Administrative law

Preface
Acknowledgments
Table of Cases
Table of Statutes
Abbreviations
Contents
Detailed Contents
PART 1
Introduction
1
Introduction to Administrative Law
	General
	Objectives
	1 What is administrative law?
	2 The constitutional framework
	3 Australian administrative law
	4 State and territory systems of review
	5 The structure of this book
		Further reading
			Public/private distinction
			Administrative law theory
			General
PART 2
Challenging Administrative Decisions
2
The Form and Nature of Merits Review Systems
	General
	Objectives
	1 Forms of merits review
	2 The nature of merits review
	3 Objectives of merits review
	4 The jurisdiction of merits review tribunals
	5 Standing requirements for merits review tribunals
		Problem
			Resolution
			Introduction
			What decision has been made?
			Is the decision reviewable?
			Refusal to pay victim’s compensation
			Application must be made
			Standing
			Decision-making powers
			Conclusion
		Further tutorial discussion
		Further reading
3
Merits Review: Procedure
	General
	Objectives
	1 What happens after an administrator has made a decision?
	2 What are the requirements for lodging an application for review?
	3 What happens after an application has been lodged?
	4 Can the tribunal make a decision without a formal hearing?
	5 What happens at a tribunal hearing?
	6 Appeals from decisions
		Problem
			Resolution
			Introduction
			Access issues
			Application
			Documentation
			Procedure from application to hearing
			The hearing
			Conclusion
		Further tutorial discussion
		Further reading
PART 3
Challenging Administrative Decisions — Judicial Review
4
The Judicial Reviewability of Administrative Action
	General
	Objectives
	1 Reviewing the lawfulness of administrative activities
	2 Jurisdiction
	3 Justiciability
	4 Ouster clauses
	5 Time limits
		Problem
			Resolution
			Conclusion
		Further tutorial discussion
		Further reading
5
Access to Judicial Review
	General
	Objectives
	1 The development of the doctrine of standing
	2 Standing requirements at common law
	3 Statutory formula for standing
	4 Joinder
	5 Intervention
	6 ‘Amicus curiae ’ or ‘friend of the court’
		Problem
			Resolution
			Introduction
			Dealing with each applicant
			What is Ms Elder’s interest?
			Is there sufficient proximity between Ms Elder’s interest and the subject matter?
			What is the NWJC’s interest?
			The NWJC’s proximity to the subject matter?
			NWJC’s capacity to represent the public interest?
			Conclusion
		Further tutorial discussion
		Further reading
6
Rule-making and Administrative Powers
	General
	Objectives
	1 Grounds for review: An introduction
	2 Sources of administrative powers
	3 Bureaucratic rule making
		Table 6.1: General rules with respect to subordinate legislation
	4 Repositories of power
	5 Determining whether powers have been exceeded
	6 Complying with procedures
		Problem
			6A Terrorist Attacks
			Resolution
			Is reg 1 invalid because it amends an Act?
			What is the significance of the failure to consult?
			Does it matter that the regulations have not been laid before both Houses?
			Are the regulations nonetheless for reasons other than those related to publication and tabling?
			Is reg 1 inconsistent with the Act?
			Assuming reg 1 to be invalid, should Ms Dicey seek to challenge its validity?
			Is reg 2 invalid?
			Is reg 3 of the amending regulations (new cl 6A) invalid?: differential treatment of victims of terrorism
			Defeating the registrar’s discretion to grant an extension of time
			Severance
			Conclusion
		Further tutorial discussion
		Further reading
7
Discretionary Powers
	General
	Objectives
	1 Discretionary powers
	2 Discretionary powers must be exercised by the repository
	3 Self-fettering
		Problem
			Mr Andropov’s arguments
			The Director’s arguments
			Whose arguments would prevail?
		Further tutorial discussion
		Further reading
8
Legality
	General
	Objectives
	1 No errors of law
	2 Relevant and irrelevant considerations
	3 Improper purposes
		Problem
			Discussion
			What is being reviewed?
			The financial loss decision
			The counselling compensation decision
			The Hitachi decision
			The further counselling decision
		Further tutorial discussion
		Further reading
9
Judicial Review of the Merits?
	General
	Objectives
	1 Unreasonableness
	2 Evidence
		Problem
			Discussion
			The decisions
			Unreasonableness and the three decisions
			Unreasonableness — inconsistency?
			Unreasonableness — irrationality?
			Unreasonableness — general considerations?
			Evidence
			The irrelevance of Dr Prude’s incompetence
		Further tutorial discussion
		Further reading
10
Grounds of Review: The Implication of Procedural Fairness
	General
	Objectives
	1 Introduction
	2 Implication of the duty to observe procedural fairness
	3 Historical development of the implication principle
		The nature of the interest
	4 Factors which affect the operation of the presumption
		Construction of the statute
		The decision-making framework
		Manner in which the interest is affected
			Problem
		Further tutorial discussion
		Further reading
11
Grounds of Review: The Rules of Procedural Fairness
	General
	Objectives
	1 The hearing rule
		Requirement of prior notice
		Who should hear?
		The hearing
	2 The rule against bias
		The form of bias
		Prejudgment
		The decision makers
	3 The consequences of a breach of procedural fairness
		Problem
			Resolution
			Has Mr Schmidt breached the hearing rule?
			What is the basis of Mr Schmidt’s decision?
			Did procedural fairness require Mr Schmidt to give Ms Sammler notice of potential adverse findings?
			Was Mr Schmidt required to give Ms Sammler an opportunity to call witnesses to support her case?
			Should Mr Schmidt have given notice of how he planned to evaluate the material?
			Did Mr Schmidt base the decision on logically probative evidence?
			Did Mr Schmidt breach the no bias rule?
			Application of the reasonable apprehension test
			Has Mr Schmidt prejudged the case because of Ms Sammler’s sexuality?
			Did Mr Schmidt’s preconceived views about the psychiatric witness indicate prejudgment?
			Was Mr Schmidt biased because of his attitudes to repressed memory syndrome?
			Has there been a denial of procedural fairness?
			Consequence of breach of procedural fairness
		Further tutorial discussion
		Further reading
12
Relief for Unlawful Action
	General
	Objectives
	1 Types of orders
	2 Orders are discretionary
		Problem
			Discussion
			Declaration in relation to compensation for counselling
			Order quashing the further counselling decision
			Order to decide the further counselling matter in a particular way
			Order for reconsideration
			Declaration in relation to Hitachi method
			Damages
		Further tutorial discussion
		Further reading
PART 4
Access to Information
13
Understanding Decisions: The Right to Reasons
	General
	Objectives
	1 The value of reasons
	2 Common law
	3 Statute
	4 Evidence: public interest immunity
	5 Discovery and interrogatories
		Problems
			Resolution
		Further tutorial discussion
		Further reading
14
Access to Information
	General
	Objectives
	1 Access to government information
	2 Access to non-legislative information
	3 The FOI Act 1982 (Cth)
		The general right of access
		Limitations on the right of access
		Procedure
		Public entity’s decision
		Enforcing the duty to provide access
			Problem
		Further tutorial discussion
		Further reading
PART 5
Other Avenues of Accountability
15
The Ombudsman
	General
	Objectives
	1 Introduction
	2 The Commonwealth Ombudsman
		Jurisdiction
		Procedure
		Remedies
			Problem
		Further tutorial discussion
		Further reading
16
Other Procedures for Controlling Administrative Behaviour
	General
	Objectives
	1 Making administrators politically responsible
	2 Encouraging honesty and efficiency
	3 Control by whom, for what?
		Further tutorial discussion
		Further reading
PART 6
Choice of Forum
17
Choice of Forum
	General
	Objectives
	1 Law and choice of forum
	2 Strategic considerations
		Problem
			Discussion
			The Ombudsman
			AAT review
			Judicial review
			Conclusion
		Further tutorial discussion
Appendix
Victims Compensation Act 2008
	Part 1 Preliminary
		1 Name of Act
		This Act is the Victims Compensation Act 2008.
		3 Objects of Act
		4 Definitions
		5 Act of violence
	Part 2 Statutory compensation scheme
		Division 1 Victims eligible for statutory compensation
		6 Persons eligible for statutory compensation
		7 Who is a victim?
			Division 2 Schedule of compensable injuries
		10 Prescription of schedule of compensable injuries
		11 Compensable injuries described by reference to act of violence
		12 Substitution or amendment of schedule
		13 Provisions relating to schedule
			Division 3 Statutory compensation payable
		14 Compensation payable to victims
		17 Compensation for compensable injuries
		18 Compensation for financial loss
		19 Maximum amount of compensation
		20 Threshold amount of compensation
		21 Special payments for counselling of victims
			Division 4 Persons not eligible for statutory compensation
		24 Other persons not eligible to receive compensation
			Division 5 Applications for statutory compensation
		25 Lodging of applications
		26 Time for lodging applications
		27 Consideration of applications by compensation assessors
		28 Medical examinations
		29 Determination of applications
		30 Reasons for not making award or for reducing amount of compensation payable
		34 Compensation may be awarded subject to conditions
			Division 6 Appeals and references to the Tribunal
		36 Appeal to Tribunal by applicant
		37 Reference of application to the Tribunal by assessor
	Part 3 Administration of statutory scheme
		Division 1 Director, assessors and other staff
		63 Director of Victims Compensation, Registrar of the Board and other staff
		64 Compensation assessors
		65 Guidelines and arrangements relating to compensation assessors
	Part 6 Miscellaneous
		88 Regulations
			Schedule 1 Compensable injuries
Index