Admin Flowchart 1-6 - the flow chart to help understand easily. PDF

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Summary

the flow chart to help understand easily....

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Administrative Law-Semester 1 2017-Chris McElwain's C That body of law, including both statues and common law, aimed at regulating decisions made by the executive ar Commonwealth or state) and to ensure that the executive does not act ultra vires (beyond its power). It is one of seve which operate together to maintain a broad rule of law and keep government in check.

Accountability

TRIBUNALS: To allow for review of decisions through merits review (noting that all tribunals are created by statute and so this is the source of their power and statutes will set out the scope of the tribunal, the ability to get standing, the grounds of review and the possible rem edies).

Integrity

Regul investig u Profe profe

Financ others

Legal

COURTS: To address errors of law in administrative decisions through judicial review. The source of power may be Constitutional (High Courts or Federal Courts), statutory (courts created by statute eg Land and Environment Court) or the common law (state supreme courts – often then codified in statutes).

OMBUDSMAN: Looks at administrative practices. It can only make recommendati ons, cannot make binding decisions as they have no determinative or coercive powers FREEDOM OF INFORMATION The freedom of information and statutory requirements to provide reasons address issues of secrecy within administrative de cisions.

Public m

Politica

Electoral

THE IMPORTANCE OF STATUTORY INTERPRETATION TO ADMINISTRATIVE LAW

Legislation is the source of power for most administrative decisions, so it is fundamental to administrative law to be able to read legislati on, whether it is Commonwealth or state statut es, to determine the character of the decision and decide whether or not a decision has been made within power and lawfully.

Further, the scope and powers of most courts and tribunals are set out in legislation and so again this ability is crucial to administrative law (bearing in mind that state supreme courts have inherent common law jurisdiction that has often been codified in state supreme court acts)

What are the basic principles of statutory construction?

Exampl AD A Land and En

Judic “se o Com

The rule of law

The concept that government should be bound by its own laws, being a protection against the arbitrary or illegal exercise of executive power. Enforced by the courts via judicial review of administrative decisions.

CO unde co wo Co Fed Wa

3 Core Concepts

The separation of powers

Parliamentary supremacy

The concept that government, whether Commonwealth or state, is made up of the three separate arms of the Legislature (parliaments), the Executive (the Queen/Governor or Governor Gener al, ministers and public servants) and the Judiciary ( the courts). Its purpose is to separate power between each arm so that each is a check on the other and to avoid the concentration of power.

The legislature is the supreme source of law in Austr alia, although there are some limits to the exercise of its power under the Constitution at the Commonwealth level. Where statute and common law conflict, the statute prevails except with respect to constitutional matters. Further, a parliament cannot bind itself and, to the extent of any inconsist ency, new statutes override old statutes.

Possible High Level Legal Remedies.

STA orig state con cann amen Kirk

At the Co entrenched i on, see ss 1 ( cutive powe

At a state le done largely various

A Threshold Issue for Judicial Review - Justic The Judiciary should not review every type of decision made by the Executive arm of government

Judges are not elected and so should not be reviewin some types of administrative decisions Judges do not have the expertise or policy experience the necessary evidence to make the decisio Judges do not have the experience or access to the understand the consequences of the decisi Types of decisions are sometimes categorised

Is the decision of a kind that should be reviewed judicially by a court?

Non-justiciable (not reviewable) bu categories are not clearly defin Policy (not reviewable) / Principle ( able) or Justiciable (reviewabl

We can see a consideration of these issues in Aye v Minister for Immigration and Citizenship (2010) 187 FCR 449 where the Full Federal Court determined that the decisions under challenge were not justiciable because the initial decision about imposing sanctions was a political matter not made under any act, the second decision to determine under the Migration Act that Ms A ye’s presence in Australia was contrary to Australia’s foreign policy interests was again a political decision and not justiciable and the last decision to revoke her visa was automatic under the legislation

Public/Private Distinction

Standing to Seek Judicial Review

granted by Common

Another important consideration is whether or not the decision can be said to be a “public” decision and so reviewable or a “private” decision because judicial review is not available for private law matters

To be entitled to make a judicial review applic ation, an applicant must establish that they have standing

The relevant Attorney General always has standing and it is possible, although rare, to seek the Attorney General's fiat to bring proceedings

However, if to a senio not able to ns, then i

In Australia, th in NEAT Dom HCA 35 where making decisi was entitled t account and s This can be co e-overs and M court characte nature becaus regulating tak an act and we wider applica ivate” decisio

Wider or open

Jurisdiction and Sources of Power

HIGH COURT

FEDERAL COURT Federal Court's original jurisdiction: 1.Judiciary Act 1903 (Cth) s39B(1) 2.Vests in the Federal Court the same jurisdiction as the High Court. See Constitution s75(v). 3. Administrative Decision (Judicial Review) Act 1977 4. A decision of an administrative character made under an act but not Schedule 1 in ADJR Act.

High Court's original jurisdiction: 1. Mandamus, prohibition or injunction are sought against an officer of the Commonw ealth. See Constitution s 75(v). 2. Where the Commonwealth is or a person on behalf of the Commonwealth is a party. See Constitution s 75(iii). High Court's appellate jurisdiction: Can hear appeals on judicial review matters from Federal Court of Appeal or state Supreme Courts. See Constitution s73. limitations of jurisdiction: 1. Limits of the meaning of a Commonwealth officer and matter. 2. Must be a suit against the Commonwealt h. 3. Particular remedies are available but including certiorari on an ancillary basis to other remedies.

Procedural Fairness

FYI

5. Judiciary Act 1903 s39B(1A)(c) a. Added to the Federal Court's jurisdiction 'any matter arising under any laws made by the Parlia ment'. b. Challenge subordinate legislation limitations of jurisdiction: 1. Prerequisite conditions: a. Decision of an b. administrative character, c. made under an enactment. Also the ADJR Act has some decisions which are not reviewable. See ADJR Act. 2. The same limitations as the High Court. See The Judiciary Act s 39B(1).

The common law rules of natural justice are taken to ap administrative decison-making unless expressly exclude Immigration and Multicultural Affairs; Ex parte Miah (20 They require that there be a fair hearing and the decisio apprehended bias.

For a hearing to be fair, the decision-maker must not be, nor appear to be, biased. The generally more difficult to establish bias, which is subjective, than an apprehension of b

The Rule Against Bias

Actual bias is where the decision-maker's mind is closed and not open to persuasion. S ti-Cultural Affairs v Jia Legeng(2001) 205 CLR 507 at 519. An apprehension of bias arises where a fair minded observer might reasonably appreh not bring an impartial mind to the decision. This might arise because of something sa or because he or she has a direct interest in the outcome of the decision. The more in or the greater the distance from the actual decision-maker, the more likely that there Holdings Pty Ltd v Creasy (2002) 210 CLR 438.

The Threshold Question

There is a common law duty to act fairly, in the sense of according procedural f administrative decisions which affect rights, interests and legitimate expectation manifestation of a contrary statutory intention. The duty arises only if the individual's rights, interests or legitimate exceptions a diate" way. See Kioa v West (1985) 159 CLR 550.

NOTE: The remedies available will depend on whether an error is jurisdictional or not. Various consequences flow from classification of an error by a court as either a jurisdictional error or an error within ju risdiction, see further below under REMEDIES.

Non-Jurisdictional Error

It is error within jurisdi something which authorized to decide a unlawf

Jurisdictional Error

It is jurisdictional error a decision outside the powers conferred by which is beyond any always retros

In relation to most administrative decision m akers, it can be assumed that jurisdictional errors comprise not only a misunderstanding or misapplication of the substantive legal tests to be applied but also breaches of the grounds of review related to procedure and reasoning processes.

The Project Blue Sky methodology can be used to determine whether a breach amounts to jurisdictional err or.

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 - Any breach of a statutory provision may render a decision either retrospectively invalid or prospectively unlawful or have no effect on its validity , depending on the legislative intention.

Judicial Review Remedies

Common Law/ Statute

Prohibition

s 75(v) of the Constitution and eg s16(1)(d) of the AD(JR) Act CL in state supreme courts

Mandamus

> Plaintiff M61/2010E v Common wealth; > s 75(v) of the Constitution; > s16(1)(d) of ADJR Act > CL in state supreme courts

Jurisdictional error and privative clauses

Kirk v Industrial Relations Com CLR 531 - This decision grante the inherent jurisdiction of sta judicial review despite the ope attempted to prevent this due (ii) of the Constitution. It also mark ‘the metes and bounds r, it requires an assessment of the error.

Plaintiff S157/2002 v Common 211 CLR 476 – The High Court privative clauses are ‘valid’ statutory interpretation such t have intended to apply it to ju not consistent with s75 of the error is not affected by privati decisions are not decisions at

What do they do

> Refrain from exceeding its jurisdiction > Presupposes that DM has not completed its function

> For j > Befo finalise > Usua

> Enforcement of the performance of a public duty

> For > To e

MERITS REVIEW

INTERNAL REVIEW

REASONS FOR A DECISION

Merits Review is only available where an act expressly grants such a right of review to a new d ecision-maker, usually a tribunal.

There are tribunals that conduct merits review the Administrative Appeals Tribunal, created b Cth)) or at a state level (see, for example the N the Civil and Administrative Tribunal Act 2013(

The types of decisions that can be reviewed on the merits will be set out in the relevant act.

The relevant act will also set out who can ask f merits review is to be conducted (procedure). review or appear on behalf of the person who example ss 27 and 30 of the AAT Act 1975.

Merits review is an administrative reconsideration of a case and this can be on new evidence that was not before the original decision-maker.

A merits review body makes decisions within primary decision maker, and can usually exerc the primary decision maker so as to refer the original decision. Merits review can find error

Internal review can be requested by a person who is affected by an original decision. It is a review on the merits done in essentially the same way as the original decision was made. It is undertaken by another officer within the same department or agency, usually a more senior officer. The relevant act may set out the statutory basis to seek an internal review but it is not necessary as it could be a matter of agency policy or practice.

In som availab this is always and 50

The NSW Ombudsman sets out the importance of giving reasons for a decision and the principles for giving such reasons in its 2012 Public Sector Agencies Fact Sheet 18 Reasons for Decisions.

Whilst it is always possible to request a decisionmaker provide reasons for the decision, some Commonwealth and state statutes create a right for persons to be given reasons for a decision, see for example s13 of the Administrative Decisions (Judicial Review) Act 1977(Cth) and s28 of the Administrative Appeals Tribunal Act 1975( Cth) which provide that persons who can seek JR or MR under those acts against a decision may also apply for reasons for the decision.

FOI systems are not accountability mechanisms by themselves but they support other aims such as transparency, accessibility and public participation as well supporting other accountability mechanisms such as JR or MR or complaints to the Ombudsman. In general, they promote the idea that data is a ti l d t f FOI

The office of ombudsman is one created by statute and this has been done at the Commonwealth level, see the Ombudsman Act 1976 (Cth) and the state l evel, in NSW see the Ombudsman Act 1974 (NSW). At the Cth level, its creation followed a recommendation in the 1971 Kerr Report. It has been argued that these positions can be seen as a new fourth arm of government, being the "Inte grity" arm of government, as they do not sit easily within the Legislature or the Executive arms, but they are a mechanism for achieving accountability at relatively low cost. Recently, there has been a growth of "private" ombudsmen positions to resolve private disputes across an industry sector like banking. Ombu...