Democracy: accountability & administrative law

ACMA Legal BranchInternational Training ProgramMelbourne, 4 September 2006

Democracy and administrative law

• Three arms of Government accountable for decisions made:1 Legislature (Parliament)

2 Judiciary (Courts)

3 Executive (Administration eg ACMA)

• Administrative Law deals with the processes by which administrative (ie governmental) decisions are able to be reviewed or challenged by those subject to such decisions.

• Rule of law, administrative law = accountability crucial to democracy.

Traditional principles of decision making• One of the most important traditional legal principles which government

decision makers must follow when making administrative decisions is NATURAL JUSTICE

• Often also referred to as the principle of ‘procedural fairness’. These terms are often used interchangeably.

• 3 elements:

– HEARING RULE - person is entitled to a hearing before a decision affecting him/her is made

– RULE AGAINST BIAS - person is entitled to have such a decision made by an unbiased decision maker (‘rule against bias’)

– LOGICALLY PROBATIVE EVIDENCE - decisions must be based on logically probative evidence

Forms of review• If a person affected by an administrative decision is

dissatisfied with it legislation often allows him or her to apply for review of that decision.

• There are 3 kinds of modern administrative law review:

1. Administrative/Merits review

2. Judicial review

3. Ombudsman review

Administrative review

• Administrative review is concerned with what the decision is, not how it is made.

• Administrative Appeals Tribunal Act 1975 (Ch).• The function of the Administrative Appeals

Tribunal (AAT) is to review certain decisions made by Commonwealth officers and authorities.

Administrative review: right of review

• Not a general right of review.• AAT’s power to review certain decision granted by

statute for example:– Telecommunications Act 1997

– Broadcasting Services Act 1992

– Radiocommunications Act 1992

– Freedom of Information Act 1982

Administrative review remedies

Remedies available at the AAT include:• affirm the decision; or• vary the decision; or• set aside the decision; or• substitute the decision; or• remit the matter back for reconsideration.

Judicial review

• Judicial review concerned with how the decision is made, not what the decision is.

• Administrative decisions (Judicial Review) Act 1977 (ADJR Act).

• Review in Federal Court or High Court of Australia.

• Also have older forms of review under Judiciary Act 1903 (Cth) and the Constitution eg certiorari, prohibition, mandamus and injunction & need standing.

Judicial review: reviewable decisionsUnder the ADJR Act a ‘person aggrieved’ may seek to

review:

• a) decisions to which this Act applies; or

• b) conduct, previously engaged in, being engaged in, or proposed to be engaged in for the purpose of making a decision to which the Act applies or

• c) failure to make a decision by a person who has a duty to make a decision to which the Act applies.

Judicial review: what type of decisions?

‘a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment ... other than a decision of the Governor-General or a decision included in any of the classes of decision set out in […] the Act’.

Grounds for judicial review: Administrative decisions (Judicial Review) Act 1977

– failing to follow procedures prescribed by legislation.

– error of law.

– taking an irrelevant consideration into account.

– exercising a power you do not have or exceeding the power you do have ( acting ‘ultra vires’ or beyond power).

– exercising a power in bad faith or for an improper purpose.

– making a decision so unreasonable that no reasonable person. could have reached it.

– acting under dictation.

– applying policy inflexibly.

Judicial review: remedies

Remedies are discretionary & can include:• reasons for the decision; or

• Order quashing, setting aside or directing the parties to do something in relation to the decision; or

• Order declaring the rights of the parties in respect of the matter.

Ombudsman• Established by the Ombudsman Act 1976.

• Hears complaints about actions of Commonwealth departments and agencies.

• Complaint can be oral or written.

• May recommend agency takes certain action regarding Ombudsman’s recommendations.

• May report direct to Minister or Prime Minister.

• Will not normally investigate if a complaint could be made elsewhere eg internal review available, or external review.

Other areas of administrative law

• Freedom of Information 1982

• Privacy Act 1988

• Legislative Instruments Act 2003

• Archives Act 1983