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COMMONWEALTH ADMINISTRATIVE LAW: THE BASICS

[A paper delivered by Mark A Robinson, Barrister, to the State Legal Conference '96, at Sydney, 27 March 1996]

BODIES AND THEIR POWERS

ADMINISTRATIVE APPEALS TRIBUNAL ("AAT") - ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 (Cth)

Description

The AAT is a body created by the Administrative Appeals Tribunal Act 1975 (Cth) to provide for a review of decisions by Ministers and Commonwealth officials given under statutory powers.

Purpose

The Administrative Appeals Tribunal has jurisdiction to conduct merits review (also known as de novo review or administrative review) of many specified Commonwealth government decisions. Reviewable decisions in the AAT are specified in relevant enabling Acts setting out the decision-maker's power and stating that the particular decision is reviewable in the AAT. The nature of the jurisdiction is that of the exercise of administrative or executive power, not judicial power. NB: There is also a Victorian Administrative Appeals Tribunal which has similar (State) jurisdiction.

Composition and Structure (Approximate)

Divisions of the AAT

Who May Apply to the AAT?

Any person or person "whose interest are affected by the decision" (ss.27(1) and 30 of the AAT Act).

Time Limits: AAT

An application for review of a decision must be made within 28 days from receiving notification of a reviewable decision.

The AAT has power to extend the time in appropriate cases.

Hearing Date

A person can expect a final hearing date from within 6 to 12 months from filing an application.

What is a "Decision" Under the AAT Act?

Section 3(3) of the AAT Act defines "decision" to include a reference to:

"(a) making, suspending, revoking or refusing to make an order or determination;
(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d) imposing a condition or restriction;
(e) making a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article; or
(g) doing or refusing to do any other act or thing."

Notwithstanding this wide definition, is has been held that the "decision" should be a decision which has the character of a final, operative or determinative decision which, in effect, disposes of the issues between the parties - Director-General of Social Services v Chaney (1980) 47 FLR 80; 31 ALR 571.

AAT Act Statement of Reasons

Under s.28 of the AAT Act a person who is entitled to apply to the AAT for a review of a decision may request the decision maker to provide a:

A request for a statement of reasons must be made within 28 days of the receipt of the decision in writing.

The decision maker has 28 days to provide the statement of reasons.

The applicant has a further 28 days from the sending of a request for a statement of reasons in which to lodge an AAT application for review of the decision.

What can be Achieved in the AAT?

The AAT's duty is to come to the correct and preferable decision based on the material before it.

The AAT is empowered to:

The AAT may step in the shoes of the decision maker and exercise all of the decision maker's powers and discretions under the relevant law.

The AAT is not given a general power to award costs. Generally, each party must pay its own costs. Costs are allowed in the AAT's "workers compensation" jurisdiction relating to Commonwealth employees through Comcare.

There are Practice Directions issued by the Tribunal including directions relating to:

A significant development that occurred in 1994 was the insertion of section 27A of the AAT Act which provided that in circumstances where a person makes a decision reviewable by the AAT, that person must take steps to notify in writing or otherwise "any person whose interests are affected by the decision" of the making of the decision and the right of that person to have the decision reviewed by the AAT. This provision, together with a Code of Practice provided for in section 27B and published in the Commonwealth Gazette S174 of 11 June 1993, comprised substantive rights for individuals and corporations in this area. The Code, cited as the Code of Practice for Notification of Reviewable Decisions and Rights of Review, sets out clearly who should be notified of their appeal rights, in what manner and in what circumstances.

FEDERAL COURT OF AUSTRALIA - ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW ACT 1977 [Cth]) ("ADJR ACT")

Description

Enacted in 1977 to empower the Federal Court to review the legal validity of administrative decisions made under the Commonwealth enactments. It did not commence operation until 1 October 1980.

Purpose

The preamble to the ADJR Act provides it is:

"An Act relating to the Review on Questions of Law of certain Administrative Decisions."

The Federal Court is not empowered to review executive decisions on their merits.

What Decisions are Reviewable Under ADJR Act?

The ADJR Act applies to persons "aggrieved" in respect of:

Grounds of Review Under ADJR Act

The doctrine of ultra vires can be described in a number of ways. There are two broad areas:

To add to the confusion, the grounds of judicial review are sometimes grouped into three broad categories:

  1. Excess of power;
  2. Procedural fairness; and
  3. Bad faith/Abuse of power.

The grounds as specified in the ADJR Act for having a decision reviewed by the courts are:

  1. that a breach of the rules of natural justice has occurred;

  2. that procedures that were required by law to be observed were not observed;

  3. that the person who purported to make the decision did not have jurisdiction;

  4. that the decision was not authorised by the relevant statute;

  5. that making the decision was an improper exercise of the decision-maker's power;

  6. that the decision involved an error of law;

  7. that the decision was induced or affected by fraud;

  8. where there is nothing to justify the making of the decision;

  9. that the decision-maker took into account irrelevant considerations or failed to take into account relevant considerations;

  10. that the relevant power was exercised for the wrong purpose;

  11. that the decision was made in bad faith; or

  12. the decision was made contrary to law.

ADJR Act Statement of Reasons

Under s.13 of the ADJR Act certain persons are entitled to apply to the decision maker for a statement of reasons similar to a s.28 statement under the AAT Act.

A request for a statement of reasons must be made within 28 days of the receipt of the decision.

The decision maker has 28 days from receiving the request to provide a statement of reasons.

The applicant has a further 28 days from the making of the request for a statement of reasons to commence Federal Court proceedings under the ADJR Act.

A person cannot apply for a statement of reasons when:

Exclusions in Schedule 2 of the ADJR Act include decisions:

Who May Apply to the Federal Court for Judicial Review?

The question of standing to commence proceedings or standing to request statement of reasons is crucial. It must be examined at the outset. The courts have determined that the test for the standing of a person "aggrieved" is both wide and flexible. The court will apply a "special interest" test.

A summary of the principles relating to the special interest test is as follows:

Time Limits: ADJR Act

An aggrieved person has 28 days from receipt of the decision to commence Federal Court proceedings under the ADJR Act.

The Federal Court may extend this time limit in appropriate cases [see, Harris v Moore, Full Court of the Federal Court, 25 November 1993, for appropriate grounds going to the Court's discretion].

What can be Achieved in the Federal Court under the ADJR Act?

The Federal Court has discretionary powers to:

The Federal Court generally cannot:

The Federal Court's Discretion

The ADJR Act, s.10(2), grants the court a wide discretion (which reflects the common law discretion) to refuse any relief if:

In any event, all of the powers set out in s.16 of the Act are discretionary, the Court "may, in its discretion, make any or all of the following orders".

Summary: ADJR Act

Once:

However, as we have seen, the Federal Court may choose as an exercise of its discretion not to make the orders or declarations sought. The court will generally not make orders if:

Judiciary Act 1903 (Cth): Section 39B

In 1983, s.39B was inserted into the Commonwealth Judiciary Act granting the Federal Court:

is sought against an officer or officers of the Commonwealth.

The benefits of a section 39B application are well known [and summarised by Alan Robertson in a paper titled "Judicial Review and the Protection of Individual Rights", p 37 in Administrative Law, Does the Public Benefit, John McMillan, ed, Canberra 1992, published by the Australian Institute of Administrative Law].

The advantages are:

Other advantages of moving in the Federal Court is the ability to take advantage of a number of other possible sources of power, for example; section 21 of the Federal Court Act 1976 which provides:

"Declarations of Right

21. (1) The Court may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed.
(2) A suit is not open to objection on the ground that a declaratory order only is sought." (see, Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1993) 113 ALR 257)

and, section 32, which provides:

"Jurisdiction in associated matters

32. (1) To the extent that the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Court is invoked.

(2) The jurisdiction conferred by subsection (1) extends to jurisdiction to hear and determine an appeal from a judgment of a court so far as it relates to a matter that is associated with a matter in respect of which an appeal from that judgment, or another judgment of that court, is brought."

FREEDOM OF INFORMATION ACT ("FOI") FREEDOM OF INFORMATION ACT 1982 (Cth)

Description

The FOI Act came into operation in Australia in December 1982. It creates a legal right of access to information in the possession of most Commonwealth Departments and agencies. Certain agencies and categories of documents are exempt from disclosure.

Purpose

The purpose of the FOI legislation is summed up in s.3 of the FOI Act:

"3(1) The object of the Act is to extend as far as possible the right of the Australian community to have access to information in the possession of the Government of the Commonwealth by -
(a) making available to the public information about the operations of departments and public authorities and, in particular, ensuring that rules and practices affecting members of the public in their dealings with departments and public authorities are readily available to persons affected by those rules and practices; and
(b) creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities,"

Access to Documents

To gain access to government or "agency" documents as well as internal guidelines and certain policy papers, your application must be:

The application fee is $30 and there are other hourly and copying charges set out in the regulations.

The agency has 30 days from the date of receipt of the request to respond.

Exempt Documents

Some documents are exempt from being produced under an FOI request because of their relation to government competitive commercial activities, their character, or the nature of the information they contain. Exempt documents include:

Statement of Reasons

If an agency refuses to grant access to documents it must give the applicant notice in writing which states:

Reverse FOI

Where an application is made that seeks documents concerning a person's business or professional affairs, or business, commercial or financial affairs of a company, a procedure known generally as "reverse FOI" is activated under s 27 or in respect of a person's personal information under s 27A. Before any decision can be made to release documents caught by the request, the FOI officer must notify the person or company the subject of the document and afford them the (somewhat limited) opportunity to make submissions).

Review of FOI Decisions

Where refusal to grant access to a document has been made the applicant may seek internal review of that decision by the agency.

If the applicant remains unsatisfied after the internal review, an application may then be made to the AAT or the Commonwealth Ombudsman for a review or examination of the agency's decision.

Advantages of FOI

THE COMMONWEALTH OMBUDSMAN - OMBUDSMAN ACT 1976 (Cth)

Description

A public official appointed under the Ombudsman Act who investigates complaints about the administrative conduct of Commonwealth Departments and "prescribed authorities" (s.3).

Purpose

To provide a means of checking deficiencies in administration (maladministration) and providing, in effect, a back-up system of review of administrative processes and decisions.

Composition and Structure

The Ombudsman has offices in each State and Territory and a delegate in Tasmania. There are Assistant Ombudsmen in most States.

Who can Complain to the Ombudsman?

Any person, organisation or body may complain.

How do you Complain?

A complaint may be oral or in writing by the complainant personally or an agent or legal representative.

What are the Functions of the Ombudsman?

The Ombudsman is given the power to:

The Ombudsman may commence an investigation of his or her own motion.

He or she is not authorised to investigate, inter alia:

What Happens when a Complaint is Made?

The Ombudsman has a discretion not to investigate:

Preliminary Enquires

The Ombudsman may make preliminary enquires to assist him or her in the exercise of his or her discretion whether or not to investigate the complaint, s.7A.

If the Ombudsman Decides to Investigate

The Ombudsman:

The Ombudsman's Powers

These powers include:

Ombudsman's Reports

The Ombudsman has powers of recommendation only.

After an investigation of the complaint, the Ombudsman must make a report to the Department or prescribed authority, s.15. The complainant may receive a copy of the report or recommendation at the Ombudsman's discretion, s12(5).

If appropriate action is not taken pursuant to the report, the Ombudsman may report to the Prime Minister and both Houses of Parliament.

Advantages of Using the Ombudsman

THE COMMONWEALTH PRIVACY COMMISSIONER - PRIVACY ACT 1988 (Cth)

Description

The Privacy Act was enacted in 1988 with the Commonwealth relying on the external affairs power and Australia's obligations under the International Covenant on Civil and Political Rights and its status as a member of the Organisation for Economic Co-operation and Development ("OECD").

Under the Covenant, Australia undertook to legislate to give effect to:

"the right of persons not to be subject to arbitrary or unlawful interference with their privacy, family, home or correspondence."

As a member of OECD Australia agreed to implement certain recommendations of OECD concerning the protection of privacy and individual liberties.

Purpose

The Act establishes the office of the Privacy Commissioner within the existing structure of the Commonwealth Human Rights and Equal Opportunity Commission.

The Privacy Commissioner is an independent privacy guardian and is given powers to protect the privacy of individuals. He does this by investigating complaints with Commonwealth Departments and agencies and making reports, recommendations and, in some cases, enforceable orders against the government.

Structure

Commonwealth Privacy Commissioner : Mr Kevin O'Connor

Head Office is located in Sydney.

The Privacy Commissioner is an ex officio Commissioner of the Human Rights Commission and has human rights duties as well.

Functions of Privacy Commissioner

The Privacy Commissioner's functions under the federal credit reporting system commenced on 24 September 1991 when the Privacy Amendment Act 1990 (Cth) commenced.

The Privacy Commissioner has functions under the Data-matching legislation, assented to in February 1991. The Data-Matching Program (Assistant and Tax) Act 1990 (Cth) and the Data-matching (Assistance and Tax) Act 1990 (Cth) regulate the cross-matching of data between Commonwealth Departments for the purposes of the federal first-home owners' scheme.

Investigations

The Privacy Commissioner may investigate a complain of an individual or a representative complain of a number of persons concerning interference with privacy if the act or practice:

The Federal Court is empowered under the Act, s.98, to grant an injunction restraining a person from engaging in conduct that would or did contravene the Privacy Act. Any person, including the Commissioner may apply to the Court for this injunction.

NEW DEVELOPMENTS IN ADMINISTRATIVE LAW

Some recent developments relating to or having an impact on Commonwealth administrative law include the following:

  1. The demise of a very short-lived public law tort based on the constitutional principle of the rule of law and the long-standing Beaudesert Principle in the High Court of Australia decision in Northern Territory of Australia v Mengel, delivered 19 April 1995, (1995) 129 ALR 1; 69 ALJR 527. The decision holds far-reaching applications for the future development of government liability in Australia both in the areas of public law and private law remedies. It will repay careful study by government and administrative law lawyers for years to come. The most dramatic, widely published and unanimous finding of the High Court was that the long-standing principle in Beaudesert Shire Council v Smith (1966) 120 CLR 145 is now overruled. The principal was that independently of the law of trespass, negligence and nuisance, and by an action on the case, a person who suffers harm or loss as the inevitable consequence of the unlawful, intentional and positive acts of another is entitled to recover damages. The High Court took the opportunity to, inter alia:

    [See generally, my papers "Northern Territory of Australia v Mengel" and "Private Law Vs Public Law in Government Liability - Where is the Line Between Them?" in a BLEC Conference titled Government Liability in Public Law, May 1995.]

  2. A comprehensive review of the Commonwealth tribunal system in respect of merits review is completed. In December 1993, the Commonwealth Minister for Justice referred to the Administrative Review Council ("ARC") this extremely wide reference. The ARC reported in September 1995. The objectives of the reference were broadly to assess overall performance of the Commonwealth tribunals; identify the strengths of the system; and, make recommendations for development and adjustment of the system to enhance its performance. About 105 recommendations were made. A new Commonwealth Tribunal was recommended, to be styled the Administrative Review Tribunal (ART) - see flowchart attached. There is proposed a two-tiered structure and the second level administrative review would be strictly limited. We await the new federal government's response.

  3. On 1 September 1994 the major changes to the Migration Act 1958 took effect. These changes are fundamental and radical and a new judicial review scheme replaced the ADJR Act. In summary, the major changes include: The concept of standing ("person aggrieved") no longer applies. There is no provision for a request for a statement of reasons. Also not applicable is the ADJR requirement that the decision be in writing furnished to the applicant. Under the new s478(1)(b) of the Migration Act, the application to the Federal Court must be lodged within "28 days of the applicant being notified of the decision". There is simply no power to extend the time. Some of the traditional grounds of judicial review have been removed, eg procedural fairness and relevant/irrelevant considerations and unreasonableness.

  4. On 8 July 1994, the Commonwealth Attorney-General referred jointly to the Administrative Review Council ("ARC") and the Australian Law Reform Commission ("ALRC") an extremely wide joint reference on the scope and operation of the FOI Act. There was a joint issues paper published in September 1994 and the final joint report was published early this year titled Open Government: A Review of the Federal Freedom of Information Act 1982, [ALRC Report no 77; ARC Report no 40]

  5. The Commonwealth's Access to Justice Advising Committee Report (the Sackville Committee) 1994 had some interesting recommendations concerning judicial and administrative review.

  6. There are Commonwealth Bills to keep an eye out for including: the Legislative Instruments Bill 1994 which at the time of writing had finished being considered in Senate Committee, the Financial Management and Accountability Bill 1994 (to replace the Audit Act 1901) and the Commonwealth Authorities and Companies Bill 1994 (to regulate the activities of Government Business and Trading Entities).

  7. There is a new Security Appeals Division of the AAT. The Security Appeals Tribunal is abolished (it was established under the ASIO legislation).

  8. Following on from the Hilmer Report published August 1993, (Report By The Independent Committee Of Inquiry Into National Completion Policy) which recommended inter alia that government business or trading entities should not have the benefit of the shield of the Crown or of any special government status the various States and Territories executed with the Commonwealth the Competition Principles Agreement dated 25 February 1994 which provides for inter alia, a competitive neutral policy for the elimination of resource allocation distortions arising out of the public ownership of entities in significant business activities. The principal tenet, in clause 3 of the Agreement, is that "Government businesses should not enjoy any net competitive advantage simply as a result of their public sector ownership." Respective governments are to adopt an appropriate corporatisation model and impose on the GBEs;

    On the same date the above Agreement was entered into, the same parties also entered into the Conduct Code Agreement (also made on 11 April 1995) which has as its object that complementary competition laws and policies apply throughout the country to all businesses irrespective of ownership. The agreement and subsequent legislation requires the said businesses to be subject to the new Competition Code (which is now found at a Schedule to the Trade Practices Act 1974 (Cth)). As far as I am aware, the provisions applying national competition law to State and Territory businesses commences on 20 July 1996 - see generally, Russell Miller's book, Annotated Trade Practices Act, 17th ed, 1996, where the above agreements and many of the legislative changes are reproduced and explained. As I understand it, the Competition Policy Reform Act 1995 (Cth) was assented to on 20 July 1995; the Competition Policy Reform (New South Wales) Act 1995 (NSW) is to become largely operational on 20 July 1996; and the Competition Policy Reform (Victoria) Act 1995 (Vic) operates on and from the same date.

    The implications for public law issues are enormous. However, just how the various States and Territories will implemented the agreements remains to be seen. Exemptions will be found and the details will become intricate. Not all entities will fit within the scheme (see, for example, the Sydney Water Corporation Limited which is corporatised but remains subject to the New South Wales' Ombudsman Act, freedom of information legislation, ICAC and the scrutiny of the Public Accounts Committee. The part that public law will play in all of this competition reform remains to be seen.

  9. The Australian Law Reform Commission is presently working of a reference titled "Review of the Adversarial System of Litigation", which it received in November 1995. It will report by September 1998. The Commission will look at civil litigation and administrative law procedures in civil code jurisdictions.

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