1- intro to administrative law and jurisdicitonal fact etc PDF

Preview

Summary

1- intro to administrative law and jurisdicitonal fact etc...

Description

1- UNIT OVERVIEW AND INTRO BACKGROUND Hugh Finn ([email protected]) – email to arrange appointment. Emma Garlett James Bordi Recommended text: Government Accountability: Australian Administrative Law CLASS TIMES 

Monday: 10am-12pm



Tuesday: 12-2pm, 2-4pm



Tuesday: online 5-7pm

ASSESSMENTS 1. Problem based Assignment 

Assessment Information Sheet (Blackboard)



legal memorandum



content covered in Teaching Weeks 1-3

2. Tutorial Reflection 

Assessment Information Sheet (Blackboard)



critical reflection



written and oral submissions – merits review hearing

3. Final examination 

online IRIS-invigilated exam



Academic Integrity Conditions document



Restricted Book – notes in a folder



Trimester 2 Examination Period

ADMINISTRATIVE DECISION-MAKING AND ADMINISTRATIVE LAW ADMINISTRATIVE DECISION-MAKING Making of laws (legislating) Administering of laws (executive action) -

Exercise of a statutory power is often referred to as ‘administrative action’ Refers to members of the executive branch who exercise the power - administrators – and the function of those persons in administering statuses.

Examples of decision-making:      

Courts Tribunals Ministers Cabinet Government department CEOs Administrative offivers within Government departments.

CHARACTERISTICS OF A ‘DECISION’ -

An order, ruling, determination, judgement, etc Must be made by a decision-maker Involves an exercise of power Affects rights, liabilities or interests of a person

Criminal Appeals Act 2004 (WA) s 6: defines decision. Not every administrative decision is subject to judicial review. Administrative action which does not affect an individual’s liberties, vested rights or legitimate expectations is not subject to judicial review. Similarly, policy decisions of government are not subject to judicial review. EXAMPLES OF QUESTIONS THAT MAY ARISE: (NOT FRAMEWORK) 1. a decision-maker does (ie decides) 

did the decision-maker have the power to make the decision?

2. after some sort of process of assessment

2



did the decision-maker afford procedural fairness?



did the decision-maker consider all mandatory relevant considerations? did they consider irrelevant considerations?

3. which adversely affects the interests of a person 

does the person have standing?

4. for which a statute (or the common law) gives the person an entitlement to reconsideration, review or appeal of that decision 

on what basis can the person seek R/R/A of the decision?



what entity will undertake R/R/A of the decision?

MERITS REVIEW The process by which a person or body: i. ii. iii.

other than the primary decision-maker; reconsiders the facts, law and policy aspects of the original decision; and determines what is the correct and preferable decision.

Judicial review is focused on defective nature of original decision, while merit review makes new decision. Merits review may affirm or deviate from original decision. Aims: 1. ensure administrative decisions are correct & preferable: a. correct - in the sense that they are made according to law b. preferable - in the sense that, if there is a range of decisions that are correct in law, the decision settled upon is the best that could have been made on the basis of the relevant facts 2. ensure fair treatment of persons affected by a decision 3. improve the quality and consistency of the decisions of primary decision-makers 4. enhance the openness and accountability of decisions made by government EXAMPLE OF MERITS REVIEW: The AAT can review a wise range of decision made by government ministers, departments and agencies under Commonwealth laws. Centrelink. Child Support, Citizenship, Freedom of information (FOI), Migration and refugee, National Disability Insurance Scheme (NDIS), Security assessments (ASIO), Taxation and commercial.

JUDICIAL REVIEW

3

= executive action is prevented from exceeding the powers and function assigned to the executive by law and the interests of the individual are protected accordingly. – Brennan J in Scientology v Woodward 1982. APPEAL: -

an application to a higher court to reconsider the decision of a lower court, on the ground that there has been an error in the decision of the lower court a right of appeal may be created, limited, or abolished by statute exists as a statutory remedy rather than as something actionable at common law

WHAT IS ADMINISTRATIVE LAW Administrative law is the body of public law that regulates government executive power(‘control of government action’), The specific focus of this course is: How far can the exercise of power by the executive be challenged? Possibilities: merits review or judicial review Accountability mechanisms: freedom of info, public investigatory bodies STATE OR FEDERAL EXERCISE OF POWER Federal: 

Administrative Appeals Tribunal Act 1975 (Cth)



Administrative Decisions (Judicial Review) Act 1977 (Cth) – Federal Court



Freedom of Information Act 1982 (Cth)



Ombudsman Act 1976 (Cth)



State Administrative Tribunal Act 2004 (WA)



Freedom of Information Act 1992 (WA)



Parliamentary Commissioner Act WA (1971)



common law judicial review – Supreme Court of Western Australia

State:

Common Abbreviations AAT

Administrative Appeals Tribunal (federal)

ADJR

Administrative Decisions (Judicial Review) Act

ARC

Administrative Review Council

4

SAT

State Administrative Tribunal (WA)

FOI

Freedom of Information

AAR

Administrative Appeal Reports

ALD

Administrative Law Decisions

CONSTITUTIONAL FRAMEWORK Rule of Law: Responsible Government Separation of Powers 

Separation of Legislative, Executive, Judicial Power – federal



Ch III – institutional integrity of State courts invested with federal jurisdiction



Checks and balances



In reality, not a strict separation (legislative and executive in particular)



Courts: Judicial Review - was the decision lawful?



Tribunals: Merits Review – decision could be legally correct, but wrong on the ‘merits’ (eg decision maker makes mistaken finding of fact)

BODIES OF THE EXECUTIVE

5



The Crown



Cabinet



Executive Council



Ministers



Government Departments



Public Servants



Tribunals, boards and commissions



Statutory bodies (local governments, QANGOs/GBEs – Government Business Enterprises): https://www.bbc.com/news/uk-politics-11405840



Statutory Offices

REVIEW BY COURTS 

at Common Law - need to establish: 1.

standing

2.

a ground of review

3.

a remedy



under statute (eg ADJR) [codified]



courts review LEGALITY, not MERITS

COMMON LAW REMEDIES 

Prohibition: to prevent a tribunal from exceeding its jurisdiction



Certiorari: quashes a decision made in excess of jurisdiction



Mandamus: order to perform a public legal duty



Declaration: order as to state of affairs eg that x is an Australian citizen



Injunction: order to prevent or compel the doing of something

EXAMPLES OF ARGUMENTS 

The purported decision maker did not have the power to make the decision…because…



The decision maker made the decision for a wrong/improper purpose…because…



The decision maker took into account irrelevant considerations…because…



The decision maker failed to take into account relevant considerations…because…



The decision was unreasonable…because…



There was no evidence justifying the decision…because…



The affected person was not allowed a hearing before the decision was made… because…



The decision maker was biased…because…

MERITS REVIEW BODIES  

6

Ombudsman Special Tribunals



External merits review eg AAT, SAT

Why distinguish nature of powers? 

Boilermakers doctrine



only legislative instruments must be tabled in Parliament



sub-delegation allowed if an administrative power



AAT and ADJR confined to decisions of an ‘administrative character’

DIFFERENCE BETWEEN LEGISLATIVE & ADMINISTRATIVE/ EXECUTIVE POWERS: Commonwealth v Grunseit (1943) 67 CLR 58 

reg 8 of Cth Regulations empowered the Minister for Army to make a direction that any male refugee alien less then 60 years old who has not joined the military forces, shall perform such service as the Minister for the Interior directs



Minister for Army made such a declaration



Issue: was that declaration ‘legislative’ or ‘executive/administrative’?



If legislative, it needed to be tabled in each House of Cth Parliament pursuant to s 48 Acts Interpretation Act to be valid



If executive, not so required

High Court held: was executive The general distinction between legislation and the execution of legislation is that legislation determines the content of a law as a rule of conduct or a declaration as to power, right or duty, whereas executive authority applies the law in particular cases

7...