What is Administrative Law?
Administrative law is the law that governs the actions and decisions of government decision makers. Administrative law, administrative decisions, and administrative action are all terms that can be used interchangeably. Administrative law is also concerned with the right to appeal administrative decisions, which gives rise to administrative review.
Administrative law is everywhere. It affects car licensing, dog registration, building permits, sewerage, water, roads – nearly everything you can think of can be affected by administrative law.
An administrative decision can be the decision of a local Council to levy a charge for road or sewerage works, the decision of a government board to accept or reject an application from a graduate to be registered as a teacher, the decision to grant or revoke or refuse a car license. Other examples include:
- A gun or driving license grant or denial, or conditions attached to a license;
- Centrelink benefit grants, denials or variations;
- A decision by a Minister not to grant an immigration visa;
- Decisions by a Council, such as to compulsorily acquire land or to euthanise an animal.
The people who make these decisions are varied. Sometimes a person directly vested with an administrative power, but other times a delegate – meaning, someone who exercises the power of another person, might exercise that power on behalf of a person higher up. For example, a delegate may exercise the power of the Commissioner of Police. They might refuse a gun license, and so the delegate of the Commissioner of Police is a government decision maker.
Other decisions makers include: a Centrelink staff member who makes a decision about welfare payments is a government decision maker; an Australian Tax Office (ATO) employee who assesses your tax return is a government decision maker. Anyone who makes an administrative decision is a government decision maker.
The people who administrative law are working in positions from your local council to government departments. They may be state or federally based. Most of the decisions of government can be the subject of administrative review. However, there are some things that just aren’t part of administrative law. Administrative actions or decisions is a broad term, perhaps best explained by stating what is not administrative law.
Administrative law is not about challenges to decisions made by a judge in the Magistrates Court or Supreme Court in a criminal or a civil case. These are subject to their own rules of appeal and challenge. Administrative law does concern decisions made in the administrative appeals courts. Nor are the decisions of the Parliament to reduce funding to a project, or decide policy, the subject of administrative law. Although the decisions of Parliament are decisions made by government, they are not ‘administrative decisions’ for the purpose of administrative law.
Administrative law also sets the rules for appealing against administrative decisions. Think of administrative law in terms of a book of social etiquette in a strict hierarchy, such as a monarchy. Administrative law is set down in legislation, regulations and policy & procedure manuals and like social etiquette, the people who must administer the law and accept appeals against it, know the etiquette – they know how to behave. Administrative law is simply the rules of conduct for decision makers, so that powers are exercised fairly, without discrimination, and according to principles of fairness and natural justice. Administrative law is also the right to appeal decisions where a person who that decision concerns thinks that the etiquette hasn’t been followed. Someone hasn’t made a decision according to the rule book. Administrative law is a bastion against corruption, because it ensures that government decision makers are accountable for their decisions. Administrative law means that decision makers make administrative decisions according to law, not personal preference, and that corruption – such as paying someone at Service Tasmania to give you a driver’s license when you can’t drive, is confined.
So, decision makers follow this ‘etiquette’ about how to make a decision. What facts have to be considered, what forms and procedures must be filled and followed. But, if a decision is made and the person who the decision is about or who is directly affected by the decision is not satisfied with the result, and believe that the decision has been incorrectly made, they can seek administrative review.The first step is reconsideration; from there it is a matter of preference and resources as to whether the person seeks help from the Ombudsman, an alternative to court at no cost to the applicant, or turns to the Administrative Appeals Division of the Magistrates Court for a merits review.
What sort of cases come before courts?
The answer to that question is: lots of sorts of cases. There have been cases about cheesemakers’ signs, teaching registration, poppy growing, involuntary detention in a psychiatric hospital facility, building surveyor credentials, and decisions by the Anti-Discrimination Commission to not carry out an investigation.
Page last updated 31/01/2020