This article tracks the various changes which have occured administrative law in Australia since it's introduction into Australian legal jurisprudence as a system of government accountability and public protection.In particular, this article assesses the role of the tribunal in regards to administrative law, and the influence and impact of various government enquires into the system of administrative law in Australia.
Administrative Law: the past, the present, and the future I. THE INTRODUCTION OF ADMINITRATIVE LAW IN AUSTRALIA The establishment of administrative law in Australia was primarily influenced by legal developments in the area of government decision-making in the United Kingdom and the United States 1 . Administrative law largely developed as a result of growing concern regarding bureaucratic decision-making in the 1960’s 2 . Similar to the droit administratif 3 in France, Administrative law in Australia was established under no set doctrine or principles 4 . Consequently, administrative law as it existed then, was ineffective in controlling government decision-making and providing citizens with the right to have matters reassessed in cases where natural justice had failed 5 . Legal academics argue that the non-structured approach to administrative law was partly influenced by A. V. Dicey, who argued that there should be no separate system of administrative law, but rather, that administrative law should simply become part of the courts general 1 Robin Creyke, ‘Administrative Justice- Towards Integrity in Government’ (2007) 31(3) Melbourne University Law Review 705 2 Ibid. 3 The French equivalent of Administrative Law 4 Robin Creyke, ‘Administrative Justice- Towards Integrity in Government’ (2007) 31(3) Melbourne University Law Review 712 5 Ibid.
Transcript
Administrative Law: the past, the present, and the future
I. THE INTRODUCTION OF ADMINITRATIVE LAW IN AUSTRALIA
The establishment of administrative law in Australia was primarily influenced by
legal developments in the area of government decision-making in the United
Kingdom and the United States1. Administrative law largely developed as a result
of growing concern regarding bureaucratic decision-making in the 1960’s2.
Similar to the droit administratif3 in France, Administrative law in Australia was
established under no set doctrine or principles4. Consequently, administrative
law as it existed then, was ineffective in controlling government decision-making
and providing citizens with the right to have matters reassessed in cases where
natural justice had failed5. Legal academics argue that the non-structured
approach to administrative law was partly influenced by A. V. Dicey, who argued
that there should be no separate system of administrative law, but rather, that
administrative law should simply become part of the courts general jurisdiction;
not independent from any other branch of law6.
The late 1960s and early 1970s saw fundamental reforms at the Commonwealth
level, arising out of 3 influential reports, each containing a comprehensive
review of administrative law and a number of recommendations aimed at
improving administrative law in Australia7.
1 Robin Creyke, ‘Administrative Justice- Towards Integrity in Government’ (2007) 31(3) Melbourne University Law Review 7052 Ibid.3 The French equivalent of Administrative Law4 Robin Creyke, ‘Administrative Justice- Towards Integrity in Government’ (2007) 31(3) Melbourne University Law Review 7125 Ibid.6 Matthew Gorves, ‘Substantive Legitimate Expectations in Australian Administrative Law’ (2008) Melbourne University Law Review, 4707 Sabino Cassese, ‘Administrative law without the state? The challenge of global regulation’ (1982) 37 The Journal of International and Political Law 650, 663
The Kerr, Bland and Ellicott reports resulted in a fundamental restructuring of
administrative review at the Commonwealth level8. Not surprisingly, a number of
those recommendations provided in the three reviews have now been
entrenched into Australia’s system of administrative law; assisting
administrative tribunals in coping with added pressures and constraints9.
Moving forward to the twentieth century, administrative law has seen a huge
growth in the size and complexity of the Administrative state and, at the same
time, the degree of government decision-making10. As our system of government
has evolved, citizens have also come to expect that they are entitled, as part of
their birthright, to request an independent and impartial review of most, if not
all such decisions that directly affect their personal, financial and proprietary
interests, unless there are good reasons in public policy to the contrary11.
Without a doubt, administrative law has developed considerably since its
introduction as part of Australia’s legal system and continues to grow as
government and government decision-making increases and expands into a
variety of areas affecting Australia citizens12.
8 Stephen Willey, ‘The merits of merit-based planning appeals: Observations from Australia’ (2004) 9(4) Journal of International Planning Studies, 261-2819 Robin Creyke, ‘Adminiatrive Justice- Towards Integrity in Government’ (2007) 31(3) Melbourne University Law Review 71210 John Willis, ‘Three Approaches to Administrative Law: The Judicial, the Conceptual, and the Function’ (2001) 1(1) The University of Toronto Law Journal 53-8111 H. W. Arthurs, ‘Rethinking Administrative Law: A Slightly Dicey Business’ (1979) 17(1) OsGoode Hall Law Journal, 3712 Ibid.
II. THE IMPORTANCE OF ADMINISTRATIVE REVIEW
a. Good governance, natural justice, and administrative fairness
Administrative law as a system of good governance is concerned with the rules
and institutions that regulate the exercise of government power, ensuring that all
government decisions are consistent with the legal philosophy of natural justice
and administrative fairness13. Essentially, access to review of government
decisions is a key component of access to justice14. Rose Verspaandonk, a notable
contributor on the issue of public service accountability, held that the following
could be said to be manifestations of good governance and administrative
review;
(a) Accountability;
(b) Democracy;
(c) Efficient and effective administration and program delivery;
(d) Equal rights of all citizens;
(e) Ethical use of public resources and authority;
(f) Individual liberty;
(g) Participation;
(h) Rule of law; and
(i) Transparency15
The three arms of government, the executive, the parliament and the judiciary
are, in different ways, guided by such principles, reflecting the importance of
administrative review to the government politic and government
administration16.
13 Margaret Allars ‘One small step for legal doctrine, one giant leap towards integrity in government’ (1995) 17 Sydney Law Review 20414 Francisco Esparrage, and Ian Ellis-Jones, Administrative law Guidebook (1st ed, 2011) 415 Rose Verspaandonk ‘Changes in the Australian Public Service 1975-2000’ (1st ed, 2000) 1616 John Willis, ‘Three approaches to Administrative Law: The Judicial, the Conceptual, and the Function’ (2001) 1(1) The University of Toronto Law Journal 53-81
III. THE APPLICATION OF ADMINISTRATIVE LAW IN AUSTRALIA
Administrative law offers accountability mechanisms that apply to government
decision-making about individual matters, including:
Merits Review- by government agencies and by tribunals;
Investigations- by the Commonwealth Ombudsman and the Office of the
Australian Information Commissioner;
Internal agency practices- including codes and alternative dispute
resolution; and
Judicial review- conducted by the federal courts17
a. Administrative law- tribunals
Tribunals are defined as “bodies outside the hierarchy of the courts with
administrative or judicial functions”18. Administrative tribunals primarily resolve
disputes between a citizen or group of citizens and an officer of a government
agency or between individuals in an area of law in which government have
legislated the conduct of their relations19. Administrative tribunals are a
distinctive institution of the Australian legal system20. Neither court nor
government department, the administrative tribunal is a servant of the
legislature itself- a creature of statute whose fundamental purpose is to take
various actions or decisions, usually at arm’s length from government and with
less formality than courts, and always with utmost fidelity to the policy of the
statute21.
17 Francisco Esparrage, and Ian Ellis-Jones, Administrative law Guidebook (1st ed, 2011) 418 Warren Pillsbury, ‘Administrative Tribunals’ (1923) 36(4) Harvard Law Review, 405-42519 Arthur Vanderbilt, ‘The place of the Administrative Tribunal in our Legal System’ (1939) 24 American Bar Society, 26720 Richard Mulgan, ‘Comparing accountability in the public and private sector’ (2002) 59(1) Australian Journal of Public Administration, 87-9721 Ibid.
There will inevitably be interested parties, which are adversely affected by
government decisions enforced through administrative tribunals22. While most
decisions are undertaken using proper guidance and correct systems of
procedure, there are times where decision-makers may come to a conclusion,
which is neither in the best interest of the applicant or where the principles of
natural justice simply have not been taken into account23. In the Bell Canada
case24, the court discussed the functions of administrative tribunals, as they
function in Australia. The court emphasized that;
“A tribunal may have a number of different functions, one of which is to conduct
fair and impartial hearings in a manner similar to that of the courts, and yet
another of which is to see that certain government polices are furthered. In
ascertaining the content of the requirements of procedural fairness that bind a
particular tribunal, consideration must be given to all of the functions of that
tribunal.” 25
Accordingly, administrative tribunals fulfill an increasingly important and
valuable role among the Australian public. Since the establishment of the
Administrative Appeals Tribunal in 1975, their scope has developed to such an
extent that the Australian tribunal system now has arguably the widest power of
any tribunal system in the world26.
22 Richard Mulgan, ‘Comparing accountability in the public and private sector’ (2002) 59(1) Australian Journal of Public Administration, 87-9723 Ibid.24 Bell Canada v. Canadian Telephone Employees Association, [2003] 1 S.C.R. 884, 2003 SCC 3625 Ibid.26 The Hon. Justice Garry Downes AM ‘Tribunals in Australia: Their Roles and Responsibilities’ (2004) 84 Australian Law Reform Commission’s Journal Reform, 7-8
b. Merits Review
Merits review, also known as a ‘de novo’ appeal, is a form of review that
considers all the evidence about the merits of a decision and decides whether or
nor a correct and preferable decision should be made27. In other words, the
tribunal puts itself in the shoes of the original decision-maker and considers all
the evidence from a fresh perspective28. The Commonwealth Administrative
Tribunals, along with many state tribunals are considered ‘merits review’
tribunals29 and as such, have the power to affirm the primary decision, vary it, set
it aside and substitute a new decision, or remit (return) the matter to the original
decision maker with recommendations30. The function of merits review has
increasingly gained popularity over the last few years, primarily due to the fact
that increased government decision-making has meant that a wider selection of
the Australian community are now governed by the decisions of government and
as such, require an independent consideration of their merits; a function which
distinguishes tribunals from courts31. Consequently, once the advantages of
tribunals had been demonstrated in one area of public decision-making, their
suitability in many others seems to have been assumed, thereby perpetuating the
growth and reform of administrative tribunals32.
27 Roger Douglas, Administrative Law (2004) 3(4) La Trobe University Law Journal, 3528 James Spigelman, ‘The Integrity Branch of Government’ (2004) 78(11) Australian Law Journal, 72429 Ibid.30 Stephen Willey, ‘The merits of merit-based planning appeals: Observations from Australia’ (2004) 9(4) Journal of International Planning Studies, 261-28131 Ibid.32 Ibid.
IV. INCREASED GOVERNMENT DECISION-MAKING
The first major development in administrative tribunals in Australia took place
after the Second World War in response to increased government decision-
making, which had proven successful during World War II33. As the scope of state
and federal decision-making gradually expanded to cover a range of economic
and social matters, so did the way tribunals coped with such growth of
Australian Law34. In recent times, there has been a shift of real power from the
legislature to the executive, whose various tasks are increasingly undertaken by
government department and other authorities35. Largely due to the conferment
of broad discretionary powers upon members of the executive and public
servants and the rapid increase of state powers, administrative tribunals have
experienced advancements in procedural techniques, along with changes in the
way tribunals are run and the roles and responsibilities which Administrative
law played in the Australia legal system36. Tribunals have been established to
perform a range of determinative functions including matters as diverse as
reviews of administrative decisions of Government, licensing and planning
matters, decisions affect the liberty, care and treatment of individuals, veterans’
entitlements, industry regulation and accreditation, allocation of benefits and
professional discipline matters37.
33 Benedict Kingsbury, Nico Krisch, and Richard Stewart, ‘The Emergence of Global Administrative Law’ (2005) 68(4) Journal of Law and Contemporary Problems, 16-6134 Administrative Law in Britain35 Francisco Esparrage, and Ian Ellis-Jones, Administrative law Guidebook (1st ed, 2011) 536 Susan Rose-Ackerman, and Peter Lindseth, Comparative Administrative Law (6th Ed, 2010) 39037 Robin Creyke, Tribunals in the Common Law World (1st Ed. 2008) 214
a. Population Growth in Australia
Australia’s estimated resident population (ERP) reached 22.7 million at 30 June
2012, increasing by 359,600 people or 1.6% since 30 June 201138. Furthermore,
all states and territories experienced population growth between 2011 and
2012, with the largest increase in Australia’s three most populous states;
Victoria, Queensland, and New South Wales. In response to Australia’s steady
growth in population, the government, along with its functions have increased to
deal with the needs and demands of the Australian community39. The growth in
Australia’s population has inevitably influenced the extent to which the
government controls the activities of the Australian community in a number of
ways, including an increase in government decision-making40.
As a result of Australia’s changing population, more people than ever are now
affected by the government’s decision-making processes41. Consequently,
tribunals are now facing added pressures, which were initially experienced by
the courts in the 1960’s42. Accordingly, the government has implemented a
number of changes within the area of administrative law, in particular,
administrative tribunals, which have changed and developed over the years to
deal with the constraints and limitations that the increasing population has
placed on administrative law43.
38 ABS, Regional Population Growth, Australia, 2011-12 (2013) Australia’s Bureau of Statistics <http://www.abs.gov.au/ausstats/[email protected]/Products/3218.0~201112~Main+Features~Main+Features?OpenDocument> at 19 May 201339 Tim Coulson, Georgina Mace, Elodie Hudson, and Hugh Possingham, ‘the use and abuse of population viability analysis’ (2001) 16(5) Trends in Ecology & Evaluation, 219-22140 Ibid.41 Colin Yates, and Linda Broadhurst, ‘Assessing limitations on population growth’ (2002) 108(1) Journal of Biological Conservation, 13-2642 ibid.43 ibid.
In 1971, ‘The report of the Commonwealth administrative Review Committee’, also
known as the ‘Kerr Committee’ was established to assess the state of
administrative law as it operated in Australia, and make recommendations
aiming to improve the area of administrative law, thereby reasserting
transparency and accountability within government departments44.
The Report established a number of recommendations; including;
The need for a more comprehensive and balanced decision making
process;
The need for the existence of some mechanisms to enable citizens to
obtain information (not only information regarding government
decisions, but also information regarding citizens); and
The need to ensure that there was continuous oversight, with further
recommendations for an administrative review body (Administrative
Review council)45
44 John Goldring, The Foundations of the “New Administrative Law” in Australia’ (2008) 4(2) Australian Journal of Public Administration, 79-8245 Ibid.
Two further reviews were conducted into the framework administrative
review46. The Bland Committees primary recommendation dealt with the
establishment of an ombudsman’s office; currently reflected in the function of
the Australia Ombudsman, the strength of which lies in the independence and
impartiality of his investigations47. In addition to the bland Committees report,
the Ellicott Committee dealt with the right of legitimate complaint,
recommending that the Government should adopt the Kerr Committees judicial
review proposals, including that the government should appoint a general
counsel for grievances of an Ombudsman, primarily reflected through the
independence of administrative tribunals and the rights held by citizen to have
their matter reconsidered by administrative tribunals on ‘the merits’48.
In 1973, the Kerr, Bland, and Ellicott Committees had planned for a brand new
system of administrative law49. The reports were all of a similar view in regards
to the access of information from government officials, in particular, the right to
request the reasons for government decision affecting an individual, which the
three committees considered to be stunting the growth of administrative law50.
Some time after the completion of the three review committees, the elements of
the three committees were committed primarily through three pieces of
legislation, including:
The AAT Act 1975 (Cth);
The Ombudsman Act 1986 (Cth); and
The Administrative Decisions (Judicial Review) Act 1977 (Cth)
46 Ibid.47 David Mullan, ‘Reform of Administrative Law Remedies- method or Madness’ (1975) 6 Federal Law Review, 34048 John Goldring, The Foundations of the “New Administrative Law” in Australia’ (2008) 4(2) Australian Journal of Public Administration, 79-8249 Peter Durack, ‘A Victory for the Rule of Law’ (1995) 20 Alternative Law Journal, 22050 Ibid.
These three pieces of legislation reinforced the rights of all affected parties to
obtain a statement of reasons as to the decisions of government officials51.
Consequently, specialist tribunals and investigative bodies were established in
Australia to deal with the changes in government decision-making, resulting in
the increase of cases made to administrative tribunals52. Additionally, the 1980’s
reform agenda broadened quickly to incorporate an additional premise for
government accountability to citizen, including public disclosure of government
documents and the control of government information handling53. That broader
theme was implemented by the enactment of the Freedom of Information Act54
and the Privacy Act55. Thus, increased government decision-making has
significantly influenced the development of administrative tribunals, reflected in
the exponential growth of legislation conferring jurisdiction on the
Administrative Appeals Tribunal as a means of assessing administration
decisions56.
V. CHANGES TO THE FRAMEWORK OF ADMINISTRATIVE
TRIBUNALS- RECENT DEVELOPMENTS
a. General Jurisdiction Tribunals
One of the interesting public policy developments accompanying the increase in
government decision-making is an obvious trend favoring the establishment of
the generalist or overarching tribunals, bringing together in a single tribunal the
functions of the many smaller specialist administrative tribunals57.
51 Roger Douglas, Administrative Law (2004) 3(4) La Trobe University Law Journal, 3552 Ibid.53 Peter Wilenski, ‘Administrative Reform- General Principles and the Australian Experience’ (2007) 64(3) Public Administration, 25754 1982 (Cth)55 1988 (Cth).56 Peter Wilenski, ‘Administrative Reform- General Principles and the Australian Experience’ (2007) 64(3) Public Administration, 25757 Brian Jinks, “The ‘New Administrative Law”: some assumptions and questions’ (2008) 41(3) Australian Journal of Public Administration, 209-218
The reasons favoring the generalist tribunal are partly conceptual, the belief by
all concerned that decision-making will be improved, and partly efficiency-
related; both in the sense that decisions can be made efficiently and at a reduced
cost58. The success of tribunals with general jurisdiction was initially evidence in
the success of the Victorian Administrative Appeals Tribunal in 1984 and the
Victorian Civil and Administrative Tribunal in 199859.
The impetus for further changes to the reduction of specialist administrative
tribunals and the establishment of general jurisdiction tribunals has reached the
point again in Australia that a combined review/ claims tribunal has recently
been established in Western Australia with a further expected in Queensland60.
The establishment of the State Administrative Tribunal (SAT) in Western
Australia may be traced directly to the Franks Committee Report and the
expanded vision of those recommendations subsequently conveyed by the Kerr
Report61. Additionally, the Law Reform Commission of Western Australia
(WALRC) concluded that arrangements concerning administrative appeals in
Western Australia during the 20th century were the result of ad hoc legislation
over a long period of time without an overall plan due to a sudden expansion of
government decision-making and State legislation62. Accordingly, the SAT is
intended to have a jurisdiction that will result in it exercising an original
decision-making function in a number of specialist decision-making areas,
providing a cohesive and well-structured framework for the growth and future
development of administrative law63.
In 1992, the Royal Commission into Commercial Activities of Government and
other matters was undertaken64. The Royal Commission made a number of
recommendations designed to secure and improve “open government”, as well 58 Ibid.59 Ibid.60 Susan Thompson, and Paul Maginn, An overview of urban and regional planning (2nd Ed, 2012) 22361 Ibid.62 Brian Jinks, “The ‘New Administrative Law”: some assumptions and questions’ (2008) 41(3) Australian Journal of Public Administration, 209-21863 Ibid.
as “accountability” and “integrity” in government65. General jurisdiction tribunals
were thought to be better equipped with resources to deal with policy-oriented
review and government decision-making than the courts66. The commissions
final recommendations was intended to overcome the increasing pressure that
had previously been placed on courts and lesser tribunals, equipping a central
administrative body with the resources to handle the growth of government
decision-making and state powers concerning citizens67.
b. Alternative Dispute Resolution
Active case management within direction hearings and case management
conferences, provide an initial opportunity for tribunals to facilitate the
resolution of administrative disputes68. Academics suggest that the prospects of a
successful resolution of a dispute through case management will be enhanced if
the presiding members have knowledge and experience of the issue in dispute,
as well as being trained in ADR (Alternative Dispute Resolution) techniques69.
Arguably, the use of ADR within the functions of administrative tribunals has
lead to more cost effective and efficient means of decision-making, subsequently
lessening the strain on traditional tribunal processes and improving the
functioning of both Commonwealth and state administrative tribunals70.
The Administrative Appeals Tribunal Amendment Act71 expanded the scope of
ADR processes available to the Tribunal in the following major ways:
Section 3(1) defines “alternative dispute resolution” as including:
64 Justice Michael Barker, ‘The emergence of the administrative tribunal in Australia and New Zealand’ (Paper presented at the 8th annual AIJA Tribunal’s Conference, Sydney, 9-10 June 2005) 4865 Ibid.66 Ibid.67 Ibid.68 Sai-On Cheung, ‘Critical factors affecting the use of alternative dispute resolution processes in construction’ (1999) 17(3) International Journal of Project Management, 189-19469 Ibid.70 Ibid.71 2005 (Cth)
a. Conferencing; and
b. Mediation; and
c. Neutral evaluation; and
d. Case appraisal; and
e. Conciliation; and
f. Procedures or services specified in the regulations
Section 34A(1) authorizes the President to direct that a proceeding, or any part
of a proceeding, be referred for a particular ADR process (including
conferencing).
Section 34B authorizes that Tribunal to direct that a Small Claims Taxation
Tribunal matter be referred to an ADR process and that the parties must act in
good faith.
The success of the introduction and expansion of ADR as part of the
administrative tribunal’s case management process, is reflected in the fact that,
most cases filed in tribunals are resolved by means other than a formal ruling of
the tribunal that is made following an adjudication or hearing72. Indeed, in the
Commonwealth AAT, over 80 per cent of cases are resolved without the need for
a formal contested hearing73. Advances in ADR within the area of administrative
law have led to a shift in matters being dealt with outside the functions and
domain of tribunals74.
The increase in government decision-making has undoubtedly placed a
considerable amount of pressure on tribunals in that, tribunals were originally
established to ease the pressures that the courts were originally experiencing
due to the growth of decision-making by the government75. Consequently, the
increased importance on the ADR process as part of a tribunal’s role and function
72 Richard Mulgan, ‘Comparing Accountability in the Public and Private Sector’ (2002) 59(1) Australian Journal of Public Administration, 8773 Robin Creyke, and John McMillan, Control of Government Action: Text, Cases & Commentary (3rd Ed, 2012) 19174 Ibid.75 Ibid.
has effectively, shifted increasing pressure off tribunals and onto alternative
mechanisms, which are often more adequately resourced to deal with such
matters, thereby, improving the efficiency of under resourced tribunals and
increasing the resources available to citizens who may seek a review of
government decision-making76.
c. Referral of certain matters back to courts
More recently, the Court and Tribunal Legislation Amendment (Administration)
Bill77 was introduced into Federal Parliament in December 2012. One of the
many amendments, which form part of the Bill, is the amendment of the Native
Title Act78 79. The Bill has the effect of facilitating the transfer of the National
Native Title Tribunal’s appropriations, staff and some of its administrative
functions to the Federal Court of Australia80. Furthermore, the Bill aims to
improve the operation of the native title system by enabling the National Native
Title Tribunal and Federal Court of Australia to work together in a more
coordinated and efficient manner, aiming to achieve better outcomes and
decision-making processes for citizens81. Schedule 1 of the Bill82 provides that the
amendment was introduced in response to the extensive backlog of outstanding
native title claims for the benefit of all stakeholders83.
Accordingly, the Bill reflects the legislatures acknowledgment of the exponential
growth of administrative law in Australia, and through this Bill, the National
Native Title Tribunal has been restructured in order to cope the growth of
administrative law and subsequently, the growth of government decision-
making84.
76 Ibid.77 2012 (Cth)78 1993 (Cth)79 Court and Tribunal Legislation Amendment (Administration) Bill 2012 (Cth)80 Ibid.81 Ibid.82 Entitled: Amendments for the National Native Title Tribunal and the Federal Court of Australia83 Court and Tribunal Legislation Amendment (Administration) Bill 2012 (Cth), Schedule 184 Court and Tribunal Legislation Amendment (Administration) Bill 2012 (Cth), Schedule 1
While amendments of this nature is yet to be fully enforced and measured as to
its effectiveness and efficiency, amendments of this nature provide a valuable
‘solution’ to the constraints that currently complicate the function administrative
tribunals85. However, the proliferation of tribunals undertaking radical changes
of this sort also has its disadvantages. Firstly, a majority of tribunals, which exist
today, were originally established to ease the pressures and constraints on the
courts, primarily caused by the growth of administrative law in the 1960’s.86.
Logically, increasing the functions and involvement of courts into administrative
law may re-create the difficulties which courts had original encountered,
ultimately shifting the difficulties facing tribunals back to the courts and
proliferating the difficulties which tribunals are currently facing87.
A further disadvantage in shifting jurisdiction back to the courts is that, tribunals
are often equipped with legal professionals and industry officers who have a
background in that particular area of decision-making88. In contrast, courts solely
rely on trained legal professionals to assess facts in accordance with Australian
statute and common law and arrive at a judgment based on the law89.
Professor Wade, in the fourth edition of his text ‘Administrative Law’, published
in 1977, highlighted the ability of administrative tribunals to deal with questions
of commercial policy rather than law, which were unsuitable for the ordinary
courts90. Undoubtedly, there still remains a distinct benefit in the use of tribunals
over the jurisdiction of courts, which had been initially realised during the
expansion of administrative law in the 1960’s91. Accordingly, while there are
85 Yee-Fui Ng, ‘Tribunal Independence in an Age of Migration Control’ (2012) 19(4) Australian Journal of Administrative Law, 203-22586 John Willis, ‘Three approaches to Administrative Law: The Judicial, the Conceptual, and the Function’ (2001) 1(1) The University of Toronto Law Journal 53-8187 Yee-Fui Ng, ‘Tribunal Independence in an Age of Migration Control’ (2012) 19(4) Australian Journal of Administrative Law, 203-22588 Ibid.89 William Wade, and Christopher Forsyth, Administrative Law (1st Ed, 1977) 65390 Ibid.91 Ibid.
significant advantages for tribunals in shifting certain matters back to the courts,
the effect of such changes and fundamental restructuring of tribunals in this
manner may results in severe under resourcing of the Australian courts and the
potential for oversight by professionals who lack the knowledge and experience
which tribunal officers often possess92.
VI. CONCLUSION
Administrative law is a distinct legal doctrine, different to any other aspect of
Australia’s legal jurisprudence93. By its very nature, administrative law combines
the judicial principles of law along with the concept of ‘merits review’; a concept
distinct to the function of tribunals94. However, with the exponential growth of
government decision-making in a range of public areas concerning the welfare
and rights of individuals, increased pressure has of late, burdened tribunals,
requiring tribunals to adopt new and improved methods to the traditional
jurisdiction and role of administrative tribunals95. Australian tribunals have
coped with the exponential growth of Government decision-making in three
intuitive ways including, the creation of general jurisdiction tribunals, the
emphasis on ADR procedures, and the adjustment of the Federal Court of
Australia, enabling the courts to undertake matters which had previously been
assigned to the jurisdiction of tribunals.
Undoubtedly, administrative law has undertaken significant changes since its
establishment as a distinct area of Australian law. However, like most areas of
law, administrative law will continue to grow exponentially in light of an
increasing population, increasing powers held by government powers, and
increasing awareness of individual rights and freedoms. Therefore, while
administrative tribunals have so far coped with the exponential growth of
Government decision-making, it is crucial to the continual growth of Australian
92 Ibid.93 Nico Krisch, ‘The pluralism of Global Administrative Law’ (2006) 17(1) The European Journal of International Law, 247-27894 Ibid.95 Arthur Vanderbilt, ‘The place of the Administrative Tribunal in our Legal System’ (1939) 24 American Bar Society, 267
Administrative Law that further changes and developments are undertaken by
administrative tribunals to cope with further growth in Australian
administrative Law96
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