Administrative Law is the body of rules, practices, tribunals and institutions which regulate the exercise of government power once constitutionally valid laws have been passed.
It has been said that: ‘Defining administrative law is a topic on which few commentators can reach agreement, because it ultimately depends on what they want out of administrative law. We know what we want. As a minimum, we want a legal system which addresses the ideals of good government according to law. We take those ideals to include openness, fairness, participation, accountability, consistency, rationality, accessibility of judicial and non-judicial grievance procedures, legality and impartiality.’ Not surprisingly, Australia’s administrative law system does not always live up to these ideals in practice.
Putting it a bit more simply, while constitutional law is about the validity of Commonwealth or State laws, administrative law is about the validity of the actions of Ministers, public servants and government agencies purportedly acting under those laws.
Administrative Law consists of two broad aspects, namely merits review and judicial review. Parish McCulloch’s principal lawyer Ken Parish has been a leading administrative law practitioner for almost 30 years, and has taught the subject to law students all over Australia for the last 13 years. Given the influence governments have over all our lives, it is an important specialisation.
An aggrieved person may be given a statutory right to have an adverse decision (e.g. as to eligibility for a pension, benefit or government subsidy) subjected to internal merits review by a more senior officer within the department or agency where the original decision was made. This is sometimes referred to as first tier review. The officer conducting the review is required to consider the evidence and submissions (and usually to consider any new evidence or submissions from the aggrieved applicant). The review officer must decide the application on its merits i.e. he/she must determine what is the correct or preferable decision on the evidence before him/her. That may result in the original decision being affirmed, varied or quashed, with a new decision being made in place of the original decision.
If a person remains aggrieved after first tier review, the legislation will often provide for review by an independent merits review tribunal. This is sometimes referred to as second tier review. Sometimes the second tier review is done by a specialist tribunal (like the Social Security Appeals Tribunal (‘SSAT’) at federal level), and sometimes by a general merits review tribunal like the Administrative Appeals Tribunal (‘AAT’). In the case of social security matters, there is a right to second tier review by the SSAT, and then effectively a third tier of merits review to the AAT. The Victorian state government equivalent is the Victorian Civil and Administrative Tribunal (VCAT). This exhausts an applicant’s rights to merits review. The only way an aggrieved person can then seek redress is by seeking judicial review from a court.
Note that there is no right to merits review at common law. Accordingly, unless such a right is given by legislation in respect of a particular class of decisions, then no such right exists.
An aggrieved person may seek judicial review by a court of an adverse administrative decision by a Minister, public servant or other official. There are two types of judicial review:
- common law or prerogative judicial review; and
- judicial review provided by legislation e.g. the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ‘ADJR Act’), or its more recent State equivalents in Victoria and New South Wales.
In either case, the court generally only has power to examine or review the legality of an administrator’s decision, not its merits. This legality/merits distinction is critical to an understanding of administrative law. If courts were to review the merits of decisions, with the judge substituting his/her own opinion of the correct or preferable result for that of the original decision-maker, the court would be breaching the separation of powers doctrine.
In its examination of the legality of an administrative decision, the court may quash a decision if, for example, it finds that the decision-maker has:
- acted outside the scope of the power given by Parliament;
- asked the wrong question or misconstrued his powers;
- acted for an improper purpose,
- taken into account irrelevant considerations (or failed to take into account relevant ones);
- made a finding in the absence of evidence; made a decision that no reasonable person could have made; or
- exercised a discretion without regard to the merits of the case e.g. by mechanically applying an inflexible policy.
If the court finds that any of these errors have occurred, it may quash the decision. The decision-maker (usually a different Departmental officer) must then reconsider the matter in accordance with the law as laid down by the court. Note, however, that the court cannot substitute its own view of the merits for that of the decision-maker.