Glossary of Australian Administrative Law Terms

Introduction

Australian administrative law comprises the body of legal principles and institutions that govern the exercise of public power, providing mechanisms for the review of government decisions and the accountability of the executive branch. The system operates at both federal and state levels, with the constitutional writs under s 75(v) of the Constitution providing the foundational guarantee of judicial review. The statutory framework — including the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act), the Freedom of Information Act 1982 (Cth), and the tribunals (the ART, state tribunals) — provides a comprehensive system of administrative accountability.

A

AAT — See Administrative Review Tribunal.

ADJR Act — The Administrative Decisions (Judicial Review) Act 1977 (Cth), which provides a statutory code for judicial review of most Commonwealth administrative decisions. The Act simplifies the process of review by replacing the constitutional writs with a single application for an order of review (s 5–7). A person “aggrieved” by a decision may seek review on any of the prescribed grounds: breach of natural justice, lack of jurisdiction, error of law, fraud, no evidence, and Wednesbury unreasonableness. The Act provides for reasons for decision (s 13), discovery, and standing (s 5(1): “a person who is aggrieved”).

Administrative Review Tribunal (ART) — The Commonwealth merits review tribunal established by the Administrative Review Tribunal Act 2024 (Cth), replacing the AAT (the Administrative Appeals Tribunal, established 1975). The ART stands in the shoes of the original decision-maker and makes the “correct or preferable decision” on the merits, having regard to the facts, law, and policy. It is not a court but exercises quasi-judicial functions in a broad range of subject-matter jurisdictions: social security, migration, taxation, veterans’ affairs, and freedom of information.

B

Bias Rule — The rule of procedural fairness that a decision-maker must be impartial and must not be biased. The test in Australia is the “reasonable apprehension of bias”: whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the decision: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. The test is objective and requires the court to consider the circumstances as a whole, including any prior statements, associations, or interests of the decision-maker. Actual bias (proved subjective bias) is a separate ground.

D

Delegated Legislation — See Subordinate Legislation.

E

Error of Law — A ground of judicial review that arises where the decision-maker has misdirected themselves as to the legal test, made an error in interpreting the governing statute, or taken into account an irrelevant consideration. An error of law is reviewable on both judicial review (under the ADJR Act and the common law) and appeal (where an appeal lies on a question of law). An error of law is jurisdictional if it causes the decision-maker to exceed their authority, rendering the decision void.

F

Freedom of Information (FOI Act) — The Freedom of Information Act 1982 (Cth), which confers a legally enforceable right of public access to documents held by Commonwealth Ministers and agencies. The Act establishes a framework for the proactive publication of information and the processing of access requests. Exemptions apply for documents affecting national security, Cabinet deliberations, legal professional privilege, and personal privacy. The regime is overseen by the Office of the Australian Information Commissioner.

H

Hearing Rule — The rule of procedural fairness that a person whose rights, interests, or legitimate expectations will be affected by a decision must be given a fair hearing. The content of the rule varies according to the context (the “flexible” or “variable” content doctrine: Kioa v West (1985) 159 CLR 550). The minimum requirements include: notice of the case to be met, an opportunity to present evidence and argument, and (in some circumstances) disclosure of adverse material, an oral hearing, or legal representation.

J

Judicial Review — The process by which a court supervises the legality of administrative action. In Australia, the constitutional foundation is s 75(v) of the Constitution, which confers original jurisdiction on the High Court in matters in which a constitutional writ is sought against an officer of the Commonwealth. The ADJR Act provides a statutory code for judicial review of federal decisions. At state level, judicial review is available under the common law and the state equivalents of the ADJR Act. Judicial review examines the legality of the decision, not its merits.

Jurisdictional Error — An error by an administrative decision-maker or tribunal that causes them to act outside the limits of their lawful authority. A decision infected by jurisdictional error is void (of no legal effect) and may be quashed by a court exercising judicial review. The concept is central to Australian administrative law: Craig v South Australia (1995) 184 CLR 163 (distinguishing jurisdictional and non-jurisdictional error); Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531 (holding that state legislation cannot oust judicial review for jurisdictional error by state industrial tribunals).

Jurisdictional Fact — A fact that must exist as a condition precedent to the lawful exercise of a power. If a decision-maker purports to exercise a power without the existence of the jurisdictional fact, the decision is invalid. Whether a particular fact is jurisdictional depends on the construction of the governing statute. On judicial review, the court determines the existence of a jurisdictional fact for itself (the “correctness” standard), not merely whether the decision-maker’s finding was reasonable.

Justiciability — The question of whether a matter is susceptible to judicial determination. Some decisions, particularly those involving high-level policy or national security, may be held to be non-justiciable. However, the High Court has held that the existence of a jurisdictional error is always justiciable: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 — the Constitution does not permit the ouster of judicial review for jurisdictional error.

L

Legitimate Expectation — A doctrine (now largely subsumed within procedural fairness) that a person who has a “legitimate expectation” that a particular procedure will be followed, or that a particular substantive outcome will occur, is entitled to procedural fairness before that expectation is defeated: Minister for Immigration v Teoh (1995) 183 CLR 273 (holding that ratification of a treaty may give rise to a legitimate expectation that executive action will conform to the treaty). The doctrine has been controversial and narrowly confined in subsequent cases.

M

Merits Review — The process by which an administrative tribunal (such as the ART, NCAT, or VCAT) reconsiders a government decision on its merits, standing in the shoes of the original decision-maker and making the “correct or preferable decision.” Unlike judicial review, merits review is not limited to questions of legality; the tribunal may consider the factual merits, policy considerations, and the exercise of discretion. Merits review tribunals are not courts and are not bound by the rules of evidence.

N

Natural Justice — See Procedural Fairness. The term “natural justice” has been largely replaced by “procedural fairness” in Australian administrative law, though the two terms are used interchangeably. The two fundamental rules are the hearing rule (audi alteram partem) and the bias rule (nemo judex in causa sua).

No Evidence — A ground of judicial review that the decision was based on the absence of any probative evidence to support a finding of fact. The ground is available under the ADJR Act (s 5(1)(h)) and at common law. The standard is strict: “no evidence” means no evidence at all, not merely insufficient evidence. Where the decision-maker makes a finding of fact on a matter critical to the decision, and there is no evidence to support that finding, the decision is reviewable for error of law.

O

Ombudsman — An independent officer who investigates complaints about administrative action by government agencies. The Commonwealth Ombudsman is established under the Ombudsman Act 1976 (Cth). State ombudsmen perform equivalent functions for state agencies. The ombudsman’s role is to investigate maladministration, including delay, incompetence, unfairness, and bias. The ombudsman makes recommendations but cannot compel compliance; the effectiveness of the office depends on the persuasive force of its findings and reports.

P

Procedural Fairness — The common law duty to accord a person natural justice before making a decision affecting their rights, interests, or legitimate expectations. The content of the duty is flexible and context-dependent: Kioa v West (1985) 159 CLR 550. The two core requirements are: (a) the hearing rule — the opportunity to be heard; and (b) the bias rule — the decision-maker must be impartial. The duty applies to administrative decision-makers, tribunals, and (to a lesser extent) the executive, but not to the legislature in enacting legislation.

R

Reasons for Decision — A statement of the findings of fact and legal reasoning that support an administrative decision. The requirement to give reasons is a fundamental element of procedural fairness. Under s 13 of the ADJR Act, a person aggrieved by a reviewable decision is entitled to a statement of reasons. Where reasons are not given or are inadequate, the decision may be reviewable for error of law.

S

Standing — The legal capacity of a person to bring proceedings for judicial review. In Australia, the test for standing under the ADJR Act is whether the applicant is a “person aggrieved” by the decision (s 5(1)). At common law, standing to seek constitutional writs requires a “special interest” in the subject matter beyond that of an ordinary member of the public: Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493 (the ACF case, holding that the ACF lacked standing to challenge a development approval because it had no “special interest”). The “special interest” test is applied strictly; a mere intellectual or emotional concern is insufficient.

Subordinate Legislation — Legislation made by a person or body under delegated legislative authority conferred by an Act of Parliament (also called delegated legislation). Subordinate legislation includes regulations, rules, by-laws, and ordinances. It is subject to parliamentary scrutiny (disallowance) and judicial review for ultra vires — that is, whether it goes beyond the authority conferred by the enabling statute.

U

Ultra Vires — Latin: “beyond the powers.” A decision or action that exceeds the legal authority of the decision-maker. The ultra vires doctrine is the foundational concept of judicial review: a decision or regulation made without legal authority is void. Ultra vires may be substantive (the decision-maker lacked the power to make the decision) or procedural (the decision-maker failed to follow a mandatory procedure).

W

Wednesbury Unreasonableness — A ground of judicial review derived from the English case Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. A decision is unreasonable if it is so unreasonable that no reasonable decision-maker could have made it. The test is a high threshold: it is not enough that the reviewing court disagrees with the decision; the decision must be “irrational,” “perverse,” or “outrageous in its defiance of logic.” The ground is available under the ADJR Act (s 5(2)(g): an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power).

CONSTITUTIONAL WRITS

The constitutional writs (certiorari, prohibition, mandamus) are remedies available under s 75(v) of the Constitution for judicial review of Commonwealth decision-making. Certiorari quashes a decision that is infected by jurisdictional error. Prohibition restrains an inferior court or tribunal from exceeding its jurisdiction. Mandamus compels the performance of a public duty. The writs are available as of right (not discretionary) where jurisdictional error is established, reflecting the constitutional guarantee of access to the High Court for review of Commonwealth executive action.