Blog

Administrative law – the power of Government authorities to change a life

Dominic Cookman

20 Dec 2017

Topics

  • Government Advisory
  • Migration

It can be startling to realise how much power and responsibility Australian government authorities have to make decisions which affect the lives of citizens. Parliament makes legislation which confers general rights and duties on us all. It usually falls to executive decision makers such as government departments, agencies, tribunals and licencing authorities to apply legislation to individual circumstances.

Some administrative decisions are little more than the mechanical application of rigid and clear criteria. Others give considerable latitude to the decision-maker to exercise their own judgment in particular instances. Dominic Cookman, Associate with Snedden Hall & Gallop Lawyers explains how such discretions may be exercised in the realm of administrative law.

The decision-makers within government departments currently may be given discretion under legislation to decide

  • Whether a university graduate is a fit and proper person to be granted a professional licence or certification;
  • Whether a new bar or restaurant should be granted a liquor licence, and if so, under what conditions;
  • Whether a person meets the eligibility criteria for a benefit such as a disability support pension, age pension or Austudy payment; or
  •  Whether an applicant meets the criteria for the grant of a visa to migrate to Australia.

In the context of immigration, let’s look at how and when a flawed decision can be challenged in the Courts

A broad grant of decision-making discretion to the Department of Immigration and Border Protection (DIBP) is not a carte blanche to make any decision it pleases. The Court system is empowered to review decisions made by the Department to ensure that a decision-maker, amongst other things:

  • Was not biased;
  • Took into account all relevant considerations, and did not take into account any irrelevant considerations;
  •  Gave the applicant a fair opportunity to present their case (known as ‘procedural fairness’ or ‘natural justice’).

Failure to adhere to the above principles is known in administrative law as ‘jurisdictional error’. The presence of a jurisdictional error does not mean that a Court can substitute in its own preferred outcome in place of the existing decision. What it does mean is that a Court can declare that a particular decision was arrived at in an unlawful manner, and that the decision-maker should make the decision again in accordance with the proper procedure.

For example, the DIBP may reject a visa application. Lawyers acting for the visa applicant may apply to the Federal Court, which could find that the visa applicant was not given adequate notice or opportunity to present relevant evidence to the DIBP. Usually, a Court will not order that the applicant should be immediately granted a visa, but instead will order that the DIBP process the visa application again taking into account the additional evidence.

Administrative Law advice

Administrative law is complicated, far-reaching and increasingly important. Snedden Hall & Gallop Lawyers is available to assist government agencies, individuals and organisations to navigate its complexities, assess the risks and protect their rights. Please contact us by email or by phone on (02) 6285 8000. Dominic Cookman is an Associate at Snedden Hall & Gallop and a registered migration agent (MARN 1789257).