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ADMINISTRATIVE LAW (JURD 7160)

CLASS AND REVISION NOTES

UNSW

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Table of Contents

ACCOUNTABILITY 6

INTRODUCTION 6 TYPES OF ACCOUNTABILITY 6 POLITICAL ACCOUNTABILITY 6 FINANCIAL ACCOUNTABILITY 7 ADMINISTRATIVE LAW ACCOUNTABILITY 8 ACCOUNTABILITY THROUGH ETHICS AND INTEGRITY 9

CONTROLLING THE EXECUTIVE 10

THE PRINCIPLE OF LEGALITY 10 DEFINITION – SEE ALSO P 398 TEXT FRENCH V SPIGELMAN 10 UNAUTHORISED DECISION MAKING 10 CATEGORIES OF GOVERNMENT LEGAL ENTITY 10 EXECUTIVE PREROGATIVE POWERS 11 DEFINITION 11 CONSTITUTIONAL PROVISION 11 CONSTRAINTS ON EXECUTIVE POWER 11 PRESUMPTION OF REGULARITY 12

THE PRESUMPTION IS REBUTTABLE, THE ONUS FALLING ON THE PARTY WISHING TO DISPUTE THE VALIDITY OF THE ACTION OR

DECISION (CUBILLO V COMMONWEALTH) TO PRESENT ENOUGH EVIDENCE TO RAISE THE ISSUE, NOT PROVE IT.12 CONCEPTS AND CLASSIFICATIONS 12 LEGISLATIVE, EXECUTIVE AND JUDICIAL POWER 12 POLYCENTRICITY 13 DISCRETION 13 EXECUTIVE POLICY 13 SOFT LAW 14 THE LEGAL STATUS OF EXECUTIVE POLICIES 14 DELEGATED/SUBORDINATE LEGISLATION 15 WHAT IS DELEGATED LEGISLATION 15 CONSTITUTIONAL ISSUES ERROR! BOOKMARK NOT DEFINED. ACCOUNTABILITY AND CONTROL OF DELEGATED LEGISLATION ERROR! BOOKMARK NOT DEFINED. THE VALIDITY AND INVALIDITY OF DELEGATED LEGISLATION ERROR! BOOKMARK NOT DEFINED. FORMAL AND INFORMAL DELEGATION OF DECISION MAKING POWER ERROR! BOOKMARK NOT DEFINED.

STATUTORY INTERPRETATION ERROR! BOOKMARK NOT DEFINED.

INTERPRETIVE PRINCIPLES: ERROR! BOOKMARK NOT DEFINED. IDENTIFYING AMBIGUITY ERROR! BOOKMARK NOT DEFINED. RESOLVING AMBIGUITY ERROR! BOOKMARK NOT DEFINED. STATUTORY INTERPRETATION AND PUBLIC LAW ERROR! BOOKMARK NOT DEFINED. THE LANGUAGE OF THE STATUTE ERROR! BOOKMARK NOT DEFINED. NATURE OF THE SUBJECT MATTER BEING REGULATED AND INTERESTS APT TO BE AFFECTEDERROR! BOOKMARK NOT DEFINED. NATURE OF THE POWER BEING EXERCISED ERROR! BOOKMARK NOT DEFINED. NATURE OF THE DECISION MAKER ERROR! BOOKMARK NOT DEFINED. EXTRINSIC MATERIALS ERROR! BOOKMARK NOT DEFINED. COMMON LAW APPROACHES, ASSUMPTIONS AND PRESUMPTIONS ERROR! BOOKMARK NOT DEFINED. IMPLIED INCIDENTAL POWER ERROR! BOOKMARK NOT DEFINED. ESTABLISHED FREEDOMS AND IMMUNITIES ERROR! BOOKMARK NOT DEFINED. ACTS INTERPRETATION ACT 1901 (CTH) ERROR! BOOKMARK NOT DEFINED.

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THE LAW/FACT DISTINCTION ERROR! BOOKMARK NOT DEFINED. GENERAL PRINCIPLES ERROR! BOOKMARK NOT DEFINED. APPLYING LEGISLATION TO THE FACTS ERROR! BOOKMARK NOT DEFINED. JURISDICTIONAL FACT ERROR! BOOKMARK NOT DEFINED. THE JURISDICTIONAL FACT: ‘SUBJECTIVE’ TERMS ERROR! BOOKMARK NOT DEFINED. THE JURISDICTIONAL (OR OBJECTIVE) FACT CONCEPT ERROR! BOOKMARK NOT DEFINED.

INFORMATION ERROR! BOOKMARK NOT DEFINED.

COMMON LAW POSITION ERROR! BOOKMARK NOT DEFINED. STATUTORY DUTY TO PROVIDE REASONS ERROR! BOOKMARK NOT DEFINED. CONTENT OF A REASONS STATEMENT ERROR! BOOKMARK NOT DEFINED. EFFECT OF A FAILURE TO GIVE ADEQUATE REASONS ERROR! BOOKMARK NOT DEFINED. KEY FEATURES OF THE FREEDOM OF INFORMATION ACT 1982 (CTH) ERROR! BOOKMARK NOT DEFINED. SCOPE OF APPLICATION ERROR! BOOKMARK NOT DEFINED. GOVERNMENT AGENCIES SUBJECT TO THE FOI ACT ERROR! BOOKMARK NOT DEFINED. DOCUMENTS ERROR! BOOKMARK NOT DEFINED. REQUESTS UNDER THE FOI ACT ERROR! BOOKMARK NOT DEFINED. CHARGES ERROR! BOOKMARK NOT DEFINED. PROTECTIONS WHEN ACCESS TO DOCUMENTS IS GIVEN ERROR! BOOKMARK NOT DEFINED. EXEMPTIONS ERROR! BOOKMARK NOT DEFINED. AMENDMENT OR ANNOTATION OF PERSONAL INFORMATION ERROR! BOOKMARK NOT DEFINED. REVIEW ERROR! BOOKMARK NOT DEFINED. VEXATIOUS APPLICANTS ERROR! BOOKMARK NOT DEFINED. THE INFORMATION PUBLICATION SCHEME ERROR! BOOKMARK NOT DEFINED. FOI CASE LAW ERROR! BOOKMARK NOT DEFINED. DOCUMENTS OF A MINISTER ERROR! BOOKMARK NOT DEFINED. EXEMPTIONS AND CONDITIONAL EXEMPTIONS ERROR! BOOKMARK NOT DEFINED. FOI CHARGES ERROR! BOOKMARK NOT DEFINED.

MERITS REVIEW ERROR! BOOKMARK NOT DEFINED.

INTERNAL REVIEW ERROR! BOOKMARK NOT DEFINED. TRIBUNAL FRAMEWORK IN AUSTRALIAN JURISDICTIONS ERROR! BOOKMARK NOT DEFINED. COMMONWEALTH JURISDICTION ERROR! BOOKMARK NOT DEFINED. NSW JURISDICTION ERROR! BOOKMARK NOT DEFINED. APPEALS FROM TRIBUNAL DECISIONS ERROR! BOOKMARK NOT DEFINED. MERIT REVIEW AND OTHER FORMS OF STATUTORY APPEAL ERROR! BOOKMARK NOT DEFINED. TRIBUNAL INDEPENDENCE ERROR! BOOKMARK NOT DEFINED. CONCEPT AND SCOPE OF MERITS REVIEW BY TRIBUNALS ERROR! BOOKMARK NOT DEFINED. CORRECT OR PREFERABLE DECISION ERROR! BOOKMARK NOT DEFINED. CONTEMPORANEOUS REVIEW ERROR! BOOKMARK NOT DEFINED. PROCEDURE AND ‘EVIDENCE’ IN A TRIBUNAL ERROR! BOOKMARK NOT DEFINED. THEIR ROLE IN MERIT REVIEW BY ADMINISTRATIVE TRIBUNALS ERROR! BOOKMARK NOT DEFINED. THE CONDUCT OF PROCEEDINGS AND THE ROLE OF THE PARTIES ERROR! BOOKMARK NOT DEFINED. EVIDENCE, FACT FINDING AND ONUS OF PROOF ERROR! BOOKMARK NOT DEFINED. THE ROLE OF GOVERNMENT POLICY IN MERITS REVIEW ERROR! BOOKMARK NOT DEFINED.

JURISDICTIONAL ERROR ERROR! BOOKMARK NOT DEFINED.

JURISDICTIONAL ERROR AND INVALIDITY ERROR! BOOKMARK NOT DEFINED. ‘CATEGORIES’ OF JURISDICTIONAL ERROR ERROR! BOOKMARK NOT DEFINED. REVIEW FOR JURISDICTIONAL FACT ERROR! BOOKMARK NOT DEFINED.

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COMMENCING JUDICIAL REVIEW PROCEEDINGS ERROR! BOOKMARK NOT DEFINED.

THE PRINCIPLE OF “STANDING” IN AUSTRALIA ERROR! BOOKMARK NOT DEFINED. STANDING AT COMMON LAW ERROR! BOOKMARK NOT DEFINED. STANDING IN THE AAT ERROR! BOOKMARK NOT DEFINED. STANDING FOR NON-STATUTORY REMEDIES AND UNDER THE ADJR ACT ERROR! BOOKMARK NOT DEFINED. DECLARATION AND INJUNCTION ERROR! BOOKMARK NOT DEFINED. MANDAMUS ERROR! BOOKMARK NOT DEFINED. HABEAS CORPUS ERROR! BOOKMARK NOT DEFINED. CERTIORARI AND PROHIBITION ERROR! BOOKMARK NOT DEFINED. ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT (ADJR ACT) ERROR! BOOKMARK NOT DEFINED. THE CONSTITUTIONAL CONCEPT OF A “MATTER” ERROR! BOOKMARK NOT DEFINED. JUSTICIABILITY ERROR! BOOKMARK NOT DEFINED. JUDICIAL REVIEW AT COMMON LAW ERROR! BOOKMARK NOT DEFINED. JUDICIAL REVIEW UNDER STATUTORY SCHEMES ERROR! BOOKMARK NOT DEFINED. INDIRECT JUDICIAL REVIEW ERROR! BOOKMARK NOT DEFINED. FEDERAL COURT ERROR! BOOKMARK NOT DEFINED. ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 (CTH) ERROR! BOOKMARK NOT DEFINED. JUDICIARY ACT 1903 (CTH) ERROR! BOOKMARK NOT DEFINED. ASSOCIATED AND ACCRUED JURISDICTION AND THE FEDERAL COURT OF AUSTRALIA ACT 1976 (CTH)ERROR! BOOKMARK NOT

DEFINED. MIGRATION ACT 1958 (CTH) ERROR! BOOKMARK NOT DEFINED. OTHER LIMITATIONS ON THE FEDERAL COURT’S JURISDICTION ERROR! BOOKMARK NOT DEFINED. STATE AND TERRITORY JURISDICTION IN FEDERAL MATTERS ERROR! BOOKMARK NOT DEFINED. THE HIGH COURT’S ORIGINAL JURISDICTION ERROR! BOOKMARK NOT DEFINED. THE HIGH COURT’S ORIGINAL JURISDICTION UNDER THE JUDICIARY ACT. ERROR! BOOKMARK NOT DEFINED. NEW SOUTH WALES ERROR! BOOKMARK NOT DEFINED. INTEGRATION OF AUSTRALIAN JUDICIAL REVIEW SCHEMES ERROR! BOOKMARK NOT DEFINED. MERITS/LEGALITY ERROR! BOOKMARK NOT DEFINED. THE ADJR ACT: A DECISION OF AN ADMINISTRATIVE CHARACTER MADE UNDER AN ENACTMENTERROR! BOOKMARK NOT DEFINED. “DECISION” AND “CONDUCT” ERROR! BOOKMARK NOT DEFINED. “DECISION... OF AN ADMINISTRATIVE CHARACTER” ERROR! BOOKMARK NOT DEFINED. “DECISION... MADE... UNDER AN ENACTMENT” ERROR! BOOKMARK NOT DEFINED.

JUDICIAL REVIEW REMEDIES ERROR! BOOKMARK NOT DEFINED.

THE PREROGATIVE/CONSTITUTIONAL WRITS ERROR! BOOKMARK NOT DEFINED. CERTIORARI ERROR! BOOKMARK NOT DEFINED. PROHIBITION ERROR! BOOKMARK NOT DEFINED. MANDAMUS ERROR! BOOKMARK NOT DEFINED. INJUNCTION ERROR! BOOKMARK NOT DEFINED. DECLARATION ERROR! BOOKMARK NOT DEFINED. REMEDIES UNDER THE ADJR ACT ERROR! BOOKMARK NOT DEFINED. DISCRETIONARY FACTORS ERROR! BOOKMARK NOT DEFINED. PRIVATIVE CLAUSES ERROR! BOOKMARK NOT DEFINED. GUIDING PRINCIPLE ERROR! BOOKMARK NOT DEFINED. PRIVATIVE CLAUSES AND THE CONSTITUTION S 75(V) ERROR! BOOKMARK NOT DEFINED. PRIVATIVE CLAUSES AND THE STATES ERROR! BOOKMARK NOT DEFINED.

GROUNDS OF JUDICIAL REVIEW ERROR! BOOKMARK NOT DEFINED.

FACT-FINDING ERRORS ERROR! BOOKMARK NOT DEFINED. PROCEDURAL FAIRNESS ERROR! BOOKMARK NOT DEFINED.

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APPLICATION TO ADMINISTRATIVE DECISIONS ERROR! BOOKMARK NOT DEFINED. WHEN NATURAL JUSTICE APPLIES ERROR! BOOKMARK NOT DEFINED. THE HEARING RULE ERROR! BOOKMARK NOT DEFINED. GENERAL TESTS/OVERVIEW ERROR! BOOKMARK NOT DEFINED. THE HEARING RULE: THE RIGHT OR INTEREST AFFECTED BY A DECISION ERROR! BOOKMARK NOT DEFINED. OPERATION/APPLICATION OF THE HEARING RULE ERROR! BOOKMARK NOT DEFINED. THE RULE AGAINST BIAS ERROR! BOOKMARK NOT DEFINED. GENERAL OVERVIEW ERROR! BOOKMARK NOT DEFINED. CATEGORIES OF BIAS ERROR! BOOKMARK NOT DEFINED. TEST FOR PREJUDGMENT ERROR! BOOKMARK NOT DEFINED. EXCEPTIONS TO THE BIAS RULE ERROR! BOOKMARK NOT DEFINED. CASE LAW ERROR! BOOKMARK NOT DEFINED. COMPLIANCE WITH STATUTORY REQUIREMENTS ERROR! BOOKMARK NOT DEFINED. CASE LAW ERROR! BOOKMARK NOT DEFINED. NO EVIDENCE AS A GROUNDS FOR JUDICIAL REVIEW ERROR! BOOKMARK NOT DEFINED. COMMON LAW ERROR! BOOKMARK NOT DEFINED. THE ADJR ACT ERROR! BOOKMARK NOT DEFINED. THE APPLICATION OF POLICY ERROR! BOOKMARK NOT DEFINED. MINISTERIAL DIRECTIONS ERROR! BOOKMARK NOT DEFINED. CONSIDERING IRRELEVANT MATTERS ERROR! BOOKMARK NOT DEFINED. THE CRITERIA OF RELEVANCE ERROR! BOOKMARK NOT DEFINED. THE MATTERS THAT WERE CONSIDERED ERROR! BOOKMARK NOT DEFINED. UNDEFINED DISCRETION ERROR! BOOKMARK NOT DEFINED. PUBLIC INTEREST ERROR! BOOKMARK NOT DEFINED. EVIDENCE OF AN IRRELEVANT CONSIDERATION ERROR! BOOKMARK NOT DEFINED. EFFECT OF AN UNAUTHORISED PURPOSE OR IRRELEVANT CONSIDERATION ERROR! BOOKMARK NOT DEFINED. POLICY AS AN IRRELEVANT CONSIDERATION ERROR! BOOKMARK NOT DEFINED. FAILING TO CONSIDER RELEVANT MATTERS ERROR! BOOKMARK NOT DEFINED. OBLIGATION TO CONSIDER ERROR! BOOKMARK NOT DEFINED. FAILURE TO CONSIDER ERROR! BOOKMARK NOT DEFINED. OTHER ISSUES ERROR! BOOKMARK NOT DEFINED. CASE LAW ERROR! BOOKMARK NOT DEFINED. IMPROPER OR UNAUTHORISED PURPOSE ERROR! BOOKMARK NOT DEFINED. MULTIPLE PURPOSES ERROR! BOOKMARK NOT DEFINED. UNREASONABLENESS, IRRATIONALITY AND ILLOGICALITY ERROR! BOOKMARK NOT DEFINED. THE DEVELOPMENT OF WEDNESBURY UNREASONABLENESS ERROR! BOOKMARK NOT DEFINED.

JUDICIAL REVIEW OF PRIVATE BODIES ERROR! BOOKMARK NOT DEFINED.

ACCOUNTABILITY ACROSS THE PUBLIC/PRIVATE DIVIDE ERROR! BOOKMARK NOT DEFINED. CONTRACTING OUT ERROR! BOOKMARK NOT DEFINED. JUDICIAL REVIEW ACROSS THE PUBLIC/PRIVATE DIVIDE ERROR! BOOKMARK NOT DEFINED. THE ‘CLUBS CASES’ ERROR! BOOKMARK NOT DEFINED. DATAFIN AND ITS RECEPTION IN AUSTRALIA ERROR! BOOKMARK NOT DEFINED.

THE INTERACTION OF PUBLIC LAW WITH PRIVATE LAW ERROR! BOOKMARK NOT DEFINED.

OFFICER OF THE COMMONWEALTH ERROR! BOOKMARK NOT DEFINED. GOVERNMENT LIABILITY IN TORT ERROR! BOOKMARK NOT DEFINED. PUBLIC LAW ESTOPPEL ERROR! BOOKMARK NOT DEFINED. ALTERNATIVE EXECUTIVE STRATEGIES TO REDRESS ADMINISTRATIVE MISREPRESENTATIONSERROR! BOOKMARK NOT DEFINED. *LEGITIMATE EXPECTATION ERROR! BOOKMARK NOT DEFINED.

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ACCOUNTABILITY

Introduction Public and private law

Public law (law between individuals and governments): criminal law, constitutional law, taxation law, immigration law etc; administrative law (migration/refugees, industrial relations, social security, tax, environmental law and planning).

Private law (law between individuals): contract law, property law, torts Definition

Administrative law holds government decision makers accountable for the decisions they make, on the basis of state laws and other merits

Properties of accountability:

1. It is not intended to make governments inefficient 2. It should be non-negotiable in applying to all aspects of government (but certain aspects, such as

intelligence, national security etc. should not attract as much accountability) 3. It has basic norms at its core, such as compliance with the law, loyalty to the government, and

adherence to appropriate standards of official conduct 4. It has different ways of being rendered:

a. Direct accountability: i.e. to the members of the public directly, through elections b. Accountability agencies: i.e. to the Ombudsman, the Auditor general, etc, through compliance with

their investigations c. Hierarchical accountability: i.e. to public officers superiors, who are themselves accountable

(directly or indirectly) to accountability agencies

Types of accountability

Political accountability This is achieved through the parliamentary system in accordance with the doctrines of responsible government, representative democracy, and government as a public trust (this is an analogy – the government is like a trust in that it should use power for the benefit of the people as a whole). Political accountability refers to both accountability of parliament to the people and accountability of government to the parliament. Specific methods used are:

Individual and collective ministerial responsibility: - Individual: ministers are responsible for actions of government departments. Ministers can be

held accountable y being forced to resign - Collective: once a decision is made by the cabinet it is backed collectively – confidentiality of

cabinet discussions

Disciplinary sanctions – ministers can be sacked from the cabinet/public service or may be censured for misconduct

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Public sanctions – e.g. people called before royal commissions, possible criminal penalties. However, this doesn’t translate for an individual citizen who wants to hold the government to account

Representative democracy – people would not re-elect a bad executive government

Question time – the government and the opposition may each ask 10 questions of the other; questions must be directed to ministers (or shadow ministers, or the Prime Minister/Opposition Leader), and must relate to the minister’s portfolio; ministers are bound to answer questions honestly and to amend them if they turn out to be incorrect

Parliamentary debates

Parliamentary committee inquiries

Tabling of annual reports and program performance statements to the parliament

Separation of powers

Senate estimates committee (and other committees) – the grilling of public servants Limitations:

There is not always enough time for members of parliament to sufficiently discuss smaller issues in detail; that is, political accountability tends to be focused on major policy decisions

The medias focus is often narrow, and the opposition’s strategy will often be focused on political point scoring (rather than detailed analysis of the finer points of policy)

The effectiveness of political accountability partially hinges on the practical control that ministers can exert over executive agencies (which is not always strong)

Political accountability can render ministers inwardly focused on serving the government – potentially running counter to other forms of accountability (e.g. that to the public)

Responsible government:

Ministers are individually responsible to parliament for the affairs of their departments; - Implies that parliament can call ministers to account for mistakes that occur in their

department’s policy area; that is, parliament can question and (if necessary) censure ministers

Cabinet is collectively responsible to parliament and to the electorate for the conduct of government - Implies that either parliament or the people may dismiss a government with which they are

dissatisfied

Ministerial accountability has diminished in recent years because of: i. The complexity of the programs that ministers preside over, meaning that they cannot

possibly keep up-to-date of everything ii. An increasing governmental reliance on outside contractors iii. The strictness of party discipline

Financial accountability Definition: Financial accountability is the verification of the official use of money drawn from the public account. The three relevant (Cth) acts are Auditor General Act 1997, the Commonwealth Authorities and Companies Act 1997, and the Financial Management and Accountability Act 1997. Financial accountability is rendered in several ways:

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Auditor General – this is a person who is independent of the government, and covered by its own legislation (the Auditor General Act 1997). He or she evaluates the effectiveness of the use of government expenditure, through two types of audit: 1. ‘General audits’: checking that the government is in fact spending on that which it was

authorised to by parliament 2. ‘Efficiency/performance audits’: checking that the government is using money as efficiently and

effectively as possible, and that it is complying with relevant legislation

Parliamentary approval: both houses of parliament must approve any bills relating to taxation and expenditure (‘supply bills’)

Estimates committees: (e.g. Senate Estimates Committee) – these examine government activity on a regular basis, by asking searching questions of ministers and public servants

Parliamentary public accounts committee: keeps a long-term gaze on the financial system generally

Government agencies’ annual reports: these contain the financial statements of each agency, and must be tabled in parliament (see above, Political Accountability)

Administrative law accountability Aims to safeguard the rights and interests of individuals (including ‘legal persons’ such as companies) – not necessarily looking at overall government programs (political accountability is more useful)

While political accountability has weakened in recent times somewhat, administrative law accountability has grown in strength (e.g. by the establishment of more oversight bodies)

It operates in three ways:

1. Review of decision-making: administrative law accountability confers a right on individuals to challenge administrative decisions as a result of which they feel aggrieved; there are four ways of achieving this: a. By applying to an administrative tribunal (the AAT) to review the merits or legality of a decision b. By applying to a court (e.g. FC, HC) to undertake judicial review c. By complaining to the ombudsman or anti-discrimination or human rights agency d. By seeking an internal review within the government agency in question

2. Protection of information rights – administrative law accountability confers a right on individuals to

obtain information about what the government is doing (while protecting any personal information that a government might hold); this can be achieved in four ways: a. Freedom of information legislation, which confers a right of public access to government

documents (with some exceptions where such access would not be in the ‘public interest’) b. Privacy legislation, which regulates the handling of personal information within governments c. Administrative review legislation, which confers a right to a written statement of the reasons for a

decision d. Whistle-blower legislation, which provides protection to employees (most commonly) for disclosing

information about unlawful or unethical activity in their workplace, in circumstances that might otherwise attract disciplinary, criminal or civil sanctions

3. Public accountability of government processes: aggrieved individuals can complain to specialists,

independent (but government-funded) bodies, such as anti-corruption agencies (e.g. ICAC), human rights commissions and specialist government inquiries.

Values of good government:

Governments must act lawfully: that is, they must give their legal authority for making any decision

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Governments must act rationally: the definition of what is ‘rational’ is disputed, but importantly, administrative law does not attempt to police the boundary of reasonable disagreement between governments’ and individuals’ perspectives

Governments must act openly and efficiently: that is, they must be transparent (in the case of a government agency for example, it should be able to describe the processes/procedure leading to a decision, describe how your input can be heard in respect of the decision, and give you reasons for their decision)

These ‘values’ can also be grouped under the headings of administrative justice (that the rights and interests of individuals should be properly safeguarded), executive accountability (that those who exercise executive powers can be called on to explain and justify their decisions), and good administration (that administrative decision-making should conform to basic, universal standards such as rationality, fairness, consistency and transparency). Courts vs. tribunals:

Courts: can only rule on the lawfulness of government decisions, and cannot rule on their merits

Tribunals: can only rule on the merits of government decisions, and cannot rule definitively on their lawfulness

Accountability through ethics and integrity There are two main ways that this form of accountability has evolved in recent times:

1. A move to spell out more specifically in legislation and other documents (e.g. codes of conduct) the values that underpin public service and which the government should uphold

2. A reassessment of what these values are, particularly emphasizing the responsibility that public officials have to the public; examples of these values are integrity, impartiality, efficiency, equality, responsibility, etc.

N. Preston fears that the increased ‘documenting’ of values could lead to public officials who are “technically competent ... but ethically illiterate” – that is, officials who ‘tick all the boxes’ of a code of conduct but who nevertheless do not work in the ‘spirit’ of ethics and integrity

However, different people have different perspectives on what these values really entail; there is a tension between personal (discretionary) morality and imposed basic values (as listed above).

Justice Spigelman believes that there should be a fourth ‘branch’ of government, called the ‘integrity branch’ (including, for example, the ICAC, the Auditor-General, the Ombudsman, the Human Rights Commission, etc.)

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CONTROLLING THE EXECUTIVE

The principle of legality

Definition – see also p 398 text French v Spigelman

Presumption that parliament does not intend to interfere with common law rights and freedoms except by clear and unequivocal language for which parliament may be accountable to the electorate: Momcilovic v The Queen (THIS IS THE STAT PRESUMPTION)

Executive action is invalid unless there is legal authority to support it: Entick v Carrington (search warrant case) (THIS IS THE OTHER INTERPRETATION)

The executive, even in the pursuit of national security objectives, does not inherently possess the power to authorise officials to act in defiance of the criminal law: A v Hayden (criminal acts through ASIO operation)

Church of Scientology Inc v Woodword – when it comes to issues of national security, the courts are arguably reluctant to intervene with the decisions of the executive

There are two sources of such authority: 1. Legislative power: derived from statutes 2. Executive/prerogative power: derived from CL

Unauthorised decision making If government action is not supported by legal authority, it is ultra vires (‘beyond powers’).

The ADJR Act s. 5(1)(b), (c), (d) and (f) provide situations in which this may occur: 390TB

Government action or decision making can be called into review (for acting ultra vires) if it satisfies any of the following criteria (detailed in s 5 (1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth)):

(a): The procedures required to be observed were not observed; (b): The person did not have jurisdiction to make the decision;

(c): The decision was not authorised by the legislation, given its intent (or given a correct interpretation)

Note: This is the main ground of breach. Examples on p. 390.

(d): The decision involved an error of law, whether or not the error appears on the record of the decision.

- These provisions do not apply if executive power is being claimed.

E.g. a statutory power to run ‘tramways’ does not authorize the conduct of a bus service (London County Council v Attorney-General).

Categories of government legal entity

Executive agencies: these are established by executive action (e.g. the Governor-General in Council signing an Administrative Arrangements Order pursuant to s. 64 of the Constitution to establish a government department).

- They derive their legal authority from either legislation (e.g. the Migration Act 1958 (Cth) conferring powers on Department of Immigration officers), or from the executive power (see below)

Statutory agencies: these are established by or in accordance with an Act of Parliament; thus, they can exercise only the powers conferred by statute (MacLeod v Australian Securities Investment Commission), except to the extent that they have ‘incidental

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powers’ (see below).

Government corporations: (also known as a GBE) these are established in accordance with the Corporations Act 2001 (Cth) and have the legal capacities of a natural person (s. 124), without being subject to the ultra vires doctrine that applies to statutory agencies.

Executive prerogative powers

Definition These are powers whose legal authority is derived from the fact of the government’s existence and role, rather than from legislation. The two above-mentioned terms have been distinguished:

Executive powers: this term applies to non-statutory powers that the Crown can exercise as a legal person (e.g. the power to own property, to enter into contracts, to sue and to be sued).

Prerogative powers: this term applies to non-statutory powers that the Crown can exercise as a residue of English history (e.g. the power to enter into treaties, to declare war, to pardon criminal offenders, to assert ownership of natural resources and to bestow honours). - New prerogative powers cannot be created; if a power falls into disuse, it cannot be

revived. Constitutional provision The Commonwealth’s executive capacity is conventionally traced to s. 61 of the Constitution; ‘The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of the Constitution, and of the laws of the Commonwealth.’

However, state governments without similar constitutional backing still have an inherent or executive capacity to function as a legal person.

Constraints on executive power There are three (Clough v Leahy): (1) It can be overridden by, and can’t be exercised inconsistently with, statute (Barton v C’th).

This means that if a statute prohibits a certain act, exercise of the executive power cannot allow a government to do that act.

The rationale for this constraint is that (a) the government is treated as a legal person and is subject to the rule of law (by which no one is above the law); and (b) the executive power is seen as an equivalent to the common law, which will always be overridden by inconsistent statute.

(2) Executive power cannot justify a governmental act that would be actionable at common law, such as defamation of an interference with the administration of justice. (3) Executive power will not authorize government action that is coercive, punitive, intrusive or threatening (e.g. Minister for Immigration and Multicultural Affairs v Vadarlis).

Exception 1: (based on history) executive power does authorize the declaration and waging of war (e.g. Burmah Oil Co (Burmah Trading) Ltd v Lord Advocate), and the supply to police authorities of gas and plastic bullets (R v Secretary of State for the Home Department; Ex parte NPA).

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Exception 2: (based on sovereignty) executive power does authorize the repelling and prevention of asylum seekers (Minister for Immigration and Multicultural Affairs v Vadarlis).

Executive power was also discussed in Pape v Commissioner of Taxation:

Facts: when the GFC was coming, the Rudd government decided to give out stimulus packages where everyone would get a cheque of some value. Before this happened, Pape brought action in the High Court alleging that the supporting legislation was invalid – issues with tax laws and interferences with state power.

Held: the executive power of the government has to be capable of serving the proper purposes of a national government - the government must have the power to do certain things. This comes under those powers.

Note: this is a vague and very open description of executive powers, which might be problematic. Executive power must be limited.

Presumption of regularity It is presumed, until the contrary is proven, that the decision or action of an official has been properly made or taken

The effect of this is that evidence does not have to be led proving the validity of a statutory requirement (provided that it is not an essential element of an offence that has to be affirmatively established) (Dillon v R); Mowaday v Western Australia).

The presumption is rebuttable, the onus falling on the party wishing to dispute the validity of the action or decision (Cubillo v Commonwealth) to present enough evidence to raise the issue, not prove it.

Concepts and classifications

Legislative, executive and judicial power Executive: applies and enforces the laws

That is, applying general rules to particular situations and making a decision, order, or similar action; the executive also formulates and implements policy

Legislature: makes the laws

That is, making new rules of general application, usually operating in futuro, and usually applying to the public at large or to a defined segment of the community (but not to an individual case).

Judiciary: interprets the laws

That is, resolving pre-existing disputes between parties as an independent adjudicator, by applying the law of the land and making a final and conclusive ruling.

Separation of powers: these three powers are kept separate by confining each to separate ‘agencies’ – e.g. anyone exercising judicial power cannot also exercise executive power; in addition, separate chapters of the Constitution deal with each.

However, the executive and legislative powers are blurred by ministers, who sit in Parliament

State level: State constitutions do not provide for a strict separation of powers – e.g. you can give state judges extra powers that you could not give to federal judges.

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Polycentricity This term refers to situations, which evince more than simply legal issues – there may be economic, public policy, political and ethical considerations to take into account. Tubbo Pty Ltd v Minister Administering the Water Management Act 2000 [2008]

Usual process of courts: (1) Discern whether there is a relevant rule; (2) Determine what that rule means; and (3) Apply that rule to the facts of the case.

Effect of polycentricity: this will not necessarily negate judicial review or any particular aspect of the decision, but it will mean that judicial scrutiny is restrained or attributes less significance to the impact of the decision on an individual.

Discretion Discretion exists where there is power to make choices between courses of action or where, even though the end is specified, a choice exists as to how that end should be reached, or when decisions are made in the absence of previously fixed, relatively clear and binding legal standards.

Discretion is usually conferred when words such as ‘may’, ‘provided that it is reasonable’, ‘as he thinks fit’ etc are used, where facts are in dispute, or when a policy is vaguely expressed

Galligan: discretion has increased with increased regulation and increased government involvement in public life

Hayek: discretion is also at odds with the principle that the government is bound by fixed rules that are known before the fact, so that citizens have the knowledge of the law and can act with certainty beforehand

Can lead to inconsistent decisions Controlling discretion:

Structuring: setting a path to follow via policies and manuals

Checking: judicial review and administrative review

Confining: fixing boundaries and keeping discretion within them

Executive policy An executive policy is a non-statutory rule devised by the administration to provide decision-making guidance, particularly in administering legislation

Formal policies: these may be expressly authorised by statute, tabled in parliament, endorsed by a minister or cabinet or published as an agency manual

Informal policies: these may originate in a press release, a precedential decision of a court or tribunal, or constituting unwritten ‘mythology’ that is passed down officer to officer

Directions: These are different from policies in that they are a specific form of policy statement, usually given by one officer to another to indicate the parameters for making a particular decision Legislative instruments:

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This category covers a wide range of documents ranging from regulations and by-laws to ministerial directions, schemes, codes, manuals and standards

Difference from policies: Commonwealth legislative instruments must meet the definition of a legislative instrument in the legislative instruments act 2003 (Cth), must be placed on the federal register and tabled in parliament, and is not enforceable if not registered (ss32, 33)

Soft law This category refers to documents used inside and outside governments to ensure effective regulation – they are usually distinguished from ‘legislation’, but can have legal consequences:

Legal effect: soft law is not binding by force of statute, but failure to comply with soft law rules can have legal consequences such as an application being refused. It is generally not subject to the administrative law mechanisms that apply to ‘black letter’ law.

Examples: the procedure for lodging applications, how applications will be decided, which applications will be audited or checked, when consultation will be agreed to, when fees will be waived, the concessions available to an applicant who complies with agency guidelines.

The legal status of executive policies This depends on the interpretation of the statute that is being administered and the nature of the policy under consideration: Bleathman v Taylor

Considerations: the particular statutory function, the nature of the question to be decided, the character of the tribunal and the general drift of the statutory provisions in so far as they bear on the relationship between the tribunal and the responsible minister, as well as the nature of the views expressed on behalf of the government (Bread Manufacturers of New South Wales v Evans).

Enforcement of policies: policies will be inapplicable if the relevant government agency does not publish them in accordance with ss. 9 and 10 of the Freedom of Information Act 1982 (Cth). If a policy is not publicized, the government can only rely on it to the extent that it does not cause detriment to anyone.

Legal relevance of policies: a policy must not be incompatible with the legislation that it elucidates – e.g. it must paraphrase the legislation correctly, adequately identify the range of relevant matters, and not extend or confine a discretion in a way that would be Wednesbury unreasonable (e.g. Green v Daniels, NEAT Domestic v AWB).

In Green v Daniels: Facts: Green was a 16yr old school leaver, wanted to get the dole before the summer holidays. She was eligible to receive it under the Social Security Act. However, Green was told that she could not obtain it because of the policy that school leaver could not get it until January of the year after leaving school.

Held: the policy was inconsistent with the legislation, as she satisfied the legislation, but not the policy. Also, the policy had been applied inflexibly, without any regard to Green’s personal circumstances, rather than on a case-by-case basis.

Policy cannot confine/fetter discretion to such an extent that the merits of the individual case will not be taken into account: Policy is merely Meant to provide guidance

Challenging policies’ validity: policies can be challenged on the basis that they conflict with provisions that appear higher up in the ‘rule hierarchy’ (see below); such challenges can take place in courts or in the tribunals (Drake).

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Delegated/subordinate legislation

What is delegated legislation Delegated or subordinate legislation is a legislative rule made by an executive agency pursuant to an authority delegated by the legislature

The authority to make delegated legislation is usually contained towards the end of a statute, and delegates power to a governor, a minister, or a statutory authority to make rules supplement to the act

Delegated legislation is always subordinate to its parent act which it was made, and the other Acts (unless there is an override clause)

They generally deal with specific details, whereas the act provides the general framework

Convenient and expedient