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Administrative Law Powers

Administrative law is a discipline of law that regulates the relationship between government
agencies and the individual members of society. The fact that the government agencies have
the power to make administrative decisions that may impact upon the rights of individuals
raises the question of whether individuals are entitled to challenge those decisions. The
tension created by the need to balance rights and obligations is the province of administrative
law.
Historically, administrative law has its origins in English common law where the courts at
first exercised a supervisory role regarding disputes between individuals and those engaged in
the making of government or administrative decisions, and subsequently, assumed the power
and jurisdiction for the issuing of prerogative writs against authorities making administrative
decisions. An early example is found in Cooper v Board of Works for the Wandsworth
District (1863) 143 ER 414.
These judicial powers were part of the common law that was brought to Australia when this
country was first settled. For discussion on this point see New South Wales v Commonwealth
(1975) 135 CLR 337 (Seas and Submerged Lands Act case). However, they only represented
a limited type of power that the courts possessed in curbing inappropriate administrative
decision-making. The granting of the writs applied in special circumstances and the exercise
of such powers in relation to such writs was intermittent, technical, expensive, and complex.
Throughout the nineteenth and first half of the twentieth century it became obvious that
reliance on the exercise of such powers would not provide adequate control over
inappropriate administrative decision-making. Parliamentary scrutiny of legislation and the
actions of the ad hoc administrative tribunals operating at that time similarly failed to provide
adequate control.
Nevertheless, the expansion and development of administrative law was slow in the first half
of the twentieth century, until the increasing amount of government regulation meant that
more decisions were being made that affected the lives of individuals. By the second half of
the twentieth century, it was apparent that the traditional avenues that were available to
review administrative decisions needed serious consideration. In the first instance, the courts
responded (following particularly the decision in Anisminic Ltd v Foreign Compensation
Commission [1969] 2 AC 147) by expanding the concept of ‘jurisdiction’ allowing a greater
role to be played by them.
It was not until the 1970s, however, that the inadequacies of judicial review, parliamentary
scrutiny and administrative appeals tribunals as they then operated, were fully recognised and
recommendations were made in order to overcome these inadequacies. This recognition came
by way of the report of the Commonwealth Administrative Review Committee, (the Kerr
Committee) in the early 1970s. Kerr was Sir John Kerr, former Governor-General of
Australia. It was this committee together with the Bland and Elliot Committees that
recognised the need for a broader basis of review.
As a result of its recommendations, a statutory form of judicial review was introduced
comprising (on a Commonwealth level): the Administrative Decisions (Judicial Review) Act
1977 (Cth) to provide statutory based judicial review; a federal Administrative Appeals
Tribunal created pursuant to the Administrative Appeals Tribunal Act 1975 (Cth) to provide
administrative review; the federal office of the Ombudsman pursuant to the Ombudsman Act
1976 (Cth) to investigate actions regarding ‘a matter of administration’; and the Freedom of
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Information Act 1982 (Cth) to provide for access to certain information that was in the
control or charge of a government agency. The package of reforms changes is referred to as
the ‘new’ administrative law.
On a state level, the Victorian Ombudsman Act was introduced in 1973, followed by the
Administrative Law Act in 1978, the Administrative Appeals Tribunal Act 1984 which was
replaced by the Victorian Civil and Administrative Tribunal Act in 1998. Victoria established
a statutory privacy regime with the Information Privacy Act 2000 (Vic) which was replaced
by the Privacy and Data Protection Act 2014 (Vic).
By the second half of the twentieth century, the nature, role, function and operation of
administrative law, had broadened far beyond the intent and expectations of its humble
English origins.

The constitutional framework

The development and adoption of administrative law and its principles into the Australian
legal system meant (at least on a federal level), that its application must comply with the
constraints and provisions of the Australian Constitution, which, by the Act of federation, at
the turn of the twentieth century, became part of, and underpins, the Australian legal system.

The separation of powers

The first three chapters of the Australian Constitution deal with the doctrine of separation of
powers, a doctrine which has its origins in the writings of Montesquieu (L’Espit des Lois)
and to some extent in English law and which is based on the idea that the rights of an
individual are better protected when government power is shared. The Constitution
implements this idea by providing that there shall be three arms of government: the
legislature, whose function is to make law, the executive, which implements laws, and the
judiciary—that arm of government which supervises both the legislative and executive arms
in a way which ensures that neither usurps the function of the other - nor, indeed, the function
of the judicial power. More specifically, the Constitution encompasses the doctrine of the
separation of powers in Section 1 (Chap I), whereby legislative power is vested in parliament,
Section 61 (Chap II) which states that the executive power is vested in the Queen and
exercisable by the Governor-General and Section 71 (Chap III), which provides that the
judicial power is vested in the High Court and any other courts created by parliament. This is
the orthodox analysis but, arguably, it does not take account of a fourth kind of power in s
101—adjudicative and administrative exercisable, however, only by the proposed Inter-State
Commission.

A reading of the relevant material on this topic will reveal however, that at the federal level,
this separation is not strictly adhered to. Whilst generally, the separation of powers is
implemented, in fact, and from an administrative law perspective, legislative and
administrative functions sometimes overlap, and administrative law is often concerned with
this overlapping of functions. In addition, the ability of the legislative arm of government to
empower the executive to make delegated legislation, necessarily involves a merging of
functions. It is in this context, that the judicial function plays a significant role from an
administrative law perspective because the empowerment of the executive arm of
government with (in effect) legislative functions can lead to an excessive exercise of power
by that arm of government - indeed, to an exceeding of its powers and functions - and it is the
role of the courts to examine the circumstances which come before them in order to
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determine whether the executive arm of government has exceeded its decision-making power.
The decision of Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46
CLR 73 not only deals with this blurring of the legislative and executive functions, but
confirms the legislature’s ability to confer such ‘law making’ powers on the executive with
regard to the making of delegated legislation, provided the power given falls within those
bestowed upon the legislature by s 51 of the Australian Constitution.

This framework has a number of consequences, one of which is the following: when
considering federal decision-making by administrative agencies there may be two levels of
validity to be considered. There will be the issue whether a decision is justified in law, by the
statute conferring power to make it. There will also be the issue (which comes logically prior)
whether the statute itself is constitutionally justified—whether, for instance, it is justified as
an exercise of power under s 51.

The judiciary

Chapter III of the Australian Constitution deals with the third arm of government - the
judiciary. Its provisions indicate (as the cases have held) that judicial functions must remain
solely in the jurisdiction of, and are only exercised by, the Federal Courts and its judges.

There are two issues in this regard. First, which courts are federal courts and secondly, what
are federal judicial functions? With respect to these questions, for all practical purposes, there
are currently four Federal courts: the High Court, the Federal Court, the Family Court and the
Federal Circuit Court (formerly the Federal Magistrates Court). Regarding the second
question, the definition of federal judicial power is less straightforward. There are some
functions that are inherently judicial such as the power to sentence someone to a term of
imprisonment, to impose a monetary fine or to make a binding declaration of law. Beyond
these clear functions, it is difficult to be categorical. These less clear areas are governed by
the ‘borderland’ principle which provides that a judicial power involves following a judicial
process of determining what the law is, what the facts are, and then applying the law to the
facts in order to make a binding and authoritative decision. See: R v. Trade Practices
Tribunal: Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 and in particular Kitto
J at 374.

Note should also be taken of R v Kirby; Ex parte Boilermakers’ Society of Australia (1956)
94 CLR 254 where the High Court held that a federal judicial function resides only in federal
courts and that necessarily, the role of the judiciary is confined to just that. In other words,
only courts may exercise judicial power (not administrative tribunals) and only judicial power
may be exercised by them. See also: Brandy v Human Rights and Equal Opportunity
Commission (1995) 183 CLR 245 where a provision in the Racial Discrimination Act 1975
(Cth) empowered the Human Rights Commission to make a decision which, if registered in
the Federal Court, was to have the same effect as if it were a determination made by the
Federal Court. The High Court held such a provision was invalid on the basis that it
constituted a judicial power which the Commission did not have the power to exercise. The
decision of Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic
Affairs (1992) 176 CLR 1 is also relevant in this regard because in that case, the High Court
held that a provision in the Migration Act 1958 (Cth), which prevented a court from ordering
the release of a detained refugee in custody, was invalid on the ground that this provision
usurped and impinged upon the function of the judicial arm of government.
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The judicial role is therefore critical within the context of administrative law in that its
function is to ensure not only that the role of judges is not usurped by either the legislative or
executive arms of government, and that neither of these arms of government usurp each
other’s role, but that the judiciary itself is confined in its decision-making powers, only to the
making of judicial decisions, and not to the making of legislative or executive decisions.

On a federal level therefore, the role of the doctrine of the separation of powers is crucial to,
and forms an integral part of, administrative law by providing first, the means for the sharing
of power; secondly, by acknowledging the overlapping of these powers in the constitutional
context; and thirdly, by providing constitutional checks and balances in order to ensure that
the executive arm of government does not, in making delegated legislation, exceed the
boundaries of its power either in making that legislation or in its decision-making power
under that legislation.

On a State level, however, it should be noted that the above doctrine is nowhere near as
strictly observed due to the fact that that the States are not subject to the same constitutional
constraints. The Australian Constitution applies at Commonwealth level. It is not therefore,
uncommon at State level, for one arm of government to exercise powers which on a federal
level would breach the doctrine of separation of powers due to an overlapping in the
functions of the three arms of government.

Constitutional conventions

One further matter which needs to be considered with regard to the legal framework, within
which administrative law operates, is the role of conventions which sometimes dictate
government operation in Australia. These rules owe their origins neither to common law
principles nor to statutory provisions, yet their presence ensures and dictates certain patterns
and methods of governmental behaviour by providing the protocol within which our system
of government operates. For instance, when a government is elected, its leader (whether on a
federal or State level), is appointed by the Crown Representative; Cabinet must then be
chosen by that leader, and once chosen, becomes responsible to Parliament in general. Again,
powers of a Crown Representative are usually exercised on the advice of government and not
independently of it. These examples represent only a few of the conventions within which our
system operates and which, together with the above doctrine of separation of powers, provide
the legal context within which administrative law operates.

The rule of law

One final matter relevant to the framework within which administrative law operates, bears
mention: that of the rule of law. Inherent in our system of government is a principle which
provides that government can only act within and in accordance with an existing legal rule of
law. The famous writer on the rule of law doctrine was A V Dicey. In the present context,
this principle, which has its origins in English law, ensures that government dictates are not
implemented illegally. A further aspect of the rule of law is that it ensures that citizen and
government alike, are treated equally and subjected to the implementation of the same legal
principles by the courts. The final aspect of this rule upholds the rights of the individual
through the medium of court decisions and the application of principles applicable to all
equally. From an administrative law perspective, each aspect of the rule of law bears some
relevance to the workings of administrative law: the first, by guarding against illegal
decision- making by the executive arm of government, the second, by applying legal
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principles to government and citizen in like manner and therefore in a way which prevents
excessive exercise of power by that same arm of government, and finally, the last, by
interpreting (delegated) legislation in a way which examines and prevents power being
exceeded by a government, its ministers, or agencies.

Implications

The constitutional framework, especially the separation of powers and parliamentary

supremacy, dictates that there is only a limited role for courts in the review of administrative
decisions.

They can review the legality of such a decision, to ensure that the administrative decision-
maker did not exceed the lawful limits of its authority, but they can go no further. They may
not substitute their decision for that of the administrative decision-maker. They may not
decide whether or not the original decision was good, fair or correct, taking onto account all
relevant considerations. That would involve the court in effect exercising the same powers as
the original decision-maker—or ‘merits review’. Since these are administrative powers, that
would breach the separation of powers doctrine. It would also violate parliamentary
supremacy, because courts would be usurping the authority of Parliament to confer powers on
the administrative decision-maker.

Administrative law therefore distinguishes between the legality and the merits of
administrative decisions, and insists that the role of the courts is confined to reviewing the
former. As we will see in Topic 10 administrative tribunals can review the merits as well as
the legality of administrative decisions.

See for example the following decisions: Attorney-General v Quin (1990) 170 CLR 1 (a
judicial review case about natural justice case) and Minister for Aboriginal Affairs v Peko
Wallsend Ltd (1986) 162 CLR 24 (a judicial review case about the ground of
relevant/irrelevant considerations).

Activity

Exercise 1.1
From your reading of relevant texts, identify and name three bodies or agencies which make
administrative decisions and consider the ways in which these decisions impact on the life of
an individual within society

Exercise 1.2

Identify and explain the doctrine of separation of powers and discuss its underlying
philosophy and how that philosophy was meant to preserve the idea of fairness in decision-
making.

Identify the Chapters and Sections in the Australian Constitution which deal with the above
doctrine.