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Law Notes Administrative Law Notes

Super Summaries Notes

Updated Super Summaries Notes

Administrative Law Notes

Administrative Law

Approximately 368 pages

A 197 page summarised bible of administrative law notes including detailed case and materials summaries, super summaries and flow charts intended for exam use. Structure of the summarised bible is as follows:

Class 1 - Accountability in an administrative state
Class 2 - Legality, Rules, Discretion & Policy
Class 3 - Statutory Interpretation and the Ombudsman
Class 4 - Subordinate Legislation
Class 5 - "Reasons for Decision"'; Freedom of Information
Class 6-8: Merits Review
Class 9: Stand...

The following is a more accessible plain text extract of the PDF sample above, taken from our Administrative Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Merits Review – Internal review (IR)

Advantages Disadvantages Important case Law General Principles

Quick

Inexpensive

Relatively simple

* Lack of criteria for reviewability

* Absence of formal imperative

* Doubts as to when it may be conducted

* Risk of perception by public of lack of impartiality

* Prevent speedy resolution by external body

* Can be confusing in certain circs were it adds another layer to the processs

Re Taxation Appeals – officer conducting IR subject to same statutory criteria and legislative limitations as primary DM but can take into account new evidence that has arisen

Bhardwaj – internal review decision can be reconsidered if no valid decision made due to jurisdictional error

Schemes established by executive action

Re Uniway - Confirmation of earlier decision is not de-facto internal review – must be a regular practice instituted before it is recognized

Accountability Mechanisms

Political Accountability Financial Accountability

Can make use of the ‘transmission belt’ process of parliament – namely the Minister’s accountability to the electorate by:

  • Raising the issue with a local MP

  • Raising an issue with the relevant minister

Approach an MP who is part of the Joint Committee of Public Accounts and Audit; s10 of the Auditor-General Act allows them to make schemes a priority for the A-G to consider

Human Rights Bodies – none can make a binding declaration (except in the States)

  • Bring it up with the AHRC – they have jurisdiction over discrimination on the basis of sex, marital status, race, colour, age and other things

  • Raise it with specialist Commissioners:

    • Human Rights Commissioner under the HREOC Act

    • Sex Discrimination Commissioner (Sex Discrimination Act)

    • Race Discrimination Commissioner (Racial Discrimination Act)

    • Disability Discrimination Commissioner (Disability Discrimination Act)

    • Age Discrimination Act – no commissioner but the commission performs the functions (in practice the Sex Discrimination Commissioner performs the function)

    • Privacy Commissioner – Privacy Amendment (Office of the Privacy Commissioner) Act – receives complaints against government agencies

In emergency refer to 281-282 – the HREOC Act; the rights which are protected and the process

Ombudsman

Advantages Disadvantages/Limitations Powers/Procedure Notes

* Good to address systemic problems

*Despite lack of determinative powers it is considered authoritative

Disadvantages:

* It’s a long road and takes time

* No determinative powers – if new decision /invalidation is what the person seeks, no point

* May exercise its discretion not to investigate (s6) if:

Awareness of issue for 12+ months, lack of sufficient interest, alternative method of review, complaint not raised to the agency it relates, investigation unjustifiable in the circumstances

Limitations – s5 cannot investigate

  • Decisions by a minister

  • Court or tribunal

  • Concerning the employment of someone in the public service (s19C – investigate complaints about members of the ADF)

But does extend to departments of the public service

  • Make a complaint (either orally or in writing) – s7

If it investigates the action (s5):

  • Conduct inquiries, compel attendance of witnesses, etc. s7A

  • Can conclude investigations by

    • Reporting to agencies and recommend further action be taken s15(1) if it appears the action investigated is :

      • (i) Appears to be contrary to law

      • (ii) Unreasonable, unjust, oppressive, discriminatory (UUO)

      • (iii) it was in accordance with a UUO rule

      • (iv) Was based on a mistake of law/fact

      • (v) Was otherwise, in the circs, wrong

And is of the opinion that s15(1):

  1. It should be referred back for further consideration

  2. A particular action should be taken to mitigate the effect of the decision

  3. The decision should be cancelled

  4. The rule from which it was made should be altered

  5. Reasons should have been provided but weren’t

  6. Any other thing should be done

    • s15(4) Request the Department or authority to furnish a report within a specified time about actions it proposes to take in response to the report

    • Make a complaint to the PM s16(1)

Noticeable shifts in the work of the ombudsman

  1. The functions have been expanded to include the discharge of specialist functions conferred by statute (compliance auditing of police records, review of reportable deaths etc.)

  2. They have given increased importance through publications/training to improving administrative-decision making, administrative conduct and complaint management

  3. An increased number of own motion investigation into systemic problems in Administration


General Principles

Statutory Interpretation
  • The starting point is the literal approach – if the words are “clear and unambiguous” and “consistent and harmonious with other provisions of the enactment, and can be intelligibly applied to the subject matter…it must be given its ordinary and grammatical meaning” (Gleeson CJ, Cooper Brooks)

  • s15AA Acts Interpretation Act - a construction that would promote the purpose/object of the act is favored to one that does not – s15AA(1) this works alongside the literal approach

    • Purpose may require a reading that does not correspond with grammatical meaning (Project Blue Sky)

Other factors

  • Nature of Subject Matter – e.g. national security matters will be given expansive constructions (Woodward) but a power focused on whether an activity is socially desirable will not (Bradbury)

  • Interests to be affected – statutory discretions affecting rights of citizens generally won’t be interpreted as unfettered (FAI) and to diminish basic immunities express language is required (Coco)

  • Nature of the power – Polycentric powers are construed broadly to accommodate the range of competing interests, even with subordinate legislation (Tanner), prerogative powers will be construed to reflect the origin of their construction (Coutts)

  • Nature of the decision-maker – Is relevant to the standard of impartiality...

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