Week 1 - Introduction to Administrative Law & the Nature of Judicial Review

Question 1

What is administrative law?

Answer 1

Body of law that regulates executive power, and the relationship between citizens and the government

Question 2

What decision making does administrative law apply to?

Answer 2

Only applies to government decision making made by the private sector

Therefore, it is necessary to determine whether a decision maker is a part of the ‘executive’

Question 3

Who are the Executive arm of government?

Answer 3

Includes Ministers, departmental public officers, public officials, public and/or statutory bodies

Question 4

How do you work through legislation to identify issues relevant to the review of a decision?

Answer 4

Nature of decision, Legislation, Jurisdiction, Decision maker: and Purpose of Act

Question 5

Why is Admin Law relevant and important?

Answer 5

Australians are heavily reliant on the government to provide services and are subject to ever increasing government regulation. Central concerns of administrative law are to uphold the rule of law and ensuring accountability by government

Question 6

What are the avenues of challenging administrative law decisions?

Answer 6

Judicial Review - review by court of the legality of decision
Tribunal (merits) Review - appeal before a tribunal on the merits
Ombudsman - investigation and report
FOI/RTI - right of access to government documents

Question 7

What is statutory interpretation in the administrative law context?

Answer 7

Requires consideration of the text, context and purpose of a statute

Question 8

What if the ordinary grammatical meaning is clear?

Answer 8

The meaning will ordinarily prevail. However, the meaning will not be clear if the words are capable of more than one meaning and meaning doesn’t appear to promote the text, context purpose of the statute (PBS case approach).

Question 9

When will the courts attempt to interpret ambiguous provision?

Answer 9

In light of the purpose of the legislation (‘AIA’), Subject to the Constitution, using extrinsic materials if permitted and using common law rules and presumptions if relevant

Question 10

What is the approach to interpretation?

Answer 10

1. Determine the context and purpose of the Act
2. look at the Act as a whole
3. consider extrinsic materials (if permitted) Ascertain the ordinary, grammatical meaning of the provision
4. Is there any ambiguity?

If no, stop here – this is the meaning

If yes, continue…

3. Resolve ambiguity with reference to Act’s subject matter, scope and purpose, apply any Common Law rules/presumptions (if relevant)

Question 11

Presumptions as to illegality?

Answer 11

Parliament does not intend to undermine fundamental principles unless there’s a clear intention to do so.
Access to Courts: In the case Plaintiff S157/2002 v Cth, the High Court held that individuals still have the right to judicial review for jurisdictional errors, even if a law tries to restrict that access through a privative clause.

Procedural Fairness: The case Saeed v MIC highlighted that people affected by public power must be granted procedural fairness, reinforcing the idea that fundamental legal rights should be protected.

Question 12

Key points to remember

Answer 12

1.Constitutional protection to s 75(v) judicial review

2.Statute will always override the common law as integral to sovereignty of Parliament (subject to principle of illegality)

3.Later Acts repeal earlier inconsistent Acts – either expressly or impliedly: Goodwin v Phillips (1908) 7 CLR 1, 7 per Griffith CJ

4.“May” in a statute denotes a discretion; “shall’ or ‘must’ denotes a duty

Question 13

What are the administrative law values?

Answer 13

Openness, fairness, participation, accountability, consistency, rationality, accessibility of judicial and non-judicial grievance procedures, legality and impartiality

Question 14

What are the key elements of the rule of law?

Answer 14

• All people are equal before the law
• The rights of citizens are enforceable in the courts

Question 15

Administrative law and the rule of law?

Answer 15

• Administrative law seeks to ensure that decision-makers act within legal bounds
• By promoting due process in decision-making, the risk of arbitrary decisions is reduced

Question 16

What is judicial review?

Answer 16

Judicial review is the review by a court of a decision made by a public authority, to ensure the decision is legal, reasonable and fair

Question 17

What kinds of decisions are reviewable?

Answer 17

Only if justiciable

Question 18

What is the process of judicial review?

Answer 18

Federal - (Cth) (‘ADJR’)
Queensland – (Qld) (‘JRA’)

The common law system of judicial review: the Constitutional entrenchment (s 75(v)) of the High Court’s original jurisdiction to hear all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.

Question 19

Role of JR in context of Constitutional powers: executive v judiciary

Answer 19

Review an exercise of executive power (usually a decision, or conduct)

Determine if it was a valid (lawful) exercise of power, and

Observe the ‘legality/merits’ distinction by:
- Setting aside (or quashing) the decision, and
- Refer (or remit) the decision to the original decision maker to remake the decision lawfully, ie, to fix the error identified by the court on JR

• Court cannot substitute its own decision for that of the original decision maker because that would be exercising power; a court is constrained by the Constitution in only exercising judicial power: s 71Constitution

Question 20

Example of most common JR remedy?

Answer 20

Certiorari is a court process to seek judicial review of decisions of lower court or government agency

Question 21

Nature of section 75(v) and why is it important?

Answer 21

Judicial review may occur pursuant to s 75(v) of the Constitution (at common law).- the High Court has the original jurisdiction to hear all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.
- This is important as it limits government attempts to enact legislation that seeks to oust or avoid judicial review

Question 22

Difference between JR and merits review?

Answer 22

JR is concerned solely with errors of law and not with the facts or the substance (the merits) of the case.

Question 23

Statutory v Prerogative powers & justiciability

Answer 23

If a decision is justiciable, it may be judicially reviewed; if it is not justiciable, it cannot be reviewed;

Question 24

Decisions suitable for JR where powers are exercised as…..

Answer 24

Statutory powers – decisions of Vice-regal officials are justiciable in relation to an exercise of statutory powers:

Non-statutory, prerogative powers - exercise of prerogative powers are justiciable, but not those of a political nature

Question 25

Non Justiciable decisions, examples…

Answer 25

• Cabinet decision to nominate National Park for World Heritage listing not justiciable
• Community safety not justiciable
• Dispute did not relate to pre-selection processes under the Electoral Act, but rather under ‘internal operations of a voluntary, unincorporated association

Question 26

Judicially reviewable decisions: public/private divide

Answer 26

An increasing range of services which seem, in principle, to be public in nature are now performed by private entities. Only public power attracts JR