Government accountability : Australian administrative law

목차 (Table of Contents)

• CONTENTS
• Table of cases = xvii
• Table of statutes = xxxvii
• About the authors = liv
• Preface = lv
• Acknowledgements = lvi
• 1 Introduction = 1
• A brief historical context = 2
• Administrative law and constitutional law = 3
• Why do we need administrative law? = 5
• Unique powers of the executive = 5
• To keep the executive branch accountable = 6
• In search of a rationale for administrative law = 7
• Why accountability? = 9
• Democratic justifications of accountability = 9
• Rule of law justifications of accountability = 11
• Separation of powers justifications of accountability = 13
• Individual rights justifications of accountability = 14
• Accountability for what? Administrative law values = 16
• How to achieve accountability? Administrative law mechanisms = 17
• Administrative law and statutory interpretation = 18
• Modern accountability : some challenges = 19
• Ongoing reform = 20
• The rest of this book = 21
• PART Ⅰ ADMINISTRATIVE DECISION-MAKING = 23
• 2 Organisation and structure of government = 25
• Introduction = 26
• The Crown and the executive : terminology and constitutional framework = 27
• The executive and the judiciary = 28
• The executive and parliament = 30
• The executive and inferior courts = 30
• The executive as an indivisible and plural entity = 31
• Executive entities = 32
• The Queen and her representatives = 32
• The ministers (including the Prime Minister, Premiers and Chief Ministers) and their staff = 34
• Ministers = 34
• Ministerial staff = 37
• The Cabinet = 37
• The Executive Council = 40
• The departments and the public service = 41
• Statutory authorities = 42
• Government Business Enterprises (GBEs) = 43
• The Commonwealth and state executives = 43
• Private bodies in the public sphere = 44
• Public law remedies for private bodies = 47
• Responding to outsourcing = 51
• Public bodies in the private sphere = 53
• Crown immunity = 53
• Conclusion = 55
• 3 Administrative powers = 56
• Introduction = 57
• Commonwealth executive power = 58
• State executive power = 58
• Classes of executive power = 59
• Powers conferred directly by the Constitution = 59
• The Governor-General = 60
• Reserve powers = 60
• (a) The power to commission a government = 60
• (b) The power to dismiss a government = 61
• (c) The power to dissolve parliament = 62
• (d) Nature and desirability of the reserve powers = 62
• State governors = 63
• The Queen = 64
• Regulation of constitutional powers by statute = 64
• Statutory powers = 64
• The primacy of statutory interpretation = 65
• Statutory powers of the Queen's representatives = 67
• Statutory powers of ministers and public servants : delegation and discretion 68
• Discretion = 69
• Statutory powers of other entities : statutory authorities, cross-vested powers, and private entities = 70
• Other types of statutory powers : delegated legislative powers and judicial powers of inferior courts = 71
• Constitutional limits of statutory powers = 71
• Advantages and disadvantages of statutory power = 73
• Non-statutory powers = 74
• The prerogative power = 76
• The common law capacities = 78
• (a) Distribution of common law capacities between the Commonwealth and state executives = 78
• (b) Reviewability of common law capacities = 81
• The Commonwealth executive nationhood power = 84
• The executive and policy-making = 87
• Conclusion = 88
• 4 Delegated legislation = 89
• Introduction = 90
• Executive exercise of legislative power = 91
• Types of delegated legislation and delegates = 92
• Concerns over delegation of legislative power = 94
• The need for delegated legislation = 95
• When to delegate legislative power = 96
• Constitutional questions = 98
• Restrictions on delegation deriving from the separation of powers (Commonwealth) = 98
• Delegating parliament's supervisory role = 101
• Delegated power must be exercised within constitutional limits and in accordance with the principle of legality = 103
• Delegated legislation and s 109 of the Constitution = 104
• Legislative regulation and parliamentary review of delegated legislation = 105
• Public consultation, regulatory impact statements, and human rights compatibility = 105
• Publication requirements = 108
• Parliamentary scrutiny and disallowance = 109
• Sunsetting = 114
• Judicial review of delegated legislation = 114
• The scope of grants of delegated legislative power = 116
• Improper purpose = 120
• Unreasonableness and proportionality = 122
• Uncertainty = 125
• Sub-delegation of legislative power = 126
• Conclusion = 127
• PART Ⅱ PUBLIC ACCOUNTABILITY MECHANISMS = 129
• 5 Public investigatory bodies = 131
• Introduction = 132
• Investigation and scrutiny through parliament = 134
• Responsible government = 134
• Scrutiny of legislation = 137
• Scrutiny of taxation and expenditure = 137
• Government's explanatory responsibility to parliament = 139
• Power to request documents = 139
• Power to ask questions = 141
• Committees = 142
• Summary = 145
• Other investigatory bodies = 145
• Auditors-General = 145
• Inquiry jurisdiction, process, and powers = 146
• Independence = 147
• Outcome of investigations = 147
• Ombudsmen = 148
• Inquiry jurisdiction = 149
• Process and powers = 152
• Independence = 153
• Outcome of investigations = 155
• Royal commissions = 157
• Process and powers = 157
• Inquiry jurisdiction = 160
• Independence = 163
• Outcome of investigations = 164
• Standing investigative (anti-corruption) commissions = 165
• Inquiry jurisdiction, process, and powers = 165
• Independence = 169
• Outcome of investigations = 170
• Conclusion = 170
• 6 Information disclosure = 171
• Introduction = 172
• Protecting official information = 173
• The duties of public servants = 175
• Official secrets legislation = 175
• Confidential information = 176
• Public interest immunity in legal proceedings = 178
• Managing official information = 179
• Information management, preservation and security = 179
• Rethinking official information = 181
• Unofficial disclosure = 183
• Leaks = 183
• Public interest disclosure : whistleblower protection = 184
• Obligations to disclose = 185
• Reports = 186
• Notices = 187
• Proactive publication : freedom of information legislation = 188
• Disclosure to individuals affected = 189
• Access by application : freedom of information legislation = 190
• Access to documents = 191
• Agencies covered = 192
• Fees and charges = 194
• Information about third parties = 194
• Exemptions = 196
• Harm or prejudice element = 199
• Class-based exemptions : Cabinet documents = 200
• Absolute or conditional exemptions = 200
• Conditional exemptions : deliberative documents = 202
• Different approaches to the public interest test = 207
• Review of access decisions = 209
• Reasons for decisions = 211
• No right to reasons at common law = 211
• Providing reasons is good practice = 212
• Statutory obligations of administrative decision makers to give reasons = 214
• What is the standard of reasons required? = 216
• Consequences for failure to provide any, or adequate, reasons = 217
• Conclusion 218
• PART Ⅲ MERITS REVIEW = 219
• 7 Review on the merits = 221
• Introduction = 222
• Merits review, judicial review and appeals = 223
• Merits review in Australia = 224
• Nature of review : re-hearings and hearings de novo = 226
• Why do individuals choose merits review? = 229
• Why do parliaments provide merits review? = 231
• Which decisions are suitable for merits review? = 232
• Internal and external merits review = 235
• Internal review = 235
• External review = 236
• Courts with merits review jurisdiction = 237
• Judicial review of, and appeal from, merits review decisions = 239
• Examples of legislation creating a right of merits review = 239
• Example 1 : Internal review = 239
• Example 2 : Review by a generalist tribunal = 240
• Example 3 : Review by a specialist body = 240
• Example 4 : Appeal to a court = 242
• Conclusion = 242
• 8 Administrative review tribunals = 243
• Introduction = 244
• What is a 'tribunal'? = 245
• Constitutional issues for tribunals = 247
• Commonwealth tribunals = 247
• State and territory tribunals = 249
• Status of tribunal decisions = 250
• Issues of tribunal design = 252
• Specialist, generalist, and super tribunals = 252
• Conferral of jurisdiction = 254
• Tribunal membership = 255
• Independence = 257
• Procedure = 259
• Transparency = 261
• Standing to seek review = 262
• Nature of review = 263
• The role of government policy = 264
• Appeal and review of tribunal decisions = 265
• The Australian administrative tribunal framework = 267
• Commonwealth merits review tribunals = 267
• Administrative Appeals Tribunal = 267
• Jurisdiction and caseload = 268
• Membership = 269
• Nature of review function = 270
• Standing and parties = 271
• Reasons for reviewable decisions = 273
• Procedure = 273
• Appeals to the Federal Court = 274
• State and territory administrative review tribunals = 275
• Conclusion = 279
• PART Ⅳ JUDICIAL REVIEW = 281
• 9 Introduction to judicial review = 283
• Introduction = 284
• The distinction between appeal and judicial review = 284
• Judicial review : review of legality = 286
• Statutory construction is central to judicial review = 287
• Sources of judicial review jurisdiction = 288
• Common law judicial review = 291
• Superior and inferior courts = 291
• Historical origins of common law judicial review jurisdiction = 292
• Judicial review in the High Court = 295
• Judicial review in the Federal Court = 297
• Statutory judicial review and the Administrative Decisions (Judicial Review) Act 1977 (Cth) = 298
• Decisions = 301
• Conduct = 303
• Failure to decide = 305
• What decisions are subject to review under the AD(JR) Act? = 308
• Decisions of an administrative character = 309
• Decisions made under an enactment = 311
• Decisions excluded under schedule 1 = 313
• Choosing a judicial review jurisdiction : which court? which avenue? = 314
• The concept of jurisdictional error = 315
• When is an error 'jurisdictional'? = 317
• Inferior courts and administrative decision-makers = 319
• What kinds of errors have been held to be jurisdictional, or non-jurisdictional, errors? = 321
• Errors of law on the face of the record = 325
• Face of the record = 325
• Conclusion = 328
• 10 Limits on judicial review = 329
• Introduction = 330
• Justiciability = 331
• Source of the power = 333
• Status of the decision-maker = 334
• Subject matter of the decision = 335
• Justiciability and statutory judicial review = 338
• Standing to commence judicial review proceedings = 339
• The Attorney-General and relator actions = 340
• Private individuals with an interest greater than the general public = 342
• Special damage and special interest = 343
• Standing tests for prerogative writs = 344
• Standing tests and statutory judicial review = 345
• Standing cases since ACF v Commonwealth = 346
• Indirect interests = 347
• Public interest groups = 350
• Involvement of other parties = 352
• Interveners = 352
• Amicus curiae : friend of the court = 355
• Privative clauses = 357
• Privative clauses in the Commonwealth jurisdiction : Plaintiff S157 = 360
• Privative clauses in the states : Kirk = 363
• After Plaintiff S157 and Kirk : privative clauses today = 364
• No-invalidity clauses = 366
• Conferral of non-compellable powers = 367
• Restrictive time limits on commencing judicial review proceedings = 369
• Restricting access to information and admissibility of evidence relevant to judicial review = 370
• Conclusion = 372
• 11 Introduction to the grounds of review = 373
• Introduction = 374
• What are the grounds of review? = 374
• Fact and law distinguished = 376
• Case study : Identifying and characterising errors of fact and law = 379
• Statutory grounds = 380
• Case study : Grounds in a statutory judicial review case = 383
• Statutory review and jurisdictional error = 385
• Common law and constitutional judicial review grounds = 386
• Jurisdictional error and the common law grounds = 386
• Case study : Grounds in a common law case = 387
• Expansion of the grounds of review? = 388
• Proportionality = 388
• Serious administrative injustice = 389
• Estoppel = 390
• Conclusion = 390
• 12 Procedural fairness = 391
• Introduction = 392
• The threshold test : when do the rules of procedural fairness apply? = 394
• Historical development and Kioa v West = 394
• Rights, interests and legitimate expectations = 397
• Direct and immediate effect on individual interests = 401
• Multi-stage decision-making = 402
• Statutory exclusion of the rules of procedural fairness = 404
• The hearing rule = 409
• Notice = 413
• Disclosure = 414
• Opportunity to present a case in response = 417
• The bias rule = 420
• Actual bias = 421
• Apprehended bias = 422
• Situations giving rise to bias = 425
• Interest = 425
• Conduct = 428
• Association = 429
• Extraneous information = 430
• Exceptions to the bias rule = 431
• Waiver = 431
• Necessity = 432
• Consequences of a denial of procedural fairness = 434
• Conclusion = 435
• 13 Determining the scope of a power = 436
• Introduction = 437
• Improper delegation = 438
• Improper delegation under the AD(JR) Act = 442
• Procedural error = 443
• Procedural error under the AD(JR) Act = 448
• Jurisdictional facts = 449
• Objective jurisdictional facts 449
• Subjective opinions or beliefs 452
• Jurisdictional facts under the AD(JR) Act 458
• Misconceiving the nature or scope of the power = 458
• Misconceiving the nature or scope of the power under the AD(JR) Act = 460
• Conclusion = 460
• 14 Improper exercise of power = 461
• Introduction = 462
• Relevant and irrelevant considerations = 462
• Failing to take into account relevant considerations = 464
• Taking into account irrelevant considerations = 470
• Relevant and irrelevant considerations under the AD(JR) Act = 473
• Improper purpose = 473
• Improper purpose under the AD(JR) Act = 479
• Fettering discretion = 479
• Acting under dictation = 479
• Acting under dictation under the AD(JR) Act = 482
• Inflexible application of policy = 482
• Inflexible application of policy under the AD(JR) Act = 485
• No evidence = 486
• No evidence under the AD(JR) Act = 486
• Fraud = 489
• Fraud under the AD(JR) Act = 491
• Bad faith = 491
• Bad faith under the AD(JR) Act = 493
• Unreasonableness = 493
• Unreasonableness under the AD(JR) Act = 497
• Irrationality and illogicality = 497
• Irrationality or illogicality under the AD(JR) Act = 499
• Uncertainty = 499
• Uncertainty under the AD(JR) Act = 499
• Conclusion = 500
• 15 Consequences of unlawful action = 501
• Introduction = 502
• Consequences of unlawful action = 502
• Putting things right = 506
• Remedies = 507
• Prerogative remedies = 507
• Certiorari = 508
• Prohibition = 510
• Mandamus = 511
• Equitable remedies = 512
• Injunction = 513
• Declaration = 514
• Remedies in statutory judicial review = 515
• Choosing the appropriate combination of remedies = 516
• Discretion not to grant a remedy = 518
• No damages = 520
• Private and public law intertwined : collateral proceedings = 521
• Conclusion = 522
• Index = 523