Australia: Good government – keep up with your admin (law)

WHO SHOULD READ THIS

  • Government, government-owned corporations and anyone potentially impacted by government decisions.

THINGS YOU NEED TO KNOW

  • Decisions of an administrative character that are made under an enactment may be open to judicial review.

WHAT YOU NEED TO DO

  • Be mindful of proper decision-making processes as they may impact the validity of decisions made by you or that impact your rights.

Administrative law is concerned with upholding the standards of executive government decision-making. Grounded in the principle that public authorities and officials must act within the law, the administrative law framework seeks to balance the interests of individuals and the collective interests represented by governments.1

The ultimate aim of administrative law is good government according to law, including ideals of openness, fairness, participation, accountability, consistency, rationality, accessibility of judicial and non-judicial grievance procedures, legality and impartiality.2

Administrative law provides four key avenues for challenging administrative decisions:

  • judicial review, in which the court evaluates the legality of a decision
  • merits review, typically before a tribunal, by which all aspects of a decision are independently and impartially reconsidered
  • independent investigation and reporting on complaints made to ombudsman about incorrect or unjust executive actions by public officials, and
  • access to government documents through Freedom of Information legislation, which requires agencies to publish certain categories of information.

In this article we focus on judicial review and consider: What decisions are subject to judicial review by a court? Future publications will address: What can a court do and in what circumstances?

Judicial review

In a judicial review application, the Court is asked to consider whether the actions of a public authority are performed in accordance with the applicable administrative processes and principles, and are within power.

At the federal level, the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) is the primary source of judicial power, establishing a single form of proceeding in the Federal Court of Australia for judicial review of administrative decisions made by Commonwealth officials under statutory authority. Similar legislative provisions establish the scope of like powers within the States and Territories.

Grounds for review

In exercising its judicial review powers, the Federal Court is concerned only with the legality of the administrative action, and save for certain narrow grounds, has no regard to its merits. Judicially reviewable errors of law may manifest in:

  • breaches of the rules of natural justice
  • breaches of the rules of procedural fairness (namely, the hearing rule, the bias rule and the 'no evidence' rule)
  • decisions not authorised by enactment
  • improper exercises of power, for example by way of taking an irrelevant consideration into account, failing to take a relevant consideration into account, improper purpose, bad faith, unreasonableness, uncertainty or abuse of power
  • errors of law on the face of the record
  • fraud, and / or
  • lack of evidence.

What is a reviewable Commonwealth decision?

Aside from a ground for review being present in a decision, in order for it (i.e. the decision) to be subject to judicial review, it must be:

  • of an administrative character, and
  • made, proposed or required to be made (whether in the exercise of a discretion or not) under an enactment, by a public authority.

Administrative character

Decisions which are 'of an administrative character' are distinguished from legislative decisions (that is, the exercise of delegated law-making power) and judicial decisions (that is, determination of questions of law and fact in relation to disputes by reference to established rules or principles).

As the Full Court of the Federal Court's noted in Federal Airports Corporation v Aerolineas Argentinas,3 general tests for characterisation of acts as either administrative or legislative are unfortunately of limited utility. As administrative and legislative acts can be difficult to differentiate, characterisation must turn on the context and subject matter of the exercise of power. By way of example in Aerolineas Argentinas, the Federal Court at first instance and on appeal held that the determination by an entity of the landing charges administered under the Federal Airports Corporation Act 1986 (Cth) was an administrative decision, rather than simply an aspect of the legislation under which the airport was administered.

This example shows that, while general tests can be problematic, it is helpful to consider whether a decision establishes new rules, guidelines or general standards, or whether it applies rules to a particular case. The latter such exercise will often be characterised as administrative.

Made under an enactment

The ADJR Act defines the term 'enactment' in terms which include Acts of Parliament and extends to instruments such as rules, regulations or by-laws made under an Act or ordinance.

The seminal case on this limb of the reviewability test is Griffith University v Tang,4 in which the High Court settled prior confusion about the correct construction of the phrase 'under an enactment' in the ADJR Act. In that case, the act in question was a decision to exclude Ms Tang, a Griffith University PhD student, from PhD candidature following findings of academic misconduct. The university argued that the decision to exclude Ms Tang was not reviewable because it was made under the policies of the university, rather than a legislative instrument.

The Supreme Court, and later the Court of Appeal, found in favour of Ms Tang, holding that the decision was made 'under an enactment' (namely, the Griffith University Act 1998 (Qld) which governs the university).5 However, the High Court reversed those decisions, and found that in order to be 'made under an enactment' a decision must:6

  • be expressly or impliedly required or authorised by the enactment, and
  • itself confer, alter or otherwise affect legal rights or obligations.

The Court held that the decision to exclude Ms Tang from the PhD program was not in fact 'made under an enactment' in circumstances where the university's decision did not satisfy the second limb of the test above. The majority agreed with the university's argument that there had subsisted between the parties no legal rights and obligations under private law which were susceptible of affection by the decision in question. Instead, there was at best a consensual relationship, the continuation of which was dependent upon the presence of mutuality. Because the relationship between Ms Tang and the university was based on mutual consent rather than a legally classified relationship, the decision had no legal effect.

Conclusion

It is vital that public decision-makers, including Commonwealth government officials, are aware of the circumstances in which their decisions may be vulnerable to judicial review under the ADJR Act.

McCullough Robertson continues to monitor developments in the administrative law space.

In particular, we look forward to providing updates on the Government Procurement (Judicial Review) Bill 2017 (Cth), if / when it is passed by Parliament. The Bill seeks to establish an independent and effective complaints mechanism for Commonwealth procurement processes. If passed, the new laws will enable the Federal Circuit Court of Australia and the Federal Court of Australia to grant injunctions or order payments of compensation in relation to a contravention of the relevant Commonwealth Procurement Rules, so far as those rules relate to a covered procurement.

Footnotes

1 Creyke, R, McMillan, J and Smyth, M, Control of Government Action (LexisNexis Butterworths, 4th ed, 2015) 36.

2 Mark Aronson and Matthew Groves, Judicial Review of Administrative Action (Thomson Reuters, 5th ed, 2013) 1.

3 (1997) 76 FCR 582.

4 (2005) 221 CLR 99.

5 Tang v Griffith University [2003] QSC 022, [25]; Tang v Griffith University [2003] QCA 571, [31].

6 Griffith University v Tang (2005) 221 CLR 99, 130.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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