Administrative Law Week 1 Lecture
What is Administrative Law
• Administrative law focuses on regulating the executive and keeping them accountable
• Mainly what the executive can/cannot do and have they done it properly
• Focuses on the separation of powers: the executive, the legislative and the judiciary
• Some examples of area’s the executive can control are immigration law, admission to practice
Statutory Interpretation
• One of the main focuses of administrative law is statutory interpretation
• This involves the courts interpreting what was meant by parliament when drafting bills and enacting legislation
Who is the Executive?
• The executive is very large
• Includes the Prime Minister, Department Ministers & all individuals who work within each department
• For example, the Minister for Education and all of the individuals who work within the Department of Education are included in the executive
• Therefore, the Executive includes:
➢ Queen and Governor-General
➢ Ministers (Prime Minister and Cabinet)
➢ Ministerial Staff (but not clear how administrative law regulates this)
➢ The departments and the public service
➢ Statutory Authorities (e.g. ASIC, ACCC, tribunals)
➢ Government Business Enterprises (e.g. Australia Post)
Private bodies and public functions
• Questions arise around whether private bodies can be regulated as part of the executive where exercising a public function
• Unclear when it comes to outsourcing and privatisation – Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277
• Look at the function of the entity – Is it a public one (do they do public things?)
Plaintiff M68/2015 v Minister for Immigration and Border Protection & Ors [2016] HCA 1
• Outsourcing to Nauru (and some other private entities for running of detention centre)
• Question of whether the detention in Nauru counts as an executive action – was that something the executive was actually doing?
• The government argued that it was not an executive action as Nauru was detaining them
• The majority of the court agreed with the government
• French CJ, Kiefel and Nettle JJ:
➢ “The plaintiff…was detained in custody under the laws of Nauru, administered by the Executive government of Nauru [there are Nauru laws that regulated the centre]
➢ No Commonwealth officers were appointed as authorised officers by the Secretary for the purposes of the RPC Act [the Nauru Act that regulated the centre]
➢ The Commonwealth concedes the causal connection between its conduct and the plaintiff’s detention.
➢ It may be accepted that its involvement was materially supportive, if not a necessary condition of Nauru’s physical capacity to detain the plaintiff. But, for the reasons given above, it cannot be said that the Commonwealth thereby authorised or controlled the plaintiff’s detention…”
• Gordon J in dissent pointed out the major role in which the Commonwealth acted:
➢ ‘making … decisions…pursuant to s 198AD(5) of the Migration Act …to which particular classes of unauthorised maritime arrivals must be taken and stipulating that Nauru was such a country’
➢ ‘signing the [MOU] with Nauru, whereby the Commonwealth could decide to transfer unauthorised maritime arrivals to Nauru’
➢ ‘providing the ‘security infrastructure’ at the Nauru RPC’
➢ ‘having significant governance responsibilities and control at the Nauru RPC, including participation in the Joint Committee, participation in the Joint Working Group [etc]…’
R (Datafin plc) v Panel on Take-overs and Mergers [1987] QB 815 (Datafin)
• UK case
• Involved a Panel on Take-overs and Mergers as a self-regulating mechanism for dealing with mergers and acquisitions within London.
• The plaintiff complained about the conduct of their competitors in a takeover bid and were unhappy with the Panel's decision.
• The main issue facing the Court was whether to review the decision of a Panel set up under private law using the standards usually applied in administrative law.
• The Court of Appeal held that the powers exercised by the Panel were in the domain of public law and formed part of the Government's scheme to regulate the City.
• Extended the scope of judicial review in English law to private bodies exercising public functions.
Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277
• Because of this case, it is believed in Australia if a case like Datafin occurred the law adopted in the UK would be rejected (even though Datafin was not directly cited)
• AWB (a private corporation owned by wheat growers) had been granted a monopoly over the export of wheat in Australia
• This meant that no other company could export wheat in bulk without the AWB's consent.
• NEAT Domestic Trading was a grain trader who had requested to export wheat and was refused.
• NEAT then appealed this decision, ultimately to the High Court.
• The policy in question was that AWB would refuse export permits to other bodies.
• The court held that AWB’s decisions cannot be reviewed by courts.
• McHugh, Hayne and Calinnan JJ gave three reasons for this decision (second & third apply to admin law):
➢ ‘First, there is the structure of s 57 and the roles which the 1989 Act gives to the two principle actors.’
➢ Secondly, there is the private character of AWB as a company incorporated under companies legislation for the pursuit of the objectives stated in its constituent document: here, maximising returns …’
➢ ‘Thirdly, it is not possible to impose public law obligations on AWB while at the same time accommodating pursuit of its private interests’
Determining what a public function is
• Arise from the UK case ‘Datafin’
• Potential test 1: the surprise test – is it relatively obvious that this is a function of public nature? Would you be surprised to find out that they were operated under statute law (more subjective)
➢ Dolandson MR: ‘No one could have been in the least surprised if the Panel had been instituted and operated under the direct authority of statute law, since it operates wholly in the public domain. Its jurisdiction extends throughout the United Kingdom. Its Code and rulings apply equally and to all who wish to make take-over bids or promote mergers, whether or not they are members of the bodies represented on the Panel.’
• Potential test 2: the major consequences test – look at how far reaching the powers are (more objective)
➢ Lord Nicholls: ‘They [the power of the pane;] are far-reaching, and the sanctions for their enforcement are also formidable: they include suspension of a listing by the council of the Stock Exchange, in performance of its public duty in that regard’
Accountability and Public Law Values
• Legal Accountability: Accountability through mechanisms of law
• Administrative Accountability: Accountability to superiors or other government bodies
• Political Accountability: Accountability to the parliament
• Public Accountability: Accountability to the people (through elections)
• Two types of admin law values 1. Major admin law values 2. Minor admin law values
• These values are competing – the more of one value you have, the less of another you can have
• These values actually affect how we do things.
➢ Statutory interpretation as crucial to administrative law.
➢ The court decide that in some cases we can have ex parte hearings (e.g. to do with information on criminal investigations)
➢ Government creates streamlined processing which does not take into account every individual matter.
➢ Arguments against Bill of Rights.
