Discuss about the Immigration and Ethnic Affairs System.
In Australia, the framework for government and law is marked with the presence of a wide-ranging scheme of administrative law, which has been mainly developed in the past three decades. The major element of this system is the judicial review by the court of law, the investigation of thee administrative action by the human rights agencies and Ombudsman, the conferral of privacy and information rights as per the privacy and freedom of information legislation, and the merit review by the administrative tribunals. It is often noticed under the administrative law, that there is a degree of conflict and tension present between the courts and the Parliament in the development of policies or law. One of the reasons for the same is the doctrine of responsible government and the separation of powers.
A delicate controversy has been created between the government ministers and the judiciary, due to the role of policy in the administrative tribunal decision making in Australia. On one hand the ministers of the government argue that the tribunal ignores the policy considerations quite often; and on the other hand, the judiciary criticizes the ministers of the government for compromising the tribunals’ independence in carrying out the decision making functions, which have been imparted on them.
The following parts cover a discussion over this very conflicting issue of legislative supremacy versus the administrative policies.
Before discussing upon the issue of legislative supremacy versus the administrative policies, there is a need to understand the very meaning of policy. A policy can be stated as being a deliberate system of principles, which not only guide the decisions, but also help in achieving the rational outcomes. In the current scenario, the policies are the general principles which guide the government. It acts as the declaration of the objectives sought out by the parties or the government, for the attainment or preservation of the interests of the general community.
In the case of Green v Daniels, the plaintiff was a school-leaver who registered on 20 December 1976 at the Cth Employment services (CES) for employment. As she was a school leaver, she was informed that there were no jobs for her and that she would not get employment benefits. The powers of the service was derived from the Social Services Act 1947 and the same had a departmental policy which provided that the school leavers who registered within twenty eight days of school year end would not get benefits till the holiday time was over. This was the reason for waiting before the plaintiff could be granted any benefits. The plaintiff could not find any work even when she made reasonable efforts. Hence, she began proceedings for an order for payment in arrears and sought a declaration of entitlement to the employment benefits.
The key issue in this case was whether or not CES decision regarding the withholding of the employment benefits from Dec-Feb was legal or not. It was held that the decision of CES was indeed unlawful as it was based on the rigid application of a departmental policy, which had no support from the statute. This case provided clarity on what the policy should or should not be. As per this case, the policies have to be consistent with the legislation and the same cannot substitute the criteria which are covered in the legislation, and which has been approved by the Parliament as an appropriate one. Hence, if a policy attempts to restrict the statutory discretion, which has been set out in the parent Act, the same becomes invalid and there is no need of following the same.
The policies have a crucial role to play. These provide a structure to the legislative decision making in the administrative law. In Drake v Minister for Immigration & Ethnic Affairs, Drake, who was an immigrant in the nation, was convicted for the possession of cannabis and he was awarded a prison sentence. An order of deportation was made against Drake by the Minister of Immigration and Ethnic Affairs as per the Migration Act 1958 section 12.
An appeal was made by Drake to the AAT, i.e., Administrative Appeals Tribunal, which asked for a review of the decision of the Minister in Drake and Minister for Immigration and Ethnic Affairs. The decision of the Minister was affirmed by the AAT. The same was headed by a judge of the Federal Court, which acts in a non-judiciary role. Followed by the decision of the AAT, an appeal was made by Drake to the Federal Court and he claimed that it was unconstitutional on part of the judge of the Federal Court to act in the administrative capacity, due to the doctrine of separation of powers.
It was held by the Federal Court that no provision of the Constitution stopped a judge from acting in some other role in their personal capacity. Holding that the role of the AAT was not judicial but purely administrative in nature, Drake was deported, even though AAT had considered the question of law. In short, when the policy is applicable, the same has to be applied by the tribunal, until the policy becomes illegal, or until the time the application has the tendency of producing an unjust decision.
A statute can be defined as a legislative authority’s formal written enactment, which governs the nation, state or the city. The statues, typically, prohibit or command something or can declare a policy. A statute contains the system of rules which is passed by the government and a policy is a document which states what the government is going to do and what they seek to achieve for the society as a whole. The applicability of statute is wider in comparison to a policy, and the same has to be followed by all.
In Bleathman v Taylor, the two concepts of policy and statute were combined. In this case, a judicial review was sought after by the appellant regarding the decision of the respondent to allow non-Aboriginal individuals’ admittance to the Aboriginal Land Council of Tasmania Electors Roll. The Aboriginal Lands Act (1995) (Tas) provided certain conditions which had to be fulfilled for this role. Notices were issued by the respondent under this act and he compiled a Preliminary Roll and the same was published. The members of the public were allowed the opportunity to object the same. The appellant notified his objections to the respondent. Though, only the case of Tony William Brown was considered by the court.
An enrolment form was lodged by Brown, which contained the definition of the word Aboriginality. Though, the same did not contain any evidence regarding Brown being Aboriginal. The appellant was also invited to support her claim but she refused. As no evidence was provided by both, the respondent used the ALA, and formed an advisory committee which had the expertise on the genealogy of Aboriginals. The respondent wrote to Brown and invited him to present evidence to support his Aboriginality.
This committee determined that Brown was aboriginal, upon which, the respondent asked for contradiction to the decision of the committee but no such objections were raised. And so, the appellant’s objections were rejected. The appellant then appealed to the Supreme Court of Tasmania and argued that the decision of the respondent was invalid.
This appeal was allowed and the respondent’s decision regarding setting aside the objections of appellant pertaining to the Aboriginality of Brown was quashed. And that the status of Brown would be decided in further hearing. It was held that instead of Court to adjudicate on the matter, it was more appropriate to reconsider the objections, by the Electoral Commissioner. This case highlighted how the policies and statues can be efficiently merged and used for the benefit of the general people. The provisions of the Act were used to form a committee and the judiciary then successfully reviewed the decision, as was its duty.
An administrative tribunal can be stated as an autonomous agency which is independent of the government of the nation, and the same also has the responsibility of settling the disputes between the government and the citizens. The administrative tribunals in the nation are concerned with the executive action of the government. These were established back in 1975 as a general administrative tribunal for reviewing a variety of decisions of the government. Some of the issues include migration, taxation, insurance, corporations, fisheries, social security, and freedom of information, amongst the other things.
The establishment of these involved advanced thinking on part of its creators. It showed an understanding regarding the interference of the administrative decision-making in each and every aspect of society, as well as, in the lives of citizens. A determination was shown towards the fact that such significant and wide decision making has to be done with the top-most level of fairness.
Two bodies were created through the Administrative Appeals Tribunal Act 1975 (Cth)[22] (AAT Act), in form of an Administrative Review Council, which performed coordination, advisory and research functions; and the Administrative Appeals Tribunal, which was responsible for undertaking the merit review of a range of decisions taken by the Commonwealth.
A number of state tribunals, as well as, the Commonwealth Administrative Tribunals are merits review tribunals. They are concerned with determining the legal rights and even more than that. Merits review by an administrative appeals tribunal is different from a judicial review of the court. When the court reviews an administrative decision, the same relates to the legality of the decision, instead of its correctness. So, a decision might be set aside if the decision maker understood the legal base of it in a wrong manner, or failed to provide the parties with an opportunity of being properly heard.
The decisions of the administrative tribunal are focused on providing natural justice. The decisions are reviewed by the administrative tribunals on basis of merits. Hence, a fresh look is taken to the facts, laws and policies, which relate to a particular decision, so that a verdict can be reached. But this raises a question on the perspective of the tribunal[26]. Should the tribunal focus upon the judicial decision making, instead of providing the justice as per the policy of the day? But in doing so, would the same go beyond their duties set out as per the law.
The relevance of a policy has already been clarified through Green v Daniels and Re Drake (No 2). But there is a need to consider this in the light of cases like Re Goodson and Secretary, Department of Employment, Education, Training and Youth Affairs. In this case, a young man was required to meet with his case manager, whenever the same was requested, for the continued attainment of the youth training allowance.
The young man could not attend an appointment, after a letter for the same was dispatched, even though he had attended nearly all the previous meetings. When a second letter was sent regarding the same, the young man attended the appointment and gave the explanation regarding the non-receiving of the initial letter. As per the policy which was applicable that time, any individual who failed to show up for an appointment, and used the excuse of non-receipt of any letter, would not receive any allowance. An application against this was made by the young man to the Administrative Appeals Tribunal.
It was held by the court that the relevant circumstances of the applicant had to be considered by the decision maker, and the decision could not be made solely on the decision based on a policy. It was held that the particular policy was very harsh and there were a number of reasons which could explain the absence of the individuals. If the case of Drake (No 2) is analyzed in the context of this case, it can be seen that at one place, the inclusion of policy is emphasized upon for any decision making, and on the other hand, the same is ignored if it breaches or is against the natural justice. In Drake (No 2), the emphasis was on application of the relevant policy by the tribunal in all cases, but in Re Goodson, the emphasis was on giving natural justice and ignoring the policy, when the same was too harsh.
In Re Jetopay Pty Ltd and Australian Fisheries Management Authority, the plaintiff was not satisfied with the fishing quote which was allocated to it as per the adopted operation plan of the Fishing Management Authority. Even though the tribunal held that it could increase the quota by exercising its discretion, the same was not done due to the presented evidence. The issue raised here was whether the Tribunal should respect the policy or follow it, as made by the original decision-maker? It was held that the policy was created by an expert body, which had researched on the topic extensively and also involved polycentric considerations. So, the tribunal had to take care when they depart from any policy, due to the impact of the same on the third parties. In short, the tribunals refrain from interfering with small parts of polycentric decision-making.
The two cases, i.e., Drake (No 2) and Re Goodson highlight the clash of ministers and the judiciary. When a policy is made by the Ministers, they are expected to be followed. And the judiciary is required to analyze the applicability of law and not the correctness of the same. So, could it be held that the tribunal interfered with the powers of the ministers, when the decision of Re Goodson was given? This is because the tribunal ignored to apply the policy, even though the same was applicable on this case. So, ensuring natural justice could not always favor policies made by the ministers. The case of Re Jetopay further clarifies the supremacy of natural justice, but this case also emphasizes on the awareness on part of tribunal, that the policy has to be respected and the impact of the decision has to be weighed with natural justice.
Conclusion
To conclude, the decisions made by the Tribunal do not make an attempt to violate or invalidate the policy. The policy is only kept aside, when the circumstances demand so. Even though the judiciary does not have the power of forming the policy, or even setting aside the same, it does so, in cases demanding natural justice. So, even though there is an applicability of the doctrine of separation of powers, the same does seem to merge in places. And this is what gives rise to the conflicts between government ministers and the judiciary. Hence, the part where the policy considerations are ignored by the tribunals is justified and in line with the decision making functions of the tribunal.
Cane P, Administrative Tribunals and Adjudication (Bloomsbury Publishing, 2009)
Groves M, and Lee HP, Australian Administrative Law: Fundamentals, Principles and Doctrines (Cambridge University Press, 2007)
McMillan J, and Creyke R, Control of Government Action: Text, Cases and Commentary (LexisNexis Butterworths, 2005)
Bleathman v Taylor [2007] TASC 82
Drake and Minister for Immigration and Ethnic Affairs (‘Drake (No 1)’) [1979] AATA 179 (21 November 1979)
Drake v Minister for Immigration & Ethnic Affairs (‘Drake (No 2)’) [1979] 2 ALD 634 Green v Daniels (1977) 13 ALR 1
Re Goodson and Secretary, Department of Employment, Education, Training and Youth Affairs (‘Re Goodson’) (1996) 42 ALD 651
Re Jetopay Pty Ltd and Australian Fisheries Management Authority (‘Re Jetopay’) (1993) ALD 209 Aboriginal Lands Act (1995) (Tas)
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth) Social Services Act 1947 (Cth)
Administrative Appeals Tribunal, ‘Administrative Decision-Makers in Australia: the Search for Best Practice’ (2017) <https://www.aat.gov.au/about-the-aat/engagement/speeches-and-papers/the-honourable-justice-deirdre-oconnor-former-pr/administrative-decision-makers-in-australia-the>
Administrative Appeals Tribunal, ‘Tribunals in Australia: Their Roles and Responsibilities’ (2017) <https://www.aat.gov.au/about-the-aat/engagement/speeches-and-papers/the-honourable-justice-garry-downes-am-former-pre/tribunals-in-australia-their-roles-and-responsib>
Administrative Appeals Tribunal, ‘What we do’ (2017) <https://www.aat.gov.au/about-the-aat/what-we-do>
Australasian Legal Information Institute, ‘Bleathman v Taylor [2007] TASSC 82’ (8 November 2007) <https://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/tas/TASSC/2007/82.html?stem=0&synonyms=0&query=Bleathman%20v%20Taylor>
Australasian Legal Information Institute, ‘Editors — “Bleathman v Taylor [2007] TASSC 82 – Case Summary” [2008] AUIndigLawRw 25; (2008) 12(1) Australian Indigenous Law Review 114’ (2007) < https://www.austlii.edu.au/au/journals/AUIndigLawRw/2008/25.html>
Business Dictionary, ‘Policy’ (2017) <https://www.businessdictionary.com/definition/policy.html>
Difference Between, ‘Difference between Law and Policy’ (2017) <https://www.differencebetween.info/difference-between-law-and-policy>
Hobart Community Legal Service, ‘Judicial Review’ (2017) <https://www.hobartlegal.org.au/node/3254>
Jade, ‘Drake v Minister for Immigration and Ethnic Affairs’ (2017) <https://jade.io/j/?a=outline&id=331999>
Jade, ‘Green v Daniels’ (2017) <https://jade.io/j/?a=outline&id=66650>
Lexology, ‘Administrative tribunals and judicial review’ (31 July 2008) <https://www.lexology.com/library/detail.aspx?g=f59b0866-8483-44ba-8bd6-16276f886c15>
McMillan J, ‘Parliament and Administrative Law’ (2017) <https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp0001/01RP13>
Essay Writing Service Features
Our Experience
No matter how complex your assignment is, we can find the right professional for your specific task. Contact Essay is an essay writing company that hires only the smartest minds to help you with your projects. Our expertise allows us to provide students with high-quality academic writing, editing & proofreading services.
Free Features
Free revision policy
$10Free bibliography & reference
$8Free title page
$8Free formatting
$8How Our Essay Writing Service Works
First, you will need to complete an order form. It's not difficult but, in case there is anything you find not to be clear, you may always call us so that we can guide you through it. On the order form, you will need to include some basic information concerning your order: subject, topic, number of pages, etc. We also encourage our clients to upload any relevant information or sources that will help.
Complete the order form
Once we have all the information and instructions that we need, we select the most suitable writer for your assignment. While everything seems to be clear, the writer, who has complete knowledge of the subject, may need clarification from you. It is at that point that you would receive a call or email from us.
Writer’s assignment
As soon as the writer has finished, it will be delivered both to the website and to your email address so that you will not miss it. If your deadline is close at hand, we will place a call to you to make sure that you receive the paper on time.
Completing the order and download