Administrative Law in Australia

Administrative Law in Australia relates to the powers and responsibilities that are held by administrative agencies of government. Although it forms part of the common law system, it is an area of law that is largely governed by legislation, which codifies judicial review of administrative decisions.

Generally, judicial review is a process of reviewing or challenging an administrative decision or action of a public body or administrative agencies of government. Judicial review is codified in the Administrative Decisions (Judicial Review) Act 1977 (Cth), and section 75 of the Constitution of Australia provides that the High Court of Australia has original jurisdiction in such matters relating to Administrative Law.

As a term in Administrative Law, judicial review relates to the review of the legality of the administrative decision or action, not its merits. In contrast, merits review relates only to the merits or the decision.

Before initiating proceedings in Administrative Law, a party is also required to show standing, namely a sufficient interest in the matter.

Significant Areas of Administrative Law

Significant areas of Administrative Law include the following:

  • Ultra vires, or jurisdictional error, relates to a decision made outside of the powers that the administrative body possesses, by exceeding the jurisdiction, breaching natural justice, being wrongly constituted when making the decision, taking into account irrelevant considerations and failing to take into account relevant considerations
  • Abuse of power relates to administrative decisions that fail to achieve a purpose or object of the legislation that empowers the administrative agency making the administrative decision
  • Procedural fairness
  • Natural justice
  • Bias or apprehension of bias
  • Improper purpose
  • Considering irrelevant considerations
  • Not considering relevant considerations
  • Unreasonableness of the administrative decision, such as making a decision that is devoid of plausible justification, or giving excessive or inadequate weight to a relevant consideration, or making an erroneous factual finding on an important point, or failing to seek information readily available and centrally important, or failing to have proper regard to policy, or making a decision with an unnecessarily harsh effect, or making decisions that are inconsistent and discriminatory
  • Access to government information under the Freedom of Information Act 1982 (Cth)

Remedies

Common remedies in Administrative Law include the following:

  • Certiorari
  • Prohibition
  • Mandamus
  • Injunctions
  • Declarations
  • Equitable remedies

Administrative Law Tribunals

Part of the Administrative Law system in Australia on a federal level is the Administrative Appeals Tribunal (AAT), established by the Administrative Appeals Tribunal Act 1975 (Cth). It is an administrative agency similar to a court, and hears matters in Administrative Law, including review of the merits and the right to be provided with reasons for administrative decisions.

On a state level, the following administrative law tribunals have been established:

Ombudsman

Aside from administrative law tribunals, the ombudsman systems form a significant part of Administrative Law in Australia. On a federal level is the Commonwealth Ombudsman, established by the Ombudsman Act 1976 (Cth), has the role of considering and investigating complaints from people who believe that they have been treated unfairly or unreasonably by an administrative agency of the Australian Government, or investigating the compliance and auditing of an administrative agency of the Australian Government, including Australia Post, Centrelink, Child Support Agency, Department of Immigration and Citizenship, Australian Federal Police, Australian Defence Force, Australian Crime Commission, Australian Commission for Law Enforcement. Although the Commonwealth Ombudsman can make recommendations to administrative bodies in relation to administrative decisions, it cannot override those decisions.

On a state and territory level, there are the following: