1. Executive Power and Administrative Law Flashcards
Define administrative law
Body of common law, statute and procedural rules that supervise and regulate government institutions and bureaucratic decisions.
Compare administrative law and constitutional law
Both are branches of public law that challenge legislative and executive powers. Admin law involves review of executive branch, constitutional law reviews the legislative branch.
Admin law feeds feedback to Government executive power to fix systemic problems through elections of government E.g. Fairwork Act
What is the separation of powers doctrine and relevance of this doctrine for administrative law in Australia?
The division of government into 3 branches enables the work of government to be broken into 3 distinct tasks and distributed amongst different decision makers and institutions.
Making the law => legislature
Administering the law => executive
Deciding controversy => courts
What are the 2 findings about the separation of powers from R v Kirby; Ex parte Boilermaker Society of Australia (1956) 94 CLR 254?
- Judicial power of the Commonwealth can only be exercised by courts established under s71 (Ch 3 Constitution)
- At federal level, non-judicial bodies or decision makers cannot exercise judicial power or judicial tasks - (Ch 3 Constitution)
Exceptions to (1)
- that the judicial officers of courts may delegate limited judicial functions to non-judicial officers provided the delegation is subject to review by, or appeal to, the court constituted by its judicial officers (Harris v Caladine 1991)
- parliament can exercise judicial power to punish those in contempt of parliament (R v Richards; Ex parte Fitzpatrick and Browne 1955)
- military tribunals
How was the separation of powers doctrine applied by the court in Alexander v Minister for Home Affairs [2022] HCA 19?
Majority held s36B granted the Minister the exclusively judicial function to adjudicate and punish criminal guilt. Under Ch 3 Constitution, such judicial functions can only be exercised by a court. Therefore, Minister’s decision and s36B breached the separation of powers doctrine and were invalid.
HC considered the validity of the Minister’s decision to cancel the plaintiff’s citizenship under s36B of the Australian Citizenship Act 2007 (Cth).
Minister relied on ASIO security assessment, where P joined ISIS. This demonstrated to the Minister that P repudiated his allegiance to Australia.
Explain the important differences between ministerial departments nad non-ministerial agencies.
What is a GBE?
Ministerial Departments
* Headed by a Minister (who is a Member of Parliment) s64 Constitution
* Political agency - develop and implement government policy
* Public servants
* Hierarchial structure among staff
* Established via executive order (not legislation)
Non-ministerial agencies
* Headed by independent Board/CEO (not in Parliament)
* Often aim to reduce political interference
* Employees
* Established by legislation
What are the major elements of the executive?
Crown, ministerial departments, administrative agencies. Role is to implement laws made by the legislature.
Administrative law functions in social and political contexts
Social - Helps define the relationship between state and its citizens so it serves an important role in shaping society. Admin law is important for people to challenge Govt power.
Political - Due to social significance of admin law, admin law can often see battles between individual interest and ‘public interest’. Courts may exercise more deference to executive power for:
- administrative necessity
- protection of economic interests
- the supremancy of the parliament
- national security
What is the historical development of Australian administrative law?
Traditional philosphical approach to place clear constraints on the exercise of executive power has been deemed unnecessarily restrictive and has been subject to law reforms in 1970-80s.
In 2000s, the rise of social liberalism and social democracy - increase in administrative discretion.
Rise of admin power demanded greater public access to information and more forms to review decision making.
Now a neoliberal model of state power.
What are current controversies and challenges within Australian system of administrative justice?
- Privatisation and contracting out under neoliberalism - this replaces an individual’s administrative law rights to private law rights
- Border security and war on terror - use of ‘public interest immunity’ exemptions to not release information to the public in relation to “Operation Sovereign Borders”; Amending the Aust. Citizenship Act to give Immigration Minister powers to revoke citizenship for terrorists without judicial determination
- Privative clauses - clauses in legislation that protect particular admin actions from judicial review. Can be politically controversial between Cth Gov and courts in migration decisions.
- Funding and appointments to review bodies - There has been funding cuts to abolish Cth Office of the Information Commissioner and replaced by a new federal admin review body in late 2023.
- Automation and amin decision-making - On one hand, Executive agencies try to increase efficiency and cut expenditure, but on the other hand, rights of individuals to have their cases dealt with on the merits will be limited. For example of the “Robodebt” scheme.
Contracting out - executive dept contracts private entity to do task previously undertaken by executive
Westminster model
Ministers and Cabinet at the heart of government = also referred to as the Queen/Crown
Kable principle
for State level
State parliaments cannot vest in state courts any powers that would be incompatible with their exercise of federal judicial power
Kable v Director of Public Prosecutions (NSW)
