Tutorial Questions week 1 PDF

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Good revision and guide for tutorials....

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What is administrative law? The law governing decision-making – involves those aspects of law concerned with overseeing the legality of decisions made by the three arms of government, which are: 

Executive o

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Judiciary o

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Decisions taken by the Governor or Governor-General, Ministers, public servants or public bodies, usually authorised by a particular statute, but sometimes taken under the prerogative Decisions of judges that may be reviewed for error of law by a superior court, as opposed to appeals from judicial decisions; and

Legislature o

Legislative decisions subject to administrative law are the decisions to make subordinate legislation – usually take the form of decisions to make regulations, by laws, or other legislative instruments

With very few exceptions, administrative law applies only to government decision-making, and not to decisions made by the private sector (exceptions relate to natural justice). There are four (main) theoretical dimensions underlying the operation of administrative law: 1. Administrative law theory 2. Accountability 3. Historical foundations of Australian admin law 4. The public / private divide in admin law

Theories of admin law reflect different assumptions about the role of government and how the exercise of governmental power should be controlled. Consider the following dichotomies in admin law theory  First, judicial regulation versus legislative / executive autonomy: – What is the proper role for the courts in overseeing legislative / executive autonomy?  Secondly, red light versus green light theories: o Red light theorists want to stop government from redistributing wealth and interfering with personal liberty and private property. Favour using law to constrain government power. o Green light theorists want government to regulate, redistribute and provide services to the community. Favour using law to facilitate government exercising such power.  Thirdly, individualism vs collectivism: o Collectivism: decisions have to be made within a framework of policy that recognises broader social concerns, such as the rational allocation of limited resources and the need for consistency and predictability in government administration.

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o Individualism: ensuring a fair and just decision is made in individual cases after due consideration of the person’s circumstances Fourthly, rule-based v substantive justice Fifthly, managerialism

Tutorial Questions (week 1): The Framework for Judicial Review Case study: Green v Daniels (1977) 13 ALR 1 ( Judicial review of executive policy) Facts: 

Karen Green was a school-leaver who registered for employment at the Cth Employment services (CES) after completing her final year of schooling.

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She was told there were no jobs and she could not yet receive employment benefits (until 2 months later on 22 February 1977) because she was a school leaver (this time coincided with the end of summer vacation).

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The service, which derived its powers from the Social Services Act 1947, had a departmental policy (not in the legislation) that school leavers registering within 28 days of the end of the school year should not receive benefits until after holiday time, and this had formed the basis of their decision to wait until granting Green benefits.

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Green also made reasonable efforts to find work, finally received benefits on 22 February 1977.

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She initiated proceedings in the HCA seeking a declaration of entitlements to employment benefits and an order for payment in arrears.

Issue: The principal issue was whether the CES decision to withhold employment benefits from December to February was lawful, and if not, what remedy should be granted. Held: Departmental policies must be: Consistent with legislation (as was not the case here); and cannot be substituted for those criteria outlined in the legislation which Parliament has determined are appropriate. Policy is only meant to provide guidance. 1. The parties? Karen Green (P) and Cth Employment Services (CES). Daniels is part of the Commonwealth/ Govt 2. What was the source of the plaintiff’s right to commence this proceeding in the High Court? a. S 107 of Social Services Act – gave Green the right to gain unemployment benefits b. However, the departmental policy was beyond the power conferred by the Act (and therefore ultra vires). She argued Director General didn’t have unfettered discretion.

3. Policy cannot be inconsistent with legislation. Neither can it confine/fetter discretion to such an extent that the merits of the case will no longer be taken into account. Policy is only meant to provide guidance. a. 4. Why was the proceeding commenced in the High Court? The High Court also has an original jurisdiction confined to Commonwealth Government action. The Constitution s 75 provides: In all matters... (iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party; ... (v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth; and practicality 5. Nowadays, could the same proceeding be commenced in any other forum? S 39B of Judiciary Act allows federal courts to hear  Federal Circuit Court, and ADJR Act, AAT – tribunal is not a court, Merits Review body - 1975 Problem Question 1 The Medicinal Goods and Services Authority (the Authority) is established by the Medicinal Goods and Services Authority Act 1992 (Cth) (the Act (a fictional Act)). The Act provides that the Authority shall consist of not less than three Commissioners, that those Commissioners will each be appointed for 4-year terms, and that they may be dismissed by the Minister at any earlier time for misbehaviour. The Act then provides that the Minister may, from time to time, determine the Commissioners’ conditions of appointment. Soon after the election of a new Commonwealth Government, the incoming Minister determines that, from a specified date, Commissioners may only take leave approved by him. Acting on media speculation as to her potential misbehaviour, he also contracts a firm of solicitors, R & Co, to perform an investigation into the conduct of Ms A, a Commissioner. Ms A becomes aware of the Minister’s retention of R & Co. She is distressed by the development. She applies to the Minister for a leave of absence. He refuses. Ms A approaches you. Advise her on whether she may commence judicial review proceedings challenging either the Minister’s refusal to allow her leave, or his decision to investigate her, or both. Whether he can refuse leave? 

Acting ultra vires (Green v Daniels)

Decision to investigate  Grounds for judicial review: (i) question of law;...