Advanced Administrative Law

LAWS3282
JURD7382

Term 3 2021
CONTACT INFORMATION
Convenor/Teacher: Dr Janina Boughey
Email: j.boughey@unsw.edu.au
Consultation times: By appointment.

CLASS SCHEDULE
This is a semi-intensive course.
The class meets twice a week from weeks 1 to 7 (with a break in Reading Week, week 6), with 6
hours of classes per week for those 6 weeks.
For each class, you will have approximately 1.5 hours of asynchronous content (meaning you do it
in your own time), and a 1.5 hour online synchronous workshop (ie collaborate class).
You need to watch the videos before the workshop for that topic.
Synchronous classes meet on Tuesdays and Thursdays from 12.30pm until 2pm from weeks 1-7.

COURSE DESCRIPTION
This course is designed to expose students to some of the interesting challenges facing Australian
Administrative Law, and to give you the opportunity to engage in a scholarly and reflective analysis
of the issues involved in cases which have come before the courts and tribunals.
The course builds upon the foundation material studied in the compulsory administrative law
classes by covering a range of advanced topics relevant to modern government legal practice in
Australia. The topics covered will change from time-to-time depending on the most pressing
current issues in administrative law.

This term, the topics covered include: how administrative law has responded to changes in the size,
structure, functions and decision-making structures of government; government powers in times of

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emergency; the obligations of administrative decision-makers to comply with human rights;
remedies for outsourced government services; how courts do and should interpret government
powers; and the role of ‘soft law’ in Australian government decision-making. The course considers
both doctrinal and policy aspects of these topics, and brings in comparative perspectives.

READING MATERIALS
All compulsory and some additional readings will be posted on moodle.

PRELIMINARY READING
Review your notes and reading from when you studied Administrative law! This is assumed
knowledge.

LEARNING OUTCOMES
By the end of this course, it is expected that students will be able to demonstrate:

1. A deep understanding of the central theoretical and doctrinal principles of Australian

Administrative Law, and their role in achieving accountability;
2. An ability to identify Administrative Law issues and to identify and critically examine the
appropriate approaches, and an ability to integrate theoretical approaches with real world
dilemmas;
3. Effective oral communication skills (by contributing to collegial discussions and debates),
and strong research and written skills (writing a formal essay).

ASSESSMENT
Task % value of final grade Due date Word limit
Research Essay 80% Thurs 25 5000*
November, 5pm
Structured Essay Plan 10% Friday 15 1 page
October, 5pm
Class Participation 10% N/A N/A

* Excludes footnotes. No bibliography required.

All assessment items must be submitted via moodle.

The assessment policies and procedures are available at: UNSW Law Assessment Policy & Student
Information. This document includes information on Class Attendance, Late Work, Word Limits,
Marking, Special Consideration, Work Load, and Academic Misconduct & Plagiarism

COURSE OUTLINE/STRUCTURE
Class Date Topic Preparation: pre-recorded lectures and readings
1A Tues 14 • What is administrative Pre-recorded lectures
September law designed to do? • Introduction to the course and expectations
• What are the
assumptions which Reading
underpin • J McMillan, ‘Ten challenges for administrative

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 administrative law’s justice’ (2010) 61 AIAL Forum 23.
remedies and • M Taggart, ‘Australian Exceptionalism in
principles? Judicial Review’ (2008) 36 Federal Law Review
• Introduction to the 1.
various ways in which • M Aronson, ‘Judicial Review of Administrative
modern government Action: Between Grand Theory and Muddling
challenges these Through’ (2021) 28(1) Australian Journal of
assumptions. Administrative Law 6.

Further Reading
• J Boughey, ’50 years after the Kerr Report: Is
Australian Administrative Law Still Fit for
Purpose?’ (Blog post, AUSPUBLAW Blog, 19
March 2021) :
https://auspublaw.org/2021/03/50-years-
after-the-kerr-report-is-australian-
administrative-law-still-fit-for-purpose/
• B Selway, ‘The Principle Behind Common Law
Judicial Review of Administrative Action—The
Search Continues’ (2002) 30 Federal Law
Review 217.
• P Daly, ‘Administrative Law: A Values-based
Approach’ in J Bell et al (eds), Public Law
Adjudication in Common Law Systems: Process
and Substance (Hart, 2017) 23.

Background/revision material (if you’ve forgotten what

you learned in admin law)
• Reading: J Boughey, E Rock and G Weeks,
Government Liability: Principles and Remedies
(LexisNexis 2019), chs 4, 5, 6, 8
• Video: Refresher on judicial review
• Video: Refresher on merits review

1B Thurs 16 The changing relationships Pre-recorded Lectures

September between and functions of the • Dr Lisa Crawford on Statutes and the Rule of
branches of government Law
• Dicey, the separation of powers and judicial
review of administrative action
Reading
• L B Crawford, ‘The Rule of Law in an Age of
Statutes’ (2020) 48 Federal Law Review 159.
• M Aronson, ‘Between Form and Substance:
Minimising Judicial Scrutiny of Executive
Action’ (2017) 45 Federal Law Review 519.
Further Reading
• E Rubin, ‘Law and Legislation in the
Administrative State’ (1989) 89(3) Columbia
Law Review 369.
• S Gageler, ‘The Constitutional Dimension’ in M
Groves (ed) Modern Administrative Law in
Australia (Cambridge University Press, 2014)
165.
• J T Gleeson and R A Yezerski, ‘The Separation

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 of Powers and the Unity of the Common Law’
in in J T Gleeson, J A Watson and R C A Higgins
(eds), Historical Foundations of Australian
Law—Vol I: Institutions, Concepts and
Personalities (Sydney, Federation Press, 2013)
297.
2A Tues 21 Automated decisions and Pre-recorded Lectures
Sept administrative law • Prof Bennett Moses on Automated
Government Decision-Making
Reading
• The Hon Justice Melissa Perry, ‘iDecide: Digital
Pathways to Decision’ (Speech, Law Council of
Australia, 21-23 March 2019)
https://www.fedcourt.gov.au/digital-law-
library/judges-speeches/justice-perry/perry-j-
20190321
• K Miller, ‘The Application of Administrative Law
Principles to Technology-Assisted Decision-
Making’ (2016) 86 AIAL Forum 20

Further Reading
• D Hogan-Doran, ‘Computer says “no”:
automation, algorithms and artificial
intelligence in Government decision-making’
(2017) 13 The Judicial Review 1.
• Administrative Review Council, Automated
Assistance in Administrative Decision-Making,
Report No 46, November 2004.
• M Zalnieriute, L Bennett Moses and G Williams,
‘The Rule of Law and Automation of
Government Decision-Making’ (2018) 82
Modern Law Review 425.
• LB Moses, J Boughey and LB Crawford, ‘Laws
for Machines and Machine-made Laws’ in J
Boughey and K Miller (eds), The Automated
State: Implications, Challenges and
Opportunities for Public Law (Federation Press,
2021) 232.
2B Thurs 23 Soft Law, Government Policies, Pre-recorded Lectures
September Interpretations and Promises Weeks on Soft Law (2 videos)

Reading
• G Weeks, ‘Soft Law and Public Liability: Beyond
the Separation of Powers’ (2018) 39(2)
Adelaide Law Review 303.
• Borrowdale v Director General of Health [2020]
NZHC 2090.

Further Reading
• G Weeks, ‘The Use and Enforcement of Soft
Law by Australian Public Authorities’ (2014)
42(1) Federal Law Review 181.
• E Campbell, 'Estoppel in Pais and Public
Authorities' (1998) 5 Australian Journal of

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 Administrative Law 157.
• M Groves and G Weeks, 'The Legitimacy of
Expectations About Fairness: Can Process and
Substance be Untangled?' in John Bell et al
(eds), Public Law Adjudication in Common Law
Systems: Process and Substance (Hart
Publishing, 2016) 165.
• J Boughey, E Rock and G Weeks, Government
Liability: Principles and Remedies (LexisNexis
2019), ch 12.

3A Tues 28 Emergency powers Pre-recorded Lectures

September • Emergency Powers and Accountability: COVID
case study
• Prof Appleby on delegated legislation during
COVID
• Prof Saunders on National Cabinet:
https://www.youtube.com/watch?v=yQ53vrLY
dXw

Reading
• Janina Boughey, ‘Executive Power in
Emergencies: Where is the Accountability?’
(2020) 45(3) Alternative Law Journal 68.
• Newman v Minister for Health and Aged Care
[2021] FCA 517. http://www.austlii.edu.au/cgi-
bin/viewdoc/au/cases/cth/FCA/2021/517.html

Further Reading/watching
• Tim Wright, ‘Delegated Legislation and
Emergency Rule-making in Australia’ (2021) 28
Australian Journal of Administrative Law 44.
• Ben Mostyn and Niamh Kinchin, ‘Can I Leave
the House? A Coded Analysis of the
Interpretation of the Reasonable Excuse
Provision by NSW Police During the COVID-19
Lockdown’ (2021) Federal Law Review
(Forthcoming).
• AUSPUBLAW Blog series on COVID-19:
https://auspublaw.org/covid-19-and-public-
law-in-australia/
• Gilbert + Tobin webinar series on COVID-19
and public law:
http://www.gtcentre.unsw.edu.au/events/pub
lic-law-responses-covid-19
• Adrian Vermeule, ‘Our Schmittian
Administrative Law’ (2009) 122 Harvard Law
Review 1095.

3B Thurs 30 Human Rights controls on Pre-recorded Lectures

September government decision-making • Human Rights and Administrative Law

Reading
• J Boughey and A Fletcher, ‘Administrative

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 Decision-Making Under Victoria’s Charter’
(2018) 25 Australian Journal of Administrative
Law 10.
• Loielo v Giles [2020] VSC 722
• Palmer v Western Australia [2021] HCA 5

Further Reading
• Certain Children v Minister for Families and
Children [No 2] [2017] VSC 251 (‘Barwon Prison
Case’).
• Kylie Evans and Nicholas Petrie, ‘COVID-19 and
the Australian Human Rights Acts’ (2020) 45
Alternative Law Journal 175.
• M Aronson, ‘Judicial Review and the Charter’
(2018) 25 Australian Journal of Administrative
Law 52
• Claudia Geiringer, ‘Sources of Resistance to
Proportionality Review of Administrative Power
under the New Zealand Bill of Rights Act’
(2013) 11 NZ Journal of Public and
International Law 123.
• Audrey Macklin, ‘Charter Right or Charter-Lite?
Administrative Discretion and the Charter’
(2014) 67 Supreme Court Law Review 561.
4A Tues 5 Outsourcing Pre-recorded Lectures
October • Outsourcing and accountability
Reading
• K M Hayne, 'Government Contracts and Public
Law' (2017) 41 Melbourne University Law
Review 155.
• J Boughey, ‘Outsourcing Automation: Locking
the Black Box inside a Safe’ in J Boughey and K
Miller (eds), The Automated State:
Implications, Challenges and Opportunities for
Public Law (Federation Press, 2021) 136.
• J Boughey and G Weeks, ‘“Officers of the
Commonwealth” in the Private Sector: Can the
High Court Review Outsourced Exercises of
Power?’ (2013) 36 University of New South
Wales Law Journal 316.

Further Reading
• J Boughey, E Rock and G Weeks, Government
Liability: Principles and Remedies (LexisNexis
2019) ch 15
• C Harlow, “Public” and “Private” Law:
Definition without Distinction’ (1980) 43
Modern Law Review 241
• M Aronson, ‘A Public Lawyer’s Responses to
Privatisation and Outsourcing’ in M Taggart
(ed), The Province of Administrative Law
(Bloomsbury Publishing, 1997) 40.
• M Taggart, ‘The Nature and Functions of the
State’ in P Cane and M Tushnet (eds), The

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 Oxford Handbook of Legal Studies (Oxford
University Press, 2005) 101.
• Kristen Rundle, ‘A Year after the Victorian
hotel quarantine inquiry, one significant
question remains unanswered’ (The
Conversation, 27 August 2021)
https://theconversation.com/a-year-after-the-
victoria-hotel-quarantine-inquiry-one-
significant-question-remains-unanswered-
166100
4B Thurs 7 Tribunals and Ombudsman Pre-recorded Lectures
October • Bostock on tribunals

Reading
• Joel Townsend and Hollie Kerwin, ‘Erasing the
Vision Splendid? Unpacking the Formative
Responses to the Fast Track Processing Regime
and the ‘Limited Review’ of the Immigration
Assessment Authority’ (2021) 49 Federal Law
Review 185.
• John McMillan, ‘The Ombudsman in Australia:
flourishing, diversifying, expanding, innovating’
in M Hertogh and R Kirkham (eds), Research
Handbook on the Ombudsman (Edward Elgar,
2018) 436.

Further Reading
• A Stuhmcke, ‘The Commonwealth
Ombdusman: Still Fit for Purpose?’
AUSPUBLAW blog https://auspublaw.org/
• L Pearson, 'Tribunals: Evidence, Satisfaction
and Proof' in G Weeks and M Groves (eds),
Administrative Redress In and Out of the
Courts: Essays in Honour of Robyn Creyke and
John McMillan (Federation Press, 2018) 217.
• R Creyke, ‘Judicial Review and Merits Review:
Are the Boundaries Being Eroded?’ (2017) 45
Federal Law Review 627.
• IDF Callinan, Statutory Review of the Tribunals
Amalgamation Act 2015, December 2018.
• Jerome Doraisamy, ‘“Lack of transparency” in
AAT appointments slammed’ The Lawyers
Weekly (online, 24 February 2019) <
https://www.lawyersweekly.com.au/politics/25
094-lack-of-transparency-in-aat-appointments-
slammed >.

5A Tues 12 The development of a culture of Pre-recorded Lectures

October justification? Reasons and • Me on CoJ and transparency
Unreasonableness • Miller on Unreasonableness
Reading
• J Boughey, ‘The Culture of Justification in
Administrative Law: Rationales and

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 Consequences’ (2021) University of British
Columbia Law Review (forthcoming).
• ABT17 v Minister for Immigration and Border
Protection [2020] HCA 34

Further Reading
• M Aronson, ‘Process, Quality and Variable
Standards: Responding to an Agent
Provocateur’ in D Dyzenhaus, M Hunt and G
Huscroft (eds) A Simple Common Lawyer:
Essays in Honour of Michael Taggart (2009,
Hart) 5.
• P Daly, ‘The Scope and Meaning of
Reasonableness Review’ (2015) 52 Alberta Law
Review 799.
• L McDonald, ‘'Reasons, Reasonableness and
Intelligible Justification in Judicial Review'
(2015) 37 Sydney Law Review 467
• E Mureinik, ‘Reconsidering Review:
Participation and Accountability’ (1993) 35
Acta Juridica 46.
5B Thurs 14 Deference and expertise Pre-recorded Lectures
October • Deference

Reading
• KM Hayne, ‘Deference—An Australian
Perspective’ [2011] Public Law 75.
• J McMillan, ‘Statutory Interpretation and
Deference: An Executive Perspective’ in J
Boughey and L Burton Crawford (eds)
Interpreting Executive Power (2020,
Federation Press).
• S Gageler, ‘Deference’ (2015) 22 Australian
Journal of Administrative Law 151.

Further Reading
• City of Enfield v Development Assessment
Commission (2000) 199 CLR 135.
• J Boughey, ‘Re-evaluating the Doctrine of
Deference in Australian Administrative Law’
(2017) 45 Federal Law Review 597.
• T Poole, ‘The Reformation of English
Administrative Law’ (2009) 68 Cambridge Law
Journal 142.
• A Young, ‘In Defence of Due Deference’ (2009)
72 Modern Law Review 554.
• P Daly, ‘The Struggle for Deference in Canada’
in M Elliott and H Wilberg (eds) The Scope and
Intensity of Substantive Review: Traversing
Taggart’s Rainbow (Hart, 2015).
• J Basten, ‘Separation of Powers—Dialogue and
Deference’ (2018) 25 Australian Journal of
Administrative Law 91.
Friday 15 October, 5pm, Essay Plan Due

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 18-22 October – READING WEEK

NOTE: There is a free online symposium on Thursday 21 and Friday 22 October which touches on many of the
themes covered in this course. Register here: https://www.eventbrite.com.au/e/kerrs-vision-splendid-for-
administrative-law-still-fit-for-purpose-tickets-168047190671

6A Tues 26 Government transparency Pre-recorded Lectures

October • Access to government information lecture

Reading
• M Henninger, ‘Reforms to Counter a Culture of
Secrecy: Open Government in Australia’ (2018)
35 Government Information Quarterly 398.
• N Feik, ‘In Morrison’s Government, a lack of
accountability has become systemic’ (The
Monthly, 25 February 2021)
https://medium.com/the-monthly/in-
morrisons-government-a-lack-of-
accountability-has-become-systemic-
627413b31f43
• Anne Twomey, ‘Nowhere to Hide: The
Significance of National Cabinet not being a
cabinet’ (The Mandarin, 9 August 2021)
https://www.themandarin.com.au/165263-
nowhere-to-hide-the-significance-of-national-
cabinet-not-being-a-cabinet/

Further Reading
• K Murphy, ‘Smug Silence and dogged
stonewalling: the Morrison government really
doesn’t like being accountable’ (The Guardian,
27 February 2021)
https://www.theguardian.com/australia-
news/2021/feb/27/smug-silence-and-dogged-
stonewalling-the-morrison-government-really-
doesnt-like-being-accountable
• Patrick and Secretary, Department of Prime
Minister and Cabinet) [2021] AATA 2719
http://www.austlii.edu.au/cgi-
bin/viewdoc/au/cases/cth/AATA//2021/2719.h
tml

6B Thurs 28 Concluding themes.

October Essay discussions.
Thursday 25 November, 5pm, Essay Due