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Inspectorate Of Government Essay

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Constitutional and Administrative Law

9 – Administrative Law



The ‘New’ Administrative Law

Components of the ‘new’ administrative law include:

Freedom of Information Act 1982 (Cth)
Allows the public to access information held by government

Ombudsman Act 1976 (Cth)
Establishes a statutory body for receiving and handling complaints about defective administration

Administrative Appeals Tribunal Act 1975 (Cth)
Sets out rights to appeal the merits of a decision

Administrative Decisions (Judicial Review) Act 1977 (Cth)
Creates a statutory mechanism to challenge the legality of government action in the courts


Purposes of Administrative Law

Administrative law subjects the executive branch of government to internal and external regulatory mechanisms. These processes serve several important functions; namely, they: •

Hold the executive accountable
A form of external control of executive action:
o Ministerial supervision;
o Parliamentary oversight;
Eg, Senate enquiries (eg, into immigration detention, etc)
o Non-administrative law external control
Eg, auditor-general (ensuring government departments spend money legitimately)

Minimise bureaucratic pathologies
There is a tendency for governments to exploit their power in order to maintain it or further illegitimate interests
o Identify systemic cultural elements that influence decision-making

Ensure democratic control
Bureaucrats might think they have a monopoly over the public interest and usurp democratic control by presuming they know better than elected representatives

Improve the quality of administration
Administrative law serves the bureaucratic self-interest — disclosure is often good for government departments, and can promote change
o Leads to more efficient operation

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9 – Administrative Law

Improvement, performance metric

Inform the public
Demonstrating the executive’s exercise of power to the public (so they can make an informed vote)

Legitimise administrative action
To imbue their conduct with the appearance of legitimacy by reason of the potential for external invalidation or review

Protect and promote human rights
Administrative law embodies procedures and doctrines which naturally recognise and protect human rights and liberties of citizens
o Requires ‘due process’ to be given
o The ability to seek review might in itself be seen as a human right in itself o Administrative decision-making is influenced by administrative law (and hence) human rights principles
o Freedom of speech, freedom of information, privacy

Reasons for the ‘new’ administrative law

Decline of parliament?
A rights-culture?
Perceived inadequacies of the common law:
o Costly procedures
o No right to decisions
o Limited to legality not merits of decision
o Complex procedures and remedies


Administrative Law and the Rule of Law

The rule of law according to A V Dicey:

Power is not exercised arbitrarily but according to law
Constraint is to be contrasted with ‘the exercise by persons in authority of wide, arbitrary, or discretionary powers’


All citizens are equally subject to the law
This entails that ‘no man is above the law’ and that all are subject to the same, ‘ordinary law’; this is legal equality; and


Judicial remedies are critical to rights
Remedies should be granted by courts to specific individuals; this is more effective than implying liberties or security from the Constitution.

Perhaps the greatest is irony is that the system Dicey once denounced as a manifestation of unrestricted executive power is now the primary means by which the executive is held to account. Dicey’s conception of the rule of law has significantly shaped the development of administrative law. For example:

Tribunals are ‘inferior’ bodies and subject to review for lawful decision-making;

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9 – Administrative Law

Tribunals must act ‘judicially’;
Tribunals must act intra vires, only within the power accorded to them by and in accordance with law;
Tribunals may not always look to privative clauses to oust review (often disregarded, reinterpreted or presumed not to apply).

Administrative bodies perform many and varied functions. This makes them substantially different to courts in many respects (eg, formulating advice or recommendations on matters of public policy, something that a court would never do). Similarly, standing is more relaxed than in law, parties and tribunals often share responsibilities for adducing evidence and presenting arguments, evidentiary rules are significantly altered, formality is reduced, the range of remedies wider, and administrative judgements entail both technical, legal and logical components as well as educative, political and social aspects.

It might thus be argued that, owing to these differences, administrative bodies should not be evaluated against the same criteria as courts for compliance with the rule of law. In many ways, administrative bodies are inherently subject to the rule of law: they only have power to adjudicate in accordance with their functions; to go beyond makes their decision liable to be quashed by a court. With the exception of some privative clauses (which are still valid laws that warrant compliance) decisions are reviewable for correctness and propriety. Tribunals must apply rules uniformly, like a court. An even wider arsenal of remedies are available than those contemplated by Dicey.

Where it might be doubted that administrative tribunals comply with the rule of law is in the exercise of discretion and the application of undisclosed (and unchallengeable) policies: •

NEAT: law used to afford a competitive advantage on AWBI and discretion to grant permission to others; discretion not disinterested; not reviewable; dangerous combination;

AAT review: ‘correct or preferable decision’; abundance of rules, but not always applied consistently or equally; highly circumstantial; often a great deal of discretion involved o Cf Hayek: need fixed rules visible to the public

o But Davis: discretionary power both necessary and inevitable: Confine discretion
• Set criteria and limiting concepts
• Dependent on proper drafting by parliament
• Lack of respect for precedent in administrative law?
Structure discretion
• Statutory frameworks provide rigid logical structure and boundaries
Check discretion
• Appeal to Federal Court or Supreme Court

However, discretionary may be desirable in some cases. Douglas provides the example of the Migration Act reforms which prevented decision-makers from taking certain factors into account. This increased consistency and reduced discretion, but came at the case of rendering nonjusticiable (and on an arbitrary basis) facts and circumstances that were potentially relevant to an applicant’s case.

To a large extent, all law is arbitrary — discretion inevitably so. Administrative law increases oversight and provides for additional review processes, so it can only serve to enhance compliance with the content of those laws. As to their substantive merit, that is a matter best left to parliamentary consideration.

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9 – Administrative Law

Administrative Law and Responsible Government

Federal government in Australia is a peculiar blend of the Westminster system and United States federal system of government. As such, it exhibits tension between controlling government by reference to principles of responsible government and by controlling it by separating government power.

The state level more closely resembles the Westminster system of government. The local level has considerable power to affect individuals’ lives but is subject to higher levels of government and administrative regulation. Douglas notes that each institution ‘is informed by its own set of values, rules and regulations which have been derived from the chance combination of history and ideology’ (at 26).

Thynne and Goldring note that responsibility is an ‘elusive concept open to a range of meanings’. They identify five distinct usages insofar as it is applied to the executive: •

Tasks: the executive is responsible for performing certain tasks or acts o Acts conferring statutory power make administrative bodies responsible for the performance of certain functions

Appropriate: the executive must perform its tasks responsibly; that is, in a responsible or appropriate manner
o the executive must be responsive to community values and so responsible to and for the people; it must take responsibility for reforms

Accountability: the executive must be accountable for the performance of their tasks and are therefore responsible to an institution, person or electorate capable of enforcing the discharge of their responsibilities

Blame: in a normative sense, the executive or its members may be responsible for some problem or deficiency

Cause: in a descriptive sense, the executive may be responsible for causing a c...

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