Availabilities:

Location Domestic International
Gold Coast
Lismore
Online

Unit Summary

Unit type

UG Coursework Unit

Credit points

12

AQF level

7

Level of learning

Advanced

Former School/College

Former School of Law and Justice

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 for Unreasonableness and "No Evidence"

  • 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.

GA1: , GA2: , GA3: , GA4: , GA5: , GA6: , GA7:
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:

  1. identify and explain the central principles and the various elements which inform Australia's federal system of administrative law
    • GA1:
    • GA4:
  2. evaluate the differences between review of the lawfulness of a decision, and review of the merits of a decision
    • GA1:
    • GA4:
  3. 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:
  4. identify and explain the legal and administrative mechanisms by which government officials and agencies may be rendered accountable for their actions
    • GA1:
    • GA2:
    • GA4:
  5. analyse the legal and administrative consequences of unlawful administrative action
    • GA1:
    • GA2:
    • GA4:
  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.
    • 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.
Prescribed texts may change in future study periods.