Law Essay Help Samples : Australia Administrative Law

Australia Administrative Law
Law Essay Samples

Running head: AUSTRALIA ADMINISTRATIVE LAW

 

 

 

 

Australia Administrative Law

Law Distinction

As a matter of fact, one of the terms 'check', 'control' or 'render accountable' has a single clear meaning: there are several ways of checking and controlling and several types of accountability. Here we are mainly concerned with Australian law and with Australian legislative, legal and political institutions: despite the fact that in constitutional and legislative terms the Australia is, for many purposes, a single unit. We should resist the temptation to think of the law as a closed set of rules and principles, and should strive to see it as a setting in which the business of politics and government is carried on. And, it should always be remembered that control is a negative and parasitic activity. What citizens expect above all of governments is that they should achieve desirable ends.

 

The Nature of Jurisdictional Fact

Laws and institutions primarily provide governments with one (but not the only) means for achieving such ends; their function as tools for controlling government activity is only secondary. This positive facilitating function should not be lost sight of in our study of the negative controlling function. Just as laws and institutions are not the only means of controlling governments, so too they are not the only means available to governments for achieving their policy goals. The focus, then, is on legal control of government by the courts.

 

This takes two forms:  government officials and bodies, like citizens, are liable to be sued for torts, breaches of contract, breaches of trust, and so on. (Philip Bell, Roger Bell, 1998) Many of the activities of government are also subject to what is called 'jurisdictional review'. Both of these forms of jurisdictional control are basically retrospective--they are concerned primarily with cure (dispute resolution), not prevention (dispute avoidance). Prospective methods of regulating (that is, controlling) government activities will also receive some discussion. On the basis that prevention is better than cure, retrospective methods of control should be seen as having a secondary, although not unimportant, role. Jurisdictional control can also be described as 'external' control. (McNollgast, 2007) In many ways, external control is much less important than 'internal' or 'self' control. It is preferable for government, by training civil servants properly, by using sound management techniques, by carefully specifying the tasks to be performed by its employees and by monitoring their performance, to prevent the sorts of errors and mistakes which jurisdictional control deals with after the event. In this context, too, it is important to realize that law plays only a relatively minor role in regulating the exercise of government functions.

 

The Nature of Traditional Error and Its Various Types

Nearly all of the traditional errors considered for controlling government and redressing grievances are formal and institutionalized. In one sense this presents a misleading picture because only a small fraction of complaints against government is handled through such channels. Many more are dealt with (often much more cheaply and quickly) by direct, informal complaint to the official, department or body concerned by the aggrieved citizen, or by some body on his or her behalf such as an MP, local councillor, union,  pressure or interest group, or other voluntary organization. (Kenneth M. Holland et al., 1996) Formal institutionalized procedures generally attract more publicity than informal ones, the outcome of individual cases can influence the outcome of a large number of other complaints or potential complaints. (McNollgast, 2007)

 

Secondly, decisions about the legality or propriety of past administrative action may influence the way administrators deal with similar cases in the future; and the threat of publicity may contribute further to the deterrent effect of formal complaints procedures.

 

Thirdly, the respect in which the courts are held gives their decisions an influence out of proportion to the number of cases they deal with. Fourthly, because decisions of the courts are often elaborately reasoned and reported in law reports, they are crucially important in developing the concepts and rules of common law which define the limits of lawful administrative action. The courts do not hear a large number of cases, but they are the major source, apart from Parliament, of the legal rules governing administrative action. Legal rules are a very important part of the 'instructions' according to which administrators exercise their powers. (Bernard Schwartz, 1962) Legal rules are by no means the whole of the instructions--departmental policy guidelines, for example, play a large part--but legal rules are of considerable importance because they are binding and authoritative.

 

Error of Law On The Face Of the Record

Writers on Australian administrative law are not all in agreement about the best way of approaching the study of the legal control of administrative action. Some people think that the error of law cannot be properly understood unless it is studied against the background of a particular area of lawmaking activity such as housing or immigration, in order to see how the general rules are used to deal with particular problems. On the other hand, other people think that general rules, such as the rules of natural justice, which apply across the whole range of administrative activities, can usefully be examined and discussed in their own right. (David Hunter et al., 2002)

 

An analogy can be drawn with study of the law of contract: books are written both on particular types of contract, such as contracts of agency or sale, but also on the general principles of the law of contract. Indeed, judicial control is relatively so rare and sporadic that there are too few court decisions relating to most areas of government activity to establish a detailed code of judge-made regulation governing those activities. The chief importance of the cases is that they illustrate general principles. This does not mean that the context in which the general rules operate can be ignored, and sometimes it will be crucial. (Ian Loveland, 1995) But there is much that can be usefully said about the way in which lawmaking activities generally are controlled by law, particularly when considering the relationships between different branches of government. We have seen that different views can be held of the role of the courts in this area, but all these views have one thing in common: they see the prime function of judicial control as essentially negative, namely to ensure that lawmaking bodies do not overstep the proper bounds of their powers and to protect the rights of individuals and the interests of groups and of the public against undue encroachment by government agencies. The function of the courts is not seen as being to ensure, in a positive way, that administration is well conducted, that government policy objectives are achieved and that the country well run. In other words, the judicial function is complaint or grievance handling rather than complaint avoidance.

 

Broad/Extended Jurisdictional Error in Australia

Administrative law in Australia lies at several intersections, crossing the boundaries of political theory and political science, of public law and public administration. As the body of law governing governments, the future of Australia administrative law rests in expanding knowledge about how law and legal institutions can advance core political and social values. Democratic principles will continue to dominate research in administrative law in Australia, as will interest in the role of courts in improving administrative governance. There are, indeed, two features of jurisdictional error which make it less than ideally adapted to the function of ensuring administrative efficiency and securing that the policy goals which the powers of the administration are designed to effectuate are achieved as thoroughly as possible as seen in Anisminic Ltd v. Foreign compensation Commission 1996. (James Salzman, 2000) The first is the unsystematic nature of jurisdictional error: the courts reviewed the activities of government only when asked to do so, within time, by an applicant with the required interest in the outcome of the review. Jurisdictional error cannot be used to conduct wide-ranging and coordinated investigations into the conduct of government business. Secondly, jurisdictional error is essentially retrospective: it is primarily concerned with past conduct, and its effect on the future conduct of the administration is incidental. (McNollgast, 2007) The importance of this point should not, however, be over-estimated. Judicial decisions in individual cases may have a direct knock-on effect in other similar cases and a widespread indirect effect if they establish rules and principles for dealing with particular types of case or situation.

 

Constitutional Constraints and Limitations

Yet administrative law in Australia can and should expand to meet new roles that government will face in the future. Ongoing efforts at deregulation and privatization may signal a renegotiation of the divisions between the public and private sectors, the results of which will undoubtedly have implications for administrative law in Australia. Administrative law in Australia may also inform future governance in an increasingly globalised world, providing both normative and empirical models to guide the creation of international administrative institutions that advance both public legitimacy and policy effectiveness. No matter where the specific challenges may lie in the future, social science research on Australian administrative law will continue to support efforts to design governmental institutions and procedures in ways that increase social welfare, promote the fair treatment of individuals, and expand the potential for democratic decision making. It has also been suggested that there can be gleaned from the reports of the ombudsmen, over the years, certain principles of good administration which could provide guidance to administrators as to how to behave and which constitute a sort of citizens' charter of rights to good treatment at the hands of the administration. (Stephen Kobrin, 1998) Nevertheless, ombudsmen are primarily concerned with correcting the effects of maladministration and not with promoting good administration. It will be recalled.

There is, then, an important distinction between retrospective control of administrative action and prospective regulation to improve the quality of administrative decision-making and to minimize the number of complaints about it. This distinction is not a sharp one because techniques of retrospective control, in particular judicial review, can also generate constitutional prerequisites and principles of general application to the future conduct of administrators. In this respect it is useful to draw a distinction between judicial review for procedural shortcomings and judicial review for substantive errors, such as error of law or fact and abuse of discretion. Clearly, the constitutional prerequisites of natural justice which have been developed by the courts provide the administration with a general procedural blueprint which they would be wise to consider when deciding how to deal with the public.

 

However, of course, the application of those constitutional prerequisites is often unclear. In some constitutional constraints a challenge on the ground of breach of natural justice will not be of much general importance in guiding a decision-maker in how to conduct its affairs in the future because the dispute is simply one of fact as to what procedure was actually followed, or because it concerns the application to the facts of that particular case of an undisputed procedural requirement. But some constitutional constraints lay down important general principles of procedural propriety which may have an effect on the way a body conducts its affairs in the future. There is no doubt that in moulding these principles; the courts often have an eye on the future impact of their decisions.

References
Bernard Schwartz; An Introduction to American Administrative Law, Sir Isaac Pitman & Sons, 1962
David Hunter, James Salzman & Durwood Zaelke, International Environmental Law And Policy 1482 (2d ed. 2002).
Ian Loveland; Housing Homeless Persons: Administrative Law and the Administrative Process, Clarendon Press, 1995
James Salzman, Labor Rights, Globalization, and Institutions: The Role and Influence of the Organization for Economic Cooperation and Development, 21 MICH. J. INT'L L. 769 (2000).
Kenneth M. Holland, F. L. Morton, Brian Galligan; Federalism and the Environment: Environmental Policymaking in Australia, Canada, and the United States, Greenwood Press, 1996
McNollgast; The Political Economy of Law, Handbook of Law and Economics, Volume 2, 2007, Pages 1651-1738
Philip Bell, Roger Bell; Americanization and Australia, University of New South Wales Press, 1998
Stephen Kobrin, The MAI and the Clash of Globalizations, 112 FOREIGN POL'Y 97, 97-98 (Fall 1998).