Australian Administrative Law Essay
International comparison of Australian administrative law
As said above, Australia is considered to have a unique administrative law structure within common law jurisdictions. Dolehide attributes this to the factual control the Australian executive has over the legislature, which has allowed the federal government to consolidate administrative law reforms and implement new policies.
Conversely, the American system, with stricter separation of powers, is more susceptible to ‘intra-executive discord’. Which often results in ‘tug-of-war’ between the executive and the legislature, inevitably reducing the efficiency of public agencies. Furthermore, Foote contends that the American systems suffers from a significant anomaly, absent in the Australian model. Because American Courts are prompt to give ‘substantial deference’ to the interpretation of law made by administrative agencies, …show more content…
In fact, the High Court, reflecting on the American approach to administrative law interpretation, expressly noted that ‘for a court to fail to make its own independent legal determination would be to abdicate judicial responsibility…’. Therefore, the legal interpretation reached, or used, by Australian public administrators has no relevance during a judicial review.
Likewise, the British model for reviewing administrative decisions gives no consideration to the administrators interpretation of the law. This has been a long standing precedent since the Anisminic case in 1969, where the House of Lords dictated that an error of law, made by a public authority, should be reviewed ‘de novo’. Further, as explained by Tolley, the British parliamentary system ensures political accountability of the executive, which minimises the risk of ‘intra-executive discord’ and ‘unclear political accountability’ seen in the American
As said above, Australia is considered to have a unique administrative law structure within common law jurisdictions. Dolehide attributes this to the factual control the Australian executive has over the legislature, which has allowed the federal government to consolidate administrative law reforms and implement new policies.
Conversely, the American system, with stricter separation of powers, is more susceptible to ‘intra-executive discord’. Which often results in ‘tug-of-war’ between the executive and the legislature, inevitably reducing the efficiency of public agencies. Furthermore, Foote contends that the American systems suffers from a significant anomaly, absent in the Australian model. Because American Courts are prompt to give ‘substantial deference’ to the interpretation of law made by administrative agencies, …show more content…
In fact, the High Court, reflecting on the American approach to administrative law interpretation, expressly noted that ‘for a court to fail to make its own independent legal determination would be to abdicate judicial responsibility…’. Therefore, the legal interpretation reached, or used, by Australian public administrators has no relevance during a judicial review.
Likewise, the British model for reviewing administrative decisions gives no consideration to the administrators interpretation of the law. This has been a long standing precedent since the Anisminic case in 1969, where the House of Lords dictated that an error of law, made by a public authority, should be reviewed ‘de novo’. Further, as explained by Tolley, the British parliamentary system ensures political accountability of the executive, which minimises the risk of ‘intra-executive discord’ and ‘unclear political accountability’ seen in the American