Administrative law : the laws of Australia

622 Pages·2016·2.532 MB·English

by  Mark Anthony Robinson (editor)

ADMINISTRATIVE
LAW
THE LAWS OF AUSTRALIA
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ADMINISTRATIVE
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THE LAWS OF AUSTRALIA
MARK ROBINSON SC
BA,LLB(Hons)(Macq)
Barrister,SupremeCourtofNewSouthWalesandHighCourtofAustralia
Barrister,MauriceByersChambers
PublishedinSydney
byThomsonReuters(Professional)AustraliaLimited
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Robinson,MarkA.(MarkAnthony),editor.
Administrativelaw:thelawsofAustralia/editor:MarkRobinson.
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Includesbibliographicalreferencesandindex.
Administrativelaw–Australia.
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Quick
2.1Administrative Law
System
Reference
Directory
Quick Reference
Directory
This quick reference directory
helps identify the location of
Subtitles within this book.
For a complete User’s Guide,
see p xiii.
For a complete Table of
Contents, see p xv.
2.3Access to Information
2.7 Other Forms of Review
and Appeal
vi
Foreword
The Honourable Sir Anthony Mason
AC KBE GBM
IhavemuchpleasureinwritingthisForewordtoAdministrativeLaw:TheLaws
of Australia, a volume based on the original work in Thomson Reuters’ The
LawsofAustralia(TLA)encyclopaedia.Asthetitletotheseriessuggests,TLA
is in essence anAustralian equivalent of Halsbury’s Laws of England, adopting
a similar format. Wisely, however, the editor has resisted the temptation of
following the example provided by Halsbury’s in stating propositions with a
degree of certainty, yet qualifying that degree of certainty by reference to
material contained in the footnotes. This book states the relevant qualifications
in the text and consigns the footnotes to their primary role, that is, to serve as
identifiers of the authorities and statutory provisions, which support the
propositions and qualifications stated in the text.
Thisbookiscomprehensiveinitscoverage.Itdealswiththeadministrativelaw
in the Commonwealth, the States and the Territories. It consists of three broad
subtitles, the “Administrative Law System”, “Access to Information” and
“Other Forms of Review and Appeal”. The most extensive coverage in the
present book relates to access to information, the jurisdiction and powers of the
Ombudsman (federal and state), and statutory appeals.
The discussion on “Access to Information” is both informative and
comprehensive. Access to information is indispensable if our democratic
governmentistobeeffective.DixonJwasabletosayinAustralianCommunist
Party v Commonwealth (1951) 83 CLR 1 that the “counsels of the Crown are
secret”.1 Since that comment was made, it has been recognised that the public
should have greater access to information possessed by government and its
agencies, subject to appropriate qualifications, even if this access falls far short
of the media’s misleading mantra on “the public’s right to know”.
The Freedom of Information Act 1982 (Cth) was the forerunner of a series of
Commonwealth, State and Territory statutes designed to secure greater
provision of, or access to, information in the hands of government.
Nevertheless, governments are resistant to the notion of providing information
and will, on occasion, strenuously oppose the grant of applications for access.
The detailed reasons given by Jagot J2 in Dreyfus v Attorney-General (Cth)
(2015) 68 AAR 207; [2015] AATA 995 provide a striking and interesting
example of government resistance.
Access to information is, as already mentioned, essential to the effective
working of our form of democratic government. In the absence of relevant and
vii
FOREWORD
accurate information, electors are not able to make informed choices. Brexit
was an obvious and disturbing illustration. Availability of government
information is also an antidote to corruption.
Likewise, the discussion of the powers of the Ombudsman is both detailed and
informative. For my part I doubt that the importance of Ombudsman review is
sufficiently appreciated by the legal community. Even a casual reading of this
subtitle will convey to the reader a strong impression of how instructive a
review by the Ombudsman can be if it results in an adverse report concerning
government action. For a lawyer, the detailed discussion of the jurisdiction and
powers of the Ombudsman, along with the relevant procedures, is of even
greater value.
Similar comments can be made about the treatment of review by statutory
tribunals. Among the many matters discussed are the status of government
policy, procedural requirements, including cross-examination and its limits,
evidence and the investigative powers of tribunals. Again, the discussion is
instructive and extensive.
There is a useful bibliography which references not only text books but also
academic articles which throw light on particular topics and issues.
This book will be a valuable source of information and learning to practitioners
and lawyers generally.
THEHONOURABLESIRANTHONYMASONACKBEGBM
FormerChiefJusticeoftheHighCourtofAustralia
September2016
1 Australian Communist Party v Commonwealth (1951) 83 CLR 1, Dixon J
at179.
2 ConfirmedbytheFullFederalCourtonappealinAttorney-General(Cth)vDreyfus
[2016]FCAFC119(Besanko,RobertsonandGriffithsJJ).
viii
Preface
I am very pleased to present this book as both editor and an author.
For 20 years (since 1997) I have undertaken my duties as Title Editor of the
two-volume “Administrative Law” title of The Laws of Australia published by
Thomson Reuters. In that time, I was an occasional author of some of the work
as well. This book is derived from that excellent legal encyclopaedia.
This book is a companion to Judicial Review – The Laws of Australia,
published in 2014 by Thomson Reuters. In the practice of administrative law,
judicial review (quashing executive or administrative decisions in the superior
courts) is only part of the suite of available remedies and strategies able to be
deployedwhenseekingtochallengeadministrativeaction.Thisbookdealswith
the rest. It deals with everything in administrative law other than judicial
review,includingtribunalreviewofdecisions(stateandfederal)andfreedomof
information(stateandfederal)andtheimportantworkoftheOmbudsmen(state
and federal) dealing with maladministration.
In my 20 years as editor, together with the impressive staff of the The Laws of
Australia, I managed to secure and sometimes maintain a formidable team of
legal authors and updating authors comprising some of the best administrative
law lawyers and academics inAustralia today.
Thenamesanddetailsofallthepersonswhoworkedasauthorsofthisbookare
located inside. They each deserve significant credit for their good work.
Particular mention must go to John Fitzgerald, a legal practitioner and author
who worked tirelessly on the chapters of this book concerning tribunals,
Ombudsmen and statutory appeals. In the chapter concerning freedom of
information, titled “Access to Information”, the major reforms of 2009 at the
stateandfederallevelsmeantthatbuildingontheworkofpreviousauthorswas
not feasible. John Fitzgerald started from scratch. Accordingly, “Access to
Information” is his work and his alone (for the moment). It is an important and
unique work and it includes a legal dissertation of statements of reasons issued
(or not) by administrative decision-makers inAustralia.
This is a wide-ranging and practical book for legal practitioners, academics and
students, covering administrative law at the state, territory and federal levels. It
is a work of which I am very proud to have been a part.
Administrative law is an expanding and constantly evolving area of law.
Challenging administrative or executive decisions by way of independent
external merits review tribunals, seeking freedom of information or seeking
Ombudsman review is a significant part of everyday practice for many legal
practitioners inAustralia.
ix
PREFACE
The text of the book covers:
• the administrative law system inAustralia;
• federal and state tribunals;
• freedom of information (federal and state);
• statements of reasons for administrative decisions;
• statutory appeals; and
• Ombudsmen (federal and state).
Iacknowledgethegenerousassistancegiventomeovertheyearsbytheauthors
and updating authors responsible for this work. It has been wonderful working
with them and I have also learned something from their experience and
professionalism.
I thank Thomson Reuters for actively supporting and improving the work over
my 20 years. The editors and senior staff of this publisher have always played
that role very well, often with very hard work undertaken behind the scenes. I
particularly wish to thank Maki Watanabe, Thu Luc, Catherine Fitzgerald, and
Catherine Roberts for their active support in the creation of this book and for
bringing it to completion.
MARKROBINSONSC
Barrister,MauriceByersChambers
x