Administrative Justice For Procedural Fairness

How ‘administrative justice’ should be conceptualized

Discuss about the Administrative Justice for Procedural Fairness.

Administrative justice is a relatively new concept as compared to the traditional judicial adjudication of disputes. Administrative justice provided by administrative law institutions based upon the administrative law principles. Administrative law is a combination of fundamental values of justice delivery system such as rule of law, accountability, procedural fairness, better decision making.[1]‘At its core, administrative justice is a philosophy that in administrative decision making the rights and interests of individuals should be properly safeguarded.’[2]James Galligan advised that the main object of administrative justice is to provide fair treatment to all persons in accordance with the procedure prescribed in statutory scheme, along with other sources. The basic notion of administrative justice is to apply authoritative standards accurately and not just in aggregate.[3] Administrative justice can be achieved if it is assessable, affordable and timely. An administrative justice system would fail in case it does not provide for a comprehensive system of judicial review, reasoned decisions, access to government held information, resourced ombudsman and commissioner of complaints, who possess power to review executive action.[4]

This paper examines conceptualization of administrative justice to determine whether the procedural requirements of met in just, reasonable and fair manner. Judicial review has facilitated the notion of administrative justice by enabling the courts to access the validity of judicial decisions.

How ‘administrative justice’ should be conceptualized

Major components of administrative law in Australia is judicial review of the process of administrative decisions by courts, review of merits by administrative appeals tribunals and investigation of administrative actions by ombudsman or commissioners of complaints. These bodies were mostly established in the 1970’s. Towards the end of the century the Australian constitution included Section 75(v), which confers jurisdiction on High Court to restrain commonwealth officers from exceeding their federal powers, by issuing writ of mandamus, prohibition and injunction, the provision guaranteed judicial review.

The Kerr committees report in 1971envisaged the importance of external judicial and merits review agencies which safeguard the interests of the people affected by executive decision. The elements of the recommendations proposed by Kerr, Bland and Ellicot committee reports were implemented in three parliament enactments, first the Administrative Appeals tribunal Act, 1975 (Cwlth), second the Ombudsman Act, 1976 (Cwlth) and third the Administrative Decision (Judicial review) Act, 1977 (Cwlth), these legislation also conferred a right on the persons who were aggrieved by the executive decision, upon request,to written statement wherein reason for the decision would be mentioned.[5]

Modern Approach – Substantive Outcomes and Quality of the Decision and the Facilitation of ‘Administrative justice’

Before the parliament enactments most of the administrative law decisions were influenced by the foundation of judicial review laid by common law on the basis of series of English courts decisions. Ridge vs. Baldwin[6] laid the application of the principles of natural justice on administrative decisions.[7] In Padfield vs. Minister of Agriculture, Fisheries and Food[8] it was held that ministerial board discretions should be subject to administrative law review.[9]Enactment of Administrative Appeals Tribunal Act, 1975 led to a reform in administrative law, the decisionsgiven by the executive arm of the government which affected rights and privileges of citizens were reviewed by general tribunals, which was the first of its kind.[10]

The judicial arm of the government then in alignment with the legislative reforms lay down by the parliament. The most prominent example of the same can be seen in R vs. Mackellar; Ex parte Ratu[11] where the court held that it is not mandatory to observe principles of doctrine of natural justice in case of deciding deportation of a person from Australia in case that person has exceeded the limit of stay as lay in the visitor’s visa. The judiciary would not formulate rules so as to ascertain whether a person’s entry in Australia should be permitted or rejected.[12]The position changed in 1995 when the courts observed that in case of immigration the ministerial discretion would be restricted by the international treaties adopted by Australia.[13] 

Courts’ development in principles and doctrines for the assessment of the lawfulness of executive decision making 
The Administrative Appeals Tribunal Act lay that it is the tribunal’s obligation was to reach at preferable and correct decision. The tribunal has to determine whether the decision rendered by an administrative body is correct and preferable in pursuance of the policy laid by the legislature, the tribunal does no hold authority to adjudicate upon the merits of the case. The function of the tribunal is to determine as to whether the decision rendered by the decision maker is correct or preferable on the basis of the material before it and not to determine whether the decision of the decision maker is one of the correct or preferable decisions on the basis of the materials available before it.[14] Authority of the tribunal is not limited to the review legal errors only; instead the tribunal has to address same questions which were addressed by the original decision maker, where there is no statutory limit in the tribunal doing so. Tribunal has to test the decision against the requirements of good government, as it is acting as a government administration instrument.[15]The tribunal has to review the actual decision made by the decision maker and not the reasons for rendering that decision.

Natural Justice

The principle of natural justice as enunciated in Section 5(1)(a) of the Administrative Decision (Judicial review) Act is interpreted to include duty to inquire,[16] legitimate expectations of applicant, provided there is no estoppel in public law,[17] rational evidence must be present so as to ascertain proportionality,[18] as it is asserted that principles of natural justice should not only be confined to procedural matters as it would result in illusion of fairness, hence inquiry of, the consideration of material evidence also forms part of natural justice.[19]The doctrine of legitimate expectation is a part of procedural fairness, in modern courts.[20]

State theory lays the foundation of administrative theory. Reasoned decision and judicial review is the touchstones of Australian administrative law. Rule of law over administrative actions is enforced by judicial review. Introduction of Section 39B in Judiciary Act, 1903 andthe jurisdiction conferred upon Australian constitution under Section 75(v) and to the Supreme Court under Section 73(ii) ensures judicial review of administrative actions. Section 71 vests the high court with judicial power over the commonwealth. The power of the high court to hear appeals from Supreme Court ensures the position of high court as federal Supreme Court. Judicial review of administrative decisions can be done on the basis of jurisdictional error, non-compliance with the doctrine of procedural fairness or natural justice and in case of delivery of unreasonable decisions by taking into account irrational considerations. The three grounds for judicial review are discussed in detail below:

Natural Justice is a common law doctrine, it possess two components, first right to be herd and second rule against bias and provides procedural safeguard against administrative decision making.[21]One aspect of natural justice is procedural fairness. In Kioa vs. West[22] referring to the judgment of Wiseman vs. Borneman[23]it was held that in the context of administrative justice it is duty of the decision makers to act fairly and to abide to the rule of procedural fairness. Procedural fairness requires that the procedure adopted by decision making body should be fair it is immaterial whether the outcome is fair or not.[24] The courts are required to determine whether the procedural fairness requirement has been met or not they do not have jurisdiction to cure administrative injustice.[25] Procedural fairness should be observed in cases where decisions affect the rights, interests and legitimate expectations of people.

Judicial review of the administrative decisions includes reviewing the decision on the basis of reasonableness. Legislature confers statutory discretionary power on administrative bodies, and this power is to be exercised reasonably. Unreasonable was defined as a decision which is so unreasonable that no reasonable decision maker could have ever arrived at it.[26]Unreasonableness depends upon the potential subjectivity of the merits of a case and the legality of the decision.[27]The decision maker has failed to take into account relevant consideration, may be used in  a way to review merits of a case, these grounds can fairly be used where the statute has not prescribed a list of considerations which must be taken into account. This ground can possibly be taken only in circumstances where it can be shown before the court that the decision maker failed to take into account a reasonable consideration which he was obligated to take account of, from the matters placed before him, so as to enable him to exercise his discretionary decision making power in a valid manner.[28]

To determine jurisdictional error it is essential to understand the scope of power and authority held by decision making body. Jurisdictional error occurs when the administrative decision making body fails to fulfill its statutory duty, or the decision has been rendered by him without observing procedural fairness.[29]In Craig vs. South Australia[30] it was held that jurisdictional error would occur in case wherein ‘an administrative tribunal falls into error of law which results in identification of a wrong issue, ignorance of relevant material and placing reliance on irrelevant material, or reach at erroneous or mistaken conclusion or exercise of power/authority is thereby affected in a way that it is exceeded.’

In legal parlance administrative justice includes procedural fairness, reasoned decision and judicial review. ADJR Act introduced a rational and simplified regime of judicial review. Federal courts and the state courts entrusted with the power to exercise federal jurisdiction have been into more principled relationship, to the extent of the statutory power and authorities entrusted upon them.[31] Australian exceptionalism is largely influenced by the consideration of separation of powers.  The marks of the influence can be seen in the development of the principles of unreasonableness, jurisdictional error and rejection of proportionality as the grounds for judicial review.[32]The administrative councils advise and recommendations have enabled the shaping of administrative justice system as to what it is at present. The success of ombudsman can be endorsed to the individuals who were appointed to the office. Entrusting the jurisdiction of merits review on AAT is milestone in the administrative adjudication as the part III of the constitution enabled the courts to review executive decision on legal error basis. Hence it can be rightly asserted that the objective of enactment of the parliament legislations governing administrative justice system on the recommendations laid by Kerr committee has been achieved. 

Conclusion

Administrative justice cannot be achieved only by having appropriate rules, institutions and statutory standards. In practice administrative justice depends upon the culture reflected by ministers, statutory office holders, administrative review tribunals, departmental officers, and courts.[33] As discussed in the paper Administrative Justice can be achieved if it is affordable and accessible, codification of the common law principle of judicial review has led to positive development of administrative adjudication. As McMillan stated that the expectation of people to have high standards of government decision does not necessarily mean that the work of courts be increased, so as to secure the expectation reliance should be placed on tribunals, ombudsman, councils. Administrative justice is the key component of good governance, the concept of administrative justice is an ever changing component of the society which needs to be kept under constant surveillance.

Articles/Books/Reports

Anthony Mason, ‘Delivering administrative justice: looking back with pride, moving forward with concern’ (Paper presented at AIAL 2010 National Administrative Law Forum Conference, 22 July 2010)

Andrew Edgar, ‘Public and private interests in Australian administrative law’ (2013) 36(1) UNSW Law Journal, 202

Chief Justice Robert French, ‘Administrative justice – word in search of meaning’ (Paper presented at the Australian institute of administrative law annual conference – national administrative law forum 2010, 22 July 2010).

Dr. David Bennett, ‘Balancing judicial review and merits review’ (Paper presented at Administrative Law Conference, 27 September 1999)

Justice Deirdre O’Connor, ‘Administrative decision- makers in Australia: the search for best practice’ (Paper presented at 2nd International Conference on Administrative Justice, Quebec, 17 – 20 June 2001)

Justice R S French, ‘Administrative justice in Australian administrative law’ in Robin Creyke and John McMillan (eds), Administrative justice – the core and the fringe (Australian institute of administrative law, 2000) 20

Kerrie O’Callaghan and Michelle Howard, ‘Promoting administrative justice: the correct and preferable decision and the role of government policy in the determination’ (2013) 32(1) University of Queensland Law Journal, 171

Matthew Groves, ‘Administrative justice in Australian administrative law’ (2011) 66 The Australian Institute of Administrative Law 20

Matthew Groves, ‘Exclusion of rules of natural justice’ (2013) 39(2) Monash University LawReview, 285

Mark A Robinson, ‘Administrative law update’ (Paper presented at Public Sector In-House Counsel Seminar, Canberra, 28 August 2006)

MRLL Kelly, ‘Does the expansion of judicial review pose a threat to democratic governance?’ (Paper presented at the AIAL 2011 National Administrative Law Conference, Canberra, 22 July 2011)

Note, ‘The Australian scene: Federal or Commonwealth law’ (2007) 20(3) Canadian Journal of Administrative Law & Practice, 241

Note, ‘Reasonableness, proportionality and merits review’ (Paper presented at New South Wales Young Lawyers Public Law CLE Seminar, The Law Society, Sydney, 24 September 2008)

Robin Creyke, ‘Administrative justice – towards integrity in government’ (2007) 31 Melbourne University Law Review715-6

Robin Creyke and John McMillan, ‘Administrative justice – the concept emerges’ in Robin Creyke and John McMillan (eds), Administrative justice – the core and the fringe (Australian institute of administrative law, 2000) 1

Cases

Annetts vs. McCann (1990) 170 CLR 596

Associated Provisional Picture Houses Ltd vs. Wednesbury Corporation [1948] 1 KB 223

Attorney-General (NSW) vs. Quin (1990) 170 CLR 1

Australian Broadcasting Tribunal vs. Bond (1990) 170 CLR 321

Banks vs. Transport Regulation Board(1968) 119 CLR 222

Craig vs. South Australia (1995) 184 CLR 163

Drake vs. Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

Kable vs. DPP (1996) 189 CLR 51

Kioa vs. West (1985) 159 CLR 550

MIEA vs.Kurtovic (1990) 21 FCR 19

Minister for Immigration and Ethnic Affairs v Teoh(1995) 183 CLR 273

Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997

R vs. Mackellar; Ex parte Ratu (1977) 137 CLR 461

R vs. Toohey; Ex parte Northern Land Council (1981) 151 CLR 170

Re Becker and Minister for Immigration and Ethnic Affairs (1977) ALD 158

Ridge vs. Baldwin [1964] AC 40

Salemi vs. Mackellar (No. 2)(1977) 137 CLR 396.

Sean Investments vs. MacKellar (1981) 38 ALR 363

Shi vs. Migration Agents Registration Authority (2008) 248 ALR 390

Simsek vs. Macphee(1982) 148 CLR 636

SZBEL vs. Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

Teoh vs. MIEA (1994) 49 FCR 409

Wiseman vs. Borneman [1971] AC 297 

Legislations

Administrative Appeals tribunal Act, 1975 (Cwlth)

Administrative Decision (Judicial review) Act, 1977 (Cwlth)

Australian Constitution

Judiciary Act, 1903

Ombudsman Act, 1976 (Cwlth)

Other Sources

Administrative Review Council, Scope of judicial review<https://www.arc.ag.gov.au/Documents/Judicial+Review+21_3.pdf>

Australian Law Reform Commission, Procedural fairness: A common law duty, <https://www.alrc.gov.au/publications/common-law-duty>

Federal court of Australia, Natural justice or procedural fairness (4 September 2015) <https://www.fedcourt.gov.au/digital-law-library/judges-speeches/justice-robertson/robertson-j-20150904>

Politics and Public Administration Group, Parliament and administrative law, (7 November 2000) <https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp0001/01RP13>

Salvos legal, Finding of fact and jurisdictional error (14 November, 2015) <https://www.salvoslegal.com.au/resources/lecture_series_november_2015/findings_of_fact_and_jurisdictional_error_-_judge_justin_smith_sc.pdf>

UKAJI, Administrative justice – a primer for policymakers and those working in the system (9 September 2016) <https://ukaji.org/2016/09/09/administrative-justice-a-primer-for-policymakers-and-those-working-in-the-system/ >