Australian Administrative Law Issues - Essay Example

? Australian Administrative Law Australian Administrative Law Introduction Administrative law is a section of law governing activities of various governmental organizations. In any country, the government has a number of agencies that it uses in administering the laws of that particular country (Hocking & Guy, 2010). The agencies’ involvement in law include areas such as making rulings on cases in court, adjudication, and/or enforcement of certain guidelines as stated in a country’s constitution (Hocking & Guy, 2010). Administrative law is, therefore, a section of public law. In Australia, for example, administrative law involvement in decision-making cuts across tribunals, commissions formed by the government, and boards that act as part of law regulatory schemes in the country (Hocking & Guy, 2010). Principles of the ground review in Australian Administrative law (AAL) In the process of answering questions raised in workshop two of the Workshop Guide, it is necessary to understand the application of administrative law in Australia (Hocking & Guy, 2010). The AAL gives a work frame of the powers exercised by law agencies in Australia regarding the constitutional rights of the public (Hocking & Guy, 2010). Currently, Australia has a well-established Ombudsman system. It also promotes freedom of information to its citizens. Legislation governs the freedom of access to information by all people and their constitutional rights exist. The formation of legislations came as a way of grounds review brought about by western development (Hocking & Guy, 2010). In further understanding of the principles of administrative law in Australia, events experienced in the factual scenario in workshop two are vital. In this case, the complainant is Miss Lister. It is stated in the beginning that Miss Lister is not an Australian by birth, but she is of Samkan nationality. She was using her Visa while visiting Australia (Hocking & Guy, 2010). Further, in the brief of this case, it is evident that she was a refugee due to persecution that took place in her home country due to her ethnic background (Hocking & Guy, 2010). Despite the fact that Lister is not an Australian, the administrative law allows her to seek for the country’s protection under section 36 of the Migration Act (Hocking & Guy, 2010). The migration act states that upon reception of Australian Visa, the government must offer the applicant protection assuring him or her of security inside the country (Hocking & Guy, 2010). In case the applicant has fears of possible persecution in his or her country of origin on grounds of race, nationality or any other social and political stand, the country should offer protection. It is due to these articles in Australian law that Lister was using in her petition (Hocking & Guy, 2010). Miss Lister defends herself by claiming that if she happens to go back to her country, she would face persecution due to her Gonstranian ethnic background (Hocking & Guy, 2010). The case under which Miss Lister arguments lie was due to grounds review that took place in Australia’s law. The minister for migration, however, rejected the application citing inadequate evidence. Miss Lister used the law review act in the Australian law guide to appeal against the decision (Hocking & Guy, 2010). Under section 32 of the law, Refugee Review Tribunal (RRT), a mandate to assist refugees, seeks justice after rejection of their applications. In respect to this provision in the law, RRT performed its duty and provided more material as evidence to support the complainant’s claims (Hocking & Guy, 2010). The evidence included documents from Samkan government and newspaper from media houses showing the extent of persecutions taking place in the country and the reasons. RRT has also powers to determine the case in favor of refugees after looking at the evidence available (Hocking & Guy, 2010). The RRT decision After looking at the evidence provided and the information from its tribunal, RRT exercised its duties to give its judgment on the matter. RRT ruled out that Australian government had to offer protection to Miss Lister on grounds of her fears (Hocking & Guy, 2010). RRT confirmed that there were grounds to believe in the evidence provided. In order to understand the RRT decision, in this case it is necessary to understand the type of decision required in this case and what Administrative law states about such a case (Hocking & Guy, 2010). Procedural fairness This refers to the principle of ordinary justice to all citizens. The issues regarding procedural fairness originated from the common law which related closely to the traditions of natural law in Australia (Bauman & Kahana, 2006). The law demands that all parties in any case proceedings must have a fair treatment in all the stages of court proceedings (Bauman & Kahana, 2006). The rights enjoyed by the plaintiff and complainant exist in administrative decision-making atmosphere but in exception of cases where the case involves the state itself (Bauman & Kahana, 2006). Due to economic and technological developments in Australia, and the need to emphasize justice to all citizens, procedural fairness has found extension in dealing with cases whose objective it safeguarding personal interests (Bauman & Kahana, 2006). This means that issues of procedural fairness has found use in cases of employments, reputation and other commercial interests (Bauman & Kahana, 2006). In the factual scenario in Workshop Guide, the issue of procedural fairness is evident. The complainant in the case Ms Lister has a privilege of enjoying fairness in all the stages of filing a case against the government. Ms Lister is of Samkan origin yet she was able to apply for protection by the Australian government. She arrived in Australia as a refugee and files a case demanding protection as stated in Australia’s Migration Act 2000. In the factual scenario, there is no mentioning of an advocate in the case representing her (Hocking & Guy, 2010). This shows that she had procedural fairness advantages on her, hence, was able to file the case and eventually appeal after the first attempt’s rejection (Hocking & Guy, 2010). Part B ( Qn 6) A statement relating to PRIVATIVE CLAUSES AND JURISDICTIONAL ERROR A privative clause refers to necessities in statutes which prevent the potential of certain forms of executive review. They have the capability of altering the certiorari for purposes of preventing decisions that relate to quashing of tribunals (Bauman & Kahana, 2006). Such clauses are evident during legislation, and usually prohibit courts from performing various actions such as examining whether various administrative decisions are lawful or not. In migration tribunals, they are useful for forbidding reviews by courts or persons intending to do so. An example of a privative clause is that contained in section 474 of the Migration Act 1958 (Bauman & Kahana, 2006). The clause articulates that a privative clause should maintain privacy in times of decision-making. A decision from a private clause is to remain final and unaltered. It should be irrefutable in nature, maintaining appropriate features that include lack of appeal plus challenge from any individuals or court (Bauman & Kahana, 2006). It is possible to reveal a privative clause by recalling the 2003 opinion created by justice Dixon (Grooves, 2008). The case involved Hickman and another participant in which the judge made a sound decision that relates to the privative clause plus judicial error (Grooves, 2008). The clause that relates Hickman consists of facts that are capable of joining provisions that provide conflicting situations that are constitutional in nature. From the clause, it is evident that there is concentration on the need of performing an elucidation for every clause that is privative in nature (Grooves, 2008). The clause indicates that if a conflict exists between a clause that is privative in nature, and a constitutional provision presenting confines to power, that there must be an inclusion of reconciliation efforts to the existing provisions (Grooves, 2008). In order to conduct an interpretation, a succinct process is a requirement. This will ensure that the clause undergoes an interpretation that coincides with the constitutional requirements (Grooves, 2008). As Hickman case suggests, the parliament’s aim is not to reduce the court’s jurisdiction in matters relating to the jurisdiction. Dealing with the entire legislation means considering both legislations instead of emphasizing on the privative clause alone. Concentrating on the privative clause alone would be a wrong decision concerning the interpretation procedure (Grooves, 2008). During the interpretive process, there must be considerations that concern word choice in order to incorporate certain aspects of joint judgment. Expressions must have a frame that reveals the meanings of observance to boundaries. Compliance with various specifications is essential for complying with joint judgment requirements (Grooves, 2008). References Bauman, R. W., & Kahana, T. (2006). The least examined branch: The role of legislatures in the constitutional state. Cambridge: Cambridge University Press. Goldsworthy, J. (2011). CONSTITUTIONAL IMPLICATIONS REVISITED. University Of Queensland Law Journal, 30(1), 9-34. Gouliaditis, N. (2010). PRIVATIVE CLAUSES: EPIC FAIL. Melbourne University Law Review, 34(3), 870-885. Grooves, M. (2008). SUBSTANTIVE LEGITIMATE EXPECTATIONS IN AUSTRALIAN ADMINISTRATIVE LAW. Melbourne University Law Review, 32(2), 470-523. Groves, M., & Lee, H. P. (2007). Australian administrative law: Fundamentals, principles and doctrines. Cambridge [u.a.]: Cambridge Univ. Press Head, M. (2008). Administrative law: Context and critique. Leichhardt, N.S.W: Federation Press. Hocking, B., & Guy, S. (2010). Constitutional and Human Rights Disturbances: Australia’s Privative Clauses Created Both in an Immigration Context. Human Rights Review, 11(3), 401-431. doi:10.1007/s12142-009-0146-y Reilly, A. (2009). FINDING AN INDIGENOUS PERSPECTIVE IN ADMINISTRATIVE LAW. Legal Education Review, 19(1/2), 271-287. Stuhmcke, A. (2008). Changing Relations between Government and Citizen: Administrative Law and the Work of the Australian Commonwealth Ombudsman. Australian Journal Of Public Administration, 67(3), 321-339. doi:10.1111/j.1467-8500.2008.00590.x Vrachnas, J. (2012). Migration and refugee law: Principles and practice in Australia. Port Melbourne, VIC: Cambridge University Press. Read More