Quotes about Administrative law (42 quotes)
It next examines why the close relationship between health law and Black's Law Dictionary defines administrative law as "the law governing. There is no universally accepted definition of administrative law, but rationally of all kinds engaged in administration; their relations with one another and with. 43 quotes have been tagged as administration: Euripides: 'When one with honeyed This means that she should not be brought up overmuch among women nor She must know the laws of arms and all things pertaining to warfare, ever .. “Not only in personal relationships, but also in professional life, if like minded.
Other elements in that matrix are specialist merit review tribunals, human rights and anti-discrimination agencies, Ombudsman agencies, and open government and privacy laws. Revision and extension by Parliament of the accountability framework has been a continuing process. Recent legislative additions include the Financial Management and Accountability Act Cwlthto establish a comprehensive control framework for government financial management; the Commonwealth Authorities and Companies Act Cwlthto apply an accountability regime to statutory authorities and government companies; and the Public Service Act Cwlthwhich includes a definition of the core values and ethical duties of the public service.
Parliamentary committees have also been continually active in reviewing the system.
Quotes about the administrative state - Ballotpedia
One point of view is that this question is of theoretical interest only, since Parliament can take legislative action to override a judicial ruling or trend that it disagrees with.
Periodically, too, Parliament-or, at least, one House of it-has declined the opportunity to reverse a court ruling or to block a tide of litigation: The question remains, nevertheless, as to whether the game should continue to be played, either in the fashion or with the frequency that it has been.
It was pointed out earlier in this paper that legislative reform has at times given rise to a phase of judicial expansion, which the legislature has then seen the need to contain. This has been the evolving pattern in relation to immigration regulation, where there has been a successive restriction of judicial review on the basis that it was undermining the integrity of other legislative reforms, particularly the system of merit review by administrative tribunals.
Later cases, however, have chipped away at the Osmond principle by holding that a duty to provide reasons can arise by implication from the context in which a decision is made. An example given earlier was the decision of some judges in Kioa that the new ADJR right to reasons transformed the deportation power, by subjecting it to an obligation to accord natural justice. Similarly, the obligation of the immigration tribunals to provide reasons has increasingly been used by courts as a basis for invalidating tribunal decisions, notwithstanding an earlier legislative contraction of the scope of judicial review of immigration decision-making.
Those criteria have an imprecise penumbra, reflecting their history as evolving common law concepts designed to facilitate judicial control of government action.
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For example, among the grounds defined in s. The legislature has chosen to adopt those elastic standards, but there is still an issue as to how far those concepts should be extended-or stretched? To take a current issue, should courts-as many have urged them to do-show leadership in evolving a principle of 'proportionality', such that a court could declare executive action to be invalid if the burden imposed by a decision is excessive or a disproportionate method of administering a statute?
There are, in a sense, few hard boundaries in administrative law concerning the concept of legality and the scope of its application.
Courts, in the absence of legislative impediment, have an almost boundless discretion to define the limits of legal regulation. One view, with strong support, is that: Our evolving concept of the democratic process is moving beyond an exclusive emphasis on parliamentary supremacy and majority will. It embraces a notion of responsible government which respects the fundamental rights and dignity of the individual and calls for the observance of procedural fairness in matters affecting the individual.
Parliament and Administrative Law
The proper function of the courts is to protect and safeguard this vision of the democratic process. To ensure that effect is given to these values when they stand in the way of an exercise of power, especially the power of governments, a judiciary of unquestioned independence is essential. The time-honoured role of courts in safeguarding individual rights against the oppressive use of executive power is significant too.
There is, nevertheless, a certain irony in the view that the law-making role of courts can be justified by democratic tradition. How suitable, too, are courts as a forum for identifying and formulating community values regarding the obligations of government?
Presently, however, an important part of that context must be the role played by Parliament since the s in providing a legislative foundation for administrative law, for periodically reviewing and redefining its parameters, and especially through the committee system 83 for being an open forum in which the suitability of existing standards can be publicly debated.
Tension and Conflict Between Courts and Parliament The prospect of tension and conflict between judiciary and legislature is inherent in the Australian constitutional system.
The Constitution was decreed as a law-above-government, to be safeguarded ultimately by the exercise of judicial power in preventing any subversion of the constitutional order by legislative or executive action. Inevitably, the separation of governmental power between legislature, executive and judiciary would operate-together with other features of the constitutional order-as 'a harmonious system of mutual frustration'.
There is a close integration of legislative and executive roles, by reason that the political leaders who command majority support in the lower house of the Parliament also constitute the federal Executive. In their hands is the control of both the legislative agenda of the Parliament and the administration of the law within government agencies.
It is natural in that setting, when talking of accountability, to think of the two roles as being fused. In practice, the focus of administrative law on control of executive discretion is manifested at times as a challenge to legislative sovereignty. The following analysis looks at three areas of administrative law in which the tension between courts and Parliament has been at its strongest.
Two of the areas deal with matters of statutory interpretation: The third area deals with the introduction of international norms into domestic law, as to which there has been signs of a struggle between courts and Parliament.
Presumptions of Parliamentary Intention The common law has been the source of many rights and freedoms in the Anglo-Australian legal tradition. Long before there was any parliamentary action to protect individuals, the courts had developed a formidable body of doctrine to protect property, employment, physical security, personal autonomy, reputation, and rights of public protest. The juridical threads which provided that protection included common law doctrines of real property, trespass, assault, defamation, freedom of association, and freedom of movement.
Those doctrines were supplemented in the public law sphere by the rule of law. The heart of that maxim is that individuals are free to engage in any activity which is not specifically prohibited by law, by contrast with the executive government, which is limited to activities that are authorised by law and, in particular, has no inherent authority to impose taxation, to interfere with private property, or to take coercive or punitive action against members of the public.
The age of legislative supremacy later arrived, and nowadays the community looks primarily to legislation as the source of rights and protections. It was, however, a natural consequence of the legal heritage that courts would jealously shield the common law principles which they had developed.
Their determination to do so has been a major theme of administrative law, especially in an era of large government wielding coercive and regulatory powers. Of special significance to administrative law has been the defence by courts of the doctrine of natural justice, which has been safeguarded by the principle that 'express words of plain intendment' are required before a statute will displace the: It has become a bedrock principle of public law and public administration in Australia.
Parliament's legislative function is nowadays discharged against a background of similar statutory presumptions and approaches-so much so that courts often reason that it is 'parliament's intention' that is being implemented. Whether one regards that approach as a pragmatic fiction, it is a fiction that most observers are probably comfortable in upholding-as an attribute, in a sense, of 'harmonious frustration' at work.
Nonetheless, at times the fiction can be strained, and the interface between legislative intention and judicial method can be marked more by collision than by concord. Two examples will be discussed here, the first concerning the statutory presumption in favour of preserving common law rights, and the second concerning the narrow interpretation of statutory provisions designed to restrict the opportunity for judicial review.
Throughout the century the High Court has clung steadfastly to a presumption, enunciated in one of its earlier cases inthat: It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness. Problems chiefly arise from the elasticity of the test, both as to what qualifies as a fundamental interest, and as to what constitutes an unmistakable legislative intention to override it.
Some common law rights, though understandable as the legacy of a common law history, do not indisputably have intrinsic worth. That may be said, for example, of the possessory title of a person at common law to retain the proceeds of an illegal activity, such as narcotics or gambling. Is it 'in the last degree improbable' that the legislature would abolish the right? To take a case in point, should courts lean towards a narrow interpretation of the forfeiture and confiscation provisions in legislation such as the Proceeds of Crime Act Cwlth?
Doubtless it could be said, in answer, that some common law rights and human freedoms are more important than others, and more easily yield to a contrary legislative intention. But to answer along those lines is to concede a value judgment. Should that prerogative belong to the legislature: The underlying tension is aptly illustrated by Coco, quoted above for its recent affirmation of the presumption of interpretation. In that case the defendant's conviction for attempted bribery of a Commonwealth official was quashed by the High Court, when it ruled as inadmissible the evidence obtained from a telephone interception which had been installed by police at the defendant's business premises.
The installation of the interception device had been authorised by a Supreme Court judge under an Act entitled the Invasion of Privacy Act Qldwhich established a comprehensive code for permitting telephone interception. Acting on that warrant, the officers installed the device after pretending that they were investigating a fault in the telephone.
However, the Act did not specifically-'unmistakably and unambiguously'-provide that private premises could be entered in order to install a device. The Court held, accordingly, that the interception warrant granted by the judge was invalid, and so too the evidence collected from the interception.
The contrast-or clash-between legislative intention and judicial values has been greater still in the construction of 'privative' or 'ouster' clauses. Situations arise in which, in the legislature's view, it is inappropriate to permit judicial review of a sphere of administrative or tribunal decision-making. A common reason for imposing a restriction is the worry that judicial review will be used by parties to a dispute to prolong the process and forestall the implementation of an adverse decision.
A statute will provide accordingly that decisions made under it cannot be called into question in a court or be the subject of a judicial review proceeding. An alternative is sometimes provided by the statute, such as review of the decision by an administrative tribunal. Yet, regardless of whether an alternative exists, and how efficacious it is, the view of the courts has been that the denial of judicial review contains the seeds of a contradiction.
In the words of Justice Dixon: There is necessarily an appearance of inconsistency between a provision which defines and restricts the power of a [body] and prescribes the course it must pursue and a provision which says that the validity of its decrees shall not be challenged or called in question on any account whatever.
Aronson and Dyer have characterised the judicial trend as 'a mixture of incredulity, disingenuous disobedience, and downright hostility', which is 'thinly disguised as an attempt to reconcile two apparently conflicting parts of a statute'.
In the Commonwealth domain the two fields in which governments have most often been disposed to seek enactment of privative clauses are to shelter industrial arbitration and immigration regulation from judicial review. The industrial arena was marked in the early years of federation by heated accusations of inappropriate High Court intrusion into the proceedings of the Commonwealth Arbitration Court.
Among the criticisms were those of the President of the Court, and former Attorney-General, Justice Higgins, complaining of 'a gradual paralysis of the functions of the court'; 97 and those of Attorney-General Hughes, and later Prime Minister, decrying 'a public scandal': We throw the High Court an amending Act, and they hurl back its shattered remains.
Then, spurred on by the demon of eternal hope, we pass another, again it is thrown back. At the close of the century there is a similar debate underway in relation to immigration determination. The Government, concerned by a rapid escalation in judicial review challenges brought by unsuccessful immigration applicants-for example, a rise from 84 cases filed in the Federal Court into filed in has introduced legislation to preclude judicial review of immigration decisions by the Federal Court.
Ministerial Control of Administrative Decision-Making Legislation enacted earlier in the century by the Commonwealth Parliament bore the hallmarks of the system of responsible government within which it would be administered. It was anticipated that the administration of legislation would be undertaken by departmental officers, with the minister being responsible administratively and accountable politically for the way that function was discharged.
Thus, for example, many of the decision-making functions under the Immigration Restriction Act Cwlth were conferred upon 'officers', defined sweepingly by the Act to include any officer appointed by the Governor-General to carry out the Act and all officers employed in the service of the Customs. Functions were still conferred specifically upon ministers and office-holders, but there was no necessary implication that those functions would be exercised personally by the designates.
Public business could not be carried on if that were not the case. A consequence of that view was that the statutory conferral of power specifically upon a minister was less likely to be treated as a legal fiction or as a convenient drafting device, but regarded instead as a presumptive indication that the decision was to be made by the minister personally. Other officials could step into the shoes of the minister only if the minister had delegated the function in the exercise of an express power conferred by the statute to do so.
A sign of this changed attitude can be found in the transformation of s. In it provided in disarmingly simple terms that any reference in an Act to a minister: Byand partly in response to judicial narrowing of those words, s. Two cases from the last two decades can be noted briefly to illustrate how legal pressures overrode traditional administrative practice. The Minister had given approval to a particular test, time and location, but a further round of testing was conducted to accommodate an overflow of applicants.
The Court held that this further round also needed the specific approval of the Minister, and without it, the results of tests sat by numerous applicants under Departmental arrangements were invalid. In Re Reference under the Ombudsman Act, a decision was made by an authorised delegate of the Director-General of Social Services who signed the decision in the name of the Director-General.
This alone caused the decision to be invalid, on the principle that: The new legal paradigm for decision-making had the advantage of certainty. It would be simpler to identify which official was legally responsible for making a decision. There were drawbacks, however.
A corollary of the principle that a power was to be exercised by the person upon whom it was conferred was that the judgment and discretion of that decision-maker could not be overawed by dictation or pressure exerted by other officials.
In short, thereafter it would be more difficult to ensure that the various decision-makers within a department took a consistent approach in all aspects of decision-making, such as the procedure followed in making decisions, the range of factors taken into consideration, the weight given to those factors, and the importance attached to implementing government policy. The strength of the legal obstacle to central political direction was illustrated by two High Court decisions in and that addressed but did not resolve whether a minister, in pursuance of a Cabinet decision, could direct the head of his department to exercise a statutory power to consent to the importation of aircraft consistently with maintaining Australia's two airline policy.
In the s and s it became increasingly common for legislation to give statutory backing to ministerial directions and policy statements. In some Acts it is framed simply as an obligation cast upon delegates and decision-makers to comply with any written directions of a minister.
In other Acts a more elaborate scheme is defined, providing that ministerial policy statements and directions are to be tabled in Parliament and can be disallowed by either House; in effect, the statement or policy is treated as a form of subordinate legislation.
A factor which contributed to this trend was the growth through the period of statutory authorities. Nevertheless, the authorities are a branch of government, shouldering an expectation of playing a role compatible with the implementation of a government's mandate. Accordingly, the statutes creating those authorities often declare that the governing board is to comply with any directions of the minister and is to exercise its functions consistently with the policies of the government.
For example, in Aboriginal Legal Service Ltd v Minister for Aboriginal and Torres Strait Islander Affairs, it was held that a power conferred on the Minister to give 'general directions' to the Aboriginal and Torres Strait Islander Commission would not support a direction to the Commission not to provide funding to any organisation against which an adverse report had been issued by a specially-appointed auditor. By contrast, in New South Wales Farmers' Association v Minister for Primary Industries and Energy, it was held that a power conferred on the Minister in 'exceptional circumstances' to give directions to safeguard 'major government policies' enabled the Minister to dictate a price band for wool to the Australian Wool Corporation.
Even the device of requiring that a direction or policy statement be tabled in the Parliament as a disallowable instrument has not yielded a consistent result. While directions of that kind have usually been accepted by courts as binding upon decision-makers, a contrary ruling was given by the Full Federal Court in Riddell v Secretary, Department of Social Security concerning a ministerial direction to the Secretary on recovery of social security overpayments.
Notwithstanding the requirements of the Act-that 'the Secretary must act in accordance with [the] directions', and that the directions be tabled in Parliament as a disallowable instrument-the Court held that the Secretary must remain: Such an Act, if it follows the lines of a Bill first introduced into the Parliament inwould lay down a comprehensive framework for the drafting, publication, parliamentary scrutiny and adoption of legislative instruments.
Many of the directions and policy statements currently made by ministers under powers delegated by Parliament would be subject to the proposed scheme. Issues would no doubt arise, both within Parliament and the courts, as to the legal effect of legislative instruments made under such a scheme.
Recognition of International Norms The contest between the maintenance of national sovereignty and the impelling force of globalisation has long been a theme of politics, business and, increasingly, of law. The orthodox stance of the courts was to give muted recognition to international law, accepting that it was for the legislature to decide whether to harmonise domestic and international law. Only in three limited ways would there be an intrusion on that prerogative: Otherwise, international obligations agreed to by the Executive would not by that action alone give rise to rights or obligations that were enforceable in Australian courts.
There was a steady growth in the number of cases, especially cases with a public law element, in which the courts referred to the terms of international treaty commitments in the course of elucidating domestic legal standards.
In the result, the Court held that a deportation decision made against Mr Teoh was invalid, due to the failure of the decision-maker to observe natural justice by bringing to Mr Teoh's attention that his separation from his children would clash with the Convention on the Rights of the Child. The decision in Teoh has attracted both supporters and detractors. One area of concern has had to do with whether the Teoh ruling creates a practicable standard for ascertaining the validity of administrative decision-making.
While some argue that it is salutary to require decision-makers to become more aware of Australia's international obligations, others claim that the indeterminate concepts of 'legitimate expectation' and 'natural justice' that were relied upon by the High Court are not the appropriate way of meeting that objective.
Of some bearing on this debate is that the High Court has itself remarked in a later case that: Often their provisions are more aptly described as goals to be achieved rather than rules to be obeyed. That concern was taken up in a Bill to overturn Teoh that has been introduced three times into the Parliament, firstly by the Labor Government two months after the High Court's decision, and subsequently after the lapse of the Bill when an election was called in and by the Coalition Government.
The similar design of each Bill was to leave in place the established methods by which the judiciary may take cognisance of international law, but to overturn Teoh with the following declaration: The fact that Australia is bound by, or a party to, a particular instrument It is the role of Commonwealth, State and Territory legislatures to pass legislation in order to give effect to international instruments by which Australia is bound or to which Australia is a party.
That sentiment was endorsed twice in majority reports of the Senate Legal and Constitutional Legislation Committee that supported the enactment of the Bill. When wronged, her men must be able to turn to her for refuge. She must be so skilled and flexible that in each case she can respond suitably.
Therefore, she must be knowledgeable in the mores of her locality and instructed in its usages, rights, and customs. She must be a good speaker, proud when pride is needed; circumspect with the scornful, surly, or rebellious; and charitably gentle and humble toward her good, obedient subjects.
With the counsellors of her lord and with the advice of elder wise men, she ought to work directly with her people. No one should ever be able to say of her that she acts merely to have her own way. Again, she should have a man's heart. She must know the laws of arms and all things pertaining to warfare, ever prepared to command her men if there is need of it. She has to know both assault and defence tactics to insure that her fortresses are well defended, if she has any expectation of attack or believes she must initiate military action.
Testing her men, she will discover their qualities of courage and determination before overly trusting them. She must know the number and strength of her men to gauge accurately her resources, so that she never will have to trust vain or feeble promises. Calculating what force she is capable of providing before her lord arrives with reinforcements, she also must know the financial resources she could call upon to sustain military action.