Administrative Law in Australia

Introduction

Australian administrative law comprises a distinctive set of doctrines and institutions that regulate the exercise of public power. Unlike unitary systems such as the United Kingdom, Australia’s federal structure generates a complex interplay between Commonwealth and state administrative law regimes. The Australian system is notable for its tripartite structure of accountability mechanisms: judicial review (concerned with legality), merits review (concerned with the merits of administrative decisions), and ombudsman review (concerned with maladministration). Together, these mechanisms give effect to the rule of law by ensuring that government decision-making remains within lawful bounds and adheres to minimum standards of procedural fairness.

The Constitutional Foundations

The Australian Constitution provides the bedrock for judicial review. Section 75(v) confers original jurisdiction on the High Court in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. This constitutional guarantee has been described as a “textual expression of the rule of law” — it cannot be ousted by legislation. Section 39B of the Judiciary Act 1903 (Cth) extends this jurisdiction to the Federal Court in matters in which a writ of mandamus, prohibition, or certiorari is sought. The constitutional writs operate in parallel with the statutory regime created by the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act).

Judicial Review: Statutory and Constitutional Grounds

The ADJR Act codifies the grounds of judicial review in s 5 for decisions and s 6 for conduct. The grounds encompass both common law and statutory principles and include: a breach of the rules of natural justice; lack of jurisdiction; error of law (whether or not apparent on the record); fraud or bad faith; no evidence or other material to justify the making of the decision; and the exercise of a power for a purpose other than that for which it was conferred. The ADJR Act also provides for reasons on request (s 13) and for the review of rules of procedure (s 5, definition of “decision to which this Act applies”).

At common law, the central organising concept of Australian judicial review is jurisdictional error. In Craig v South Australia (1995) 184 CLR 163, the High Court held that an inferior court or tribunal falls into jurisdictional error if it mistakenly asserts or denies jurisdiction, misapprehends the limits of its functions, or disregards the requirements of procedural fairness. The Court distinguished between errors within jurisdiction (which may be reviewed only on appeal where available) and jurisdictional errors (which render a decision a nullity). This doctrine was fortified in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, where the High Court held that a privative clause purporting to exclude judicial review of migration decisions could not prevent review for jurisdictional error, because s 75(v) entrenches the minimum constitutional requirement of review for such errors.

Merits Review: The Administrative Appeals Tribunal

The Administrative Appeals Tribunal (AAT) was established by the Administrative Appeals Tribunal Act 1975 (Cth) to conduct merits review of Commonwealth administrative decisions. In merits review, the Tribunal stands in the shoes of the original decision-maker and makes the correct or preferable decision on the material before it. This contrasts with judicial review, which is confined to legality. The AAT was restructured in 2024 and replaced by the Administrative Review Tribunal (ART), following the Government’s response to the Administrative Review Reform process. The ART retains the same essential function of merits review but introduces a simplified, modernised statutory framework and improved case management processes. Centrelink, migration and protection, veterans’ entitlements, and taxation decisions constitute a significant proportion of its caseload.

The Ombudsman

The Commonwealth Ombudsman (now the Office of the Commonwealth Ombudsman) was established by the Ombudsman Act 1976 (Cth). The Ombudsman investigates complaints about defects in administration, including delay, rudeness, failure to follow lawful procedures, and unreasonable decisions. The Ombudsman lacks power to quash or vary decisions but may make recommendations and report to the Parliament. The Ombudsman’s functions have expanded to encompass specialised oversight roles, including the Immigration Ombudsman, the Taxation Ombudsman (Inspector-General of Taxation), and the law enforcement oversight functions conferred by the Law Enforcement Integrity Commissioner Act 2006.

Natural Justice and Procedural Fairness

The requirement to afford procedural fairness (natural justice) is the most frequently invoked ground of review in Australian administrative law. It comprises two principal rules: the hearing rule (the right to be heard before a decision adverse to one’s interests is made) and the bias rule (the right to an impartial decision-maker). In Kioa v West (1985) 159 CLR 550, Mason J held that the content of procedural fairness is flexible, depending on the statutory context, the nature of the power exercised, and the interests affected. The hearing rule requires that a person whose interests may be affected be given notice of the case against them and a genuine opportunity to respond. In Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326, the High Court confirmed that procedural fairness extends to the decision-making process as a whole, not merely to the ultimate hearing.

Standing

Standing to seek judicial review is governed by the common law “special interest” test, articulated by the High Court in Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493. A person seeking review must demonstrate an interest in the subject matter beyond that of an ordinary member of the public. This test has been applied flexibly in environmental and public interest litigation, with the High Court recognising standing for organisations that can demonstrate a genuine and established commitment to a particular cause.

Freedom of Information

Access to government information is regulated by the Freedom of Information Act 1982 (Cth). The Act confers a legally enforceable right of access to documents held by Commonwealth ministers and agencies, subject to exemptions including national security, Cabinet documents, internal working documents, and documents affecting personal privacy. The Act has been reformed significantly since 2010 to strengthen the pro-disclosure objectives, including the introduction of the “push” model for proactive publication of government information.