Introduction

Contributed by Margaret Jordan and current to 1 September 2005

Administrative law is the name given to that area of law which defines the general rules to be followed by government in its administrative actions and decision-making processes. If these rules are not followed, governmental actions or decisions may be declared by the courts to be unlawful and of no effect.

If the decision or action complained of is by the Commonwealth, it may be possible to appeal to the Administrative Appeals Tribunal, or to the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”). The decision on which procedure to use and the ultimate chances of success are greatly enhanced by easy access to most documents held by the decision-maker, which is possible under the Freedom of Information Act 1982 (Cth).

In Western Australia there is no statutory right to judicial review. A person aggrieved by a State government decision is limited to the complex (and expensive) system of common law judicial review. The State Administrative Tribunal (SAT), which commenced in January 2005, is an amalgamation of nearly 50 previously existing industry and public sector boards and tribunals. The SAT has a review function in relation to a range of administrative decisions previously determined by the courts, Government Ministers or public officials, as well as vocational licensing bodies. It also has original jurisdiction in disciplinary proceedings and civil, commercial or personal matters.

STRUCTURE OF GOVERNMENT

The bulk of government administration is carried out by departments. Each department is responsible to a Minister. Departments are not the only bodies responsible for administration of government policy. Responsibilities in some special areas are given to commissions or boards. These are often called statutory bodies; an example at the federal level is the Human Rights and Equal Opportunity Commission. An example at the state level is Homeswest.

These bodies are set up by special Acts which set out their functions, powers and operating procedures.

DELEGATION

Acts usually list various discretions or functions which may be exercised by the Minister or by public servants. Obviously, as a practical matter, the individuals named in the legislation cannot deal personally with the large bulk of matters over which they have authority. It is therefore normal to delegate functions. It is quite common for officers, often at junior levels within a department, to make decisions affecting people.

WHICH GOVERNMENT – COMMONWEALTH OR STATE?

It is necessary to distinguish between the federal level of government and the state level of government, otherwise a lot of time may be wasted in complaining to the wrong body.

If a person is not sure whether the matter is a State or a Commonwealth matter, a good place to contact is the office of the Ombudsman (either State or Commonwealth) whose staff will be able to advise which body is responsible for the matter.

Local councils are often described as a third level of government. This is not entirely correct, because local councils depend for their existence on State laws and their conduct is ultimately controlled by the Minister for Local Government. Their activities play a large role in influencing daily life in the community. Like any other State government body, their activities are controlled by administrative law. An important reason for being clear on whether a complaint relates to a Commonwealth administrative action or a state administrative action is that different laws and court procedures apply to each area.