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