History of Administrative Law
On 29 October 1968, the Government established the Commonwealth Administrative Review Committee, known as ‘The Kerr Committee. The Committee presented a plan for an entirely new system of administrative law that rested upon a fresh vision of the role that external review agencies should play in safeguarding the rights of the public regarding executive decision-making.
Three Acts were implemented by the Parliament.
The Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) established two bodies - an Administrative Appeals Tribunal to undertake merit review of a general range of Commonwealth decisions, and an Administrative Review Council to perform a research, advisory and coordination function.
The Ombudsman Act 1976 (Cth) established an Ombudsman to investigate complaints of maladministration by Commonwealth government agencies.
The Administrative Decisions (Judicial Review) Act 1977 (Cth) conferred upon the newly-created Federal Court a reformed jurisdiction to undertake judicial review of Commonwealth decision-making.
Purpose of Administrative Law
Administrative Law concerns the relationship between the government and the public. It refers to a wide range of controls exercisable by the law over the powers and procedures of government decision-makers and administrators. It constitutes a means of protecting the rights of the public by making the government decision-makers accountable.
With the growth of technology, financial institutions and globalization, society is becoming more complex, the role of government has expanded in terms of regulation and intervention. This has led to a growth in the number of bureaucratic decision makers which in turn led to an expansion in controls over administrative actions to counter balance the power of the decision makers.
The Kerr and Bland Committees saw that the purpose of Administrative Law was to protect citizens against government, when government was growing in size and exercising more administrative authority and discretionary power. It pointed to a heightened risk of error and impropriety in administrative decision making that posed threats to the rights and liberties of citizens .
The view from the Kerr and Bland Committees is compatible with that of Professor Cane that the Administrative Law can be used to regulate the way the administrators make decisions so that the power will not be misused.
How to measure success of the Administrative Law?
There are two views about the measurement of success of Administrative Law: (i) The instrumentalist believes the success lies in its impact on behaviour and outcomes, hence the law should bring behaviour and outcomes into conformity with specified value. (ii) The non-instrumentalist believes its success lies in its rules and practices. The law could be counted as a success if it clearly, consistently and coherently expressed specified values.
The supporters of regulatory approach to Administrative Law are instrumentalists whereas the supporters of legal approach are non-instrumentalists.
What are the regulatory and legal approaches to Administrative Law?
A regulatory system has three components (i) a set of standards that announce how people ought to behave; (ii) a mechanism for monitoring compliance with those standards; (iii) a mechanism for promoting future compliance.
Administrative Law consists of a set of rules and principles about how decisions ought to be made. Individuals affected by the administrative decisions can utilize various tribunals and ombudsmen to review decisions and in turn provide incentive for the decision makers to comply with Administrative Law in future.
The regulatory approach focuses on the future rather than the way decision makers behaved in the past. It aims to prevent potential issues by making the decision makers responsible for it. On the contrary, the legal approach presents administrative law to be used...
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