1. WHAT IS ADMIN LAW

Controls decisions made by Executive arm of government.  You can’t challenge the Legislature’s decisions using administrative law – your only hope is the Constitution or international law.

Through the principle of “ministerial responsibility” ministers are collectively and individually responsible to the Parliament.  However Mason J in R v Toohey highlighted the fact that this ministerial responsibility was an insufficient accountability mechanism.  So we need administrative law to supplement political accountability.  Finn in “Myths of Australian Public Administration” also states that the doctrine of ministerial responsibility is very narrow.

The whole point of administrative law is to throw the rule book at the government departments, Cabinet (if they are not immune), Ministers, the Directors General of departments etc.  It is essential to democracy that we have administrative law to hold decision makers accountable.

2. THE CONSTITUTIONAL FRAMEWORK
Doctrine of Separation of Power
-    legislature, executive, judiciary

Legislature
-    Empowers the Executive (and the administration) to perform administrative functions by legislation
-    When government comes into power there is already pre-existing law. This arm of government passes statute.
-    Legislature is constituted by members of parliament. These people are elected which is a fundamental feature of democracy.
-    They make this law because government has a mandate. This is a mandate given to them by the people, enabling them to make laws.
-    By campaigning during elections, the government notifies the public of the legislative changes they intend to make once in power.
-    The law making process involves government putting out a white paper. Then the bill stage, where bill gets read in parliament and comments made about it and then it is passed in parliament

-    The Aus parliament is sovereign which mans it can pass any legislation it wants, with very few checks. Only the HCA can control this because it must ensure the legislature does not breach the constitution.
-    Australia does not have a bill of rights. A parliament with a bill of rights is not sovereign because law making can be challenged in a sup ct.

Executive
-    focus for this course
-    Executive (and administration) must act in accordance with the powers given by the legislature
-    it comprises the head of state, the cabinet (certain gov ministers)  Howard invites the more senior ministers to be part of cabinet
-    The role of cabinet is as the major policy-making arm of government
-    Ministers are responsible for a particular government department, ensuring it is run efficiently according to budget and the law etc.
-    Minister is responsible for the way their dept carries out its functions
-    Also Director General, senior bureaucrat
-    Many people in government required to make decisions
-    The administrative arm of government constantly applying for benefits
-    Decisions made by government agencies affect every area of life
-    Constitutional law is the state at rest  sets out the business of the state in a quiet way. Admin Law is the state in action. It puts into action the legislation of the legislature.
-    Gov agencies not only grant benefits but also admin arm of gov can also impose restrictions on people

Judiciary
-    Protects the rights of the individual against State action by ensuring that the executive (and the administration) exercises its powers in accordance with the empowering legislation.
-    The judiciary has an inherent power to review the administrative action of the Executive and the administration
-    It is a power given to it by constitution
-    The concept of the Rule of Law provides that the administration can be brought before the courts by an individual who is affected by administrative decisions
-    Primarily admin action is controlled by the judiciary
-    The focus of this course
-    Judiciary has an inherent constitutional right to protect individuals from the abuse of power
-    There is an interplay between all three arms of government
-    There is no power
for admin arm of government to act unless the minister has power to act under statute
-    if parliament doesn’t like what HCA has said  they can simply enact new legislation
-    Very often courts will protest e.g. Kirby J
-    When judges interpret statue, they start with the common law presumption that statute interferes with common law rights only to the extent that is necessary.
-    Courts have power to control the executive and administrative arm of government.
-    Some people object to the power of the judiciary, because they are not democratically elected.
-    One way the judiciary maintains its legitimacy, is to say they are only checking the legality of an administrative decision not the merits.
-    The courts do not tell the minister whether they are right or wrong. The courts check whether min has the right to make that decision. If it is unlawful decision it gets set aside.
-    Judiciary has minimalist baseline of rules. They realise that the more rules they impose, the more difficult it will be for the admin arm of gov to perform its function
-    The courts are upholding the principle of the Rule of Law  The notion that no-one is above the law, including the government. We as individuals have the right to bring even cabinet before the court.

Murrambidgee Groundwater Preservation Association v Minister for Natural Resources [2003] NSWLEC 322

Facts: related to the subpoena of Cabinet Minutes, Cabinet decisions and memoranda prepared for the Minister.

Background: Since 1994 government tried to work together to reform water law. Govs were not managing water in a sustainable way. COAG = Council of Australian Government  made up of Commonwealth government and all the state premiers. It is an interjurisdictional policy-making body. Once COAG makes a decision, Commonwealth and States agree to implement the policies made by COAG. Legislation passed to accommodate this. Commonwealth has no power to control the environment therefore there are issues about whether what is happening through COAG is constitutional. The people who will be impacted are irrigators who are complaining that their water rights are being infringed. MGPA is saying that the minister is interfering with their rights and doing so, the minister wasn’t exercising an independent discretion as he would be expected to.

Irrigators argued that the minister is acting under the dictation of the NSW cabinet. NSW agrees to COAG and the impact hits irrigators. Irrigators wanted to subpoena cabinet documents to prove the minister didn’t make an independent decision. The DGs of the Department of Planning, Infrastructure and Natural Resources and Cabinet Office are trying to preserve the confidentiality of the cabinet docs under public interest immunity.

Minister argued that…

* Disclosure of Cabinet minutes and decisions should not be disclosed because Cabinet is a forum for discussion of significant and sensitive issues of public policy.  Also, disclosure would cause administrative inconvenience.

* The Memoranda should not be disclosed because, in order to properly advise the Minister, the memo must be “confidential, concise, rigorous and uninhibited”.  If the memo was to be disclosed it would have to be written entirely differently.  Also, the collective responsibility of Cabinet is undermined if a Minister’s individual view on an issue is made public.

* Court held they must be kept confidential.

-    Advice prepared by DIPNR on what minister might say to cabinet must be confidential
-    Advice prepared by DIPNR on what Minister might say to caucus must be confidential
-    Advice prepared by departments to brief the premier on controversial issues prior to visits must be confidential

McClelland CJ refers to Sankey v Whitlam as leading case.
-    Says there is no blanket immunity of cabinet documents, but they will not be disclosed if injurious to public interest
-    2 main conflicting principles:
1.    protecting government from harm
2.    ensuring that justice can be effectively administered

Held: Cabinet documents should only be disclosed in exceptional circumstances. No need to make orders in present notices of motion because the claim is not made out and would have to be proved in a subsequent trial

The point is about how cabinet works and how important it is.
-    it is a judicial insight
-    since 94, water law has been fundamentally reformed
-    legislation in 00, law passed about irrigators right to use water
-    irrigators argued min rights exercised unlawfully. Cabinet made a decision and the minister failed to make an independent decision simply went with cabinet
-    irrigators requesting cabinet documents to be subpoenaed, to form an argument
-    Ct feels cabinet documents should not be released in most circumstances

Continued on page 2