It is basically a common law system, with an increasing statutory overlay that has shifted its focus toward codified judicial review and to tribunals with extensive jurisdiction.
Australia possesses well-developed ombudsman systems and Freedom of Information legislation, both influenced by comparable overseas developments.
At the end of the 19th century, the British constitutional theorist A. V. Dicey argued that there should be no separate system of administrative law such as the droit administratif which existed in France.
A. V. Dicey observed in 1885: "In England the idea of legal equality, or of the universal subjection of all classes to one law administered by the ordinary courts, has been pushed to its utmost limit.
[14] Nor, by the same token, can it be restricted; for example, jurisdiction over decisions made under a particular statutory provision cannot be ousted by a privative clause.
[17] This mirrors s75(v) of the Constitution,[13] however it is important to keep in mind that the Federal Court is a creature of statute and therefore its jurisdiction is relatively easily changed by repealing or amending the Judiciary Act 1903.
[24][25] This was emphasised by the High Court in Attorney-General (NSW) v Quin (1990), where Brennan J stated: However, the distinction between legality and merits can be difficult to make.
Historically, the courts have generally not inquired into certain classes of administrative actions, such as decisions exercising the vice-regal "prerogative powers"[25][31][32][33] or that involve foreign policy,[34][29] a declaration of war, national security or the award of official honours.
[19] Polycentric disputes involving complex policy issues relating to the economic, political and social consequences,[35] which are often marked by numerous, complex and intertwined issues, repercussions, and of the interests and people affected,[40] could result in a finding the matter was non-justiciabile or a reluctance of the court to intervene.
[42] In order to prove a 'special interest', the plaintiff must demonstrate that they were affected to a substantially greater degree than or in a significantly different manner to the public.
[3]: ss 5 & 6 This is defined as a person whose interests are "adversely affected by the decision", and can show that the grievance which will be suffered is beyond that which he or she has as an ordinary member of the public.
In some circumstances, decisions made by state governments, non-government bodies or under Norfolk Island law can also be reviewed.
[56] Within the scope of merits review, the Tribunal's duty is to make the correct or preferable decision in each case on the material before it.
Among the tribunal's objectives is to provide a mechanism for review that upholds the ideas of being "fair, just, economical, informal and quick.
"[1]: s 2A The most significant underlying changes introduced with the AAT are the availability of review on the merits, and a right to obtain reasons for decisions.
Federal Court Justice Susan Kenny has been appointed as acting AAT President to oversee the transition process.
Both at Commonwealth level and in every State, there is an office of Ombudsman, with wide power to investigate action that relates to matters of administration.
Australia was the first country with a Westminster system government to introduce freedom of information legislation, following the model established in the United States in 1966.
There is a fee involved in making that application to the Commonwealth Government, although similar State legislation has often made access to personal information free.
[78] Another very important object underlying the Act is the general intention of Parliament that government information should be disclosed and to encourage this disclosure.
The legislation is interpreted against a backdrop of other public policy law considerations concerning the legitimate scope of judicial review.
[3]: s 6 A member of the executive wishing to exercise a decision-making or regulation-making power must have some law or legal authority that empowers or excuses their actions.
[18] The High Court has applied the principle that no general power enables a government, the Governor-General or any other delegated legislation-maker to make regulations "which go outside the field of operation which the Act marks out for itself".
[86] Administrative decisions, including those exercising a discretionary power, must be designed to achieve a purpose or object authorised by the empowering legislation.
[97] The right to procedural fairness is assumed to exist in administrative decision-making environments, except where it is clearly excluded by statute.
[88] Mandamus is granted by a superior court to command the fulfilment of a duty of a public nature that remains unperformed and for which no other specific legal remedy is available.
[117] The main statutory remedies are those available at the federal level under the Administrative Decisions (Judicial Review) Act 1977 (Cth),[3] or under similar judicial review legislation at the State level in Victoria, Queensland, Tasmania, and the Australian Capital Territory. '
s 75(v) of the Constitution entrenches the jurisdiction of the High Court in relation to matters where mandamus, prohibition and injunction are claimed against an officer of the Commonwealth.