#7196 - Super Summaries - Administrative Law

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

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

* 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

• 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 that is to be expected (e.g. Minister’s can be drawn by public debate (Jia, Peko))

• Interpretation Statutes - Acts Interpretation Act

• Extrinsic Materials s15AB(2) – second reading speeches, explanatory memoranda, international conventions for (‘interpretive influence) but is only relevant for confirming the ordinary meaning by taking into account context/purpose (s15AB(1)) – at the outset of construction to ascertain context and at a later stage if required to resolve ambiguity/manifest absurdness (CIC Insurance v Bankstown Football Club)

• Sense of the word – natural and ordinary meaning used unless word is used in a trade sense, then use the technical meaning (Pozzolanic)

Implied incidental power

• As long as it is done “reasonable and properly under the main purpose” it is not prohibited (AG v Great Eastern Railway); it must, although “incidental and collateral, serve to promote the accomplishment of the main purpose” (GJ Coles, Herscu – bribing)

  • Some instances: government agency can do its printing in-house rather than contracting (Smethwick), DPP can advise government agencies as well as do its principle role (Freeman), a power to grant/issue instruments presumably includes a power to revoke (Acts Int. Act)

• Other principle: clear language to authorize conduct that is tortuous or interferes with fundamental rights (Coco), cannot be used for unauthorized purpose, must compliment not supplement the statutory scheme (can’t add powers even if it does more effectively cope with the evils Carbines)

• Kent v Johnson – just because it is “reasonable and sensible” and “economically viable” does not mean it is “necessary for the reasonable fulfillment” of using the power

• Thompson v Randwick Corp – Buying land for sole purpose of reducing cost on the remainder which was needed – abuse of the power

Step 1: Plenty v Dillon - A presumption exists that the legislature did not intend to authorize tortuous conduct (improbable that the legislature abrogate fundamental rights – Potter v Minihan)

Step 2: Coco v The Queen – Statutory authority to engage in tortuous conduct must be clearly expressed in unmistakable and unambiguous language (e.g. trespass – Entic v Carrington, power to install listening device did not necessarily extend to unauthorized entry)

• The legislature must have directed itself to the question of abrogating the fundamental right and must have determined on their abrogation; courts will not infer this

Evans – Though Potter has been read down (what is ‘fundamental’ changes), freedom of speech and religion definitely enjoy special recognition at common law. Here the idea of ‘annoyance’ competed with freedom of speech and could not be reconciled [Malika – some are definitely fundamental: fair trial, proof beyond reasonable doubt]

Other situations: Right to re-enter country of AU born person without dictation test (Potter v Minihan), power to serve summons does not authorize entry to private property (Plenty v Dillon) neither does a power that requires ‘all things necessary or convenient’ (Anthony Lagoon Station), creation of statutory hearing procedure does not displace obligation to accord natural justice (Miah)

S157 – If legislation is enacted pursuant to international obligations, courts should favour constructions according with them in the case of ambiguity. Confirms the Plenty/Coco principle

Watch out for the possibility of a Henry VIII clause

Sub-ordinate legislation can either come in the form of a...