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Unit Summary
Unit type
UG Coursework Unit
Credit points
12
AQF level
Level of learning
Advanced
Former School/College
Pre-requisites
Unit aim
Studies how the law makes public decision-makers accountable for how they exercise their discretions, powers, and duties. Various control mechanisms - particularly courts, merits appeals tribunals, Ombudsman, Freedom of Information (FoI) and privacy legislation at Commonwealth level - aim at curbing bureaucratic mistakes and excesses, and at ensuring sound, rational, and consistent decision-making by governments.
Unit content
Topic 1: Introduction: The framework of Australian administrative law
- History
- The prerogative writs
- The New Administrative Law reforms
- Discretions vs rules
- Judicial review by courts vs merits appeals to tribunals
Topic 2: Judicial review - the basic concepts
- Merits vs legality/procedure
- Questions of fact vs questions of law
- When errors of law 'go to jurisdiction'
- The constitutional separation of powers
- The constitutional/prerogative writs
- What decisions are reviewable under the ADJR Act 1977?
- Public versus private decision-makers
Topic 3: Judicial review and procedural fairness (natural justice)
- When is procedural fairness required?
- The hearing rule
- The rule against bias
- Legitimate expectations
- Private (domestic) associations
Topic 4: Judicial review and statutory authorisation
- Statutory interpretation and “state of mind” clauses
- Jurisdictional facts
- Unauthorised purposes/motives
- (Ir)relevant considerations
- Bad faith
Topic 5: Judicial review and the ban on fettering discretion
- Ministerial/Cabinet policies
- Following a policy inflexibly
- Acting under dictation
- Estoppel by previous promises
- Contracts
Topic 6: Judicial review at the outer boundary of "legality vs merits"
- Unreasonableness
- No evidence
Topic 7: Subordinate (delegated) legislation
- Role of subordinate (delegated) legislation
- Legal restrictions
- Publication
- Disallowance
Topic 8: Judicial remedies for unlawful government action
- Consequences of unlawfulness: void vs voidable
- Mandatory/invalidatory legislative clauses
- Remedies
- Discretion to withhold or postpone remedies
- Failure to carry out a legal duty
- Ouster clauses
Topic 9: Merits appeals tribunals
- The Administrative Appeals Tribunal and other tribunals
- Powers and functions
- Interaction with judicial review
- Approach to Ministerial/Cabinet policies
Topic 10: Standing for judicial review and merits appeals
- Rationales for standing (locus standi) as a threshold
- Common law tests for judicial review
- Statutory tests for judicial review
- Statutory tests for merits appeals
- Proposals for open standing
Topic 11: Access to information
- Right to reasons
- Freedom of information
- Privacy laws
Topic 12: Other methods of governmental accountability
- Ombudsman
- Human rights legislation and anti-discrimination laws
- Alternative dispute resolution
Learning outcomes
Unit Learning Outcomes express learning achievement in terms of what a student should know, understand and be able to do on completion of a unit. These outcomes are aligned with the graduate attributes. The unit learning outcomes and graduate attributes are also the basis of evaluating prior learning.
| On completion of this unit, students should be able to: | GA1 | GA2 | GA3 | GA4 | GA5 | GA6 | GA7 | |
|---|---|---|---|---|---|---|---|---|
| 1 | identify and explain the central principles and the various elements which inform Australia's federal system of administrative law | |||||||
| 2 | evaluate the differences between review of the lawfulness of a decision, and review of the merits of a decision | |||||||
| 3 | demonstrate an understanding of the legal and administrative mechanisms by which the actions and decisions of government officials and agencies may be challenged | |||||||
| 4 | identify and explain the legal and administrative mechanisms by which government officials and agencies may be rendered accountable for their actions | |||||||
| 5 | analyse the legal and administrative consequences of unlawful administrative action | |||||||
| 6 | apply the relevant legal principles to identify the remedies available to persons whose interests have been affected by the unlawful exercise of administrative power. | |||||||
On completion of this unit, students should be able to:
-
identify and explain the central principles and the various elements which inform Australia's federal system of administrative law
- GA1:
- GA4:
-
evaluate the differences between review of the lawfulness of a decision, and review of the merits of a decision
- GA1:
- GA4:
-
demonstrate an understanding of the legal and administrative mechanisms by which the actions and decisions of government officials and agencies may be challenged
- GA1:
- GA2:
- GA4:
-
identify and explain the legal and administrative mechanisms by which government officials and agencies may be rendered accountable for their actions
- GA1:
- GA2:
- GA4:
-
analyse the legal and administrative consequences of unlawful administrative action
- GA1:
- GA2:
- GA4:
-
apply the relevant legal principles to identify the remedies available to persons whose interests have been affected by the unlawful exercise of administrative power.
- GA1:
- GA2:
- GA4:
Prescribed texts
- Creyke, R, Groves, M, McMillan, J & Smyth, M, 2018, Control of Government Action: Text, Cases & Commentary ["CoGA"], 5th edn, Butterworths/LexisNexis, Chatswood, NSW. ISBN: 9780409348170.