Administrative Law Assignment 2022

1
MLL324
Administrative Law
Exam
Notes

2
Jason Stockdale
Contents
3 - The Scope of Administrative Law
3 – Scope of administrative law
4 - The Scope of Judicial Review
4 - ADJR Act Review
4 - Constitutional Review
5 - Common Law Review
6 - Judicial Review Remedies
6 – Judicial review remedies
10 - The Grounds for Judicial Review
10 - Procedural Grounds
11 - Reasoning Grounds
12 - Decisional Grounds
14 - Access to Judicial Review (Standing)
14 – Two standing approaches
15 - Restricting Judicial Review (Privity)
15 - Hickman
17 - Tribunals and Merits Review
17 – The Administrative Appeals Tribunal
18 – Correct or preferable
20 - Beyond Courts and Tribunals

3
The Scope of Administrative Law
 Separation of powers
o Should not allow too much power to be concentrated in the hands of any one
individual or institution
o Three broadly distinguished branches of government
 Legislature
 Executive
 Judiciary
o Administrative law is primarily concerned with providing an external check on
the exercise of power by the executive branch of government
 Administrative law
o Functional turn in English administrative law has meant the articulation of a
much sharper distinction between public law and private law
 Private law is concerned with relations between citizens, whereas public
law is concerned with relations between governors and governed
o A V Dicey: The best way of controlling government power was the subject public
officials to the ‘ordinary law’ applicable to citizens generally, administered and
enforced by an independent judiciary = equality before the law
o Administrative law
 A branch of public law concerned with ensuring that public functions and
activities are performed and conducted in the interests of the public at
large, rather than in the partisan interests of any particular individual or
group
 Scope of admin law – issues:
 Should rules and principles of admin law apply to certain functions
and activities regardless of whether they are performed and
conducted by governmental or non-governmental entities?
 Are there certain functions and activities to which the rules and
principles of admin law should not apply, regardless of whether they
are performed and conducted by governmental or non-
governmental entities?
 ‘Legal’ vs ‘regulatory’ approach to administrative law
o Regulatory approach: the main purpose of admin law is to influence the way
decision-makers exercise their powers. This means how they will behave in the
future rather than how they have behaved in the past
o Legal approach: primarily concerned with providing complainants with redress
for past breaches of admin law, and society with a means by which decision-
makers can be held accountable for such breaches
 Constitutional terms: legal approach rooted in the concept of the rule of
law; regulatory approach draws attention to the concept of separation of
powers

4
The Scope of Judicial Review
Judicial review
o To succeed in a judicial review application, an applicant must satisfy a number of
distinct requirements
o Court must have jurisdiction to judicially review the impugned act or decision
and it must accept that application raises ‘justiciable’ issues
o Applicant must be an appropriate person to bring the application (ie: standing)
 There must be a breach of an admin law norm (ie: ground of review)
 Court must have the power to grant an appropriate remedy
 The legislature must not have validly excluded the court’s review
jurisdiction
o Nature of the courts’ review jurisdiction
o The purpose of review is not to usurp powers of administrators but merely to
supervise their exercise.
o Two fundamental distinctions:
 Contrasts between appeal and review
 Contrasts between judicial review and merits review
o The Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act)
o Applications under the ADJR Act may be made to either the Federal Court or the
Federal Magistrates Court
o Applications for review may be brought under the ADJR Act by ‘aggrieved
persons’ in relation to
 (i) a ‘decision to which this act applies’ (s 5)
 (ii) proposed and actual conduct engaged in for the purpose of making a
‘decision to which this Act applies’ (s 6)
 (iii) a failure to make a ‘decision to which this Act applies’ (s 7)
o Section 3(1) – There MUST be:
 (a) a decision;
 (b) of an administrative character;
 (c) made under an enactment
o Administrative decisions
o Review under the ADJR Act is limited to decisions ‘of an administrative
character’. The ‘evident purpose’ of this element of the Act’s jurisdictional
phrase is ‘the exclusion of decisions of a “legislative” or “judicial” character’
o Subordinate legislation is not directly reviewable under the ADJR Act as it is not a
decision of an administrative character
o Instability of distinctions drawing the line between administrative and legislative
decisions
 Increasingly the courts have relied upon considering a number of factors
thought to constitute the indicia of legislative decisions, none of which can
be considered determinative:
 Features of the decision (whether it has a general rule-like quality,
has binding legal effect, or raises broad questions of policy)
 Issues concerning production and supervision of the decision
(whether it is subject to merits review or parliamentary oversight,
whether it involves public notification or consultation requirements)

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o The ‘Constitutional’ review jurisdiction: s 75(v) Constitution and s 39B
Judiciary Act
o HC’s constitutionally entrenched ‘original’ judicial review jurisdiction is conferred
in terms of the availability of the remedies of mandamus, prohibition and
injunction – against an ‘officer of the Cth’
 Includes Certiorari by way of an ancillary remedy in order to bring effect to
one of the available remedies; this is derived from HC original jurisdiction.
o It was realised that some decisions that could not be reviewed under the ADJR
Act would fall within the High Court s 75(v) jurisdiction. In 1983, s 39B(1)
inserted into the Judiciary Act to confer an identical jurisdiction upon the Federal
Court to avoid overburdening the HC
 Fed Court developed the substantive law largely by reference to the CL
o Emergence of ‘Constitutional’ remedies
 Grounds for judicial review available under s 75(v) are linked the available
remedies
 ‘Jurisdictional error’ has become the conceptual lodestar of judicial
review under s 75(v) and s 39B(1) Judiciary Act as the constitutional writs
are available only for excess or denial of jurisdiction
 Scope of constitutional regime is in some ways broader than ADJR Act,
subject to 2 limitations:
 (1) ‘Officer of the Cth’: Courts jurisdiction depends upon some
sort of institutional nexus being established between the decision-
maker and government
o Meaning attributed to ‘officer of the Cth’ limited the extent to
which decisions made by non-govt bodies may be reviewed
under s 75(v). CF NEAT
 (2) The ‘matter’ concept: ‘There can be no matter... unless there
is some immediate right, duty or liability to be established by the
determination of the court’ and ‘no declaration of the law divorced
from any attempt to administer that law’
o Matters are only present when there is a justiciable
controversy
o Jurisdiction under s 75(iii) of the Constitution and s 39B(1A)(c) Judiciary Act
o High Court can engage in judicial review under the original jurisdiction granted
by s 75(iii) Constitution
 Overlaps with jurisdiction in s 75(v)
o Parliament could potentially limit the power for the Court to review under s 75(iii)
 This is because s 75(iii) does not state any remedies that must be able to
be made

6
Judicial Review Remedies
The common law remedial model
 An application for a writ in relation to a decision that has already been made might
have 1 of 3 remedial outcomes
o (1) No remedy (if applicant’s case was missing an ingredient)
o (2) Retrospective invalidation
 Any acts purportedly based on that ‘decision’ whether before or after the
act invalidation will lack legal justification
o (3) Prospective quashing
 Acts based on the decision up until the time of the court order will be
valid, but any acts based on the decision after the court has determined it
was unlawfully made will lack legal justification
 Retrospective quashing v prospective quashing:
 Retrospective quashing means decision is taken to have been invalid from the time
it was made. The court announces the invalidity or ‘nullity’ of the decision, it having
been invalid ab initio (ie from the beginning)
 Prospective quashing means that the decision is deprived of effect from the time of
the court’s order. The effect is to deprive the decision of effect rather than to announce
its invalidity. (ie reversal on appeal)
 Unremediable errors also exist at common law
o Why?
 Part and parcel of the logic of the formulary, writ-based system
 Appeals to the advantages routinely associated with the existence of
administrative discretion
 Invokes the concept of separation of powers
The ADJR Act remedial model First question is whether one of the specified grounds of review has been established There are NO unremediable administrative law norms ADJR Act does not recognise the distinction between jurisdictional and non-jurisdictional
error
Distinctions
 Jurisdictional error/non-jurisdictional error
o As a general rule, errors of law which ‘go to jurisdiction’ would justify the award
of the prerogative writs but non-jurisdictional errors (ie errors made within a
decision-makers jurisdiction) would not
 Decision in Project Sky Blue apparently stands for the proposition that
breach of any statutory provision, and remedies flowing will depend on the
intention of the legislature expressed in the statute