Administrative Law

This subject has the following teaching availabilities in 2010:

Legal Method and Reasoning; Principles of Public Law; Constitutional Law or equivalent subjects.

For the purposes of considering requests for Reasonable Adjustments under the Disability Standards for Education (Cwth 2005), and Students Experiencing Academic Disadvantage Policy, academic requirements for this subject are articulated in the Subject Description, Subject Objectives, Generic Skills, and Assessment Requirements of this entry.

The University is dedicated to providing support to those with special requirements. Further details on the disability support scheme can be found at the Disability Liaison Unit website: http://www.services.unimelb.edu.au/disability/.

Administrative law regulates the relationship between the state and its people, in other words, the relationship between the government and the governed. In particular, it regulates the powers and procedures of the executive branch of government and establishes the mechanisms for ensuring legality, transparency and accountability in executive decision-making. This subject completes the core curriculum’s examination of the legal framework of government in Australia. Topics include:

Introduction:

• Development of executive government and administrative law;
• Identifying and interpreting sources of executive power: constitutions, prerogative, common law, statute, guidelines, policies;
• Scope of executive power, including the federal division of power;
• Types of executive power, including the concept of discretion;
• The functions of administrative law in regulating executive power.

Accountability for the exercise of executive power:

• Making and scrutiny of delegated legislation;
• Access to information;
• Reasons for administrative decisions;
• Non-adjudicative review: Parliament, the Ombudsman and others;
• Tribunals and merits review.

Judicial review of administrative decisions:

• Avenues of judicial review;
• Commonwealth decisions: the ADJR Act; the Constitution; and the Judiciary Act;
• State decisions: O56, statutory ‘appeal’ provisions and the Administrative Law Act;
• Judicial review procedure;
• Standing and accessibility;
• Jurisdictional error;
• Judicial review grounds;
• Remedies and the effect of flawed decisions;
• Excluding / limiting judicial review;
• Administrative law in an era of privatisation and outsourcing.

On completion of this subject, students should:

Have developed an understanding of:

• The structure and operation of executive government in Australia;
• The fundamental principles of effective governance and accountability for the exercise of government power;
• Some theoretical perspectives on administrative law, including the relationship between administrative law and governance and the foundations of judicial review;
• The structure and operation of the Australian administrative law systems, including their constitutional, statutory and common law bases; their institutions; their principles and their remedies;
• The difference between judicial review and merits review and the kinds of arguments that may be made in each context;
• The main aspects of practice and procedure in administrative law;

Be able to draw on this understanding to:

• To find, state and apply the rules and principles of administrative law;
• Describe and critically analyse the fundamental principles of administrative law;
• Identify relevant administrative law cases and statutes, and state and critically analyse the legal principles that emerge from them;
• Critically analyse the relationship between these legal principles and the fundamental principles of administrative law;
• Apply these legal principles to new fact situations to construct arguments about:
  
  - The merits of government decisions that may be put in the context of merits review of those decisions;
  - The legality of government decisions that may be put in the context of judicial review of those decisions.
  
• Develop arguments about which legal principles should be applied when the relevant provisions or decisions are unclear or in conflict;
• Present these descriptions, analyses and applications of principles in the form of written arguments that are appropriately structured, developed, supported and referenced;
• Prepare appropriately structured, developed, supported and referenced documents (such as pleadings and submissions) used in administrative law proceedings in courts and tribunals.

• Online skills exercise, due in week 6 (Hurdle)
• 1,000-word assignment, due in week 6 (20%)
• Two-hour open-book written examination, scheduled during the exam period (80%)

• Peter Can and Leighton McDonald, Cases and Materials for Principles of Administrative Law: Legal Regulation of Governance (2009);
• Printed materials will be available from the Melbourne Law School.

Other materials that students may access online:

• Commonwealth Constitution; Freedom of Information Act 1982 (Cth); Ombudsman Act 1976 (Cth); Administrative Appeals Tribunal Act 1975 (Cth); Administrative Decisions (Judicial Review) Act 1976 (Cth), all available at http://www.comlaw.gov.au/
• Constitution Act 1975 (Vic); Freedom of Information Act 1982 (Vic); Ombudsman Act 1973 (Vic); Victorian Civil and Administrative Tribunal Act 1998 (Vic); Administrative Law Act 1978 (Vic), all available at http://www.dpc.vic.gov.au

This subject is not available as a breadth subject.

On completion of the subject, students should have developed the following generic skills:

• Attitudes towards knowledge that include valuing truth, openness to new ideas and ethics associated with knowledge creation and usage;
• The capacity for close reading and analysis of a range of sources;
• The capacity for critical and independent thought and reflection;
• The capacity to solve problems, including through the collection and evaluation of information;
• The capacity to communicate, both orally and in writing;
• The capacity to plan and manage time;
• The capacity to participate as a member of a team;
• Intercultural sensitivity and understanding.

In addition, on completion of the subject, students should have developed the following skills specific to the discipline of law:

Case reading and analysis, including an ability to:

• Read complex administrative law cases, including unedited cases in the law reports;
• Extract important features from judgments;
• Reconcile judgments;
• Evaluate the development of legal principles;
• Apply legal principles arising from case law to new situations.

Statutory reading, interpretation and analysis, including an ability to:

• Use the Federal Register of Legislative Instruments to locate Commonwealth legislation;
• Identify and advise on the requirements for consultation, publication and tabling of delegated legislation and the disallowance process;
• Identify the version of statutory provisions in force at a particular date;
• Extract important features from statutes;
• Discretionary decision-making powers conferred by statute;
• Use, interpret and apply statutory provisions to new situations;
• Distinguish discretionary powers and provisions that operate automatically;
• Identify the statutory and non-statutory pre-conditions for the exercise of discretionary powers;
• Identify the purpose of statutory provisions and the purposes for which discretionary powers may be exercised.

Legal analysis and problem-solving, including an ability to:

• Critically analyse legal rules with reference to fundamental principles;
• Identify and analyse administrative law issues arising in complex fact situations;
• Apply administrative law principles and statutory provisions to unfamiliar fact situations;
• Develop and present an appropriately structured and supported legal argument;
• Prepare appropriately structured, developed, supported and referenced documents (such as pleadings and submissions) used in administrative law proceedings in courts and tribunals.

Legal research skills, including an ability to:

• Find case law;
• Find statutes and subordinate legislation;
• Use the Federal Register of Legislative Instruments;
• Identify the version of statutory provisions in force at a particular date.

Legal writing skills, including an ability to:

• Use case law as part of legal analysis;
• Use statutes as part of legal analysis;
• Identify and summarise legal principles;
• Identify and summarise fundamental principles;
• Use proper referencing and citation;
• Present an appropriately structured and supported complex legal argument;
• Draft appropriately structured, developed, supported and referenced documents (such as pleadings and submissions) used in administrative law proceedings in courts and tribunals.

Oral communication skills in participating in classroom problem solving and discussion;

An ability to work in groups to solve problems and critically analyse legal materials in a classroom setting;

Have enhanced general cognitive skills in relation to reading and comprehending legal materials; logical analysis and reasoning; legal research and writing; application of legal principles to factual situations; identifying relevant factual information; identifying and considering options to resolve legal problems; drawing on the knowledge of other disciplines to understand and resolve legal issues.