Historical evolution of administrative law in Australia
✅ Overview: What Is Administrative Law?
Administrative law governs the actions and decisions of government officials and bodies. It ensures that public power is exercised lawfully, reasonably, and fairly.
In Australia, administrative law evolved from British common law roots but became more structured and independent through reforms in the 1970s and 1980s, which led to the creation of tribunals, judicial review mechanisms, and the introduction of freedom of information laws.
🕰️ Stages in the Evolution of Administrative Law in Australia
1. Common Law Foundations (Pre-1970s)
Australia inherited the English system of common law judicial review, mainly focused on ensuring public authorities didn't exceed their powers.
🔹 Case: R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170
Facts: Aboriginal land rights were at stake. The council challenged the government's failure to comply with statutory requirements.
Held: The High Court emphasized strict compliance with statutory procedural requirements.
Importance: Reflected traditional judicial review principles — ultra vires (beyond power) and strict statutory interpretation.
2. Administrative Law Reform Era (1970s–1980s)
This was a revolutionary period. The Commonwealth undertook major reforms under the Kerr Committee (1971) recommendations:
Key developments:
Administrative Appeals Tribunal Act 1975 → AAT established
Federal Court of Australia Act 1976 → New federal court with judicial review power
Administrative Decisions (Judicial Review) Act 1977 (ADJR Act)
Ombudsman Act 1976
Freedom of Information Act 1982
These created a three-tier system:
Merits review (AAT)
Judicial review (Federal Court)
Complaints investigation (Ombudsman)
3. Expansion & Clarification Through Case Law (1980s–1990s)
Here the courts clarified limits and procedures for judicial and merits review.
🔹 Case: Kirk v Industrial Court (NSW) (2010) 239 CLR 531
Facts: A business owner challenged a criminal conviction imposed by the NSW Industrial Court.
Held: The High Court held that state parliaments cannot remove the Supreme Court’s power to conduct judicial review for jurisdictional errors.
Importance: Reinforced the constitutional protection of judicial review, even at state level.
🔹 Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1
Facts: Lam claimed a breach of procedural fairness when the Minister didn’t follow a stated process.
Held: The court said not every procedural irregularity amounts to unfairness — must show practical injustice.
Importance: Clarified limits of procedural fairness.
🔹 Case: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Facts: SZMTA alleged the immigration tribunal failed to notify him of adverse information.
Held: The High Court confirmed failure to disclose such info is a jurisdictional error.
Importance: Strengthened procedural fairness as a core judicial review ground.
4. Modernisation and Continued Interpretation (2000s–Present)
Courts continue to refine administrative law through constitutional principles and statutory interpretation.
🔹 Case: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Facts: A "privative clause" tried to block judicial review of immigration decisions.
Held: The High Court found the clause invalid. Judicial review is a constitutionally protected function.
Importance: Landmark case confirming that jurisdictional error cannot be ousted by legislation.
🔹 Case: Annetts v McCann (1990) 170 CLR 596
Facts: Parents of a deceased boy challenged the WA Coroner’s refusal to hold a public inquiry.
Held: Procedural fairness required the family to be heard.
Importance: Extended natural justice to informal and investigatory processes.
🔹 Case: Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438
Facts: A company challenged a decision granting mining rights to a competitor.
Held: The Minister had not acted with procedural unfairness because no legal right was breached.
Importance: Clarified the limits of natural justice in cases where there’s no legitimate expectation.
📚 Summary of Key Doctrines Developed Over Time
| Doctrine | What It Means | Key Cases |
|---|---|---|
| Jurisdictional error | A decision-maker goes beyond their legal power | Kirk, SZMTA, S157 |
| Procedural fairness / natural justice | Right to be heard and to fair process | Lam, Annetts, SZMTA |
| Merits vs Judicial review | AAT can re-decide facts; courts only review legality | AAT Act, clarified by case law |
| Privative clauses | Clauses attempting to block judicial review | S157 — limits these under Constitution |
| Legitimate expectation | Fair treatment based on consistent past conduct or promises | Lam, Hot Holdings |
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