Administrative Law in Two Hours

[Music] get everyone and welcome to the seventh if you can believe that the seventh of my two hour lore videos this time I'm going to look at administrative law admin lore is a priestly eleven subject but it's one in which many students really struggle in many ways it's quite a simple subject it's really based around just a few core concepts but those concepts are unfamiliar and in some ways quite technical as with all my two-hour law courses my plan here is to try to break the subject down and turn it into one you can realistically deal with along the way I'd really like to convince you of the importance of the subject in fact we're going to start with that but first let's start the clock I want to start by throwing out two slightly provocative statements and then I'll circle back to them the first statement is administrative law is in fact fundamental human rights law in disguise the second statement is that having personally traveled in and studied a range of developing countries I've found that often one of the fundamental problems for people in those developing nations is that they lack a system of admin law why do I say these things why do I believe that administrative law is so fundamentally important I mean this is one of the things that most university courses just brush over and yet once you get this bit the rest of admin law makes sense so why well governments hold power that's not exactly enlightening we all know that governments hold power when we think of those powers we usually think of big constitutional powers the power to start Wars the power to put people in jail the power to operate economies but governments also have tens of thousands of powers which initially seem much smaller they have the power to determine whether an individual person should get Newstart allowance they have the power to decide whether a block of land can be redeveloped they have the power to decide if a person arriving in Australia may pass through customs the power to decide whether children may be given particular names the power to decide if you get a driver's license the power to decide how many fish and can catch and wear the power to decide which community sporting groups will be funded this year and so on I could literally speak for two hours just listing government powers and I would still be brushing the very top of the surface now some of those decisions can be very trivial but they'll still be important to the person who made the application or to people who will be directly affected by the decision itself these decisions all of these decisions matter now those decisions are almost always made by people usually by public servants whose job is to assess those applications or to assess the need for a decision and then to make the decision but those are just normal people who happen to have a particular job you might realistically ask yourself why they should have their hands on all this power I mean how do we know that they're going to use this power properly instead of just helping their mates if there are thousands of people making millions of decisions any of which could have serious effects on our lives well what protects us admin law protects us admin law says to people with power here are the rules you must follow and it says to people ordinary people like you and me if someone with power makes a decision which is unfair or unreasonable or ill-informed there are things you can do there are ways for you to contest those decisions realistic ways where if you have a point the decision might potentially be overturned realistic ways in which even if the decision is not overturned you can get a proper explanation in developing countries or non democratic countries those rights don't exist if the government makes decisions about your life you just have to suck it up if governing powers abused their authority to help their friends or harm their enemies nobody can do anything about it why because admin law is not a thing in those countries admin law stops governments from acting corruptly admin law gives a voice to the little guy the normal person that's why I say that admin law is a fundamental human rights law because it doesn't matter what rights you have if there's no way to insist that governments and government decision-makers must observe those rights so that's admin law in a nutshell it sets out the rules which government decision makers must follow when they make decisions using public power and it sets out the methods by which normal people can challenge government decisions it's powerful and it's important so how did it begin well back at the very start of our modern system of laws in the 12th and 13th centuries there was no democracy and there was a king and a system of nobility and the king had absolute power in 1215 when the Magna Carta was signed the king for the very first time was subject to the law around that same time the system of courts began fast-forward a couple of hundred years and the court system was well established by this time the courts exercised judicial power in the name of the king usually at this time court actions were commenced by way of a writ which was a written piece of paper on which a litigant would plead for the court to use its powers there were hundreds of writs but we're interested in four of them the writ of certiorari the writ of mandamus the writ of prohibition and the writ of habeas corpus what these writs have in common is that they provided the very first ways for ordinary citizens to challenge government decisions and to compel the government to obey its own laws the writ of certiorari is truly ancient the first mention of this writ comes from the 1200s back when the law reports were still mostly written in law French or Latin it was a writ by which a court could call a matter before it usually from another court so in a case heard in 1560 called Hilton and Lawson a dispute about the ownership of a parcel of land was taken before the Court of Chancery in Durham which is located way up near the Scottish border now that was a reasonable place to bring the action because the disputed land was however one of the defendants was described in the report as a diseased old man who lived in Middlesex near London he was not able to follow his suit so he wasn't able to participate if the trial was held in Durham and so the Court of Chancery in London issued a writ of certiorari to remove the child to London now I can hear you saying what on earth is enough to do with that been law well over time the writ of certiorari began to be applied by courts to bring administrative decisions before the court so not just decisions made by other courts but also decisions made by government agencies so this was the basis by which a person who was aggrieved by a government decision could bring that decision before the courts as an example in 1862 a landowner near Shoalhaven in New South Wales was issued with a rights notice just after the municipality of shot Ivan was formed now he didn't want to pay on the basis that when the proposal for the municipality was first made the proposed boundaries did not include his land he said that as a result the government of New South Wales should not have included his land in the municipality and he shouldn't have to pay rates the Supreme Court of New South Wales issued a writ of certiorari reviewing the decision and the court found that the municipalities act did not give the government the power to extend the boundaries beyond those which had been applied for an advertised so the court quashed the decision and mr. Barrie didn't have to pay rates do you see how it works and government agency made a decision mr. berry the little guy felt the decision had not been made properly he asked the courts to review the decision and the court by a writ of certiorari called the decision before the court the court reviewed the decision found that mr. Berry was right and reported back to the government that the demand for him to pay rights was unlawful the little guy wins the writ of mandamus forces somebody with a duty under law to take steps to complete that Duty again this is truly ancient the earliest one that I can find is a case called curtis's case which is 800 years old back then there were public servants called ishita's whose job was to bring estates of land back to the crown if the owner died without an heir in that case curtis obtained a writ Corday melius enquire indem requiring an Ishita to undertake further inquiries in relation to some land the Ishita didn't do it and so the issue the court issued a writ of mandamus forcing the Ishita to do his duty in an early high court case called police old and Peri Peri was the Minister for Public Instruction so basically the Minister for education his Department resumed land from mr. clay salt in order to build a public school mr. Clifford wanted compensation but the department said that he was merely squatting on the land and had no title he obtained from the Supreme Court of New South Wales a writ of mandamus forcing the Department of Public Instruction to have a valuation done on the resumed land and to pay him fairly the High Court then upheld that writ of mandamus he's starting to see the importance here I mean certiorari lets an ordinary individual bring the government before the court if decisions haven't been made lawfully and mandamus gives the court the power to compel the government to do what is right I mean seriously how cool is that that every individual has the right to hold the government accountable for unlawful decisions that affect you that's administrative law that's why it matters the third writ is called the writ of prohibition unlike the other to the name of this writ gives you a big hint as to what it does by issuing a writ of prohibition the court stops some other government agency from doing things so mandamus forces a government agency to do something prohibition is the opposite it forces them not to do something in the 1572 case called Laing Dale's case a wife had been set aside by her husband now when they married as was the law at the time he had taken possession of all of her Goods and income now that he had set her aside she wondered alimony or the payment of maintenance she sued in the ecclesiastical Court or the church courts he went to the Court of Common Pleas which was a royal court and he claimed that the Common Pleas was the right court not the ecclesiastical Court the Court of Common Pleas agreed and they issued a writ of prohibition essentially telling the court hit the church Court that it could not proceed because it was the wrong court a more modern example comes in the Attorney General of Queensland against Wilkinson a 1958 case which followed a decision by the Industrial Court of Queensland to allow some petrol stations to begin trading on Sundays the Queensland Supreme Court found in the High Court agreed that the Industrial Court had gone beyond its powers by making that decision and as a result a recent prohibition was issued to prevent the decision from going ahead the final one of these old historical writs that I want to talk about is called habeas corpus which is Latin for bring us the body any person who is under detention by the government and who believes that detention to be unlawful can apply to the court for a writ of habeas corpus which will require the government to bring the person before the court and explain why their detention is lawful this protects people from being arbitrarily jailed by the government he's one of the oldest individual rights it goes back to the Caesars of Clarendon a law passed by King Henry ii in 1166 Clause 4 of the assessor's says that if the sheriffs arrest a robber or murderer or thief the sheriff shall send word to the nearest justice through some intelligent man that they have taken such men and the justices shall send back word to the sheriffs where they wish those men to be brought before them and the sheriffs shall bring them before the justices like the other writs that I've discussed habeas corpus is not merely of historical value for instance in 2004 in al-khatib and Godwin mr. al-khatib who was an unlawful entrant into Australia was held in immigration detention the statutory provisions which enabled him to be held required him to be held until he was removed from Australia now no other country would accept him he was Palestinian but he was born in one of the Palestinian refugee camps in Kuwait he wasn't a Kuwaiti citizen so there was no country that he could return to by right he sought a writ of habeas corpus on the basis that if he could never be returned to any other country then it made no sense to detain him under a law requiring that he'd be detained until he could be removed from Australia essentially he was arguing that he was being detained until a condition was fulfilled but that condition was impossible so it was a life sentence the High Court ultimately found by four to three that he could be held in detention now whether you agree with this or not the power of habeas corpus is that he could bring the government before the court in this case the High Court to test the legality of his own detention so we have four of these ancient prerogative writs their centuries up and over those centuries they became the chief method by which normal people could challenge government decisions when Australia was established in the late 18th century these common law principles came here to when the commonwealth of australia was established by the constitution in 1901 the Constitution included section 75 subsection 5 which the High which gives the High Court original jurisdiction in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth that section still there in addition section 73 of the Constitution gave the High Court an appellate jurisdiction which gives it the ultimate ability to pronounce the common law in Australia including both certiorari and habeas corpus so all of these ancient ancient powers were brought into the modern law of Australia and gave Australian people the opportunity to challenge government decision now before we go any further I want you to notice something about all four of those old prerogative writs certiorari calls the decision before the courts so that the court can consider whether the decision was made lawfully mandamus instructs the government authority to do its duty according to the law prohibition instructs the government authority not to do something unlawful habeas corpus allows a person to challenge the government by proving their detention is unlawful in each case the court is only interested in whether the decision was lawful the court is not interested in whether the decision was a good decision or a wise decision a decision could be completely ridiculous but still lawful in that case none of the prerogative writs would apply so one of the examples I gave was clue sold in Perry that was the one where the man's land was resumed without compensation in order to go to school the court was not interested in considering whether it was a good idea to establish a school or whether it was a good idea to establish the school in that particular location the single and only question for the court was whether the government has made lawful decisions the court will allow a terrible but lawful decision in the same way the court will prohibit a brilliant but unlawful decision we call this the distinction between legal review and merits review I'm going to be talking about this all the way through this video what you will find is that any court exercising administrative law powers will only be able to undertake legal review so they will only be able to consider whether the decision was lawful not whether it was any good other agencies that we're going to discuss including tribunals and Ombudsman and internal reviewers they can sometimes have the ability to undertake merits review but never a court every single time that you consider a dispute about a government decision it is crucial that you identify whether the person challenging that decision is after a review of the lawfulness of the decision or whether there after a review of the merits of the decision and then it's crucial that you consider whether the tribunal or Court that they're going to has the power to give them what they want this is one of the things that trips students up constantly I'm going to keep talking about this issue right the way through the video but it's one of those distinctions you really truly do need to understand for the rest of admin law to make sense legal review asks if the decision was lawful merits review asks if the decision was any good now if certiorari and mandamus and prohibition require the courts to consider whether decision-making has been done lawfully it makes sense that over time the courts developed rules about what the lawful requirements were there are a range of rules but the central rule the most important rule of the law is the rule that we call natural justice natural justice says that if a government decision-maker is making a decision adverse to your interests then you have the right to an unbiased decision-maker you have the right to know what information is being considered by that decision-maker and you have the right to put your case the decision-maker has to listen to what you have to say about the decision and consider that before making the decision like so many of our other laws the rule of natural justice can be traced back to the Christian Bible and in fact to the earliest times described in the Bible most people even people who are not religious know in general terms the story of Adam and Eve who the Christians believed were the first human beings and most people know that Eve was tricked by the devil who was disguised as a snake and she ate the fruit of the tree of knowledge of good and evil and then she gave Adam something oh the interesting bit for us is what happened next God who Christians believe is the ultimate judge and dispenser of justice must have known what it occurred Adam was hiding from him God called him out and said hast thou eaten of the three whereof I commanded thee that thou should not eat in other words he gave Adam a chance to explain himself Adam said the woman whom thou gavest to be with me she gave me of the tree and I did eat and then God turned to Eve and said what is this that thou has done again he gave her a chance to explain herself Eve answered the serpent beguiled me and I did eat and God then punished them and threw them out of the Garden of Eden now according to Christian tradition this was the very first law to be broken and it was the very first time that judgment was dispensed but you noticed that before doing so God gave them a chance to explain themselves that concept in a book which historians tell us was written over three thousand years ago he's still central to our law today having said that though it would be a mistake to regard this as merely Christian doctrine justice Kalinin of the high court who was always notable for placing his judgments in historical context he expressed the view to certainly correct view that this idea that a person should not be judged unheard was in fact a hallmark of civilization the world over from the ancient Greeks to African proverbs let's dig into the idea of natural justice a little war traditionally the rules of natural justice only really applied in courts it wasn't really until the 19th century in the UK that it was first applied to a public service decision-maker but even that case was really an aberration in English law in till the 1960s Australia on the other hand was well ahead of the common law in England we applied the rules of natural justice to administrative decisions much earlier on traditionally we break natural justice into two rules which are known as the hearing rule and the biased rule we're going to start with the hearing rule the essence of the hearing rule is that if a person's rights interests or legitimate expectations are going to be affected by a decision then that person should be given the opportunity to be heard before the decision is made in an Australian context we can see this rule in operation from the very first decisions of the High Court in 1907 in UT can you tick and divorce was granted by the Supreme Court of New South Wales which also made a maintenance order in favour of the wife now the husband did not oppose the divorce but his solicitor attended the court and asked to be heard on the limited question that the maintenance order the court refused and mr. utak appealed to the High Court no less an authority than the Chief Justice Samuel Griffith said upon what principle of justice can it be suggested that a man against whom an order of for maintenance is sought is not entitled to be heard on the issue of what is a proper amount to order to be paid by him in our modern law the key case for understanding the hearing rule is a case called Kiowa and West mr. Keogh was a Tongan citizen who remained in Australia after the expiry of his visa he was then not granted a renewal of his visa and a decision was made to deport him his solicitor made some representations to the department the departmental officer developed some concerns as a result concerns about whether mr. Keogh or was someone who should remain in Australia but the department did not put those concerns to mr. Keogh they simply confirmed their decision not to allow him a visa he challenged this decision ultimately in the High Court justice Mason said the law has now developed to a point where it may be accepted that there is a common law duty to act fairly in the sense of according procedural fairness in the making of administrative decisions which affect rights interests and legitimate expectations subject only to the clear manifestation of a contrary statutory intention now procedural fairness is just another term for natural justice problem is if you read the whole of key our own West there were a bunch of buts and maybes if the basic hearing rule is that a person is entitled to be heard before a decision is made that adversely affects their rights interests and legitimate expectations well there's a number of subsidiary questions these include first what do we mean by a right interest or legitimate expectation second are there circumstances in which the hearing will shouldn't apply third what information needs to be given by the decision-maker to the applicant fourth what does it actually mean to be heard does this mean in person should a lawyer be allowed to represent the person finally are there decision-makers in relation to whom the hearing rule should not apply we're going to go through these and slowly build our picture of what the hearing rule of natural justice really looks like our starting point is this a person should be heard by a decision-maker before the decision-maker makes a decision which affects their rights interests and legitimate expectations let's go from there the first thing we're going to look at is what we mean by rights interests and legitimate expectations the key rule here is that it must be that the individual applicants rights interests and legitimate expectations must be individually affected so for instance if the government was to make a rule changing the driving age from 17 to 20 that would certainly affect the rights and interests of every 18 at 19 your honor but a 19 year old person wouldn't be able to have that decision reviewed because the decision is not about them as an individual it's a decision to make a rule not a decision in an individual case in Kiara and West Justice Mason put it this way many decisions do not affect the rights interests and expectations of the individual citizen in a direct and immediate way that's a decision to impose a right or a decision to impose a general charge for services to rate payors each of which indirectly affects the rights interests or expectations of citizens generally does not attract this duty to act fairly having said that this is one of those situations in which a certain amount of common sense has to be applied so for instance in a tragic case called edits and McCann the parents of two young apprentice Jack aru's who had been found dead in the outback sword the right to make submissions at the inquest into their deaths the High Court found that they had a right to do so even though it was perhaps the case that the reputational interests at stake were those of the two deceased young men rather than the living families the real distinction to bear in mind is the question of whether somebody is seeking to review a government decision affecting them or whether in truth they're seeking to challenge a government rulemaking function because of the nature of government's is to make rules and it will often be impossible to hear from everyone whose interests might be affected by every change to every rule now just to make things even more complicated legitimate expectations operate a little differently to rights or interests you see rights or interests can usually be demonstrated fairly clearly legitimate expectations are a bit more fuzzy because a legitimate expectation occurs when a party doesn't yet have a right or an interest that they expect to have one in future and this is affected by a government decision I know that makes no sense at all until you look at some examples we're going to start with FAI insurance and winocki FAI was a major Australian insurer which was swallowed up by a larger insurer HOH which in turn crashed and burned in the great insurance crisis of the late 1990s and early 2000s now during the 1960s and 1970s FAI was a major provider of workers compensation insurance in Victoria its licence was coming up for renewal and it would have been typically expected that the renewal would have just been simply a matter of form and that if there were any concerns about the renewal the government would speak to FAI first so you can see if I didn't have any rights beyond the expiry of their current license but they had the legitimate expectation of a renewal of that licence as you can probably guess the Victorian government didn't renew their license though concerned about the cash reserves held by FAI the High Court found that FAI did have a legitimate expectation and so the hearing would have applied they should have been given a chance to show that their management of their insurance obligations was adequate they should have had a chance to answer the government's concerns another basis for legitimate expectation might be the existence of international agreements when it's reasonable to expect that the Australian Government will act in a way that complies with international agreements which Australia is signed or ratified even if those agreements have not specifically been made into laws so in the Minister for immigration against tio mr. tio was convicted for possession of heroin and a deportation order was made however his children and stepchildren were not deported Australia was and is a party to the International Covenant on the rights of the child and that covenant requires that the child's best interests must be considered when administrative decisions are made which affect the child deporting a child's father certainly affects the child the high court agreed that the Immigration Department should have given mr. tio the opportunity to make arguments about whether his deportation was consistent with Australia's obligations under the government finally legitimate expectations can arise from a standard government process or from a government's statements about its processes so in Hatcher in the Minister for immigration the minister had made public statements that he would only overturn be admitted the immigration decisions of the Administrative Appeals Tribunal in exceptional circumstances when strong evidence could be brought forward to justify doing so the Administrative Appeals Tribunal made a decision in mr. hatches favor but the Minister overturned that decision the High Court found that the minister's statement had created a legitimate expectation and so before overturning the Tribunal's decision the minister should have given mr. Hatcher the opportunity to be heard as to whether there were any exceptional circumstances or whether there was any strong evidence now these are not the only circumstances in which a legitimate expectation may exist there may be circumstances which will justify a person legitimately expecting that a decision will not be made without them having the benefit of the hearing but it must be an expectation not merely a hope and there must be a clear basis for relying on that expect so for instance in South Australia against O'Shea a prisoner was recommended for parole by the parole board but then his parole was rejected by the governor on the advice of the minister the High Court found that he had merely had hope of parole not a legitimate expectation of parole the decision of the parole board did not provide a basis to expect that the minister would form the same view similarly in country energy against Williams and Aboriginal man's expectations that he would be permitted to undertake extensive inspections to look for Aboriginal artefacts on an area of land prior to the building of powerlines well that was held to be hoped rather than a legitimate expectation it seems that there will be a question of fact before the court as to whether a person's expectations cross the threshold from being a mere hope to an actual expectation so now that we've thought about rights interests and legitimate expectations let's modify our hearing rule we started out with this a person should be heard by a decision-maker before the decision-maker makes a decision which affects their rights interests and legitimate expectations well we can now extend that our expanded hearing rule might say a person should be heard by a decision-maker before the decision-maker makes a decision which affects their rights interests and legitimate expectations the rights interests and legitimate expectations must apply personally to the applicants the hearing rule applies to the making of a decision not the making of a rule the legitimate expectation must go beyond a mere hope it may arise in circumstances where the government can be expected to follow its usual or published practices or where the government can be expected to comply with international instruments so our second consideration was whether there are circumstances in which the hearing rule should not apply and there are the most obvious one is where a statute specifically says that procedural fairness doesn't apply we call these primitive clauses they're not all that common and the government tends to attract criticism if it employees of primitive claws without a very clear resin the most well-known example is in the Commonwealth migration act section 474 says that many decisions made under the Act are final and conclusive and that they must not be challenged appealed against reviewed quashed or called in question in any court and just to emphasize the point it says that they are not subject to prohibition mandamus injunction declaration or certiorari in any court on any account the result is that natural justice and therefore the hearing will need not be observed for these decisions there are other circumstances in which natural justice does not apply for instance there are certain types of decision where our national security interests make it unreasonable to apply the hearing law I mean we don't want the hearing rule to become a mechanism whereby the necessary operational secrecy of our intelligence agencies or our law enforcement agencies become compromised there may also be decisions which need to be taken urgently and which therefore don't allow for the usual processes of procedural fairness to take place another interesting one is that an interim decision may not require natural justice this makes sense it's not unusual for instance for an individual public servant to make a decision which they then forward to their boss for approval along the way they might make the decision to consult with a colleague and then they might make a decision about whether to follow that colleagues advice if all of those decisions required the hearing would be followed or nothing could ever get done finally there are some decisions which by their very nature are not subject to natural justice these are decisions which are not regarded as being decisions of an administrative nature for instance operational decisions made by a military commander in the heat of battle are not regarded as decisions of an administrative nature and so they are not subject to natural justice decisions by university staff about the academic merit of a university assessment fall into the same category so we can now expand our description of the hero rule again adding in these new concepts we end up with something like this persons should be heard by a decision-maker before the decision-maker makes a decision of an administrative nature which affects their rights interests and legitimate expectations rights interests and legitimate expectations must apply personally to the applicant the hearing rule applies to the making of a decision not the making of a rule legitimate expectation must be gone go beyond a mere hope it may arise in circumstances where the government can be expected to follow its usual or published practices or where the government can be expected to comply with international instruments the decision-maker need not hear the person's views if a privat of clause applies if either interests such as national security take precedence if the decision is urgent if the decision is merely an interim decision or if the decision is not of an administrative nature we're really getting somewhere now in terms of having a comprehensive understanding of the hearing room next we ask what information needs to be provided to the person affected by the decision this is crucially important Lord Denning once famously explained why saying if the right to be heard is to be a real right which is worth anything it must carry with it a right in the accused man to know the case which is made against him exactly what this means has never been fully settled by the courts and perhaps it never can be the principle is that the person must be given sufficient information to understand the case against them and to know those things which the decision-maker intends to take into account now that principle is a bit fuzzy because clearly this means the person adversely affected by the decision doesn't need to be shown everything and sometimes it might be improper to show the person everything for instance if there's a danger to an informant or if it might expose the identity of an undercover police officer or anything like that but if information is not given to the person and they're unhappy with the decision they'll certainly attack the decision on the basis that they weren't shown all of the materials nowadays there's a little more statutory guidance we'll come to that later but the practice of most government departments is to provide more information they think necessary in order to ensure that there can be no suggestion that they fell short on the hearing world so let's assume that our persons been given enough information to understand the decision against them they then need to be given a reasonable opportunity to be heard first and foremost this means they have they must have a reasonable opportunity to consider the material and respond what that opportunity will look like will depend on the individual circumstances of each case so for instance if the person facing the decision does not communicate effectively in English they might require longer if there's a lot of material they might require longer if the decision is going to have a massive impact on their life and their circumstances it will be appropriate to give them longer in a case called the communications Union against a B group contractors a Fair Work Commission matter was adjourned for just 76 minutes so that the Union could consider 350 pages of new evidence the evidence was complicated and required detailed analysis the full court of the federal court found that the hearing rule had been breached because nobody could be said to have had a reasonable opportunity to respond to 350 pages of detailed material in just over an hour being heard though doesn't necessarily mean actually being heard being read is just as good so a person facing an adverse administrative decision is not necessarily entitled to an in-person face-to-face opportunity to put their case an opportunity to put their views in writing is sufficient similarly while nobody can stop a person from obtaining legal advice or legal support in many cases when an administrative decision is being reviewed there may be no right to be represented by a lawyer so for instance that might mean that letters to the department would have to come from you personally even if they were drafted by your lawyer finally there are some decision makers whose decisions will always be secret the most obvious example is cabinet documents the cabinet is a meeting of the prime minister or the premier and all of this saying you mean it meets once a week in secret and its records are sealed in some cases 420 and in other cases for 30 years however this is okay because the cabinet would very rarely make decisions which affect an individual usually cabinet is involved in decision-making at a much higher level so where does that leave us well with all of this detail in hand we can now say that the hearing rule looks like this a person should be heard by a decision-maker before the decision-maker makes a decision of an administrative nature which affects their rights interests and legitimate expectations the rights interests and legitimate expectations must apply personally to the applicants the hearing rule applies to the making of a decision not the making of a rule legitimate expectation must go beyond a mere hope it may arise in circumstances where the government can be expected to follow its usual or published practices or where the government can be expected to comply with international instruments in order to be properly heard the person is entitled to know the substance of the case against them and they're entitled to a reasonable length of time in order to prepare a response they are not entitled to be represented by a lawyer the decision-maker need not hear the person's views if a primitive Clause applies or if other interests such as national security take precedence if the decision is urgent if the decision is merely an interim decision or if the decision is not of an administrative nature some decision makers like cabinet are never subject to the hearing rule so that's one half of natural justice the other half is called the bias rule conceptually the bias rule is pretty simple if a decision is being made that will adversely affect a person they're entitled to have that decision made by an unbiased decision-maker of course that leads us straight to the question of what we mean by bias bias exists if a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question the decision-maker is required to decide okay when we unpack this statement we find that there are really two types of buyers the first one is what we call actual buyers actual buyers happens when a decision maker is actually predisposed towards one party or another or towards one outcome or another in other words actual bias happens when a decision maker has already made up their mind before they start to consider the evidence this happened in a classic old case called the crown on the prosecution of Shaw against Lee and others in that case sure was allegedly selling meat unfit for human consumption the local sanitary committee was responsible for prosecuting him but a member of that committee then sat as one of the four judges here in the case now clearly he had already made up his mind as to Shaw's guilt because he helped decide to prosecute open actual bias is pretty rare it's a form of corruption discrimination of course is a form of bias and there are many groups such as indigenous people refugees from Islamic countries women LGBT iq+ people people with disabilities and other people who might fairly claim that the system has been stacked against them in terms of official decision-making in administrative law we more often come up against the other type of bias which is called apprehended bias so we have actual bias and apprehended bias apprehended bias focuses on the first few words of our definition of buyers from Edna's case our fair minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial miner so this covers situations where the decision-maker might in fact be perfectly professional they might be doing everything in their power to make an honest professional informed judgment and yet because of some other circumstance some conflict of interest the perception might be that their decision might not have been impossible there might be many examples of that pre handed buyers we'll look at a couple here to get the flavor first there would be apprehended bias if the decision-maker had a close personal or family relationship with the person affected by the decision so this could be a positive relationship where the decision-maker might be seen as wanting to help or a negative relationship where the decision-maker might be seen as biased against the person imagine if you were making an application for some sort of permit and you were refused but then you found out that the previous day the decision-makers brother had made a similar application and been approved how would you feel second there can be apprehended bias if the decision-maker has a financial conflict of interest this is quite a strict test in a case called Kirby against Centro properties justice Finkelstein found late in the piece that his self-managed superannuation fund own shares in centro properties and so he was in effect a part owner of one of the parties in a matter he was hearing the superannuation fund was also part of the class action against Centro properties so in a sense he was connected to both sides of the matter now even though the holding was tiny just a few thousands out of 800 million shares it was still enough that he had a material interest in the outcome he very properly announced the conflict in open court and recused himself from the case so he stood down that's a great example of that branded bias I mean there was absolutely no suggestion that justice Finkelstein would have been swayed in his judgment but there would still have been a perception that he might not have brought an unbiased mind to the decision now there are a few situations that may seem like us but are actually not the first one that I'll mention is necessity if there are only a very few decision makers with the relevant expertise then they might simply not be a reasonable replacement decision makers step in in that case the decision maker will certainly disclose the conflict that leads to apprehended buyers but then they'll make their decision anyway that's not the end of the world because it can always be appealed to a higher court second it's not bias if the decision-maker expresses an opinion or a tentative conclusion when this happens in court all the time judges will say at the moment I'm leaning in this direction and they do so as a matter of fairness not bias so that the side they're leaning away from has fair notice of that fact and can work to convince them to change their mind government administrators will often satisfy the hearing rule by sending an applicant a draft decision and they'll ask the applicant to show cause why that decision should not be final that's not bias the reason is that in those cases the decision-maker clearly doesn't have a fixed view incapable of being persuaded otherwise to the contrary they are inviting the applicant to change their mind well we've covered a lot in the last little while we've spent a lot of time on natural justice because it really is the heart and soul of administrative law let me summarize briefly if a decision of an administrative character is being made about an individual person and that decision individually affects the person's rights interests or legitimate expectations the person will be entitled to natural justice natural justice involves two rules first the hearing rule under which the person is entitled to know the case against them and the evidence against them and under which they're entitled to respond by putting their case and having it considered and second the bias rule under which they're entitled to have the decision made by a decision-maker who brings an impartial mind to the decision and who's not affected by a conflict of interest this concept this idea of natural justice is really central to our cultural understanding of fairness and also to our understanding of the relationship between people and their government the government shouldn't be allowed to take adverse action against you without giving you the chance to be heard and government decision-makers shouldn't be biased shouldn't be seen to be biased many government which need not listen and which need not be fair would be tyrannical this is why administrative law is fundamental human rights law it's a subject with a boring name but a crucial impact now towards the start of this video I talked about the old prerogative writs of certiorari mandamus prohibition and habeas corpus and I showed you how these could be used by an ordinary person to challenge the decisions of government the thing is these were instruments developed centuries ago when the world was smaller and governments were smaller and less complex the writs were also initially designed to enable challenges to judges and courts it was only over time that they became tools used against administrative decision makers they also required people to challenge decisions in a court and let's face it the resources which an individual can bring to a gunfight in court are far less than what the government can bring during the 20th century governments in the United Kingdom and also the Australian Commonwealth and state governments slowly began to establish tribunals to hear public objections to administrative decisions particularly in areas like tax decisions and the guardianship of adults who lacked legal capacity tribunals are very much like courts but they belong to the executive not to the judiciary their function in our current context is not to do justice between the parties but rather their function is to help the government ensure that its decision-making is proper these tribunals established and grew in a really ad-hoc way in 1958 after a particularly dodgy land deal was exposed to the public the United Kingdom commissioned the Frank's report which proposed a better developed system of these tribunals but the system of administrative law in the UK was to continue to be based on the old writs of certiorari mandamus prohibition and habeas corpus Australia went in a slightly different direction in 1968 the government appointed Sir John Kerr a former Chief Justice of New South Wales who went on to become Australia's most controversial governor-general appointed him to head a committee looking into Australia system of administrative law their recommendations were revolutionary first instead of a steadily growing bunch of its specialist tribunals there was going to be a central Administrative Tribunal to be called the Administrative Appeals Tribunal it would have very broad power to hear all sorts of appeals against administrative decisions second in an even more revolutionary decision the Kerr committee proposed a new piece of legislation which would establish an entirely new regime a set of new modern rules for administrative law the new Act would not extinguish the ancient writs but would update them and extend them providing new and clearly expressed ways for Australians to challenge government decisions that piece of legislation is called the administrative decisions judicial review act 1977 or the a djr Act that piece of legislation is the core of administrative law in Australia today the states and territories now have very similar pieces of legislation so we're going to concentrate on the Commonwealth version of the Act this is your headline piece of legislation for administrative law now I've spent a lot of time talking about the old writs and natural justice because you won't understand the a djr Act without understanding them first but this piece of legislation is where admin law in Australia is truly a there are three key questions we need to consider when it comes to the a djr Act what decisions can be reviewed on what grounds can we challenge decisions and what's the process for reviewing decisions we're going to go through those one by one first what decisions can be reviewed the adj our act sets this out in section 3 which is the definition section of the Act and particularly in the definition of decision to which this Act applies the definitions on your screen now there are two key elements first the decision must be a decision of an administrative character we've already talked about that limitation but it's important to know that it applies under the ADA jay-ar act - not just the common law so other decisions like the decision of a commander in combat or the decisions of an academic deciding the academic merit of a paper they're not decisions of an administrative character and so they're not reviewable under the a djr Act the second element is that the decision must be made under and enactment this is crucial the decision must be made in pursuance of will under the authority of an act of Parliament or a regulation or another type of subordinate legislation so the persons seeking review of the decision has to be able to find the statute or statutory instrument which creates the power or which authorizes the making of the decision and it needs to be a fair dinkum connection to the court has frowned on people trying to use really tenuous connections to make a decision reviewable both of these aspects of the definition skirt around the question of what we actually mean by a decision under the adj Air Act there are three types of conduct which are treated like decisions they are first a decision second a failure or refusal to make a decision and third conduct related to the making of a decision so expanding it out slightly the things you can review under the adj our act our first a decision of an administrative character made under an enactment second a failure or refusal to make a decision of an administrative character which would if made be made under an enactment and third conduct undertaken under an enactment related to the making of a decision of an administrative character under an enactment goodness be a decision in this context refers to a final decision which if it hadn't been challenged would have been final operative or determinative the adj our actor then really expands on the meaning of the decision in section 3 subsection 2 a decision includes making suspending revoking or refusing to make an order award or determination giving suspending revoking or refusing to give a certificate Direction approval consent or permission issuing suspending revoking or refusing to issue a license authority or other instrument imposing a conditional restriction making a declaration demand or requirement retaining or refusing to deliver up an article or doing or refusing to do any other act or thing now those of you who've done statutory interpretation will know that that last one is not quite as broad as it initially seems any other act or thing really means any other act or thing which is similar to the other things listed above you can see though that failing or refusing to make a decision is treated in the same way as an actual decision this makes sense I mean when you think about it if a public servant fails to even make a decision if they learn an application sit permanently in their entry well then this is really a type of decision isn't it at the very least it's a decision not to grant an application just yet but if the delay went on and on well did it have the same impact as refusing the application as a result it makes sense for it to be reviewable this basis for review however only works when the Act itself does not specify a time limit because if there's a time limit specified the individual act will say what happens if that time limits not met where there's no time limit the decision must be made within a reasonable time and if it is not well the applicant may seek review finally there's conduct related to the making of a decision this one's a bit interesting it's not all that difficult to understand what is meant by the term conduct related to the making of a decision that might include for instance conducting an interview or seeking an expert analysis or a heap of other things things we've already talked about the Australian Broadcasting Tribunal against bond and the fact that a decision needs to be final operative or determinative in order to be reviewed well if conduct along the way towards making a decision can be reviewed done that completely contradict the idea the decision needs to be final opera returnees how do we resolve this well the court resolved it this way in a case called Edelsten against the health insurance commissioner some decisions will have a real impact on a person's rights privileges or obligations some will have no such impact whilst others are mere stepping stones which may lead ultimately to the making of a decision which does affect the person's positions this was applied in another case called Kelson and forward to mean that conduct even interim conduct can be reviewable if it has that real impact on a person's rights privileges or obligations but it will not be reviewable if it's a mere stepping stone finally I've already mentioned privative clauses which place a decision outside the administrative review process well the adj R Act goes one step further in schedule 1 of the Act there's a great big list of types of decision and pieces of legislation to which the adj our Act does not apply I'll say that again if a decision is found in schedule one of the adj are act you can't have that decision reviewed under the adj our act that's not necessarily the end of the world many of those exempt pieces of legislation contain their own review mechanisms so the adj our act would just be doubling up and as a last resort it's still possible in some situations to go to the court and seek one of the old common law writs of certiorari mandamus prohibition and habeas corpus just get into the habit of checking schedule one though so we now know what can be reviewed under the adj our act decisions of an administrative nature made under an act made under an enactment can be reviewed a failure or refusal to make a decision of an administrative nature under a statute can be reviewed and conduct related to such a decision can be reviewed provided that conduct had a real impact on the person's rights privileges and obligations and wasn't just a mere stepping stone towards another decision so let's assume we have a decision and we're not happy with it what are the grounds on which we can challenge the decision well first and foremost the djr act provides only for legal review and not for review on the merits you remember that we've already discussed this distinction the adj our act is concerned with whether decisions are lawful not with whether they're any good now if the aggrieved person is complaining about the failure or refusal to make a decision the legal matrix is pretty simple the court first asks whether the decision which should have been made is a decision of an administrative nature made under a statute and then the court asks whether the decision-maker had a duty to make the decision if the answer to both questions is yes and the decision has not been made within a reasonable time then the court will order the decision-maker to make the decision simple the decisions and conduct though it's a bit more complicated section 5 of the adj our act sets out the grounds on which a person may challenge a decision section 6 sets out essentially the same rules for conduct so section 5 is perhaps the most crucial section in the entire 80gr Act these are the criteria that must be met by virtually every administrative decision in our whole system of government we're going to go through them one by one in the order they're set out in the statute and fair warning it's going to take ages it'll take a big chunk of this video and a big chunk of your uni course to make matters even more complicated many of these rules overlap so as we go through them if you find yourself thinking hang on that sounds quite similar to one of the other rules we are right quite often the same mistake or the same error will be covered by two or even three rules and court challenges will often in fact almost always refer to more than one of these rules okay let's take a deep breath and make our way through them one by one the first rule the foremast rule is that the rules of natural justice the rules of procedural fairness must be followed if a decision-maker does not provide natural justice the decision can be challenged now we've already talked at about natural justice so we're going to move quickly on the second rule is that if procedures are required by law to be observed in connection with the making of the decision and those procedures are not observed then the decision is invalid you see many many times when the Parliament grants the decision-making power to an administrator the Parliament will make specific rules about how that power is supposed to be exercised it makes sense that if the Parliament makes those rules then a failure to follow them will open a decision to challenge so for instance in a case called Tian against the Minister for community services a review board was required by the statute to specifically consider certain matters while making a decision as to whether a doctor was over servicing in order to rip off the Medicare system they didn't take those things into account and therefore the decision was involved having said that the courts have shown a preparedness to use some common sense in these assessments not all requirements are regarded as absolutely minor non-compliances which do not interfere with the intention of the statute well they might be sufficient to make the decision invalid the third rule is that the person who purported to make the decision did not have the jurisdiction to make that decision that idea is pretty simple when the Parliament established as an administrative power in a statute it almost always also says who's entitled to exercise that power so in the Agriculture Department an authorized inspector might be able to make a weed control order but the male clerk in the same Department might not have that power the way will normally work is that a pair is likely to be given to the minister responsible for putting the act into practice or the power will be given to the head of the Public Service Agency which will be responsible now if the Act provides the power to the minister there's an automatic assumption that the minister may delegate that authority to his or her public service department this is known as the alter-ego doctrine there are a few powers that must be exercised by the directly but these are the exception rather than the rule if however the Act provides the power to the head of the Public Service Department or to some other officer of the Public Service then they themselves must personally exercise that power unless the statute also empowers them to delegate that decision making power many statutes do and so there are hundreds and hundreds of delegations made simply because the heads of agencies would never have the time to make all those decisions themselves if someone makes or purports to make a decision but they do not have the power directly from the legislation and they do not have a delegation then the decision will be invalid the next rule is that the decision must be authorized by the enactment in pursuance of which it was purported to be made translated into English that means that public servants are not special they only have decision-making powers which have been granted to them by the Parliament in a piece of legislation so they must be able to point to the piece of legislation which grants them the power to make into particular decision and then they must remain within the boundaries of that permission if they do not their decision is said to be ultra V res or beyond the power so in Bolton and being Douglas bean was an American soldier who went AWOL in Vietnam in 1970 the Americans eventually tracked him down in 1982 living in Australia they sought to have him arrested under a piece of legislation which allows Australian authorities to arrest members of visiting military forces who go AWOL while in Australia however the power did not clearly cover the ability to arrest an individual who had absconded from another military force overseas and then come to Australia I mean that situation had never realistically been contemplated the power wasn't there and so the arrest of Mr Bean was unlawful that case interestingly was an application for habeas corpus so if you want to see one of those in action give this case a look next a decision must not be an improper exercise of the power conferred by the enactment this is a huge one so I'm going to come back to it the sixth rule is that a decision can be challenged if the decision involved an error of law whether or not the error appears on the record of the decision how fair warning this one gets really complicated I'm going to do my best to explain it in a way that can be understood but you still may find yourself needing to review this bit a couple of times errors of law happen when a tribunal fails to properly apply the law which applies to the decision the tribunal is making that much is simple enough however the courts then split these errors of law into two types of error these are called jurisdictional errors of law and non-jurisdictional errors of law jurisdictional errors of law were given the following description by the High Court in a recent landmark case just as Kiefel and justices gurgler and Kane said jurisdictional error in the most generic sense in which it has been become to be used to describe an error in a statutory decision-making process correspondingly refers to a failure to comply with one or more statutory preconditions or conditions to an extent which results in the decision which has been made in fact lacking characteristics necessary for it to be given force in effect by the statute pursuant to which the decision-maker purported to make it to describe a decision as involving jurisdictional error is to describe that decision as having been made outside jurisdiction Wow let's unpack that a bit I've already mentioned that when a statute gives a power to a decision-maker it will often set out procedures that have to be followed and that a failure to follow those procedures may invalidate the decision well it's also not unusual for the statute to be written in a way that gives a power to a decision-maker conditionally in other words the decision-maker has the power to make the decision if certain preconditions are met if those preconditions are not met then the decision-makers no power to make any decision at all or to simplify this a little further by making up an example which has nothing to do with administrative law at all imagine for a moment a parent who has two children a fifteen year old and a ten year old the parent has to go out for a couple of hours leaving the two kids at home alone before they leave the parent says to the older child if your little brother wants to turn the TV on after midday then you can let him as long as the show he wants to watch is suitable what's the parent saying there they're saying to the older child I'm giving you a decision-making power that power is to decide whether the show that your younger sibling is watching is appropriate however you can only exercise that power after midday until midday you have no decision-making power at all you see how it works the older child's jurisdiction to make a decision only comes into effect when the younger child asks to turn on the TV and when the time is later than midday if the two kids put their head together and decide to turn the TV on before midday well the older child has no authority to make any decisions at all they would both be disobeying the rules set by their parent jurisdictional errors of law work in the same way the Parliament passes a statute which gives the decision-making power to a public servant or a tribunal it makes rules saying the power can only be used under certain conditions any attempt to exercise that power outside those conditions will be invalid because of a jurisdictional error of law the decision-maker made a decision which they did not have the jurisdiction to make the other type of error of law is a non jurisdictional area of law this occurs when there's no real doubt that the decision-maker had the right to make the decision but they misunderstood or misinterpreted the law a non-jurisdictional error of law is really just a very normal fight over statutory interpretation so why is this distinction so important for a long time it was really just a technical distinction in fact during the 1980s and 1990s the courts seem to be moving towards abolition of the distinction altogether but then in August 2001 the bulk carrier and the tampa rescued asylum seekers on the way to Australia and in October 2001 the Howard government accused asylum seekers from a different boat of throwing their children overboard and placing those children at risk in order to oblige the Navy to rescue them these incidents became the basis of the Howard government's 2001 election campaign which was based around the idea of making it tougher for refugees to obtain asylum in Australia part of that process was making it harder for refugees to challenge any government decision that found that they were not entitled to protection in Australia the government tried to exclude decisions under the migration act from being subject to administrative law we've already looked at that primitive clause in a case called plaintiff s 1 v 7 against the Commonwealth the High Court determined that its power to review jurisdictional errors of law came directly from the Constitution and as a result the Parliament cannot prevent the court from reviewing administrative decisions where there is an allegation of a jurisdictional error of law so what an aggrieved person might be prevented from complaining that a decision was made incorrectly they cannot be prevented from challenging the decision if their allegation is that the decision-maker lacked the power to make the decision at all as a result there is still bucketloads of migration review decisions before the court every year the government failed in its attempt to put migration law beyond the jurisdiction of the court okay that's all I wanted to say about jurisdictional and non-jurisdictional areas of law if you didn't quite get it I sure as heck didn't get it the first time either now is the right time to go back and listen again the next rule which decision-makers have to follow is that their decisions cannot be induced or affected by fraud if that distance the decision will be invalid this is actually a fairly rare one in the cases a good example to look at is andrey otis and the victoria building authority which considered the issue of a form of building license in circumstances where there was fraud ultimately a decision which is induced by a falsehood whether by the applicant or the decision-maker or anyone else will be invalid okay we're still moving through all of these rules and we still have a long way to go the next rule is known as the no Evidence Rule this is another one of those rules which is listed separately but its tentacles run into a bunch of other rules essentially this rule says that if there is a fact which is crucial to a decision and it turns out that the fact is untrue or that there is no evidence to support the fact then the decision will be invalid an example will help you in the Minister for immigration against Almaty the refugee Review Tribunal refused to accept that mr. Almy ah he was from Iraq their reasoning was that he had claimed in an interview to be from the city of Al Amara but he was unable to tell them much about the city and some of his other statements seem to conflict with the idea of him being from al Ahmar in fact though it turned out that he had never claimed to have been from al Amara he had actually claimed to be from a much smaller place called al al shriek now you can see that if the tribunal had refused his visa because they didn't believe his claim of living in al Ahmar well the decision would have been invalid me you can't make a decision against someone's interests on the basis that they made a statement but they never actually made in this particular case even though this fact was wrong there were other reasons not to grant the visa and so the court found against mr. Almy ie can you see the way the rule works though if a certain fact is crucial to the decision and it turns out that fact is wrong well then there's no basis for the decision now before we move on from this rule I do need to point out that before the adj R Act came along there was a common law no Evidence Rule which operated a bit differently that rule was that if there was a fact that required was required for a particular decision and there was no evidence at all of that facts existence then the decision could not be validly made even a tiny bit of poor events was enough to defeat the common law however this rule now remember a little while ago I mentioned improper exercise of power and I said that it was so big I was gonna circle back to it I'm doing that now you see improper exercise of power itself has eight different categories so these are effectively even more ways that a government decision can be challenged I want to tackle the first two together it's an improper exercise of power if the decision-maker takes into account an irrelevant consideration what if they failed to take into account a relevant consideration I mean the underlying rationale here pretty much speaks for itself if a decision-maker is exercising a power then they really only ought to base the use of that power on proper considerations if the statute establishing the power sets out specific things that must be considered well it makes sense that our failure to consider those things will make the decision involved the more complicated side of this rule comes where the statute confers more of a broad discretion on the decision-maker essentially if there's a broad discretion the decision-maker can take into account any factors which are relevant to the matter scope and purpose of the statute so where there's a broad discretion the decision-maker can take into account or not take into account any matters they choose so long as they are genuinely attending to the proper purpose of the decision the main difficulty with this particular rule is the use of the word evidence inevitably lawyers see the word evidence and we think of evidence law however the rules of evidence do not apply to administrative decisions also the bar for the decision-maker is quite low as long as the decision-maker takes some account of all relevant evidence the decision will be valid this makes sense because if the court started considering whether the decision-maker had paid enough attention to particular pieces of evidence well that'd be a merit review wouldn't it it'd be the same as deciding whether the decision-maker made the right decision and we already know the courts can't do that so in short if the statute prescribes things that must be considered well those things must be considered if the statute doesn't prescribe things that must be considered then the decision-maker must consider everything relevant guided by the scope and purpose of the legislation the decision-maker is not bound by the rules of evidence and there's no rule saying how much attention they must pay to each piece of evidence the next rule is that it is an improper exercise of power if the power is used other than for a purpose for which the power was conferred this one's interesting the idea is that when public servants are given a power they're given that power in order to achieve the outcome for which the statute is established I'm going to presume that everyone understands the purposive approach to statutory interpretation and the idea that the Parliament has some purpose for every statute that it passes if the public servants are using their power for any other purpose their decisions are invalid so in an older case but still a relevant one called Arthur Yates & Company against the vegetable seeds committee the committee was established to ensure the supply of vegetable seeds as the nation tried to feed itself during the Second World War so the powers of the committee were given to it in order that it might regulate that industry what happened though was that the committee basically set itself up in the seed trading business in competition with the companies it was regulating this was found to be a purpose other than the purpose for which the power was confirmed now we need to be careful with terminology you will see this one referred to as the improper purpose ground but that's not quite right the purpose of the decision-making need not be improper in fact they might be doing their level best to do the right thing by the country with no thought of doing anything wrong but regardless of how noble their intentions public servants may only use powers for the purpose for which they were conferred next a decision-maker cannot make a discretionary decision in bad faith so question number one what do we mean by a discretionary decision we can tell from the rule that this is some sort of different administrative decision a discretionary decision is one where the decision-maker is called upon to use their personal judgment as opposed to merely weighing and balancing evidence in more of a scientific way an example might help under Section 336 of the environment protection and Biodiversity Conservation Act 1999 the Commonwealth Government can give grants to state governments or anyone else for the protection of Ram SAR wetlands and they can give those grants on such conditions as the minister thinks fit so those conditions are discretionary theoretically the minister could attach any conditions they like if they want to make a rule that everyone working in that wetland which is funded by the grant must dress like a Disney mermaid or like SpongeBob SquarePants then theoretically they can now if a decision is to be made personally like this well then it's crucial that the person making the decision must make it in good faith they must honestly be doing their best to make the right decision if they're motivated by some level of bad faith say some personal animosity then this is pretty clearly an improper exercise of power the only thing is this is a pretty massive accusation to make isn't it but the courts think so and they've set out no less than nine principles to be considered when there is an allegation of bad faith I'm going to read them off without going into too much detail first an allegation of bad faith is a serious allegation of personal fault by the decision-maker second the allegation must be clearly alleged and proved third bad faith can occur in many ways and therefore cannot be conclusively defined fourth the presence or absence of honesty on the part of the decision-maker will often be crucial fifth the court will only find bad faith in rare and extreme cases sixth bad faith is different from mere poor decision making a decision-maker can make bad or a rich or irrational decisions even when acting in good faith seventh errors of fact or law do not in themselves demonstrate bad faith a person who is acting in good faith can still make mistakes eighth bad faith will be inferred from the conduct of the decision-maker ninth the decision-maker need not know the decision was wrong if they acted in bad faith the question of whether the decision was right or wrong does not arise in short when a decision-maker is making a discretionary decision they must not do so in bad faith but it will be very difficult to prove bad faith which is a serious charge proven only in rare and extreme cases moving on we have five left the next one is pretty simple if a decision-maker has a personal discretionary power they must not exercise that power at the behest of another person in other words if they're given a personal discretionary power they must exercise it personally so in an older case called Boston Jack's bus service against the Commissioner for motor transport the commissioner had the power to set bus routes in New South Wales the minister who did not have that power wanted to influence the decision as to which company would take on a new route and so the Minister instructed the commissioner to give the route to the preferred company the commissioner did as instructed but the decision was invalid because instead of exercising their decision personally the commissioner had done so upon the instructions of the minister the next ruler the West thought was really cool a discretionary power cannot be used in accordance with a rule or policy without regard to the merits of the particular case you see where the parliament gives a decision to Addis it gives a discretion to a decision-maker if you think about it that's really the parliaments way of saying we know that we can't possibly foresee all of the potential considerations for this type of decision so we're going to give the discretion to a decision maker and then we're going to give them some guidance but we're not going to set our own clad rules well it defeats the purpose if the decision maker then acts as though there were iron clad rules the decision maker has to genuinely consider each case on its separate merits so in read against the vocational registration appeal committee 15 general practitioners applied for Medicare registration they were knocked back by the committee mainly on the basis of whether they had the relevant experience the committee refused to consider the experience these doctors had gained overseas because that was not one of the specific criteria set out in the statute the court found that the very reason the committee was given a discretion was because sometimes it would make sense to consider things not listed in the criteria like on this occasion experiences a GP overseas a decision-maker who's been given a personal discretion can't just invent a blanket rule okay now we come to the big one other than procedural fairness the next rule is probably the best known rule of administrative decision making the rule is that a decision is invalid if it is so unreasonable that no reasonable decision-maker could have made the decision you're more commonly hear this rule referred to by its old common law named wet and Spri unreasonableness the name comes from a famous old case called associated provincial picture houses against the wedding spread corporation the corporation which was actually a local government granted picture houses are licensed to operate but it imposed a restriction that it must not allow children to attend the pictures on Sunday this was back when churches still mattered and the idea was to stop children from getting distracted from church by the movies the court found that if the decision have been so unreasonable that no reasonable decision maker could make the decision then it could be overturned that rule has now made its way into the ADA har act now lots of people talk about weddings pre unreasonableness but the test is very hard to meet remember the court is not entitled to undertake merits review so the courts not interested in whether the decision was right only whether the decision was lawful so even if the court agrees that a decision is bad that's not enough to make it wet and Spri unreasonable it has to be so unreasonable that no reasonable decision-maker could have made the decision the reasoning must be seriously defective we're nearly there folks just two more next a decision cannot result in an exercise of power in such a way that the result of the exercise of power is uncertain this has what legal babble to me does it sound like legal babble to you how many of you will have done contract read it back into your memories and you may remember the case of scam L and nephew against Elston which tells us that a contract is not enforceable if it's terms cannot be given any sensible mean well the same rule applies to administrative decisions if a decision is written in such a way that it's unclear what the decision means or how it could be complied with then the decision will be invalid usually though disputes about certainty are resolved by the party simply going back to the decision-maker and asking for the decision to be clarified so these displays really make it to court finally the lucky last is that a decision involves an error of law if it involves an abuse of power this is a catch-all provision which allows for the potential future expansion of administrative law okay it's time to stop for a few moments catch our collective breath and review we started out this video by talking about the fact that they'd been law provides a way for the normal person the little guy to challenge the decisions of government we talked about the old common law writs of certiorari mandamus prohibition and habeas corpus and how they came to apply to administrative decisions and not just the decisions of the courts then we talked about the fundamental concept of natural justice that a person has the right to know and respond to the case against them and that they have the right to an unbiased decision-maker finally we talked about the fact that the common law of administrative law has largely been replaced by statute and our focus has been on the adj R Act the adj R Act sets out a bunch of rules for decision making and we've been through them all one by one now that we've heard them all we can pull them together into categories these categories do not come from the act they're just my way of trying to make sense of the big laundry list of administrative decision making rules first there are the rules which ask whether the decision-maker has the power to make the decision at all these rules say that the decision is invalid one if the person who purported to make the decision did not have jurisdiction to make the decision to if the decision was not authorized by the enactment in pursuance of which it was purported to be made and three if the decision involves an error of law and particularly if the error is a jurisdictional error of law if the decision-maker has the power to make the decision we then look to the second category of rules which ask how the decision-maker makes the decision these rules say that the decision is invalid first if there is a breach of the rules of natural justice second if procedures required by law to be observed in connection with the making of the decision were not observed third if the decision-maker took into account an irrelevant consideration or failed to take into account a relevant consideration and fourth if there is no evidence to support the decision as a whole or some fact crucial to the making of the decision if the decision-maker has the power to make the decision and the process used was satisfactory we then consider the ethics of those involved in making their decision so the decision will be invalid first if it was induced or affected by fraud second if it amounts to an exercise of power for a purpose other than the purpose for which the power was established third if it is a discretionary decision made in bad faith fourth if it is a discretionary decision made at the direction of another person and fifth if it is a discretionary decision and no attention is paid to the merits of the particular case finally if the decision-maker had the power and the process was satisfactory and there was no problem with the ethics and motivation of anyone involved we look at the outcomes this is not an excuse for merits review the court is not allowed to just change a lawful decision because they disagree with it however the decision will be invalid if first it is so unreasonable that no reasonable decision-maker could have made the decision or second if the result of the decision is uncertain if none of those objections apply then the administrative decision will be valid now you may want to go back and go through that list again just those past few seconds one of my objectives with these videos is to lay things out simply but I have to admit I've really struggled with how on earth to present such a long list of complex concepts in a way that makes sense now that you've heard them all if you can't think of them in those four categories did they have the power did they follow the process did they act ethically did the decisions make sense then the adj odd rules will make a lot more sense to you now we're roughly three quarters of the way through this video and we're still going to be more a tackle in the next section the last big section of the video we're going to look at processes now that we understand what administrative law is and know what rules have to be fired we're going to look at what a person can do if they feel those rules have not been followed how exactly does a normal person challenge a government decision well the quickest and easiest way of course is to simply write back to the department or the decision-maker and ask them to reconsider if it seems like they have genuinely made a mistake or genuinely missed something you can just ask them to look again and surprisingly often the decision will be changed so for instance a long time ago when I was in the process of joining the military my application was rejected because the Defence Force said I was already in the military you've seen my father Antony Manik was in the Defence Force and whoever was looking on their computer just mixed up the names they've got it wrong mistakes at that simple level can easily be fixed let's say you have communicated with the decision maker though and they maintained their decision well before you can go and actually challenge the decision it makes sense that you're going to need information if you think about the grounds for review that we've discussed they all require you to have some ability to see inside the decision making process how on earth does a normal person do that well there are two mechanisms under the adj are acting under the equivalent state legislation the person affected by the decision can require the decision-maker to provide a written statement setting up three things first the findings on the material questions of fact so the decision-maker has to set out the facts which he or she has decided are true and which led to the decision second the evidence or other material on which those findings were based and third the reasons for the decision so how those facts led to the decision which the decision-maker made a statement of reasons is obviously super useful because it will let you check for instance whether the decision-maker has taken into account irrelevant evidence or failed to take into account relevant evidence if there is evidence referred to which you've never seen that might breach the hearing world procedural fairness as soon as you have that statement of reasons you have something which you can check against the rules in the adj our Act if you need to go even deeper the Commonwealth and each state and territory have what I generally known as freedom of information laws in the Commonwealth it's the Freedom of Information Act 1982 and in Queensland it's called the right to Information Act 2009 now in some ways these are quite tricky pieces of legislation they're not having time to go into all the nuts and bolts here but the bottom line is that subject to a range of exceptions you should be able to get most of the material which the Department holds on file regarding any decision this means you can potentially get your hands on materials which the decision maker chose not to consider while making the decision and which therefore wouldn't have been mentioned in the statement of reasons I think it's probably fair to say that most lawyers who practice in administrative law probably wouldn't be keen to challenge an administrative decision unless they first obtained a statement of reasons and often that statement of reasons will lead to a freedom of information request that way you've got as much information as you can get about how the decision was made and of course there's always the chance once you see that information you might say to yourself well I don't like this decision but I get it I'm gonna suck it up and move on let's say you don't though you've started by asking the decision maker to reconsider and they have said no you've got your statement of reasons and your freedom of information material and you still want to challenge the decision let's assume the decision is one that falls within the a djr act so there are not freaky privative clauses or anything like that in most cases your first step will be to apply to the Administrative Appeals Tribunal known as the AAT I've already mentioned the AAT very briefly it was established along with the adj our act itself following the curve or in the early 1970s it has its own act the Administrative Appeals Tribunal act 1975 the states and territories have their own equivalents in Queensland we have QK the Queensland Civil and Administrative Tribunal I'm going to continue the Commonwealth focus of this video and stick to the AAT but most of what I'm talking about can be applied to the state and territory tribunals - there are three key features that make the AAT and similar Administrative Tribunal stand out first they use simplified and less expensive procedures in fact in most cases a person actually needs permission to be represented by a lawyer before these tribunals the idea is to have a system that normal people can navigate without needing to shovel money in the direction of a lawyer second they use alternative dispute resolution processes in almost every case in order to resolve matters quickly and cheaply before they can get in front of a tribunal a person challenging a government decision will usually be required to attend a conciliation conference where a member of the tribunal simply sits down with the parties to try to work things out if the parties are able to work things out well the agreement is then sent to the tribunal itself which makes an order in the terms set out in the agreement so it's all nicely formalized finally and most importantly of all the a eighties legislation allows it to exercise all the powers and discretions which the original decision-maker had in other words unlike the courts the AAT can review the merits of the decision so right the way through this video I've been reminding you over and over that a court is only interested in whether the decision was lawful not whether the decision was right or good or sensible well the Administrative Appeals Tribunal can ask both whether the decision was lawful and whether the decision was sensible well this is a great step forward in some ways it's also not without its challenges the IAT is a review body even though it has powers as the original decision-makers its fundamental role is to review that original decision unlike the original decision-maker the AAT is a specialist in administrative law not a specialist in migration Laurel customs or tax or harbormaster's directions or management of the airwaves or any of the million other things of public servants to the AAT for instance does not have the resources to undertake the review processes which will often precede an administrative decision where a decision requires the decision-maker to choose from among competing interests so to choose between competing tenders it can be difficult for the AAT to sensibly replicate that decision-making process and so in general the IAT will be somewhat cautious in undertaking merits review but the power is there so once the tribunal has heard the application it has four options as you will see the combination of those options allows the tribunal to do almost anything it can first affirm the decision under review in other words after reviewing the decision the AAT can decide that the decision-maker got it right in the first place second the AAT can vary the decision under review so they can change any aspect of the decision then that might mean for instance attending a two year license into a ten year losses third the AAT can set aside the original decision and make its own completely new decision the AAT decision then replaces the original decision and the department has to carry that decision now so if someone applies for a passport and the Foreign Affairs Department says no the AAT can reverse that decision and say yes and the result is the department must be issued that passport finally the AAT can set aside the original decision and send the decision back to the original Department for reconsideration so for instance if the AAT found that the decision-maker had failed to properly consider certain key evidence one possibility open to the AAT would be to send the decision back to the original decision-maker with a direction that this time round they should consider that evidence this is one way in which the AAT can avoid some of the difficulties of technical decision making the final thing to note is that the AAT publishes its decisions just like a court does you can find them honestly so a person whose complaint is dealt with by the AAT or by any other tribunal will receive written reasons this means that even if their complaint is not upheld they can potentially have the benefit of understanding why their complaint was not upheld if the person truly disagrees with the decision made by the AAT though they can appeal to the federal court of Australia for a review of the a ATS decision however under Section 44 of the AAT act the courts can only review a question of law the courts apply this very strictly that will only accept an appeal from the AAT on questions of law the court will not be trapped or tricked into reviewing the merits of the decision additionally of course under the adj are act a person who believes there's an error in law can go straight to court there's no actual rule requiring a person to go to the AAT first so let's say one way or another we've ended up in front of the federal court on an administrative appeal either directly or appealing against a decision of the IAT why is the court so insistent on only hearing matters of law well I want the court hear appeals on the merits especially if the AAT can do so well to get your answer I need you to cast your mind back to your constitutional law course and to the concept of the separation of powers the legislature which makes the laws the executive which carries the laws out the judiciary which adjudicates disputes on the walls the theory is that these three functions should be kept separate as much as possible so that no personal institution gets too much power now under the Westminster system which we have in Australia we don't insist on complete separation of powers but some aspects of the rule are still important administrative decisions are made by public servants they're an executive function if the courts the judiciary started to make decisions on the merits well the courts would essentially be making administrative decisions in other words the judiciary would be using executive power that abridge the rule of separation of powers we don't want judges to start taking over the roles of other parts of government so then why can the AAT do it well if you cast your mind back to your constitutional law studies again you may remember a case called the Boilermakers case in that case one of the key points was that it was a tribunal not a court a tribunal is not a court not part of a judiciary it looks a lot like court in some ways but its actual role is to help the executive government make good administrative decisions it's an executive body making executive decisions and so there's no problem with it looking at the merits now some of you are rolling your eyes at me right now I know this distinction is really legalistic but it is absolutely crucial in administrative law courts are judicial bodies so they can't make executive decisions which means they can't make decisions on the merits they can only do what courts do which is to decide disputes of law tribunals our executive bodies using executive powers so there's no problem with the making decisions on the merits so let's say we're in a court challenging an administrative decision on a point of law what powers does the court have under the adj our act the powers are found in section 16 of the adj our Act there are four of them and I'm going to happen them below but before I do I need to make it clear that the courts powers under the a djr Act are discretionary in other words the court might potentially find that there was a breach of the a djr Act requirements that there was some legal deficiency in the decision-making process and yet the court may still decide not to impose any remedy this might happen for instance if it's clear that the deficiency was merely technical or if for some other reason it's clear that the errors of law were not sufficiently substantial to call upon the law court to use its powers so what are the four powers the court has well first the court can quash or set aside either the whole of a decision or part of a decision and it can do so from any date this means the court can reach back to the day the original decision was made and quash it from that day forward as though it had never been second the court can refer the decision back to the decision-maker for further consideration subject to any directions the court might impose so for instance let's say the error of law for a particular decision was a breach of the rules of procedural fairness and let's say the breach was that the applicant had not been given a reasonable amount of time to make that case well the court might send the decision back to the original decision-maker with an instruction that they give the applicants a 28 days in which to respond this is another way in which the court can preserve the separation of powers instead of the court making the administrative decision they send it back to the Public Service Department with instructions that they should make the decision but that they should do a property the third option which the court has is to declare the rights of the parties with respect to any matter to which the decision relates this one's a bit more complicated the power allows the court to give what is called declaratory relief in other words the court can authoritative lead state something on the understanding that the Public Service Department will then carry that declaration into effect still sounds like gobbledygook right let me give you an example in the key case which is called Park oh-hoh against the Minister for immigration the applicants were South Koreans who came unlawfully to Australia they were arrested and detained in immigration to ten now they said apparently truthfully that they had been the victims of a South Korean immigration scam they were perfectly happy to go home and sooner the better deportation orders were made but not Perea because the authorities wanted to keep them in Australia as witnesses for the criminal trial of the people had been conducting the immigration scam now this was the use of power for an improper purpose a deportation order is supposed to be made in order to allow someone to be detained and then sent home the power is not supposed to be used in order to hold potential witnesses in place the court found this improper purpose and quashed the deportation order to tie off those loose ends the court then declared that they had the right to be released from immigration detention so it declared the rights of the parties if the authorities wanted to keep them in Australia as witnesses they should be able to remain at liberty until they gave their evidence see how it works the court's decision actually changed the rights of the parties and so the court had the power to spell out those rights finally the last option which the court has under the act is to compel parties to do things or not do things in order to do justice between the parties so in simran against land the applicants were trying to get premises approved by the government for the operation of a pharmacy the sticking point was whether the applicant had made certain financial commitments before the nights of August 1990 there were no disputes between the parties about the facts the dispute was whether the commitment to leased the premises was the right sort of financial commitment even before the right day the department said it wasn't the court on review said it was in that case there was no point remaining the decision back to the original decision-maker it made far more sense for the court to simply direct that the license be issued so the court has four powers did you notice anything interesting about them now is the bit where we closed the circle on the ministry of Laura bring it all back to the first concepts I mentioned in this video you see the adj R Act gives the court the power to review decisions and either approve them quash them or send them back for reconsideration isn't that almost identical to the writ of certiorari which allowed the court to review decisions and either approve them or quash them or send them back for reconsideration the adj our Act gives the court the power to compel people to do things in relation to administrative decisions well doesn't that sound just like the writ of mandamus in the same section it gives the court the power to prevent people from doing things in relation to admin decisions well isn't that just the same as the writ of prohibition and finally the Act gives the court the power to declare the rights of parties and we've seen the case of Park oh-ho where this resulted in people being freed from unlawful detention doesn't that clearly call to mind the writ of habeas corpus hundreds and hundreds of years after those writs first developed we can still see them in there in the heart of administrative law peeking out at us from history okay we're nearly there I just want to tie off a couple of other important loose ends and then we'll romp through a quick summary of everything I've spoken about and then our time will be up the first loose end is the fact that administrative law developed at a time when the private sector and the public sector were really quite separate private sector firms operated in markets and made their Commission decisions on a commercial basis the public service operated in accordance with the directions of the elected government within the budgets established by that government over time though the decision but the distinction between the public sector and the private sector has really been eroded by the philosophies of privatization and outsourcing so now we have for instance Telstra which is a private corporation but which was once called Telecom when it was still the government's telecommunications commission before that it was the postmaster general's department so what we have is now a private company managing public infrastructure like the phone lines another example in the Defence Force the patrol boats used by the Australian Navy are not actually owned by the Navy they're leased from a private company you can see that the line between public and private is really blurred it gets even worse then because the government establishes by statute government-owned corporation or a corporation where the government owns some of the shares and the rest are privately owned tal MS in the United Kingdom there's now authority that when a private corporation exercises public power its decisions are subject to judicial review in just the same way as the decisions of a public authority the situation in Australia is far more complicated whether the decision of a private entity can be considered reviewable will depend on a construction of the specific statutory provision which creates the power so sometimes some decisions made by some private entities will be reviewable under administrative law others won't be it's not a very satisfactory state of affairs because it allows the government to escape scrutiny by giving powers to private entities in a way that escapes the supervision of administrative law the second loose end and the final thing I really want to discuss in this video is a completely different scheme called the Ombudsman scheme at a Commonwealth level it was established by the Ombudsman Act 1976 Ombudsman is a Swedish word believe it or not it comes from an office established in the early 19th century I won't try to pronounce the word in Swedish but it's English translation is something like public defender or people's representative and that gives you a very good idea of what an ombudsman does if a person is affected by a government decision and if they've tried to raise the decision with the government agency but the outcome has not been satisfactory well I can take their complaint to the Ombudsman the ombudsman can look into any decision pretty much any decision at all if that decision seems to be wrong unjust unlawful discriminatory or unfair the strength and the weakness of the ombudsman system is that the ombudsman essentially has no actual power to do anything about complaints so the AAT and the courts can quash decisions vary them force people to do things forbid people to do things or the ombudsman can't do any of that all they can do is investigate the way in which a decision was made or an action was taken and if they find anything wrong they can make a report to the department and in some circumstances to the power so here you ask if the ombudsman has no actual power why on earth would anyone ever bother complaining the ultimen well for one thing the Ombudsman has really extensive investigative powers I mean even if you have the greatest lawyer with the greatest freedom of information claim you're not going to be able to get your hands on the same level of information that the Ombudsman can second even though the Ombudsman has no actual power the Ombudsman has very substantial influence if the Ombudsman goes to a department and says we think you've got this decision wrong the department is very likely to take that seriously in many cases just the commencement of an Ombudsman's investigation is enough to secure an outcome as soon as a department knows that the Ombudsman is coming to poke their nose interdepartmental files all those files will be reviewed and it may well be that after that review the department decides to change its decision next even if the Ombudsman's investigation and report doesn't change the outcome for the individual complainant the Ombudsman can also make recommendations to the department for changing the way it does things this may improve the process and the outcomes for future applicants for the same sorts of decisions first of all even if the Ombudsman agrees with the department's decision it can be helpful to the person who's disappointed with the decision if they know the decision has been independently and carefully reviewed by someone who is impartial and knowledgeable given that in many cases departmental statements of reasons are deliberately unhelpful the Ombudsman's explanation may be a person's first opportunity to genuinely understand why a decision was made against them personally I'm a real fan of the role of the Ombudsman even though they have no direct power I've seen many many instances in which the Ombudsman was able to cut through the red tape and legal nonsense that often surrounds an administrative review process with the result that common sense prevailed holy moley we've covered a lot of material in the last couple of hours the clock has almost hit the two-hour mark but before we stop the clock I want to make one last attempt to summarize this massive amount of quite detailed material to give you a sensible overall story of administrative law we started the video out by talking about the concepts of administrative law the idea that thousands upon thousands of administrative decisions are made by public servants who are no different to you and I they don't call power because they're in some way special they hold power merely because the Parliament has given them authority by passing written laws and the Parliament has also read laid down rules for how that Authority must be used those written rules have their origins in the common law they started out as common law treats including certiorari where by a court brings them out of a fort for review mandamus by which a court orders something to be done prohibition whereby a court orders something must not be done at habeas corpus under which a person who's being detained may demand to be brought before a court had challenged their detention in the 1970s the Commonwealth Parliament took the accumulated history of common law at Ministry of law and developed the administrative decisions judicial review act 1977 which is like a central authority for the core all rules which must be followed by administrative decision makers these rules apply to decisions of an administrative nature made under an enactment a refusal to make a decision of an administrative nature under an enactment and conduct related to a decision of an administrative nature prescribed under an enactment a person can only apply for a review of the decision if their own personal rights interests and legitimate expectations are affected by the decision so they can't apply for a review of a decision which is merely a procedural step and they can't apply for a review of a decision in the nature of policy or rulemaking which does not directly affect their rights interests and legitimate expectations if a decision is reviewable then it must meet the criteria set out in the a djr Act there are many of these criteria the fundamental rule is known as natural justice it contains two aspects the hearing rule and the bias rule the hearing rule tells us that if an administrative decision maker is going to make a decision adverse to a person's rights interests or legitimate expectations the person is entitled to know the case against them they are entitled to know the evidence the decision-maker will be considering and they're entitled to a reasonable opportunity to be heard that is to put their own side of the case the bias rule tells us the decision should not be made if a reasonable fair-minded person thinks that the decision-maker might not bring an impartial mind to the decision this can be either actual bias where the decision-maker has made up their mind before they begin or apprehended bias where there's some sort of conflict of interest which makes it inappropriate for the decision-maker to continue the rest of the rules in the a djr act can be divided into four categories first there are the rules which ask whether the decision-maker has the power to make the decision at all these rules say that the decision is invalid if the perp first if the person who purported to make the decision did not have jurisdiction to make the decision second if the deceit was not authorized by the enactment in pursuance of which it was purported to have been made and third if the decision involves an error of law and particularly if the error is a jurisdictional error of law second there are the rules which ask how the decision-maker made the decision these rules say the decision is invalid first if there is a breach of the rules of natural justice second if procedures required by law to be observed in connection with the making of the decision were not observed third if the decision-maker took into account an irrelevant consideration or failed to take into account a relevant consideration and finally if there is no evidence to support either the decision-making as a whole or some fact crucial to the making of the decision third there are the rules which consider the ethics of those involved in making the decision the decision will be invalid first if it was induced or affected by fraud second if it amounts to an exercise of power for a purpose other than the purpose for which the power was established third if it is a discretionary decision made in bad faith fourth if it is a discretionary decision made at the direction of another person and fifth if it is a discretionary decision and no attention is paid to the merits of the particular case finally there are two rules which look at the content of the decision the decision will be invalid if first it is so unreasonable that no reasonable decision-maker could have made the decision or second if the result of the decision is uncertain all of these rules any of these rules if breached would make the decision unlawful these rules only consider whether the decision is made lawfully they don't consider whether the decision is a good decision we call this the distinction between review of the law and review on the merits if a person is aggrieved by an administrative decision their first step will usually be to approach the decision-maker directly if there is a clear error something the decision-maker is missed then this is likely to be enough to resolve the problem you that doesn't work then the person will usually start by seeking a statement of reasons for the decision and by undertaking a freedom of information application in order to get as much as possible of the information sitting behind a decision depending on what that information reveals the person might seek a review of the decision in the Administrative Appeals Tribunal this is relatively inexpensive has a focus on alternative dispute resolution mechanisms and the AAT has the advantage of being able to undertake both a review on the law and a review on the merits after its review the AAT might affirm the decision under review very the decision under review set aside the original decision and substitute its own decision or set aside the original decision and send that decision back to the original decision-maker for reconsideration if the AAT affirms the decision and the person is still unhappy they can seek judicial review in a court additionally it's possible to go straight to the court if the only review required is a review on the law the court will only review where the decision was lawful the court will not undertake merits review after hearing an application for review the court might quash or set aside the decision or part of the decision it might remit the decision back to the original decision-maker it might declare the rights of the parties with respect to the administrative decision and it might order any party to do or refrain from doing anything in relation to the decision and the grief the person can also follow an entirely different pathway once they've taken their complaint to the department have been knocked back the person can approach the Ombudsman if the Ombudsman sees merit in that complaint the Ombudsman can investigate and make recommendations the Ombudsman has no power but excellent investigative abilities and very strong influence through all these mechanisms an individual person someone just like you and me can challenge a government decision which affects their lives and departments know this so even if you never have to make an administrative law application the system of administrative law protects you public servants know that their decisions are open to scrutiny and challenge and this is one reason why our professional Public Service do what they can to ensure that their decisions are made within the rules if you know that someone is watching that's a great reason to do a good job with that friends let's stop the clock goodness me I honestly can't believe I got through admin law in roughly two hours when I sat down to begin working on this video I thought I must be nuts that there was no way this was going to happen but here it is look this is one of the subjects that really freaks a lot of students here admin equity and evidence seem to be the big three which students find hard to grasp but as you can hopefully see from this video the material really is approachable in admin perhaps more than in most subjects there's no way to avoid a lot of reading your admin text is likely to be one of the thickest fattest heaviest textbooks that you buy the idea of this video is to show you that there really is a framework to hang it all on this is a fascinating area of law once you get to practice and it's an area which only seems to grow the impact of government on our lives continues to grow and add many more grows with it I really hope that this video along with the other videos on my channel helps you to get through please remember to subscribe to my channel please remember to share these videos with your friends best of luck and I'll see you again [Music]

Channel: Anthony Marinac

Views: 30,596

Rating: 4.9276018 out of 5

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Id: QoiS1_1LXKQ

Length: 128min 49sec (7729 seconds)

Published: Sun Apr 26 2020