INTRODUCTION TO ADMINISTRATIVE LAW
As a whole, administrative laws are decisions that are determined by a government body that can affect a wide majority of individuals across society as a whole in many aspects of their lives. Some common examples of administrative laws are registering a motor vehicle, obtaining a passport or obtaining a visa. These are processes that require having an individual application processed for approval by a government body upon forgoing their appropriate use. If these have not been accepted, there are serious consequences that may result in not being accepted into Australia or being deported back to their country of origin. (Withnall, & Evans, 2010) Administrative Law also meets the guidelines and requirements for a representative and responsible government where these laws open up to the public and allow for the government to be accountable of these decisions. This allows for Natural Justice as the people of the public are treated in a fair matter where everyone has the right to be heard and heard in a manner where they are not having the decisions made against them for reasons believed to be bias. In the Australian Capital Television v Commonwealth (1992) 177 CLR 106, the principles of a representative government and responsible government were discussed. (Australian Capital Television v Commonwealth (1992) 177 CLR 106)
COMMON LAW AND STATUTORY LAW
Common law refers to a body of rules of law that have been determined on the basis by courts in England that Australian court use to this day. Statute law refers to laws that have been made by judges during cases. (French, 2009) In Administrative Laws, all laws of common law go through Judicial Review where it then leads to the court hierarchy where they can appeal to a court or superiority where they believe the decisions are not truly in favour of them, therefore breaching Natural Justice. For all laws of statute nature to be resolved, they go through the non-judiciary reviews where it goes through internal reviews, end up at the ombudsman and could potentially go through the Victorian Tribunal of VCAT.
NON-JUDICIAL REVIEW
Non-judicial reviews are reviews that simply do not involve a judge or magistrate in making the decision. They generally use government and individual bodies to help solve their complaints and issues in ways that prevent them from attending court.
→ INTERNAL REVIEWS
An internal review is a review where you receive a document such as an infringement notice where you believe that it was contrary to the law or has a mistake and you believe that the government (body) needs to rereview the document. An example of this is receiving a parking infringement. According to s.22 of the Infringements Act 2006, a person who has received an infringement notice (or someone on their behalf) can apply to the most relevant body for another review of the infringement where they believe it is not right for them to receive under the subsections of s.22 however there are some limitations to receiving these infringements. (Infringement Act 2006 (Vic) s.22 (1) (Austl.))
→ PARLIAMENT PROCESS
The parliament process is the process where the people who represent our areas speak on behalf of the public and be accountable for the views and values of society as a whole. The process begins with an idea whether it is from other Members of Parliament, Individuals, Pressure groups or even the media. These persons then bring the idea to their favoured political party for it to be recognized by the lower house of parliament: legislative assembly. If discussion is successful then the idea is proposed as a bill and a vote occurs and whether the majority of votes are in favour of this bill it is then passed through to the upper house: the legislative assembly. If the bill then passes the upper house, the governor whom acts on the behalf of the Queen then gives the Royal Assent and the enactment process occurs and the law then applies. (Parliament of Victoria – flow chart, 2010)
→ OMBUDSMAN DECISIONS
The Ombudsman is usually wanted to be one of the last resorts for taking a complaint to due to the fact that there should be other options for one to go to. The Ombudsman is an independent person who must remain impartial throughout every single complaint that he shall receive. It is best to seek help via other agencies because the Ombudsman forms a report however cannot change the decision-makers original decision. (Ombudsman Act 1976 (Vic) s.2 (Austl.))
→ VCAT
In Administrative Law, the VCAT is used for statutory appeals where you go there after you have discussed the matter with the ombudsman and the decision has not been resolved. (Victorian Civil and Administrative Tribunal Act 1998 (Vic) s.4 (Austl.)) The tribunal has 2 types of jurisdictions; original and review and in the Administrative aspect of this, the review jurisdiction is the most appropriate in these decisions. (Victorian Civil and Administrative Tribunal Act 1998 (Vic) s.40 (Austl.))
JUDICIAL REVIEW
If the non-judicial review fails, individuals then rely on Judicial Review. Judicial Review is the process that is undertaken by a court where the judicial officers can only review whether or not the decision maker has made his or her decision in accordance with the law and their law making power. (Withnall, & Evans, 2010) Most reviews are found to be on error of law on the face of record, ultra vires, judicial error and breaching the Natural Justice principle.
→ ULTRA VIRES
Ultra Vires is the Latin term for “beyond ones power.” In the law making process there are three different areas of making law known as the separation of powers. The three areas are judicial powers that are held by the judges and magistrates, executive powers that are held by the Queen, Prime Minister and Ministers and legislative powers that are held by the people of Parliament. Each of these decision-making bodies have powers within their roles and if they make decisions beyond the scope of their powers, it is deemed “Ultra Vires” as they have abused their power in the decision making process.
→ JURISDICTIONAL ERROR
A jurisdictional error is an error that occurs due to the decision maker abusing their decision-making powers and constructing a decision that exceeds their jurisdiction. (Withnall, & Evans, 2010) There are many ways that a jurisdictional error can occur such as asking questions on the wrong point of law and relying on irrelevant material and evidence.
→ ERRORS OF LAW ON THE FACE OF THE RECORD
An error of law on the face of record is simply where an error is within the document that includes the record of the decision. These errors can be either errors on the question of law or errors on the question of fact, which is very hard to determine between the two however can be done is simple steps. To determine whether it is question of law could be if the word in legislation is to be used in its technical or ordinary meaning. To determine whether it is question of fact is whether the word used should be used in its ordinary meaning or its technical meaning. (Withnall, & Evans, 2010)
→ BREACH OF NATURAL JUSTICE
Natural justice is a concept used in our everyday lives and especially within the Victorian Criminal Justice System where overall it sums up as being the right to be treated fair and unbiased by a decision maker. Natural justice is common law where the law is made in court by the judges, in other words is unwritten law from the very first days in England (Dietrich v R [1992] 177 CLR 292). For Natural Justice to be breached, the decision maker will have not followed the principles and their rules within the Natural Justice that is the fairness principle with the hearing, knowledge, transparency and procedural rules (Arenson & Bagaric, 2015) and the bias principle with the real and apprehended bias (Withnall & Evans, 2010)
Conclusion
In the end, there will always be some form of disagreement in the decisions that have been made and people will always want to dispute it and try get it reviewed. There are multiple ways that these can be done such a judicial and non-judicial reviews where the way individuals are treated are on such different levels with different individuals involved. In the end, both forms of review try and resolve common law and statutory laws in the most efficient way possible.