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Published online by Cambridge University Press: 24 January 2025
This special edition of the Federal Law Review, in the 50th Anniversary year of the Australian National University, contains a study of recent developments in administrative law. The conference at which these papers were presented was part of the first Public Law Weekend hosted by the Centre for International and Public Law in the Law Faculty, and held on 30-31 August 1996. Speakers included eminent administrative law academics from the Australian National University, the University of Sydney and the University of Western Australia, together with legal practitioners and prominent figures from State and Commonwealth public administration. The conference had been preceded by a half-day seminar to celebrate the 25th anniversary of the Report of the Commonwealth Administrative Review Committee (the “Kerr Committee”), one of the foundation documents setting out the blueprint for Commonwealth administrative law.
Speakers at the Public Law Weekend were asked to identify significant developments over the range of government activities which are subject to administrative law. The four sessions, therefore, covered decisions by the newer investigative and inquisitorial bodies; by courts exercising judicial review; by the now firmly entrenched, but disparate, family of tribunals; and, finally, by those bodies creating the jurisprudence relating to access to government information.
1 The proceedings of the seminar on the Kerr Report will shortly be published as R Creyke and J McMillan (eds), The Kerr Vision of Australian Administrative Law – at the Twenty-Five Year Mark (CIPL, ANU).
2 As at March 1995, there were 363,400 Commonwealth public servants; 1,064,100 State and Territory public servants; and 155,800 public servants employed by local government (Employed Wage and Salary Earners in Australia, March 1995, ABS, Series No 6248.0).
3 There are limited statutory exceptions, for example, a report required by statute is deemed to be a “decision” challengeable under the Administrative Decisions CTudicial Review) Act 1977 (Cth) (ADJR Act), s 3(3).
4 For example, Annetts v McCann (1990) 170 CLR 596.
5 (1980) 144 CLR 13.
6 (1990) 170 CLR 70.
7 SirAnthony, Mason, “The Role of a Constitutional Court in a Federation: A Comparison of the Australian and the United States Experience” (1986) 16 F L Rev 1 at 5Google Scholar, quoted in P Bayne, below at 288.
8 Balog v Independent Commission Against Corruption (1990) 169 CLR 625 is authority for the proposition that if a wide and a narrow interpretation of legislation are possible, the narrow should be adopted as being consonant with the common law protection of individual liberty.
9 As Einfeld J found in Chairperson, Aboriginal and Torres Strait Islander Commission v Commonwealth Ombudsman (1995) 134 ALR 238.
10 Botany Council v The Ombudsman (1995) 37 NSWLR 357. See M Allars, below at 252.
11 (1995) 131 ALR 595. The Craig decision is the subject of comment in three of the four papers in this collection.
12 By contrast, in jurisdictions which have not followed the codification route, the tendency has been to conflate the grounds into the categories identified in R v Minister for the Civil Service; Ex parte Council of Civil Service Unions [1985] AC 324, namely, procedural impropriety, rationality, legality and possibly proportionality. That approach arguably conceals rather than heightens awareness of the difference between the grounds of review.
13 There are, as yet, few cases on the “safety-net” grounds such as “otherwise contrary to law” (ADJR Act, s 5(1)G)) and “any other exercise of power… that constitutes abuse of the power” (ADJR Act, s 5(2)G)).
14 An attempt to avoid the restrictions on judicial review in Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103 has been overturned by the full Federal Court (Minister for Immigration and Multicultural Affairs v Ozmanian, as yet unreported, 21 November 1996, No VG 301 of 1996). The FederalCourt was construing Part 4B of the Migration Reform Act 1992 (Cth), which attempts to remove the Federal Court's jurisdiction over some of the more far-reaching grounds of review such as breach of procedural fairness and unreasonableness.
15 R v Panel on Takeovers and Mergers, Ex parte Datafin [1987] QB 815.
16 The example has not been followed in regulatory bodies which are more industry-specific: Law v National Greyhound Racing Club Ltd [1983] 1 WLR 1302; R v Jockey Club; Ex parte Aga Khan [1993] 1 WLR 909; R v Disciplinary Committee of the Jockey Club; Ex parte Massingberd- Mundy [1993] 2 All ER 207; R v Jockey Club. Ex parte RAM Racecourses Ltd [1993] 2 All ER 225. See also Craig, PP, Administrative Law (3rd ed 1994) at 562-577Google Scholar; de Smith, , Woolf, and Jowell, , Judicial Review of Administrative Action (5th ed 1995) at paras 3.023-3.054Google Scholar.
17 There is a clear legislative basis for the Australian Securities Panel, the Australian equivalent of the UK Panel on Takeovers and Mergers. The source of its powers is the Corporations Law and some of its decisions are explicity reviewable by administrative law avenues including the Commonwealth Administrative Appeals Tribunal (Gallivan Investments Ltd v Australian Securities Commission (1991) 9 ACLC 1, 324; Re Hongkong Bank of Australia Ltd and Australian Securities Commission and Murphy (1992) 26 ALO 307; Hongkong Bank of Australia Ltd v Trimboli (1992) 10 ACLC 920. See also E Armson, “AAT Review of the ASC's Decision to Apply or not to Apply to the Corporations and Securities Panel” (1994) 12 Companies and Securities Law Journal 439.
18 Chapmans Ltd v Australian Stock Exchange (1994) 33 ALD 463. The various statutes eligible for consideration were the Corporations Law, the Australian Stock Exchange and National Guarantee Fund Act 1987 (Cth) and the Securities Industry Act 1980 (Cth). See M Gillooly, “Public Law Review of ASX Delisting Decisions” (1995) 13 Aust Bar Review 220.
19 Australian National University v Lewins (1996) 138 ALR 153.
20 For example, Federal Airports Corporation v Makucha Developments Pty Ltd (1993) 115 ALR 679 (in which conduct of the Federal Airports Corporation was held not to fall within the ADJR Act but was found to be unconscionable under the contract between the FAC and the company).
21 (1996) 136 ALR 481.
22 (1995) 131 ALR 595.
23 (1990) 170 CLR 1.
24 M Allars, below at 250.
25 J McMillan, below at 372.
26 For example, Disney, J, “Reforming the Administrative Review System: For Better or for Worse: For Richer or for Poorer”, in McMillan, J (ed), The Administrative Appeals Tribunal: Twenty Years Forward (1997, AIAL). See also Administrative Review Council, Better Decisions: Review of Commonwealth Merits Review Tribunals, Report No 39, 1995Google Scholar.
27 Ibid.
28 Thus avoiding the attempt to identify common values throughout all administrative law mechanisms and bodies (see below n 35).
29 The statutory expression of these values is discussed by Mr Johnston in his paper and these values are also adopted by the Administrative Review Council, above n 26 at 11.
30 O'Connor, D, “Effective Administrative Review: An Analysis of Two-Tier Review” (1993) 1 Aust J of Admin Law 6-8Google Scholar.
31 A deficiency acknowledged by the ARC in relation to internal review in the Better Decisions report, above n 26 at para 6.50.
32 Employment Services Act 1994 (Cth), s 107(1).
33 Ibid, ss 121, 124-126.
34 Ibid, ss 122, 165-167.
35 The Report of the Access to Justice Advisory Committee, Justice: An Action Plan (1994) identified Commonwealth administrative law values at para 13.1, 13.9. The Administrative Review Council in Better Decisions adopted the statutory objectives of a number of Commonwealth specialist tribunals – that proceedings be fair, just, economical, informal and quick – as the values to be aspired to in tribunal review (above n 26 at para 2.41,). Professor Aronson suggests that the values of Australian public law are openness, fairness, participation, accountability, consistency, rationality, legality, impartiality, and accessibility of judicial and administrative individual grievance procedures ( Aronson, M Dyer, B, Judicial Review of Administrative Action (1996) at 1-7Google Scholar. Professor Oliver listed key underlying values in both public and private law as autonomy, dignity, respect, status and security, values which promote the paramount values of democracy, participation and citizenship ( Oliver, D, “The Underlying Values of Public and Private Law” (paper presented at an International Symposium, “The Province of Administrative Law”, 17-19 October 1996, Saskatoon, Saskatchewan, Canada)Google Scholar. See also Justice-All Souls, “Statement of Principles of Good Administration” in Administrative Justice: Some Necessary Reforms (1988) 7 at 381-382.
36 Freedom of Information Act 1982 (Cth), s 3.
37 Re Chapman and Minister for Aboriginal and Torres Strait Islander Affairs (1996) 23 AAR 142 at 157.
38 (1985) 2 AAR 503.
39 Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30.
40 Nationwide News v Wills (1992) 66 ALJR 658; Australian Capital Television v Commonwealth (No 2) (1992) 66 ALJR 695.
41 Australian Law Reform Commission, Report No 70, 1996; Administrative Review Council Report No 40, 1996.
42 Eccleston and Department of Aboriginal Services and Aboriginal and Islander Affairs (1995) 1 QAR 60 (Queensland Information Commissioner); Veale and Town of Bassendean (Decision Ref: D00494, WA Information Commissioner).
43 Commonwealth v Northern Land Council (1993) 176 CLR 604.
44 (1994) 35 ALD 685.
45 (1994) 35 ALD 419.
46 Administrative Appeals Tribunal, Decision No 10341, 8 September 1995 (unreported).
47 (1994) 33 ALD 683.