Rules for government decision-making

Contributed by JudyMcLean and current to 27 July 2018

Introduction

The bulk of government administration is carried out by state and commonwealth government 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, non-government organisations or boards. These are often called statutory bodies; an example at the federal level is the Australian Human Rights Commission. An example at the state level is Housing Authority.

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

Administrative law is the name given to that area of law which defines the general rules to be followed by the 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.

What is administrative law? Administrative law is the body of law regulating government decision making. It is an accountability mechanism that applies to government decision making about individual matters, rather than broad policy decisions. The federal administrative law system is based on the structural separation between the roles of the legislature, the executive, and the judiciary in Australia’s Constitution – in particular, the independence of the federal courts. The main consequences of this arrangement in Australia are:

The Legislature:

decides on the criteria for decision making, and merits review of decisions and holds Ministers accountable for their decisions.

The Executive:

assesses the merits of particular cases with reference to criteria laid down by the legislature in legislation. The executive includes merits review tribunals.

The Judiciary:

declares and enforces the legal limits of the powers of the executive and the legislature.

In this way, the administrative law system ensures that the government, as well as the people, are bound by law, and underpins the observance of the rule of law in Australia. The operation of administrative law as an accountability mechanism also requires that government agencies whose decisions are the subject of merits or judicial review carefully consider and analyse review outcomes. This is necessary not only to ensure the specific outcome of an individual review matter is delivered but also to build into agency practices any systemic changes needed to improve the overall quality of decision making. See further: https://www.ag.gov.au/LegalSystem/AdministrativeLaw/Documents/Australian-administrative-law-policy-guide.pdf

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.

Elements of the administrative law system

There are different definitions of the elements that make up the administrative law system. For the purposes of policy development, Administrative Law Branch views the system as including:

Primary decision-making

including the legislative framework for decisions, and the processes and procedures that lead up to them.

Merits review of primary decisions

by internal officers within an agency (and this may be required by agency practice or codified in legislation) and/or external merits review bodies. External merits review is only available if the legislation governing the decision specifically provides for it. The major Commonwealth merits review tribunals providing an external review of government decisions are the Administrative Appeals Tribunal (AAT), the Migration Review Tribunal-Refugee Review Tribunal, the Social Security Appeals Tribunal and the Veterans' Review Board.

Judicial review

is available in relation to administrative decisions generally under either the Administrative Decisions (Judicial Review) Act 1977 or s 39B of the Judiciary Act 1903. Judicial review is available in the High Court under s 75(v) of the Constitution. A number of statutes also provide for review of questions of law by the courts. For example, AAT decisions can be reviewed under s 44 of the Administrative Appeals Tribunal Act 1975 on ‘questions of law.’

The Commonwealth Ombudsman

handles complaints, conducts investigations, performs audits and inspections, encourages good administration, and carries out specialist oversight tasks in relation to government activities.

Office of the Australian Information Commissioner

promotes access to, and protection of, information. The Office brings together three functions, including:

• oversight of the operation of the Freedom of Information Act 1982, investigation of complaints about FOI administration, and the review of decisions made by agencies and ministers under that Act
• privacy functions conferred by the Privacy Act 1988, and
• government information policy functions.

Administrative Review Council (ARC)

is an independent statutory body established under the AAT Act to inquire into, and report to the Attorney-General on, the operation of the administrative law system.

The Merit Protection Commissioner

is an independent statutory office holder who conducts independent reviews of employment decisions made by agencies about matters that affect Australian Public Service (APS) employees. The Commissioner also inquires into whistle-blower complaints made by APS employees under the Public Service Act 1999. The Commissioner promotes ethical and informed decision-making by APS employers by helping to ensure that the Australian Public Service Values are applied to all employment decisions relating to APS employees. See further: http://meritprotectioncommission.gov.au/