Administrative Law in Australia - Essay Example

Administrative Law Name Institution Date Administrative Law Introduction Administrative law in Australia defines the scope of powers and responsibilities that administrative bodies of Australian government have. The current administrative law is principally as a result of increasing concern regarding control of bureaucratic decisions within 1960s1. The administrative law reforms include the establishment of universal appeals tribunal to assess some administrative decisions on their value, appointing of a Commonwealth ombudsman2, changes to the processes and standards regarding judicial review of administrative action, the ratification of freedom of information legislation in addition to the establishment of an advisory body for monitoring new system of administration law. Administrative law deals with the activities of the executive branch of government and this includes ministers as well as public servants. Within the Australian federal system, the power of courts of reviewing executive activities is derived from the constitution, which consent s a minimum level of judicial review, as well as from statute. Judicial review is one aspect of a wider system of administrative law which also embraces merits review. The fundamental nature of administrative law is that it falls to courts, tribunals and autonomous review bodies to arbitrate disputes between individuals and corporate bodies (as claimants) and government agencies and officers (as defendants)3. Reforms and Achievements Administrative Investigation With the new administrative law, the Commonwealth Ombudsman has the authority of investigating complaints regarding the administrative activities and decisions of most Australian governmental bodies to find out if they are incorrect, against the law or inequitable. Under the Ombudsman Act, the Ombudsman has the power of investigating complaints regarding government contractors providing goods and services to the public under a contract with a government organization. Ombudsman investigation as well as review is automatically available for all administrative and decision-making procedures of government bodies in the Ombudsman’s jurisdiction and it is not a must that it should be specified within legislation4. In addition, other Australian government bodies might have an investigative role similar to Ombudsman. For example, a Commissioner, under the guidance of the Human Rights and Equal Opportunity Commission might investigate in Commonwealth administrative activities conform to human rights or are anti-discriminatory. Human Rights and Equal Opportunity Commission is responsible for resolving complaints through pacification. Basically, commissioner can make reports to the appropriate authority and this includes compensation payments. After Human Rights and Equal Opportunity Commission finalizes a complaint, applicant may have the right of making applications to the Federal Court: Federal Court has the power of making various orders regarding the complaint in case the court establishes that discrimination has taken place5. Judicial Review The basis for changing administrative action was developed at common law and has been systemized within the Administrative Decisions (Judicial Review) Act 1977. One of the most key aspects of common law systems are that judicial review is carried out through the “ordinary land courts” and there are no unique administrative or constitutional courts6. This principle stipulates that there should be “equality before the law”. Basically, superior courts of general jurisdiction have intrinsic authority in reviewing administrative activities. Sec 75 of the Australian constitution stipulates that the High Court has fundamental authority in issues, whereby the Commonwealth or an individual being taken a legal action against or taking a legal action on behalf of the Commonwealth is a party and in which a sanction is sought against a Commonwealth official7l. In addition, Section 75 prevents the federal government from having the authority to remove the jurisdiction of the High Court without first having a Constitution amendment through a referendum. Section 75 significantly prevents the earlier authority of the High Court of being removed through a private clause that can get in the way of any judicial review of an administrative act8. The ADJR Act was designed to overcome several technical matters allied to obtaining writs under Section 75(v). The ADJR Act sought to systemize judicial review codes and reform the procedures, with the aim of providing a simple option to the conventional, composite judicial review procedures under constitutional judicial review. In addition, ADJR Act introduced a duty for decision makers to give a written statement of reasons following a requisition. It does not focus more on the availability of remedies but focuses on a breach of a ground review. ADJR Act gives an automatic right to judicial review of application of a statutory discretion, unless legislation exclusively exempts such decisions from ADJR review9. The ADJR Act is applicable to decisions as well as acts involved with the purpose of making a decision. The courts have ruled that decisions that are applicable to ADJR Act should be ultimate and operative and that acts refers to undertakings preceding decisions that reveal a faulty administration procedure. Additionally, the ADJR Act necessitates that a decision should be made under an enactment and this exempts review of non-statutory decisions. It might encompass an administrative tool where it is made pursuant to statue. The courts have construed the requirement for a decision to be made under an enactment restrictively; necessitating a connection between the decision to be reviewed and a power bestowed by an enactment to make that decision10. This test has been illustrated in different ways. In the case Griffith University v Tang High Court ruled that a decision can only be made, under an enactment for ADJR Act purposes if it obtained from the enactment the ability to impact legal rights and responsibilities or obtained its legal effect from statue11. One of the key advantages of the ADJR Act is that it does away with some of remedial intricacies still allied to constitutional review. The ADJR Act arrangement implies in case an applicant ascertains that the court has jurisdiction under the Act and that there has been a fault in regard to decision making, the court can issue any of the remedies with Section 16. In addition, the Act bestows the Federal Court as well as the FMC broad powers to made orders for substantive reprieve. Basically, remedies are similar to the ones in the constitutional judicial review, irrespective of the court dealing with the issue, devoid any constraints allied to the nature of the error or if it is in the record or not. Particularly, in Section 16, the court can grant an order to squash the decision or a part of the decision, from the date the court specifies. What’s more, the court has the power to make orders of matters within its jurisdiction, encompassing interlocutory orders, and to issue, writs of such forms, as the court deems suitable. The significance of the role that courts and review bodies play has increased significantly. The judicial principles have given emphasis to the legal accountability of ministers in the judicial arena. As a result, the judicial now plays a neutral and unbiased role, of resolving all individual disputes in accordance with the law12. The ADJR Act did some vital things which include; It did away with the technical prerequisites of the prerogative writs. The available remedies were extended and the doctrines associated with standing have been made simpler. The Act in a simple way provides the grounds that can ascertain error or law The Act enforces a duty on most decision-makers to provide reasons for their decisions. The ADJR Act has facilitated open administrative decision-making. The key influence of the Act is on the initial decision-making in that it guides the key decision-makers. In that role, due to its simple characterization of the review grounds, it has brought important impacts. This advantage extends to lawyers advising clients since it offers a simple foundation for the advice. The Act is what led to the development of the administrative law within Australia. The Act also enforces a duty to provide reasons aiding an application for common law judicial review and ADJR Act. Additionally, ADJR Act has developed its own jurisprudence. The Act also provides more discretion within the remedies that might be awarded that the common law. Specifically, decisions can be set aside according to the court’s specifications and problems of voidness versus invalidity have been eliminated13. Increased Legislation The number of pages of Commonwealth legislation voted for yearly has risen considerably since 1990 and this can be attributed to the administrative law. Increased legislation detail makes the intended statue operation clearer and more certain and lessens the need for frequent judicial interpretation. Additionally, there have been changes in legislation formatting and the government has started focusing more on legislative solutions to policy problems. The increased legislation has led to increase in the volume of discretionary decisions that public officer make. The increased legislative mechanisms have led to arise of a new phenomenon; hybrid mechanisms which naturally form legislative and administrative altering the difference between legislative and administrative activities of the executive14. Ombudsman The first Australian Ombudsman was appointed in 1971, within Western Australia while the second one was in 1972 in Queensland and third one in 1974 within South Wales. Legislation to set up an office of Commonwealth Ombudsman was enforced within 1976 and the first Commonwealth Ombudsman started operating on 1st July 1977. The conception of an Ombudsman is an independent individual who can investigate and solve disputes between citizens and government and is perceived as a fundamental accountability apparatus within democratic societies. The office of the Commonwealth Ombudsman was set up by the Ombudsman Act 1976, and is the Prime Minister administers it15. Within 1971, the Commonwealth Administrative Review Committee issued a report proposing the set up of a Commonwealth Ombudsman. The committee recommended a new and distinct system of administrative law within Australia. It envisioned that the Ombudsman, courts and administrative tribunals, would play a significant role in evaluation of government administrative activities. The new administrative law has an ombudsman as the “common citizens’” custodian. Ombudsman Bill was introduced into Commonwealth parliament in 1975 but it was not ratified and was later reintroduced in 1976 and in 1977 a Commonwealth Ombudsman was appointed16. Basically, the Ombudsman position was established to ensure that departments and authorities are accountable, adaptive and sensitive to the needs of people17. From the time the Ombudsman office was established, it has received very many administrative complaints from people and made numerous reports and proposals to improve public administration. Ombudsman has ushered an age manifested by a re-defined relationship between citizens and the government. For a complainant, the heightened view of a favorable result following an investigation of a complaint has been noteworthy: the pattern within Ombudsman investigations is that about two thirds of complaints that are investigated are determined considerably or partly favors the complainant18. Basically, changes and developments within administrative activities and procedure are widely documented within all yearly reports of the Ombudsman. Additionally, the Ombudsman focuses on systematic problems within administration and in recent years has concentrated in investigating administrative hitches. For instance, Ombudsman over the last years has published reports such as: Issues Relating to Oral Advice: Clients Beware, 1997 and Report on Investigation of Administration of FOI in Commonwealth Agencies, 1999. The Senate Standing Committee on Finance and Public Administration in 1991 gave a positive assessment of the role of the Ombudsman. The verdict of the committee was that the Ombudsman has contributed positively to Australian public administration. Additionally, in 1997 the Ombudsman received a more glowing appraisal from the Prime Minister Howard which indicates that Ombudsman has played a significant role19. Generally, the Ombudsman’s office has provided Australians with more powers of challenging official activities that they deem as unfair or illogical. The Ombudsman acts as the citizens’ referee and hence resources imbalances and influence have been done away with and needless, cumbersome and at times insensitive bureaucracy of the government has been challenged20. Archives Changes in FOI brought some amendments to the parallel administration in gaining access to older records under Archives Act. The most key change in archives is the records timeframe. There before, most records were availed under the Archives Act, thirty years following the end of the year in which the archive was established. Currently, the time frame has changed from thirty years to twenty years. Cabinet notebooks that were previously availed after fifty years are now availed after thirty years. This reform is of most importance to the Australian intelligence community, whose records are principally not liable to FOI Act although not from Archives Act21. The Archives Act is applicable to “Commonwealth records” which at present is a property based model that focuses on who owns the record. The preservation of the archival record and the improvement of access to it for people enable people to verify their fundamental values and ensure their adaptation to changing circumstances22. Increase in the Number and Powers of Regulatory Bodies The number and powers of government regulatory bodies has increased with the administrative law. The regulation has concealed convectional taxation as well as spending powers of the government as a way of directing and controlling economic and social behavior. This is noteworthy to administrative law in that the ones who will be impacted by regulatory decisions will normally be corporations and not people and might have diverse approaches to lawsuits and a dissimilar power relation to the government decision makers. Future Directions that Administrative Law might take Likely future directions of the administrative law might entail rationalization of the sources of judicial review. The probable alternatives for future directions for judicial review within Australian framework might involve: A less limiting ADJR Act A new general statute to align constitutional and statutory review A modest statutory scheme founded on Sec 39B of the Judiciary Act, Maintaining various statutory review mechanisms and availing policy guidance applicable to each and every statutory mechanism. Additionally, there have been debates regarding if judicial review should be extended to decisions of all bodies that exercise public power instead of only public bodies. Whereas ADJR Act seems to be adequately extensive by being applied to decisions under an enactment, the courts have not yet supported the idea that ADJR Act should be applied to decisions of non-governmental bodies even though such bodies exercise public power. In this regard, in future, judicial review may extend to private sector bodies because there have been proposals that decisions made by private bodies which has statutory effect should be subjected to judicial review. The case is demonstrates why decisions made by the private bodies with statutory effect bring issues for judicial review. Conclusion Through the new administrative law, Australia now has well established ombudsman systems, codified judicial review, tribunals as well as freedom of information legislation. Developments in the new administrative law establish a foundation for a new code of a responsible government; the administrative law enabled the executive to be responsible and accountable for all its actions to the citizens, in particular the people affected by their decisions. This responsibility is not just enforceable through the Parliament but is also a direct duty. Additionally, public servants now have a direct personal responsibility on how they conduct themselves, not just a derived duty through their Minister and Parliament. References Commonwealth Ombudsman, < http://www.ombudsman.gov.au/pages/about-us/our-history/>. Retrieved on 19th September 2012. Douglas, Roger, Douglas and Jones's Administrative Law (Federation Press, 6th Ed, 2009). John Griffiths, Australian Administrative Law: Institutions, Reforms and Impact, (The Administrative Review Council, 2007). Justin, D., The state of play in administrative law: Reforms to the information access landscape, (Blackall Street Barton, 2008). Piotrowksi, Suzanne, Public Administration Review, (Lexington Books, 2009). McMillan, John, Twenty Years of Open Government, (Australian National University, 2004). Santow, E., Australian Administrative Law, (Cambridge University Press, 2010). Terrill, Greg, The Rise and Decline of Freedom of Information in Australia, (Palgrave, 1998). Griffith University v Tang Shanahan v Scott (1957) 96 CLR 245 Administrative Decisions (Judicial Review) Act 1977 ADJR Act Ombudsman Act 1976 Sec 39B of the Judiciary Act Read More