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Administrative Law: Merits Review Exam Notes (Distinction)
TABLE OF CONTENTS
The Administrative Appeals Tribunal 2
The Ombudsman 6
Whistleblowing in the public sector 8
Open government (OAIC; ICAC) 10
SACAT 12
‘Disruption' technology 15
Drake 1 Notes 16
Drake 2 Notes 16
2
THE AAT
P is __________________________________________________________________________________
The primary decision maker is _____________________________________________________________
The primary decision was to _______________________________________________________________
Before applying to the AAT, P should apply for any kind of internal review mechanism that the statute creates or makes available. P also has the options of voluntary conciliation (such as mediation (AAT Act s 34A) – 80% of cases settle at mediation + informal; good if person is not esp. emotional/no imbalance of power), or can apply to the Ombudsman.
Applying to the AAT allows P to apply for reasons for the original decision which must be provided within 28 days (AAT s 28; s 43(2B)). The decision maker will also need to provide the AAT with copies of all relevant documentation (‘T Documents’) within 28 days, which will be forwarded to P (AAT s 37). These can only be suppressed for reasons of confidentiality or security (AAT Act s 36A-D).
The AAT is an appropriate place for P because its purpose is to provide review that is ‘‘fair, just, economical, informal and quick’ (AAT Act s 2A).
Applying to the AAT Standing:
P must have standing to apply to the AAT.
S of AAT Act Yes/no + deets
Not excluded from review under the statute?
review only available where statute permits – if no then the question ends here!!!
S 25
Is P a ‘person whose interest are affected by a decision’? Interests = beyond legal/pecuniary rights (Re control investments)
If P’s interests are affected but they are not the person who has asked for review, they can apply to be a party in writing to the Tribunal The Tribunal will conclusively decide if P’s interests are truly affected by the decision.
If P wants to appeal the Tribunal’s decision, they can to the FCA
S 27(1) S 30(1A) S 31 S 44(2) Has there been a decision? (May include purported/illegal decision
(Lawlor Principle) S 3(3)
Thus, P does/not have standing to apply.
Time limits:
P has/not applied within 28 days of the decision (s 29), thus they can/not apply; the decision was made ______________________________ and they applied for review on ______________________________.
Decision type:
To be heard by the AAT, the decision must be of a type that is reviewable.
Thus the decision is/not of a type that review is available.
Costs:
Applications may be informal & application fees may be waived (currently
$884, $87 for Tax disputes under $5000, $1731 for MRD from July 2017) No fee for Centrelink, FOI, NDIS, Veterans, Public workers compensation Average cost non hearing $3500, with hearing $16,000
Yes/no + deets
All other avenues of internal and/or first tier review exhausted?
If no for the above:
Was the decision ultra vires (Lawlor Principle): was the power used beyond the power given in the statute
Was there jurisdictional error (Lawlor Principle): did the executive use a power of the judiciary/vice versa (Zubair v MIMA)
Is the underlying act unconstitutional (Lawlor Principle) (Re Reserve Bank)
If no for the above
Was the decision a decision that ‘will, or is likely to affect the interests of a person’ i.e. them? (ARC 1999)
6
THE OMBUDSMAN
Key statute: Ombudsman Act 1976 (Cth)
What is it: Statutory body (person tho) with broad powers to investigate maladministration, systemic problems in administrative decision-making. Can be under statute or non-statute, but only those under statute are available for judicial review. Basically in-house quality control for the executive arm.
4 major statutory roles
investigate complaints re the administrative actions of Australian Government officials and agencies Ombudsman Act 1976 s 5(1)(a) undertake investigations of administrative action on own initiative (usually prompted by the insight
information gained from handling individual complaints)
Ombudsman Act 1976 s 5(1)(b) inspect records of agencies (i.e. AFP and ACC) to ensure compliance with legislative requirements
applying to selected law enforcement and regulatory activities
specified in legislation i.e.
Telecommunications Act oversee operation of Public Interest Disclosure Scheme; role includes receiving notifications by
agencies, investigating disclosures, providing assistance and awareness programs and reporting annually on the operation of the PID scheme
Public Interest Disclosure Act 2013
Ombudsman office:
Appointed by Governor-General s 21(1)
7 year term + may be reappointed s 22(1)
May be removed by G-G on an address of both houses of Parliament on the grounds of misbehaviour, or physical or mental incapacity
s 72(ii) of the Constitution
Pros + Cons
Pros Cons
Informal + free Broad discretions re whether to investigate + when to drop the case
Flexible + wide range of remedies No control by applicant
Systematic approach (organised) No binding decisions
No standing rule – anyone can apply! High level of dissatisfaction
Can take a long time (both of the above – because free + busy)
Jurisdiction: Ombudsman Act 1976 (Cth) s 5(1) over ‘matters of administration’ (term not precisely defined and given a wide ambit)
Does not decide legal rights; investigates and reports to Parliament; force comes from throwing light on administrative injustice where legal and other remedies might fail (Ainsworth).
Investigations are not limited to illegality (ADC v Acting Ombudsman); can include unreasonable delay in making a decision (Ombudsman Act 1976 s 10).
NOT AVAILABLE FOR S of act
TAX COMPLAINTS
Ministers S 5(2)(a)
Legislative functions S 5(2)(aa)
Judicial functions S 5(2)(b)
Policy
BUT can examine the application of a policy in a particular case for this is a matter of
administration City of Salisbury
Cannot make findings of individual guilt (a matter for a court) but can offer an opinion on possible guilt ATSIC v Cth Ombudsman
Limited to matters in Australia Brannigan v Cth
Standing:
Almost anyone can complain!! It’s free!!! Commencement done orally or in writing (s 7).
NOT AVAILABLE FOR Authority
Media not directly affected may lack standing to judicially review an Ombudsman’s decisions Boyce v Owen Press article about a matter not a complaint within the meaning of the Act, so if you go to the
press before complaining to the Ombudsman may refuse to review on the grounds that it is already in the public arena
McGurk v NSW Ombudsman
Broad discretion not to investigate if: S of Act
Stale i.e. more than 12 months old S 6(1)(a)
Frivolous or vexatious S 6(1)(b)(i)
Complainant lacks sufficient interest in the subject matter S 6(1)(b)(ii)
Not warranted in the circumstances S 6(1)(b)(iii)
Has discretion to discontinue an investigation (Watson v Cth) HOWEVER cannot re-open an investigation once finished and a report produced (R v PCA). When and why the Ombudsman finishes is not up to the applicant!!
Powers:
10
OPEN GOVERNMENT
Office of the Australian Information Commissioner (OAIC)
Key statutes: Privacy Act 1988 (Cth)
What is it: Statutory body who has the power to investigate practices; approve Privacy Codes; Conciliate / arbitrate where breaches occur; appoint adjudicators where breaches occur; and, prepare guidelines.
In making decisions must regard for human rights and social interests that compete with privacy such as free flow of information (s.29 recognise competing public interests).
Internal review must be applied for before you can apply to the OAIC (s 401(1)(a)).
Powers:
“Ombudsman-like” powers of investigation (ss 65-66, 68); power to make ‘public interest determinations’ for disclosures (Pt VI); can refused to review matters on similar grounds to the Ombudsman (s 54W); receive complaints (s 69); transfer matters to the Ombudsman (s 74).
Remedies can offer:
S of Act
Civil Penalty Orders S 80W
Reports to the Minister S 33 & s 34
Make determination that the complaint is Dismissed or Substantiated S 52
Declare the agency has interfered with the privacy of an individual Declare redress including injunction, apology and/or right to compensation
As a general principle once a breach of Act substantiated compensation awarded, level of compensation determined under the same as for damages in tort. E.g. for injury to feelings, humiliation, for insult.
HOWEVER declarations are NOT binding or conclusive between any of the parties s 52(1B) - failure to comply with an AOIC recommendation does not invalidate a decision!! Determination needs to be enforced by the Federal Court. S 62
Key issues
Had their budget cut SUPER lately!!
Latest controversy
(National) Independent Commission Against Corruption (ICAC)
Key statutes: Independent Commission Against Corruption Bill 2012 (SA)
What is it: Basically anti-corruption bodies. They’re state only atm. Have a 3-fold purpose of investigating corruption, misconduct and maladministration (primarily serious or systemic corruption). arguably driven by state-level scandals in 1980s & 90s (EXCEPT SA!!), now present in all States. Establishes an Independent Commissioner Against Corruption (ICAC) and the Office for Public Integrity (OPI).
Powers:
S. 6 – ICAC to
Identify and investigate corruption in public administration and refer it either for prosecution, or to the Police or Police Ombudsman for investigation and prosecution;
Assist inquiry agencies (including, for example, the Ombudsman, the Police Ombudsman or the Commissioner for Public Sector Management) and public authorities to identify and deal with misconduct and maladministration in public administration; and
Conduct educational programs designed to prevent or minimise corruption, misconduct and maladministration in public administration.
Can bug phones, etc. No rules of evidence in hearings.
Key issues Critique:
ICACs lack coherence, coordination and comprehensiveness due to foundations as a reaction to corruption scandals
RESPONSE: ICACs have strength in this flexibility + diversity – allows for adaption to local conditions
