PRINCIPLES OF ADMINISTRATIVE LAW
Administrative Law: Term used to embody the mechanism and procedures available under the legal system to challenge
decisions made by the executive branches of government (i.e. Government bodies and statutory authorities)
Historically designed to allow for review of travelling judge’s decisions; and grew out of Dicey’s rule of law;
that no-one is above the law and that the executive branches of government must therefore be held accountable
through the courts.
Constitutional Law approaches issues with all three branches of government’s powers and limits (Whether laws
made were valid); whereas administrative law only involves the legality of executive government exercises of
power (Whether executive action is lawful).
Basic Areas: Elements of Administrative Law in Australia
1. Judicial Review (legally correct decision)
2. Merits Review (correct or preferable decision)
3. Internal Review (if provided by the statute)
4. Ombudsman (independent investigation of complaints about executive actions)
5. Freedom of Information (public access to government documents)
Role of the Judiciary: Government is based on the separation of powers (legislative - make, executive -
administer & judiciary - apply); Judiciary is to review the lawfulness of an exercise of power.
Which Remedy should be sought?
1. Internal Appeal/Review (if created within the statute)
2. Independent Tribunal (if allowed within the statute) – Merits Review
3. Appeal to Federal Court from AAT (if allowed within the statute and there is a question of law)
4. May Appeal directly to AAT or Federal Court (if statute allows) however always best to demonstrate
to the court that no other avenue of redress (court’s hesitation to interfere)
5. May find it useful to get documents under Freedom of Information Act
6. Complaint to the Ombudsman – however cannot intervene if a feasible alternative remedy has not
Courts asked to weight competing public interests:
1. Rules of standing in public interest litigation (e.g. due process/civil rights)
2. The reluctance of the courts to review political decisions (e.g. terrorism/community safety)
Influence of International Human Rights law on domestic law has been heavy in recent High Court decisions
when explaining concepts such as natural justice and procedural fairness; usually in relation to migration law;
mostly involving asylum seekers in immigration detention centres against adverse determinations as to their
refugee status. (e.g. Kioa v West; Minister for Immigration and Ethnic Affairs v Teoh; Re Minister for
Immigration & Multicultural Affairs; Ex Parte Lam)
Changing Boundaries of Administrative Law (Govt Corp Bodies): Governments have made major changes to
the structure of public institutions in the desire to increase efficiency, eliminate government or public monopolies
and embrace competitive neutrality between public and private sector.
Government Business Enterprises (GBE) & Government-Owned Corporations (GOC) have arisen many in
the same form as private companies and are largely free of governmental control.
Government has utilised private sector bodies in regulatory arrangements: Neat v AWB
Government has been contracting out or outsourcing the delivery of governmental services to private sector
business (even core functions such as mail/gas/electricity/prisons)
Administrative Law ONLY controls the exercise of ‘public power’. PUBLIC POWER
Statutory powers are clearly able to be reviewed by the courts; but questions with Non-Statutory:
Prerogative power historically courts unwilling to judicially review (Communist Party Case) however now subject to
some judicial review: R v Toohey
EXAMPLE R v Toohey
NT Administrator given prerogative powers by the Northern Territory (Self-governing) Act; made a decision on a land
rights claim by the Northern Land Council; Administrator declared much of the area as an area where there are ‘towns’,
to prevent a claim being made upon the land.
HELD: Irrelevant who has a power, it must be exercised lawfully; the High Court is able to review decisions of the
Governor etc. unless the statute expressly excludes judicial review; Declined to follow the Communist Party Case.
High level political or policy decisions where may impact economic/political/social issues courts may refuse to allow
judicial review because the issue would not be a justiciable issue (Peko-Wallsend; SA v O’Shea; Council of Civil Service
If cabinet decision: Toohey said that status of the decision-maker is not relevant to whether a deci