Administrative Law Versus Common Law

Introduction

The Administrative rule is regarded as the set of laws monitoring the decision-making of the governmental body, it is treated as the accountable method that implicates to the process of decision-making of the government body concerning the individualized matters somewhat than the expansive policy decision. Furthermore, the state administrative law structure is grounded on the strategic demarcation among the functioning of the judiciary, executive, and legislature in the constitutional structure of Australia especially the autonomy of the federal tribunals [1]. The chief impact of this method in Australia is the judiciary, executive, and legislature. In this manner the administrative law structure guarantees that the government body along with that all the individuals are bound by legislation and reinforces the adherence of rule of laws in the country of Australia. [1: Griffiths, Justice John. ‘Recognition of Foreign Administrative Acts in Australia.’ 2016 Recognition of Foreign Administrative Acts. Springer, Cham,51-89.]

Modern Structure of Administrative law

Since the paper is important as it concentrates on the administrative legal structure, a brief overview of that structure is facilitated as background. The 1980s and 1970s witness notable changes in the field of administrative law in the country of Australia. As under the progressive leadership of the report, the Administrative Review Committee of Australia added by the report of two more committees, an integrated novel method to administrative rule was implemented [2]. [2: Crawford, Lisa Burton. ‘The Entrenched Minimum Provision of Judicial Review and the Limits of ‘Law’.’ 2016 Federal Law Review 45.4 569-596.]

At the state level the codified manner of the judicial review was initiated in the Administrative Decision (Judicial Review) Act of 1977 that is termed as the ADJR Act [3]. The federal tribunal was set forth as the second level jurisdictive organization below High Court to administer nationally the novel described jurisdictive review dominion and also multiuse merits assessment organization and Administrative Appeal Tribunal was formulated. There were legitimate entitlements that relates to the establishment of the Ombudsman and the Freedom of Information Act, 1982 [4]. The package involves the courts in several specialist zones usually where the request for assessment was extreme and the novel structure was regulated by ARC that is the Administrative Review Council. The novel bodies and services were set forth along with the subsisting common rule entitlements of the jurisdictive review offered by the tribunals involving the entrenched dominion of High Courts to grant an injunction, prohibition, and mandamus. In short the phase in the 1980s and 1970s transformed the choices of the civilians to innovate, be engaged in as well as encounter decision making by the government [5]. [3: Rock, Ellen, and Greg Weeks. ‘Monetary awards for public law wrongs: Australia’s resistant legal landscape.’ (2018) UNSWLJ 41 1159.] [4: Sier, Matthew. ‘Does Section 45 of the Administrative Appeals Tribunal Act 1975 (Cth) breach Chapter III of the Australian Constitution?’ (2015) Bond Law Review 26.1 5619.] [5: Stuhmcke, Anita. ‘Australian ombudsmen: A call to take care.’ (2016) Federal Law Review 44.3 531-556.]

Standards of Administrative law

Then it became the practice under common law for the agencies to invite the internal assessment as a precursor to the external review. Furthermore, other standards of administrative law have been executed over the guidelines of conduct as well as service charter and also consultation with the stakeholders has been initiated particularly in formulating legal rules [6]. Together these transformations have impacted in the establishment of principles for sound administration that are now expansively applied and accepted. The issue to the limit to which the structure facilitates administrative justice exists at the core of the discussion. [6: Dalla-Pozza, Dominique, and Greg Weeks. ‘A Statutory Shield of the Executive: To What Extent Does Legislation Help Administrative Action Evade Judicial Scrutiny?’ (2020). Dominique Dalla-Pozza and Greg Weeks, ‘A Statutory Shield for the Executive: To What Extent Does Legislation Help Administrative Action Evade Judicial Scrutiny]

Administrative Decisions (Judicial Review) Act

In supplement to its jurisdiction of common law, the federal tribunal also has legal jurisdiction to commence judicial assessment in pursuance to the AD (JR) Act [7]. The delegation of the jurisdiction to the federal tribunal has put a noteworthy impact on the growth of jurisdictive review involving the judicial review under common law. Moreover, the AD (JR) Act did three significant things which are as follows: [7: Kirkham, Richard, and Anita Stuhmcke. ‘The common law theory and practice of the ombudsman/judiciary relationship.’ (2020) Common Law World Review 1473779520904963.]

• It eradicated the technical necessities of prerogative writs and assessment was obtainable for mistakes of rule simplicity. The remedying obtainable were widened. The standards connecting to the standing might have been streamlined.
• It outlined in the simple conditions the basis that would create a mistake of law that is under subsection 5 and 6.
• It inflicts a liability on the majority of decision-makers to give reasoning concerning their decision.

The third requisites might have been most relevant. This is because the obtainability of the basis of assessment is frequently of no aid except the perceptive of decision-makers has been uncovered to enabling it to be examined against that basis. The actual basis of assessment as laid down in Subsections 5 & 6 are easily comprehensible and plain. They reaffirmed the subsisting common law. In the case of Kioa v. West. It had been expressed by Justice Mason that the constitutional basis of assessment enumerated in Section 5(1) is not novel they are the mirror in summary methods of the basis on what the administrative pronouncements are susceptible to encounter at under the principles of common law. Indeed in this case the High Court recited the grounds of procedural fairness as laid down in Section 5 as restricted under common law [8]. [8: Barnett, Hilaire. Constitutional & administrative law. (Taylor & Francis, 2017).]

The endured subsistence of entitlements to the jurisdictive review at the common law along with the constitutional entitlements of assessment has inclined inevitably towards the decision that paralleled the two. Thus it is no doubt consistent with the case of Kioa v. West. Furthermore, the suitability of the declarations of the basis in AD (JR) Act has inclined to stimulate the grounds of common law. Any propensity to stultify the basis of assessment has in portion been contradicted by the distinct subsistence of the grounds of common law that are capable of progress and by the existence of catch-all basis as laid down in Section 5 (1)(j) specifically that the pronouncement is otherwise contradicted to the legislation. It is not incredible, nonetheless the unbending legal announcement of the basis attached with their being recited as reaffirming the common rules and as under Section 5.

The disinclination of the Australian tribunal to hold need of proportionality as the basis that strongly grounded in the demarcation of authority consideration in addition to that their unwillingness to arrive the realm of merits might have been partially stimulated by the existence of basis of reasonableness and nonexistence of any conception of proportionality.

Merits of AD JR Act review

Therefore, the merits of AD (JR/) Act [9] assessment is not unreserved. A structure of jurisprudence in which one opportunity will incline to remedy and others is not a structure that will do fairness even as per law in all cases. Thus in considering the benefits of the AD (JR) Act the following factors are taken in regard. Firstly the Act put optimistic light over the decision-making of administrative authority. The major influence of the Act is its concern on the primary decision-makers. It facilitates guidance to the initial decision-makers [10]. In that character due to the simple characterization of the basis of the review, it should have a momentous effect. Secondly, the said act inflicts accountabilities to provide reasoning that will assist a request for jurisdictive review under common law along with that the review of the said act. The Act has formulated its jurisprudence that is implemented regularly. Though the applicant customarily structures their chain in the substitute under said act and also under Section 39 B it does not make actual issues. Thirdly the said act provides greater freedom of choice in remedies that might be approved rather than that the common rules do. Especially the pronouncements can be set aside or put down from the time of the order or such prior or later period as the tribunal particulates. [9: Administrative Decision (Judicial Review) Act of 1977] [10: Hanks, Peter. ‘Administrative law and welfare rights: A 40-year story from ‘Green v Daniels’ to ‘robot debt recovery’.’ 2017 AIAL Forum. No. 89. Australian Institute of Administrative Law,]

The functioning of administrative law as a mechanism of accountability also necessitates that the government department whose pronouncement is the concern of judicial review or merit cautiously analyze and consider the outcome of review [11]. This is required not only to guarantee the particular impact of the individualized review material is conferred but also to establish into the practices of agency any methodical developments required to enhance the complete quality of the process of decision making. [11: Turton, David J. ‘Delivering a “New Administrative Law”: Commonwealth-Queensland ombudsman cooperation, 1976–1981.’ (2015) Journal of Australian Studies 39.2 216-234.]

Nonetheless to acquire the said objective, the outline the fledging office of Commonwealth Ombudsman in the year 1977 offers individuals to interact with them in case they were “trampled underfoot by officialdom”. The scope of transformations in the field of administrative law was considerable that directed the reforming government procedure to enhance the accessibility of citizens to information of administrative departments in addition to that to create a structure of analysis of the administrative decision. Furthermore, the suite of laws involved a combined tribunal of general jurisdiction, the tribunal of administrative appeal, a controversial novelty in the world of the common law because the reviewed pronouncements based on values of law and question, to guarantee that the action of the administrative body by the governmental department of Australia is accountable and fair. The Administrative Decision (Judicial review) Act, 1977 simplified the processes for encountering the legality of the government determination by the federal tribunal as well as Freedom of Information Act, 1982 [12]. [12: Freedom of Information Act, 1982]

Procedural fairness

The decision-makers must conduct in a method that gives the individuals who are hampered by the pronouncements that involves either natural justice or procedural fairness and describe those pronouncements in a form that the individuals can comprehend. The element of procedural fairness creates the grounds of jurisdictive review as under the common rule and AD(JR) Act in addition to that needs specific procedures and standards to be perceived in the procedure of decision making by the administrative body.

Effective and reason communication

The AAT Act and ADJR Act afford an affected individual’s entitlements to receive written reasoning concerning a decision. The individual might appeal written statements from the structure of decision making out of the observation on a material issue of fact mentioning to the proof or other materials on what those observations were grounded as well as afford reasoning concerning a decision. All interactions with the individual affected by the administrative decision involving however not restricted to reasons that it should be clear as well as articulated in footings which the reader can comprehend. This will imply diverse matters in diverse situations and the interaction that is effective and simple for one receiver might be complicated for another and also vice versa. A duty to facilitate reasoning for certain decisions might also be outlined in the laws regulating the decision. Moreover facilitating reasons is motivated in all the cases particularly in the case where the decision is confrontational to the candidate. A responsibility to facilitate reasoning will guarantee the right of the individual to reasoning is confirmed.

Non-judicial review methods

The commonwealth ombudsman has expansive authority to inquire about the complaints concerning the administrative measures of most of the Australian governmental departments to view if they are discriminatory, unlawful, or wrong. As per the Ombudsman Act, 1976 the complaints concerning the governmental contractors facilitating services and goods to the public under the arrangement with the government agency can also be inquired. The Ombudsman has the freedom of choice not to inquire about a complaint. The ombudsman review powers and investigation are mechanically obtainable concerning decision making as well as administrative procedure of departments within its dominion, they require not be particulate in the legislation. Succeeding an inquiry, the remedying that was invited by the Ombudsman are as follows

• Recommendations to the departments
• Particular reports to the government
• Wider reports making recommendations to the governmental body concerning systematic issues.
• The remedies might not be proper in all circumstances and frequently accountable methods that invite accessibility to the legal review entitlements, as well as final settlements, are more proper. On the contrary some of the administrative measures are not reviewable by tribunals or courts due to the fact of their scope. For instance, the agency measures might be able to create strategies concerning these categories of issues. The Ombudsman is impartial and independent and functioning to enhance the public administration. When assessing diverse accountability methods regard must be given that the ombudsman
• Can investigate its motion
• It does not have dominion over AAT and must not be trusted on a method of holding the tribunal accountable.
• Will necessitate special reasoning to inquire the complaint that has been or is reviewed by the tribunal or court
• Might elect not to inquire a complaint if entitlements of review to tribunals or courts exist

Conclusion

Thus, it can be concluded from the discussion mentioned above that the Kerr Committee determines the core features of the justice and efficiency of administrative justice to the people. The subsequent initiatives to discover the notion advocates that it is improbable that any decisive examination concerning administrative justice can be determined.

Bibliography

Journals & Articles

1. Griffiths, Justice John. ‘Recognition of Foreign Administrative Acts in Australia.’ 2016 Recognition of Foreign Administrative Acts. Springer, Cham,51-89.
2. Crawford, Lisa Burton. ‘The Entrenched Minimum Provision of Judicial Review and the Limits of ‘Law’.’ 2016 Federal Law Review 45.4 569-596.
3. Rock, Ellen, and Greg Weeks. ‘Monetary awards for public law wrongs: Australia’s resistant legal landscape.’ (2018) UNSWLJ 41 1159.
4. Sier, Matthew. ‘Does Section 45 of the Administrative Appeals Tribunal Act 1975 (Cth) breach Chapter III of the Australian Constitution?’ (2015) Bond Law Review 26.1 5619.
5. Stuhmcke, Anita. ‘Australian ombudsmen: A call to take care.’ (2016) Federal Law Review 44.3 531-556.
6. Dalla-Pozza, Dominique, and Greg Weeks. ‘A Statutory Shield of the Executive: To What Extent Does Legislation Help Administrative Action Evade Judicial Scrutiny?’ (2020). Dominique Dalla-Pozza and Greg Weeks, ‘A Statutory Shield for the Executive: To What Extent Does Legislation Help Administrative Action Evade Judicial Scrutiny.
7. Kirkham, Richard, and Anita Stuhmcke. ‘The common law theory and practice of the ombudsman/judiciary relationship.’ (2020) Common Law World Review 1473779520904963.
8. Barnett, Hilaire. Constitutional & administrative law. (Taylor & Francis, 2017).
9. Hanks, Peter. ‘Administrative law and welfare rights: A 40-year story from ‘Green v Daniels’ to ‘robot debt recovery’.’ 2017 AIAL Forum. No. 89. Australian Institute of Administrative Law,
10. Turton, David J. ‘Delivering a “New Administrative Law”: Commonwealth-Queensland ombudsman cooperation, 1976–1981.’ (2015) Journal of Australian Studies 39.2 216-234.

Legislation

1. Administrative Decision (Judicial Review) Act of 1977
2. Freedom of Information Act, 1982