Democracy: accountability & administrative law ACMA Legal Branch International Training Program Melbourne, 4 September 2006

Democracy and administrative law Three arms of Government accountable for decisions made: 1Legislature (Parliament) 2Judiciary (Courts) 3Executive (Administration eg ACMA) Administrative Law deals with the processes by which administrative (ie governmental) decisions are able to be reviewed or challenged by those subject to such decisions. Rule of law, administrative law = accountability crucial to democracy.

Traditional principles of decision making One of the most important traditional legal principles which government decision makers must follow when making administrative decisions is NATURAL JUSTICE Often also referred to as the principle of ‘procedural fairness’. These terms are often used interchangeably. 3 elements: – HEARING RULE - person is entitled to a hearing before a decision affecting him/her is made – RULE AGAINST BIAS - person is entitled to have such a decision made by an unbiased decision maker (‘rule against bias’) – LOGICALLY PROBATIVE EVIDENCE - decisions must be based on logically probative evidence

Forms of review If a person affected by an administrative decision is dissatisfied with it legislation often allows him or her to apply for review of that decision. There are 3 kinds of modern administrative law review: 1.Administrative/Merits review 2.Judicial review 3.Ombudsman review

Administrative review Administrative review is concerned with what the decision is, not how it is made. Administrative Appeals Tribunal Act 1975 (Ch). The function of the Administrative Appeals Tribunal (AAT) is to review certain decisions made by Commonwealth officers and authorities.

Administrative review: right of review Not a general right of review. AAT’s power to review certain decision granted by statute for example: – Telecommunications Act 1997 – Broadcasting Services Act 1992 – Radiocommunications Act 1992 – Freedom of Information Act 1982

Administrative review remedies Remedies available at the AAT include: affirm the decision; or vary the decision; or set aside the decision; or substitute the decision; or remit the matter back for reconsideration.

Judicial review Judicial review concerned with how the decision is made, not what the decision is. Administrative decisions (Judicial Review) Act 1977 (ADJR Act). Review in Federal Court or High Court of Australia. Also have older forms of review under Judiciary Act 1903 (Cth) and the Constitution eg certiorari, prohibition, mandamus and injunction & need standing.

Judicial review: reviewable decisions Under the ADJR Act a ‘person aggrieved’ may seek to review: a)decisions to which this Act applies; or b)conduct, previously engaged in, being engaged in, or proposed to be engaged in for the purpose of making a decision to which the Act applies or c)failure to make a decision by a person who has a duty to make a decision to which the Act applies.

Judicial review: what type of decisions? ‘a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment... other than a decision of the Governor- General or a decision included in any of the classes of decision set out in […] the Act’.

Grounds for judicial review: Administrative decisions (Judicial Review) Act 1977 –failing to follow procedures prescribed by legislation. –error of law. –taking an irrelevant consideration into account. –exercising a power you do not have or exceeding the power you do have ( acting ‘ultra vires’ or beyond power). –exercising a power in bad faith or for an improper purpose. –making a decision so unreasonable that no reasonable person. could have reached it. –acting under dictation. –applying policy inflexibly.

Judicial review: remedies Remedies are discretionary & can include: reasons for the decision; or Order quashing, setting aside or directing the parties to do something in relation to the decision; or Order declaring the rights of the parties in respect of the matter.

Ombudsman Established by the Ombudsman Act Hears complaints about actions of Commonwealth departments and agencies. Complaint can be oral or written. May recommend agency takes certain action regarding Ombudsman’s recommendations. May report direct to Minister or Prime Minister. Will not normally investigate if a complaint could be made elsewhere eg internal review available, or external review.

Other areas of administrative law Freedom of Information 1982 Privacy Act 1988 Legislative Instruments Act 2003 Archives Act 1983