Introduction to Administrative Law (LAWS1160)

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This article is a topic within the subject Administrative Law.

Contents

Required Reading

R Creyke & J McMillan, Control of Government Action: Text, Cases and Commentary, 3rd ed, 2012, [5.2.1]-[5.2.25]; [1.3.1]-[1.3.3].

Introduction

[1] Administrative law is about the control of government action. It aims to safeguard the rights and interests of people and corporations in their dealings with government agencies.

The Constitution was not drafted in a way that recognises administrative law, with the belief at that time being that democracy and the political system would sufficiently control governmental power and decision making.

  • It created a court system, and gave original jurisdiction to the High Court to grant remedies of mandamus, prohibition and injunction against officer of the Commonwealth (s 75 (v)).
  • There is no constitutional foundation for administrative tribunals, Ombudsman, judicial review as under the Administrative Decisions (Judicial Review) Act 1977.

However, there is a more implicit relevance of the Constitution to administrative law:

There is still an ongoing debate regarding whether admin law should be secured in the Constitution, or whether its gradual evolution/flexibility is actually one of its strengths.

Constitutional principles - Public Law Recap

[2] Constitutional principles are formal written rules, as well as unwritten conventions, principles, concepts and values. There are four key principles/features of the Australian Constitution system:

  1. Rule of Law
  2. Separation of Powers
  3. Responsible Government
  4. Constitutionalism

Rule of law

For more information, see the Introducing Law & Justice article, The Rule of Law.

[3] The Rule of Law is also known as the "spirit of legality". It is known for its three core principles:

  1. Government cannot take coercive action against any person without clear legal authority
  2. Legal equality of government and citizens
  3. Tradition of protecting civil liberties, through the decisions of the courts in construing legislation using certain presumptions of statutory construction and elaborating upon the common law

The Rule of Law shares a core meaning with admin law – its aim of controlling the exercise of power by the executive government, since the government is subject to the law. The Rule of Law is often used as an aid in statutory construction, often to favour the individual against executive action.

Separation of powers

[4] According to the doctrine of separation of powers, there are three major organs of the governmental system:

  1. Legislature - enacts laws.
  2. Executive - applies those laws in individual cases.
  3. Judiciary - resolves disputes on the meaning or application of a law.

The system thus provides checks and balances (by separating powers and making them independent), and each of the different functions of government are discharged by the arm that is best suited to the task. An example of this is the distinction between judicial review, which is assigned to the courts, whilst a merits review is assigned to administrative tribunals.

  • There is a difference in method between Judicial and Executive decision making - the judicial usually considers the rights of individual whilst the executive considers the broader policy/resource based decisions

Separation of powers is never practiced in pure form - Australia employs responsible government, which means there is a delegation of lawmaking from the legislature to the executive, in terms of subordinate legislation

Responsible government

[5] The idea of responsible government is that ministers controlling the government sit on parliament, and thus are responsible both to parliament and the people (who won't elect them again if they do a bad job).

Constitutionalism

[6] Constitutionalism encompasses the principle of limited government:

  • Limited by rules (written constitutional rules as to the Separation of Powers, role of the executive and legislature etc)
  • Limited by principles – Rule of Law etc

Limited government is enforced through the mechanism of judicial review of both Legislature/Executive:

  • Cannot be doubted given remedies under s 75 (5) available against officer of Commonwealth
  • Courts have not deferred to agency interpretation of legislation, but rather viewed statutory construction as a conventionally judicial (not executive) task.
  • Judicial statutory construction is conclusive, but not exclusive. Admin decision makers must form a preliminary view as to the scope of the statutory power they seek to exercise.[7]

History of administrative law

[8]


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End

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References

Textbook refers to R Creyke & J McMillan, Control of Government Action: Text, Cases and Commentary, 3rd ed, 2012.

  1. Textbook, pp. 255-6.
  2. Textbook, pp. 256.
  3. Textbook, pp. 257-9.
  4. Textbook, pp. 259-61.
  5. Textbook, pp. 261-2.
  6. Textbook, pp. 262-3.
  7. Re Adams and the Tax Agents’ Board
  8. Textbook, pp. 23-4.
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