Cmmnwealth (2003) 211 CLR 476, 482 (emphasis added). The first f the fur principles is that gvernment shuld be under law, that the law shuld apply t and be bserved by gvernment and its agencies, thse given pwer in the cmmunity, just as it applies t the rdinary citizen; the secnd is that thse wh play their part in administering the law, judges and slicitrs and barristers alike, shuld be independent and uninfluenced by gvernment in their respective rle s as t ensure that the rule f law is and remains a wrking reality and nt a mere catch phrase; the third is clsely assciated with the secnd, it is that there shuld be ready access t the curts f law fr thse wh seek legal remedy and relief; the furth is that the law f the land, which rules us, shuld be certain, general and equal in its peratin. It gives peple mre pprtunity fr peple t give a review f gvernment ready access t the curts The law shuld apply t everyne and nt single ut any particular class f persn unless abslutely necessary Objectives f the Rule f Law Institute f Australia

3 T fster the rule f law in Australia. T prmte gd gvernance in Australia by the rule f law. T encurage truth and transparency in Australian Federal and State gvernments, and gvernment departments and agencies. T reduce the cmplexity, arbitrariness and uncertainty f Australian laws. T reduce the cmplexity, arbitrariness and uncertainty f the administrative applicatin f Australian laws. Rule f Law Institute f Australia It is clear that the verarching ratinale f judicial review is t keep administrative decisin-makers within the legal bundaries f their pwers (3.2.1). Whatever else the cntestable ntin f the rule f law means, the Angl-Australian cmmn law traditin starts frm the prpsitin that all claims f gvernmental pwer must be justified in law. When gvernment purprts t act r decide anything it must be able t pint t sme surce f legal authrity fr what is dne. This is smetimes referred t as the principle f legality. REPRESENTATIVE AND RESPONSIBLE GOVERNMENT Representative gvernment ss 7, 24, 30, 41, 128 f the Cnstitutin create a system f representative gvernment in which the peple have the pwer t vte fr (r vte ut) their representative at demcratic electins. The peple als have the final say as t whether the meaning f the cnstitutin can be changed at referendum (s128). Respnsible gvernment is a cncept that necessarily flws frm the cncept f representative gvernment and which is particularly relevant t admin law. It refers t the fact that elected representatives, are ananswerable t Parliament (and as a result, ultimately t the peple) fr their actins r missins. e.g. questin time. THE THREE ARMS OF GOVERNMENT Cmmnwealth Cnstitutin cnfers the legislative, executive and judicial pwers n different bdies (Ch I, II, III) Parliament Cmmnwealth Executive Federal Judicature N strict separatin between legislative and executive pwers PM and Ministers must be members f Parliament They are autmatically members f the Federal Executive Cuncil Respnsible gvernment requires ministerial respnsibility Only Parliament can pass Acts, but Executive can draft and implement delegated legislatin under Acts f Parliament

4 Example Parliament n persn may imprt a prhibited gd Executive prvides regulatins listing what cnstitutes a prhibited gd Hwever Parliament can disallw delegated legislatin Separatin between Judicature frm ther tw arms f gvernment is strict Only a curt may exercise the judicial pwer f the Cmmnwealth (e.g. cnclusively determine disputes) -> R v Kirby; ex parte Bilermakers Sciety f Australia (1956) 94 CLR 254 Bilermakers Sciety is an rganisatin, they have an adverse ruling against curt f cnciliatin and arbitratin... their argument was that this curt f cnciliatin and arbitratin was exercising judicial pwer. The statute said the curt shall have pwer t rder cmpliance within rder r cmpliance... The curt shall have the same pwer t punish as is pssessed by the High Curt. The bilermakers said these are all judicial pwers. They shuldn t be persuaded by the curt, this curt sits in the executive pwer f gvernment. They dn t need an address by bth huses. The HC agreed. They said yu cant give these pwers t bdies within the executive arm f gvernment. The executive cannt d what the judicial can d under the cnstitutin and visa versa. Because Chapter III curts may nly exercise federal judicial pwer, the fllwing distinctins limiting the pwers f the judicature apply Fact/Law Distinctin Legality/Merits Judicial Review v Merits Review Fact/Law Distinctin (Peter Butt (ed), Cncise Australian Legal Dictinary (LexisNexis, 4 th ed, 2011)) 487 Questin f fact An issue, the reslutin f which requires the finding f facts r inferences arising frm facts. A questin as t the weight r cgency f evidence is ne f fact. Questin f law A questin t be reslved by applying legal principles, rather than by determining a factual situatin; an issue invlving the applicatin r interpretatin f a law and reserved fr a judge. Where the issue t be reslved is whether a tribunal has misdirected itself as t the law, r wrngfully interpreted a statute: Edwards v Bairstw [1956] AC 14 Legality/Merits Judicial Review v Merits Review

5 Parliamentary Supremacy (Three Arms f Gvernment) A.V. Dicey, An Intrductin t the Study f Law f the Cnstitutin (1885) (cntinued) Parliament is the central limb f the three arms f gvernment. All persns are bliged t fllw Parliamentary statutes and curts are bund t apply them. Parliamentary supremacy is limited t express and implied pwers under Australian Cnstitutin A.V. Dicey, An Intrductin t the Study f Law f the Cnstitutin (1885) Statute law prevails in case f a cnflict with cmmn law. Parliament is free t enact whatever laws it chses N Act f Parliament may be challenged n grunds f invalidity r uncnstitutinality N Parliament may bind its successrs THE THREE ARMS OF GOVERNMENT EXECUTIVE The Cnstitutin vests the pwer f the Cth in three separate institutins Parliament (which makes law by enacting legislatin), the judiciary (which interprets and enfrces the law), and the executive (which gverns and administers the laws). Hence, administrative law is cncerned with the exersize f executive pwer. Relevant pwers f the Executive arm f gvernment are set frth in ss 61, 62, 64 and 67 f the Cnstitutin Sectin 64 frmalises the relatinship between the legislative and executive arms f gvernment as ne f respnsible gvernment Sectin 67, nw superseded by Public Service Act 1999 (Cth), established gvernment cntrl ver public emplyees The Crwn (generally dn t see the crwn but its there in the frm f the gvernr general) Cabinet (exists in law but its nt really applied, it is at the apex f decisin making) Federal Executive Cuncil (Cth)/Gvernr in Cuncil (WA) (this is the bdy that rubber stamps the decisins f the cabinet) Ministers Gvernment Departments Public Servants Statutry Authrities Statutry Offices Quasi-Autnmus Nn-Gvernment Organisatins Clubs (e.g., Fremantle Dckers, Willetn Tigers, Fremantle Buffal Club)

6 Lcal Gvernments Administrative Tribunals (e.g., Administrative Appeals Tribunal and SAT) THE STRUCTURE OF THE EXECUTIVE The Crwn At the head f the executive arm, represented by a Gvernr General. By cnventin the crwn acts n the advice f gvernment. Cabinet The cabinet cnsists f ministers. Majr plitical decisins are made by cabinet ministers in tw ways. (1) by frmulatin f legislatin; and (2) by exercise f an executive pwer. Executive Cuncils Executive cuncils are the frmal versins f cabinet. they are generally given the task f advising the Gvernr General r Gvernr. When cabinet has made its plitical decisins it recnvenes as the executive cuncil. Ministers Ministers cme frm the ranks f the party r calitin with a majrity in the lwer huse. Plitically elected by the peple and selected by their party. At the head f the ministry is the Prime Minister in the Cth and a Premier in each f the states. Gvernment Departments Gvernments rganise their business int departments. Public servants are the cmpnents f gvernment departments. Statutry Authrities A statutry bdy is a bdy established by statute. Statutry bdies are what the relevant act r statute makes them. The act r statute will usually enable them t wn prperty, enter int cntracts etc. Advantages f a statutry authrity ver a gvernment department: technical and legal advantages f an entity with perpetual successin, capable f suing and being sued, free frm crwn law. administratin free frm the pressures f partisial plitics, able t cncentrate n shrt-term and lng-term plicies building up persnal structure withut the rigidities f rdinary public service rules pssibility f representatin n the gverning bards f varius functins. sme degree f self-cntained financing and budgetary cntrl a statutry crpratin develps its wn distinct and separate existence, higher standard f efficiency. Shrt f statutry interventin, a gvernment can d little abut many f the fllwing activities:

7 Statutry Offices - A species f statutry bdy, a distinct frm f bdy because the entity is created in an ffice with a single ffice hlder. QANGOS Quasi autnmus nn gvernment rganisatin, a bdy which is part public and part private. e.g RSPCA, NSW Law Sciety. Clubs - a variatin f QANGO, clubs derive pwer ver members frm cntract. Sme clubs have their wn Act f parliament prviding incrpratin, pwers, prcedures etc. Lcal Gvernments Separate legal entities knwn as bdies crprate. Headed by a lrd mayr, mayr, president, chairpersn etc. Limited legislative pwers, pwers t make by-laws and t make health centres libraries etc. Administrative Tribunals Tribunals, bards r cmmissins are usually statutry authrities which are cnstituted t fulfill administrative tasks f a quasi-judicial nature. A FOURTH BRANCH OF GOVERNMENT? The idea f an integrity branch f gvernment identifies a universal gvernmental functin f such significance as t be entitled t designatin as a furth branch. The cncept f an integrity branch prvides a brader cntext within which the bdy f law knwn as an administrative law may find a place. The wrd "integrity" in English cvers tw distinct matters. First, persnal integrity and, secndly institutinal integrity. The tw matters are interrelated. Bth invlve an idea f purity, f an unimpaired r uncrrupted state f affairs. James J Spigelman, Judicial Review and The Integrity Branch f Gvernment (Speech delivered at 2005 Wrld Jurist Assciatin Cngress, Shanghai, 8 September 2005) This cvers bth persnal integrity and institutinal integrity. AREAS OF LAW AFFECTED BY ADMINISTRATIVE LAW Under the Administrative Appeals Tribunal Act 1975 (Cth), everything frm: A New Tax System (Australian Business Number) Act 1999 (Cth) t Wl Tax (Administratin) Act 1964 (Cth) Under the State Administrative Tribunal Act (WA), everything frm: Abriginal Heritage Act 1972 (WA) t Wrking With Children (Criminal Recrd Checking) Act 2004 (WA) Week 2 Intrductin (cntinued) REVIEW

8 Why d we need administrative law? What is administrative law? Administrative law is a subset f public law dealing with the pwers, rights, and bligatins f the gvernment and the gverned What is the Rule f Law? Undisputed supremacy f the law thrughut the whle cuntry in the frm f the central gvernment Equality befre the law Peple empwer the Cnstitutin Hw are respnsibilities fr administrative decisin-making divided between the three arms f gvernment? N strict separatin but refer first t the pwers given t the DMer by Parliament, then ask whether dispute shuld be reslved by Judicial Review (a legal questin) r Merits Review (a factual questin) at this stage in prcedure What areas f law are affected by administrative law? Almst everything There must hwever be an enabling act fr access t merits review tribunals. HISTORICAL DEVELOPMENT OF ADMINISTRATIVE LAW In the Beginning... Middle Ages in England Prergative writs Certirari Prhibitin Mandamus Equitable remedies Declaratin Injunctin Issued frm the Curt f Kings Bench, r Queens Bench, t cntrl the executive gvernment At the cmmencement f the Cmmnwealth f Australia in 1901, tw wellestablished methds fr reviewing gvernment actin existed: Merits f the decisin culd be questined thrugh the agency f a member f the parliament, calling in aid the dctrine f ministerial respnsibility Legality f a decisin culd be tested in an actin brught in the curts These were the nly methds f review until the 1970s but have nw been supplemented by new methds giving the gverned mre avenues t seek redress. Hwever, the earlier methds shuld be nted as they are still available t a persn affected by gvernment actin. Gvernment cnducted by elected fficials (ministers) supprted by a bureaucracy (public service & statutry authrities) which is accuntable t the relevant minister

9 Histrical Develpment f Administrative Law Acceptance f Big Gvernment Grwth f bureaucracy Delegated legislatin have led t creatin f institutins fr cntrlling Bureaucratic Plicy-making Cntrl ver Decisin-making* Obligatin t Gvernment s rle in sciety and the ecnmy Big Gvernment prvided services and infrastructure t: supprt chesive cmmunity maintain health and safety ensure internal and external security facilitate trade and cmmerce cnduct internatinal relatins. Gvernment decisin making, actin and plicy impact n individual citizens as individuals, as well as ptentially having a brader public impact THE NEW ADMINISTRATIVE LAW Sme admin law remedies have been in existence fr many years. Hwever, admin law as we knw it emerged in the 1970 s with a package f refrms that came t be knwn as the new administrative law. The refrms fllwed the recmmendatins made by the Cth Administrative Review Cmmittee in August 1971 (the Kerr cmmittee). The reprt recmmended that judicial review prcedures and grunds shuld be simplified, that a general Administrative Review Tribunal shuld be established t review decisins and actin n the merits, and that an Administrative Review Cuncil shuld be established t versee the new system f admin law. Cmmnwealth Administrative Review Cmmittee ( Kerr Cmmittee ) Cmmittee n Administrative Discretins ( Bland Cmmittee ) Cmmittee f Review f Prergative Writ prcedures ( Ellictt Cmmittee ) 1973 The New Admin Law was cmprmised f the fllwing legislatin; Administrative Appeals Tribunal Act 1975 Ombudsman Act 1976 Freedm f Infrmatin Act 1982 Administrative Decisins (Judicial Review) Act 1977 Judiciary Act 1903 PUBLIC/PRIVATE DIVIDE

10 Administrative law is smetimes referred t as public law because it deals with disputes and accuntability in the public realm between individuals and gvernment. On the ther hand, private law cncerns everything utside the realm f gvernment. This includes the regulatin f nn-gvernment businesses and crpratins. Administrative law nly applies in the public realm. Hwever, if a dispute invles a gvernment department r minister, admin law may be utilised. This is cmmnly knwn as the public/private distinctin. The questin f whether the decisins f an (therwise) private bdy perfrming regulatry functins are subject t administrative law review decisin f an administrative character... made under an enactment Administrative Decisins (Judicial Review) Act 1977 (Cth) ss 3(1) and 5 PUBLIC PRIVATE DIVIDE FUNCTIONAL VIEW R v Panel n Take-vers and Mergers; Ex parte Datafin Plc [1987] 1 QB 815 (D&J 39-41; Cane (Cases and Materials) 12) Panel was an unincrprated assciatin with members appinted by varius nngvernment rganisatins that participated in the financial and securities industry Chair and deputy chair f panel were appinted by the Bank f England Panel devised and perated the City Cde n Take-vers and Mergers which prescribed a cde f cnduct t be bserved in takevers f public cmpanies listed n the Stck Exchange N direct statutry, prergative r cmmn law supprt fr the peratin f the Panel and Cde but its self-regulatry rle had been recgnised and supprted by the Department f Trade and Industry Datafin cmplained t Panel that tw ther cmpanies had acted in breach f the Cde but Panel rejected the cmplaint Datafin made an applicatin fr judicial review f Panel s decisin R v Panel - Sir Jhn Dnaldsn MR [827]The principal issue in this appeal... is whether this remarkable bdy is abve the law. [W]hat is t happen if the panel ges ff the rails? Suppse, perish the thught, that it were t use its pwers in a way which was manifestly unfair. What then? [838] The panel... is withut dubt perfrming a public duty and an imprtant ne. This is clear frm the expressed willingness f the secretary f State fr Trade and Industry t limit legislatin in the field f take-vers and mergers and t use the panel as the centrepiece f his regulatin f that market. The Test Applied by Dnaldsn MR

11 [838-9] At least in its determinatin f whether there has been a breach f the cde, it has a duty t act judicially and it asserts that its raisn d être is t d equity between ne sharehlder and anther. Its surce f pwer is nly partly based n mral persuasin and the assent f institutins and their members, the bttm being the statutry pwers exercised by the Department f Trade and Industry and the Bank f England. In this cntext... the curts [shuld] recgnise the realities f executive pwer and [nt] allw[] their visin t be cluded by the subtlety and smetimes cmplexity f the way it can be exerted. Llyd LJ [846] S lng as there is a pssibility, hwever remte, f the panel abusing its great pwers, then it wuld be wrng fr the curts t abdicate respnsibility. [847] I d nt agree that the surce f the pwer is the sle test f whether a bdy is subject t judicial review... Of curse, the surce f the pwer will ften, perhaps usually, be decisive. If the surce f the pwer is a statute, r subrdinate legislatin made under a statute, then clearly the bdy in questin will be subject t judicial review. If, at the ther end f the scale, the surce f pwer is cntractual, as in the case f private arbitratin, then clearly the arbitratr is nt subject t judicial review ] But in between these extremes there is an area in which it is helpful t lk nt just at the surce f the pwer but at the nature f the pwer. If the bdy in questin is exercising public law functins, r if the exercise f its functins have public law cnsequences, then that may... be sufficient t bring the bdy within the reach f judicial review... It may be said that t refer t public law in this cntext is t beg the questin... The essential distinctin... is between a dmestic r private tribunal n the ne hand and a bdy f persn wh are under sme public duty n the ther.... Public Private Divide Functinal View (cnt.) Frbes v New Suth Wales Trtting Club Ltd (1979) 143 CLR 242 Murphy J NSW Trtting Club Ltd was a nn-gvernment bdy with tw rles (1) wner/ peratr f tw trtting curses and (2) verseer f trtting meetings in NSW with cnsent f ther privately-wned trtting clubs, the Australian Trtting Cuncil and the NSW Gvernment. Frbes was a prfessinal punter and regularly attended races at respndent's curses where he was financially unifrmly mst successful. Under rule 28 f the Rules f Trtting, the cmmittee f the respndent culd, by reslutin, "warn ff" a persn, thus excluding him trtting curses in NSW r causing his remval if he shuld btain entry t them. Respndent warned ff Frbes frm all NSW curses pursuant t a reslutin thus seriusly diminishing Frbes winnings. Frbes sught declaratin that ntice was invalid.

12 A husehlder, exercising his prperty rights, may d s against the public, and rdinarily this is sensibly regarded as the exercise f a private right and f private pwer, althugh the right stems frm a public surce. (Murphy J at 274) Hwever, an wner wh uses his land t cnduct public race meetings wes a mral duty t the public frm whse attendance he benefits. The rules recgnise the public nature f the race meeting by placing sme restrictins n the rights f the wner f the curse. (Gibbs J at 269) PUBLIC PRIVATE DIVIDE INSTITUTIONAL VIEW NEAT Dmestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277 (D&J 39-41) FACTS: AWB Ltd (AWB) was established in 1939 t cntrl the marketing f wheat in Australia. AWB is wned by Australian wheat grwers wh sld their wheat int a cmmn pl fr exprt under the single desk plicy Actual respnsibility fr marketing and selling wheat frm pl lay with AWBI Ltd (AWBI), a whlly wned subsidiary f AWB Bth AWB and AWBI incrprated under Crpratins (Victria) Act 1990 (Vic) with duty t maximise net returns fr sharehlders AWBI given express statutry immunity frm prvisins f Trade Practices Act 1974 (Cth) Only the Wheat Exprt Authrity (WEA), a gvernmental statutry crpratin, culd issue cnsent fr exprt f wheat under prvisins f the Wheat Marketing Act 1989 (Cth) Under the single desk plicy, hwever, the WEA culd nly cnsent if it received prir apprval in writing frm AWBI giving AWBI de fact pwer t prtect its exprt mnply AWBI had n criteria applicable t making this decisin t give cnsent ISSUE: Whether the refusal f AWBI t give apprval was a decisin f an administrative character under an enactment under ss 3(1) and 5 f the Administrative Decisins (Judicial Review) Act 1977?

13 decisin t which this Act applies means a decisin f an administrative character made, prpsed t be made, r required t be made...: (a) under an enactment... Reasns given in Para 51: Althugh s 57(3B) f the Wheat Marketing Act gave statutry significance t AWBI s cnsent decisin, that subsectin did nt... cnfer statutry authrity n AWBI t make the decisin. Therefre, nt reviewable as a decisin under an enactment. ADJRA ss 3 and 5(1). The private character f AWBI as a cmpany incrprated under cmpanies legislatin fr the pursuit f the bjectives stated in its cnstituent dcument It is nt pssible t impse public law bligatins n AWBI while at the same time accmmdating pursuit f its private interests such as AWBI s private cmmercial bjective t maximise prfits 27 While AWBI is nt a statutry authrity, it represents and pursues the interests f a large class f primary prducers. It hlds what amunts, in practical effect, t a virtual r at least ptential statutry mnply in the bulk exprt f wheat; a mnply which is seen as being nt nly in the interests f wheat grwers generally, but als in the natinal interest. T describe it as representing purely private interests is inaccurate. It exercises an effective vet ver decisins f the statutry authrity established t manage the exprt mnply in wheat; r, in legal terms, it has pwer t withhld apprval which is a cnditin precedent t a decisin in favur f an applicant fr cnsent. (Gleesn CJ) HOLDING: The decisin f AWBI nt t give apprval t a cnsent t exprt was nt pen t judicial review under the Administrative Decisins (Judicial Review) Act 1977 r t the grant f relief in the nature f prhibitin, certirari r mandamus CRITICISMS (Christs Mantziaris, A WrngTurn n the Public/Private Distinctin: NEAT Dmestic Trading Pty Ltd v AWB Limited (2003) 14 Pub L Rev 197): All members fcused n the presence r absence f a statutry basis fr AWBI s pwers, and characterised the relevant actins and structures as public r private with apparent self-evidence. Fr the majrity, incrpratin under the Crpratins Act was sufficient t make an entity private and t put it beynd judicial review ntwithstanding its psitin in a public scheme f regulatin. Gleesn and Kirby lked at the same fact but subsumed it in the brader characterisatin f the regulatry statute as public. That bth readings were pssible indicates that the true animus fr the decisin lay beynd the wrds f the statute, namely in a nrmative evaluatin f where

14 the bundary between the executive and a private cncern lay and the apprpriateness f judicial review within the particular regulatry scheme. The High Curt, in attempting t frmally classify the legal pwers f AWBI, ignred the reality that regulatin may be cnducted thrugh the use f the executive rather than the legislative pwer. An increasing amunt f regulatin ccurs thrugh industry self-regulatin and gvernment/industry cregulatin in which exercise f nn-statutry pwers by nn-gvernmental agency is critical. What is required f the curts is a mre explicit recgnitin f the nrmative dimensin f the public/private distinctin, and sensitivity t the pssibility f adpting bth institutinal and functinal appraches t the distinctin. Reasning f this nature is mre transparent, and this in turn, is mre likely t cnvince. PUBLIC/PRIVATE DIVIDE OTHER CASES Griffith University v Tang (2005) 221 CLR 99 University excluded a pstgraduate student frm further participatin in its degree prgramme after finding that she had engaged in academic miscnduct Sectin 8 f the Griffith University Act 1998 (Qld) declared that the University cuncil was its gverning bdy and, by s 9(2)(b), the University cuncil was given pwer 't manage and cntrl the university s affairs and prperty' Student brught prceedings in the Supreme Curt f Queensland fr review f the University s decisins under the Judicial Review Act 1991 (Qld) Act applied t 'decisin f an administrative character made... under an enactment University applied fr summary dismissal f the case n the grund that its decisins were nt made under an enactment Held, by Gleesn CJ, Gummw, Callinan and Heydn JJ, that the decisins were nt t be regarded as having been made under an enactment within s 4(a) The determinatin f whether a decisin is made under an enactment invlves tw criteria: first, the decisin must be expressly r impliedly required r authrised by the enactment; and, secndly, the decisin must itself cnfer, alter r therwise affect legal rights r bligatins, and in that sense the decisin must derive frm the enactment. A decisin will nly be made... under an enactment if bth criteria are met PUBLIC/PRIVATE DIVIDE EXCEPTION Frbes v New Suth Wales Trtting Club Ltd (1979) 143 CLR 242 (Murphy J) NSW Trtting Club Ltd regulated the entire state industry It culd nt warn ff an individual withut prviding him first with a hearing (i.e., prcedural fairness) where he culd hear the case against him and respnd t it

15 IV PUBLIC/PRIVATE DIVIDE IS THE UNIVERSITY OF NOTRE DAME AUSTRALIA PUBLIC OR PRIVATE? Issue is whether the Freedm f Infrmatin Act 1992 (WA) applies FOIA applies t dcuments f an agency (ther than an exempt agency) The term agency includes a a public bdy r ffice which is defined as a bdy r ffice that is established fr a public purpse under a written law The University was created pursuant t the University f Ntre Dame Australia Act 1989 (WA) IS THE SUPERANNUATION COMPLAINTS TRIBUNAL PUBLIC OR PRIVATE? Excerpts f Superannuatin (Reslutin f Cmplaints) Act 1993 (Cth) 11 Tribunal bjectives The Tribunal must, in carrying ut its functins r exercising its pwers under this Act, pursue the bjectives f prviding mechanisms fr: (a) the cnciliatin f cmplaints; and (b) if a cmplaint cannt be reslved by cnciliatin the review f the decisin r cnduct t which the cmplaint relates; that are fair, ecnmical, infrmal and quick. 12 Functins (1) The functins f the Tribunal are: (a) t inquire int a cmplaint and t try t reslve it by cnciliatin; and (b) if the cmplaint cannt be reslved by cnciliatin t review the decisin r cnduct t which the cmplaint relates; (c) any functins cnferred n the Tribunal by r under any ther Act. 46 Appeals t Federal Curt f Australia frm determinatins f the Tribunal (1) A party may appeal t the Federal Curt, n a questin f law, frm the determinatin f the Tribunal. HOW CAN THE EXERCISE OF ADMINISTRATIVE POWER BE CHALLENGED? Individual against the gvernment Did gvernment have the pwer? Gvernment cnducted by elected fficials (ministers) supprted by a bureaucracy (public service & statutry authrities) which is accuntable t the relevant minister. Example f a gvernment department Austudy