Understanding Administrative Law

• Administrative law regulates the government's use of executive power, ensuring lawful decision-making that can be challenged in courts or scrutinized in other forums.
• It is a branch of public law distinct from criminal law.
• It affects everyday life through licenses, registrations, benefits, and business regulations at local, state, and federal levels.

Importance of Administrative Law

• Prevents corruption by ensuring government officials act lawfully, transparently, and fairly.
• Addresses administrative errors, which occur in a high percentage of cases, by providing review mechanisms.
• Ensures the accountability and transparency of government, underpinning western democracies through various mechanisms like ombudsmen, audit offices, and courts.

Case Study 1: Djokovic Visa Cancellation

• The Minister's power under Section 116(1)(e) of the Migration Act allows visa cancellation if the visa holder's presence poses a risk to health, safety, or good order.
• Section 133C(3) requires the Minister to be satisfied that cancellation is in the public interest.
• The Federal Court reviewed the lawfulness of the decision, not its wisdom, focusing on whether the Minister's satisfaction was legally valid.
• The Minister validly determined Djokovic's presence could encourage anti-vaccination sentiment, posing a risk to the community.
• The decision to cancel the visa was upheld as lawful under the Migration Act 1958.

Case Study 2: Challenges to Mining Enterprises (Adani Mine)

• Standing is the legal right to challenge a government decision in court, governed by the ADJR Act, EPBC Act, and common law principles.
• Section 487 of the EPBC Act extends standing to individuals or organizations engaged in environmental protection activities.
• Under the ADJR Act, an "aggrieved person" is directly affected by the decision or has interests adversely impacted beyond the general public.
• Common law requires a "special interest" in the matter, such as prior environmental advocacy or direct impact on organizational objectives.
• Legal pathways for challenging the mine include merits review, judicial review in the Federal Court, injunctions, and FOI challenges.
• Environmental groups like ACF and EDO likely have standing under the EPBC Act and ADJR Act to challenge Adani's approvals, focusing on impacts to endangered species and groundwater.

Rule of Law

• The Australian Constitution is framed upon the assumption of the rule of law.
• Judicial review enforces the rule of law over executive action.
• Bingham's 8 principles include accessibility, clarity, equality, good faith, human rights protection, dispute resolution, fair adjudication, and compliance with international law.

Executive Accountability

• Mechanisms include responsible government, elections, and judicial review.

Administrative Accountability

• Ensures the executive branch acts within its granted powers, interpreting legislation for lawful decision-making.
• The Governor-General/Governor represents the Crown and acts on government advice.
• Ministers are senior officials responsible for portfolios.
• Departments and agencies implement policies.
• Statutory authorities have specific regulatory or enforcement functions.

Public Service Values (Public Service Act 1998)

• Ethical, respectful, accountable, and impartial.
• Public service is committed to service, demonstrating leadership and integrity.

Historical Development of Australian Administrative Law

• Control of government action developed in the common law.
• Superior courts in England have inherent power to issue 'prerogative writs' which are common law remedies.
• The Constitution gives the High Court power to issue writs against Commonwealth officers. (except certiorari.): s 75(v).
• Courts respect Parliament's power to enact laws within constitutional authority, and can only review for breaches of law, not merits.
• Aimed to codify common law rules and simplify the process of applying for review: ADJR Act.

1970s Statutory Reform

• Merits review institutions like the AAT review the 'merits' of decisions.
• Commonwealth Ombudsman provides independent oversight.
• FOI laws aid review by providing access to government information.
• Five main avenues for review include merits review in a tribunal, merits review by an Ombudsman, judicial review under the ADJR Act, common law judicial review, and Royal Commissions.

Contemporary Challenges

• Increasing complexity of government with new bodies and structures.
• Privatisation and outsourcing raise questions of accountability.
• Increasing ministerial discretion in statutes ('national interest'; 'public interest').
• Regulations, legislative instruments, declarations, and rules add complexity.

Migration Act 1958 - Examples of Legislation

• Regulations may prescribe criteria for various classes of visas.
• The Minister may designate a country as a regional processing country by legislative instrument.

Government bodies

• Director of Public Prosecutions
• Fair Work Commission
• Australian Security Intelligence Organisation (ASIO) : Statutory Authorities.
• Australian Rail track Corporation, Australia Post NBN, Snowy Hydro Ltd :Government enterprises.
• These are subject to public law accountability mechanisms.

Trend Towards Secrecy

• Particularly evident in refugee policy and national security, limiting transparency.

Robo Debt Scheme

• Royal Commission investigated the flawed automated system for recovering overpaid social security benefits.
• Class action lawsuit resulted in a $112 million settlement and cessation of invalid debt recovery.
• The Royal Commission found the scheme was "crude and cruel," causing significant harm.
• Reforms include strengthened powers for the Commonwealth Ombudsman and new offenses for obstructing investigations.

2023/2024 Reforms

• Abolition of AAT and creation of new federal tribunal the ART.
• Aims to enhance public confidence and transparency.

Human Rights

• Incorporating these results in best decisions making in VIC, ACT and Queensland.

Summary of Government Role

• Important and dynamic area of law
• Rests on an understanding of role and power of government
• Heavily dependent on application of principles of statutory interpretation

Administrative Laws in General

• Administrative law governs actions and decisions of government agencies, ensuring they act within their legal authority and follow fair procedures.
• The government consists of elected officials (Parliament), executive bodies, and the judiciary.
• Social security appeals and decisions by regulatory bodies are examples of administrative law.
• Criminal law, contract law, constitutional law, and private disputes are not administrative law.

Values & Principles

• Lawfulness, rationality, fairness, good process, transparency, consistency, and accountability.
• The rule of law ensures the government and citizens know the law and are ruled by it, limiting powers.

Australian Constitution

• Binds courts, judges, and people of every state.

Separation of Powers

• Legislative (Parliament) makes laws.
• Executive (Government & Agencies) administers and enforces laws.
• Judiciary (Courts & Tribunals) interprets and applies laws.

Australian System of Government

• Constitutional monarchy and parliamentary democracy.
• Three levels of government: Federal, State/Territory, and Local.
• Westminster system influence with a Governor-General and Prime Minister.

1. Merits Review Examines whether the decision was the correct or preferable outcome
2. Judicial Review Assesses whether a decision was made lawfully (not whether it was correct)
3. Ombudsman Investigates complaints about government actions for maladministration, unfairness, or procedural errors
4. Human Rights and Anti-Discrimination Review Complaints can be made to the Australian Human Rights Commission regarding discrimination and human rights violations

Prescribed Readings Summary

• Administrative law regulates government's exercise of public power, ensuring lawfulness, fairness, and transparency.
• Historical context, development, and ongoing reforms contribute to holding it up.
• Statutory interpretation is vital.
• There are modern challenges in accountability like Privatization.
• Separation of powers principles are critical to the judiciaries role.