Administrative Law Complete Lecture Notes 2018 PDF

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Administration Law with Chris Brien...

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Week 01 ! Administrative Decisions and Bureaucracy Principles of Good Government! Readings:! R Douglas chapters 1 & 2! M Head Chapters 1, 2, & 3! ! The Haneef Case (Head pp. 8-12)! The ‘Malaysian Solution’ (Head pp. 13-15)! Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245! ! Administrative Law Defined:! ! Individual and the The State = ‘Public Law’ (Contracts, Torts = ‘Private Law’)! Constitutional Law - invalidate legislation! Administrative Law - legislation is authority ! ! Enabling Act and statutory interpretation !

Flowchart 1 - Nature of Administrative Law Contact Member of Parliament

Contact Responsible Minister! - Westminster Responsible Government

Internal Review" - Enabling Act

Merits Review" - Enabling Act" - Remake the Decision" - Tribunal’s decision takes the place of the original determination" - Harper Lee To Kill a Mocking Bird

Challenging ! Executive ! Power

Obudsman" - Federal, State, Industry" - Annual Report" - Neutral 3rd Party" - May / not investigate" - Can instigate own inquiry

Freedom of Information ! - Federal, State" - Access to documents

Judicial Review" - Enabling Act" - Separation of Powers" - ‘Legality’

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The Haneef Case (Head pp. 8-12)

Haneef v Minister for Immigration and Citizenship [2007] FCA 1273 Dr Haneef detained for two weeks without charge under antiterrorism legislation (sim card – cousins in UK bomb) – Min Kevin Andrews revoked visa after Magistrate granted Dr Haneef bail on charge of providing support to a terrorist organization (criminal charges later dropped) – s501 Migration Act 1958 (Cth) gave Min. broad discretion to cancel visa if failed character test ‘is in the national interest’ – Cth Attorney General Phillip Ruddock issued Criminal Justice Certificate under s145 of the Migration Act 1958 (Cth) so that Dr Haneef would be held in immigration detention pending trial rather than being released on bail despite DPP withdrawing the charges – ‘Association’ – Spender J ‘guilt by association’ was the wrong interpretation – at [31-32] There is no room for the view... that the executive should have exclusive responsibility over all matters of national security... it is for the judicial arm of government to ensure that ministerial or other official action is lawful. Role of the media – Role of the courts! The full Federal Court upheld the decision in Minister for Immigration and Citizenship v Haneef [2007] FCAFC 203 ! ! ! The ‘Malaysian Solution’ (See Head pp. 13-15)! ! ! Further matters for consideration: - The TAMPA Case - ‘The Children Overboard Affair’! ! - The Detention of David Hicks in Guantanamo Bay

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Contempt of Court - Supreme Court of Victoria - June 2017! The Hon Michael Sukkar MP ! Assistant Treasurer (Federal Member for Deakin)! The Hon Alan Tudge MP ! Minister for Human Services (Federal Member for Aston)! The Hon Greg Hunt MP! Minister for Health (Federal Member for Flinders)! ! ‘Judiciary ‘Light’ on Terrorism’ The Australian 13 June 2017! See ‘Coalition ministers will not face contempt charges after court accepts apology’ The Guardian 23 June 2017 available from VU-Collaborate! !

Separation of Powers - Legislature! - Executive ! - Judiciary Westminster Responsible Government! 3

! M Aronson, B Dyer Judicial Review of Administrative Action (3rd Ed, 2004) LBC Information Services 1.! ! ‘Administrative law addresses ‘the ideals of good government…’! Openess! Fairness! Participation! Accountability! Consistency! Rationality! Accessibility of judicial and non judicial grievance procedures! Legality ! Impartiality! Administrative Law enables challenges to the exercise of authority where it is flawed, and legitimates exercises of authority where it is legal and justifiable. An exercise of Executive Authority is “flawed” if it is unlawful - Rule of Law - A bastion of liberalism against potentially oppressive executive power? On the other side – What do we mean by the legitimation of authority? What legitimates exercise of legislative authority?! ! Q. What is a common criticism of governmental decision making? ! A. That it is bureaucratic?! ! What do we mean by bureaucracy and bureaucratic? Max Weber, Wirtschaft und Gesellschaft, (1922) Part III, Chapter 6, in M Weber, Max Weber on Law and Economy in Society [trans & ed M Rheinstein & E Shils] Simon & Schuster, New York, 1954, 349-56 ‘The decisive reason for the success of bureaucratic organisation has always been its purely technical superiority over every other form. A fully developed bureaucratic administration stands in the same relationship to nonbureaucratic forms as machinery to nonmechanical modes of production. The utmost possible speed, precision, definiteness, and continuity in the execution of official business are demanded of the administration particularly in the modern capitalistic economy. The great modern capitalist enterprises are themselves normally unrivalled models of thoroughgoing bureaucratic organisation. Their handling of business rests entirely on increasing precision, continuity, and especially speed of operation…'! ! 4

Weber was saying that bureaucratic decision-making is a distinct style of decision making, and it is legitimated, at least in part, by its rationality and impartiality. Is this what we colloquially mean by bureaucratic? Does its rationality and impartiality not also give rise to some of the criticisms? cold and unfeeling, strict hierarchy, sticks to rules as ends in themselves, departments develop their own cultures, and methods for maintaining them, self-perpetuation and “territorial jealousies” Surely Weber was aware of these failings? !

He was developing an ideal type. !

Do the bureaucracies of the “great modern capitalist enterprises” have to legitimate themselves? Are they subject to legal review or grievance procedures? Weber was writing at a particular time (the 1920s). The height of office technology was the typewriter (and the typing pool?), the telephone and the telegraph. What do we mean by technocracy and technocratic? He saw “bureaucracy” as being above other forms of decision making as ‘machinery’ is above ‘non-mechanical modes of production’. In line with this view, we could say that technocracy exhibits further technical advances. Other ‘technical advances’ used in governmental administration that might be characteristics of technocracy include: computers and data processing – computer forms, etc ! combination and recombination of data and email in-house or ‘captive’ bodies of scientific expertise Advances in the humanities and organisational theory include demographic studies and opinion polling management techniques Are there more obvious ‘technologies of control’? - electronic eavesdropping Are any of these features not employed by the “great modern capitalist enterprises”? Market forces? These technologies magnify executive governmental power, and thus the ability of government to intervene in our lives. ! ! Administrative Law balances executive power and protects us from abuse.

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Administrative Tribunals and the Separation of Powers

Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 ! ! Brandy, who was an officer of the Aboriginal and Torres Strait Islander Commission [ATSIC], lodged a complaint against a fellow officer, Bell. Bell complained that he had been subjected to verbal abuse and threatening behaviour contrary to the Racial Discrimination Act 1975 (Cth). The Federal Human Rights and Equal Opportunity Commission (a tribunal of Executive government) found the complaint substantiated and made declarations that Brandy should apologise and pay damages. The declarations were not binding or conclusive. Following the Act’s enforcement procedure, the declarations were lodged with the Federal Court and the Registrar of the Court registered them. The Racial Discrimination Act conferred finality on the declarations once registered, and then they were enforceable as a Court order. Brandy challenged the validity of these provisions in the High Court. It concluded that a determination of an Executive Tribunal could not be given the force of a Judicial decision; the effect of judicial power. An exercise of the judicial power of the Federal Court could only follow a judicial form of inquiry by that Court, as a matter of Constitutional Law. Thus, the High Court upheld the separation of Executive and Judicial governmental functions that it found in the Australian Constitution.

Effect of a tribunal’s decision The decision of a Tribunal replaces the decision of the original administrative decision maker. That is, it remakes the original decision on its merits, and the result is only as enforceable as the original decision.

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On the other hand, a Court undertaking Judicial review according to Administrative Law principles tests the original decision for legality and conformity with Principles of Administrative Decision Making. If it fails, the decision is generally declared invalid and it has to be remade by the original decision maker – the Court does not impose its view of the correct decision on the merits, as it sees it. ! The Principles of Good Administrative Decision Making The expansion of bureaucratic and technocratic decision making is often explained simply as the growth of Big Brother, and blamed on the welfare state - in all western industrial societies. Generally, ‘big government’ has grown to stabilise the economy, maintain standards (of education for example) and in response to the destructive aspects of industrial production, such as work accidents and pollution. When governments make decisions about these matters they usually affect someone's private rights. In Australia the expansion of administrative action into evermore areas of life appears even greater than in some other western countries because the construction of the Australian state over history, from penal colony to independent nation, has been basically a government project. A judicial decision is usually a decision about an event in the past and the rights and obligations which followed from it. For example, the damages to be paid to restore a car after a crash. An administrator, on the other hand, is generally making a decision to be implemented; such as whether a planning permit should be issued for a future project and what conditions should be attached to it. A judicial decision is made by a judge concerning distinct parties in dispute. This can also be with respect to an administrator, but often an administrator might disagree with a party and then make the decision. A judicial decision is made on the highest standards of proof ascertained within the rules of evidence and conducted within formal rules of procedure. An administrator can use discretion about the weight to be given to evidence and adopt a procedure suited to a particular task.

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Administrative Appeals! ! Administrative appeals generally are relatively straight-forward matters. People who are dissatisfied with the determinations made concerning their affairs by a government decision maker or tribunal can, if legislation so provides, appeal to the Administrative Appeals Tribunal. The matter will then be considered by the appeal tribunal either de novo or by way of appeal. In a de novo hearing the entire question is reconsidered from the start and the whole decision will be made again by the appeal body on the basis of facts which it finds. The Federal Administrative Appeals Tribunal generally remakes the decision in this way. The Victorian Administrative Appeals Tribunal also remakes de novo the decision brought before it. A hearing in the nature of an appeal concentrates on the point at which the dissatisfied party considers the lower tribunal went wrong. When that point has been re-examined, and if necessary corrected, the case could well be returned to the lower tribunal. Whether an Appeals Tribunal is to conduct a de novo rehearing or to consider only the point on appeal is set out in the legislation which establishes the avenue of appeal. Often the appeal tribunal is composed of experts. ! Judicial Review In the early days of bureaucratic growth last century rights of appeal were not widely available. Nevertheless, the courts had very old powers for supervising decision makers with powers to affect private rights which they revitalised and adapted to the new public decisions of industrial society. They theorised that the administrative decisions were being made by the Crown; that is, the executive arm of the monarch, which had been given a limited mandate to act by the legislature, to which it is responsible. The courts emphasised their functions as the judicial arm of the monarch, to interpret and enforce laws made by the legislature, and rapidly revamped common law and equitable remedies which had existed in simpler forms 8

since the 17th century to control bodies exercising executive functions and discretions in control of the professions and other private activities. These remedies permitted the courts to –! ! - restrain unlawful activity by a public body, - make authoritative pronouncements about whether an official activity is lawful, - restrain public decision makers about to enter fields of inquiry outside their assigned responsibilities, - quash a decision made contrary to principles of good decision making, and - compel a public officer to perform a duty as required by law.

The courts use these remedies in a supervisory way to enforce their standards of decision making on public bodies which make decisions affecting the private affairs of individuals. In undertaking supervisory judicial review the courts do not set out to re- examine the merits of a decision. Their role, as they see it, is to ensure that the decision maker had jurisdiction under the empowering legislation to enter the inquiry at the outset, did not transcend that jurisdiction in the course of the inquiry, by making an error which he or she had no jurisdiction to make, and conducted the inquiry with due regard to representations and submissions made by parties with interests at stake and without bias or conflict of interest. If the various, often complex, doctrines of law concerning regularity in decision making have not been offended, the courts are not, in principle, to be concerned about the outcome on the merits of the case unless the decision is so unreasonable that no reasonable decision maker could arrive at it. Conclusion

The nature of supervisory judicial review is theoretically distinct from that of

an appeal. The scope of judicial review grew rapidly when the courts saw a need to supervise the decision making of tribunals and bodies from which there often was no appeal.

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New Administrative Law Package ! Prior to World War II, Administrative Law developed in an unplanned manner. It was not until the 1970s, as a response to the procedural difficulties that a series of statutes were progressively enacted to form the New Administrative Law Package. ! ! ! Commonwealth! Administrative Decisions (Judicial Review) Act 1977 (Cth)! Administrative Appeals Tribunal Act 1975 (Cth)! Freedom of Information Act 1982 (Cth)! Ombudsman Act 1976 (Cth)! Victorian! Administrative Law Act 1978 (Vic)! Victorian Civil and Administrative Tribunal Act 1998 (Vic) ! Freedom of Information 1982 (Vic)! Ombudsman Act 1973 (Vic)! Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic) ! Privacy legislation - Commonwealth and Victorian! ! Other matters:! Red and Green light approaches! ! Judges are guided by either: a red light = ‘control the excesses of the state’! OR a green light = ‘the function of administrative law is to facilitate the operations of the state rather than curb them’! NB: some judges exhibit both approaches, red/green of limited use Privatisation - Outsourcing ! Public Private Partnerships! ! Role of Policy! Delegation! Fact / Law distinction

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Week 02! Administrative Appeals! - Administrative Appeals Tribunal [AAT]! - Victorian Civil and Administrative Tribunal [VCAT]! ! ! Readings:! R Douglas Chapter 7! M Head Chapter 4! ! Administrative Appeals Tribunal Act 1975 (Cth)! < http://www.aat.gov.au >! Victorian Civil and Administrative Tribunal Act 1998 (Vic)! < http://www.vcat.vic.gov.au >! ! Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245! Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338! Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577! Drake v Minister for Immigration and Ethnic Affairs No 2 (1979) 2 ALD 634 McDonald v Guardianship Board [1993] VR 521! Re Pochi and Minister for Immigration and Ethnic Affairs (AAT) (1979) 2 ALD 33 Administrative Law: action or decision to be challenged" " # # # # # # #

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Information - reasons for decision or FOI" # " Avenue (identify enabling act: Commonwealth or State)$ # # - is internal review available?" # # - is there jurisdiction for a tribunal or a court # # # exercising judicial review to deal with the # # # matter?"

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Standing - recognition by the tribunal or court"

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Grounds for Appeal or Judicial Review$

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Remedies available

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Internal Review

2.

Merits Review

- before the AAT or VCAT! = assess the law, the facts and the merits of the case and substitutes its decision for that of the original determination / decision!

3.

Judicial Review

- two methods: Common Law or via statute such as Administrative Decisions (Judicial Review) Act ! - ground of review only deals with illegality, not merits review!

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The ‘Old’ System (Common Law)! ‘prerogative’ writs Mandamus

compels a public agency to exercise its discretion in accordance with the law!

Certiorari

to quash a decision

Prohibition

an order, issued during the course of an agency’s proceedings, forbidding it to act beyond power!

Equitable remedies - injunction and declaration ! Ministerial review Tribunals limited in scope!

The ‘New’ Administrative Law System Commonwealth! Administrative Decisions (Judicial Review) Act 1977 (Cth)! Administrative Appeals Tribunal Act 1975 (Cth)! Freedom of Information Act 1982 (Cth)! Ombudsman Act 1976 (Cth)! Victorian! Administrative Law Act 1978 (Vic)! Victorian Civil and Administrative Tribunal Act 1998 (Vic) ! Freedom of Information 1982 (Vic)! Ombudsman Act 1973 (Vic)! Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic) ! Privacy legislation - Commonwealth and Victorian! ! Separation of Powers At the Federal level it is a feature of the Australian Constitution and at the State level it is an ideal! Legislative! Executive! Judiciary ! Where do Administrative Appeals Tribunal fit into this?! ! Answer: ! Brandy v Human Rights and Equal Opportunity Commission ! (1995) 183 CLR 245 - See discussion in Week 01 2

Administrative Appeals Access to the courts for judicial review in accordance with common law principles is regarded as a right that exists unless removed by legislation, and then any legislation attempting to do so is ‘read down’ to create the least impact on the right (See Privative or Ouster Clauses in Week 6). A right of appeal or merits review is only available if legislation provides for it.

! Development of Tribunals! ! Kerr Committee Report 1971! ! 1975 Commonwealth Administrative Appeals Tribunal [AAT]! ! 1984 Victorian Administrative Appeals Tribunal 1997 Victorian Civil and Administrative Tribunal [VCAT] = has original and appellate jurisdiction! NB: The AATs only has appellate jurisdiction ! ! Commonwealth ! ! Administrati...