Administrative Law
Tutorial 6 (Notes) REVISION
Administrative Law aims at control of executive [administrative] power.
There might be control of administrative power within the executive branch of government by merit
review, particularly, via [ statutory] external review, such as by the Administrative Appeal Tribunal.
There might be control of executive power under the constitutional principle of separation of
powers
Judicial branch of government controls the executive by means of judicial review. [Legality does not
merit].
Judicial review at common law is rooted in inherent general supervisory jurisdiction of the superior
court of record [ Court of King’s Bench] over inferior tribunals.
S 71 of the Constitution (Cth): The High Court of Australia is the ‘Federal Supreme Court’.
S75 (v) of the Constitution (Cth): Judicial review in the High Court of Australia [ under its original
jurisdiction] via constitutional remedies- prohibition, mandamus, and injunction ‘against an officer of
the Commonwealth’.
S39 (1) of the Judiciary Act 1903: judicial review in the Federal Court [under its original
jurisdiction] via prohibition, mandamus, and injunction ‘against an officer of the Commonwealth’.
Prohibition A prerogative writ to prevent making decision-
outside the officer’s authority: ultra vires
Mandamus A prerogative writ to compel the making of a
decision performance of a public duty
Injunction-equitable remedy Negative injunction restrains unlawful/
inequitable action.
Mandatory injunction compels performance of
some duty decision.
Associated jurisdiction Federal statutory or implied powers to grant
complete relief [ in addition to expressly granted
statutory remedies]
Certiorari A prerogative writ by a superior court on to
quash an unlawful decision, particularly for
‘error of law on the face of the record’.
Declaration- equitable remedy To declare legal/ equitable rights without
compulsion on the parties.
Mandamus and Prohibition are remedies for jurisdictional errors.
There is an entrenched minimum of judicial review- review for jurisdictional errors under the High
Court constitutional writs jurisdiction: Plaintiff S157/2002 v Cth (2003) HC.1
1
S 75(V) of the Constitution entrenches a “minimum provision of judicial review” which cannot be removed by
statute.
, Threshold jurisdictional error Simple/Narrow Ultra vires Lack of Power
Includes error of jurisdictional fact (R v
Hickman)
Extended jurisdictional error Broad/ Extended Ultra Vires Excess of Power/
improper exercise (abuse) of power [ during
enquiry] amounting to going beyond jurisdiction
Historically, ‘jurisdictional error’ was applied to judicial bodies and was confined to matters the body
could not commence to hear and orders it was not allowed to make. Now it is preferred general term
(encompassing/ supplanting ‘ultra vires’)
Re Refugee Review Tribunal; Ex parte Aala (2000)2 HC per Hayne: There is a jurisdictional error
when the decision-maker decides outside the limits of the functions and powers conferred on her or
him or does something which he or she lacks power to do.
All powers come from somewhere?3 ‘Administrative decision-makers’ powers [i.e., jurisdiction]
come from the primary legislation at hand (?)
[Simple/narrow jurisdictional error at threshold?]
Anisminic Ltd v Foreign Compensation Commission [1969]4 1 AC 147- HL per Lord Reid:
Jurisdiction in the narrow sense means the authority of a tribunal enter the enquiry. But often when
a tribunal has jurisdiction to enter an inquiry it does something in the courts of enquiry that
renders the decision a nullity:
Bad faith.
Decision beyond power.
Breach of natural justice
Re……..
Refusal to consider something required to be considered.
Based as decision on something it had no right to consider
[Extended] Jurisdictional Error during the Judiciary?
Craig v South Australia (1996)5 184 CLR 163; an administrative tribunal might examine jurisdictional
error If it
Addresses the wrong issues or
The HC held that section 474 was valid but largely inactive.
2
The HC held that the denial of procedural fairness by an officer of the Commonwealth, where the duty to
observe it has not been validly limited or extinguished by statue will result in a decision made more than
jurisdiction and thus attract the issue of prohibition.
3
There is more complicated issue of residual prerogative powers of the Crown [ as a source of sovereignty
‘Queen/King in the Parliament’].
S 61 of the Constitution of the Commonwealth of Australia executive power is vested in the Queen and is
exercisable by the Governor-General.
4
The decision illustrates the court’s reluctance to give effect to any legislative provision that attempts to exclude
their jurisdiction in judicial review.
It also establishes that any error of law by a public body will result in its decision being ultra vires.
5
Held: In considering what constitutes “jurisdictional error”, it is necessary to distinguish Between on the one
hand, the inferior courts which are amenable to certiorari and, on the other, those other tribunals exercising
governmental powers which are also amenable to the writ.
Tutorial 6 (Notes) REVISION
Administrative Law aims at control of executive [administrative] power.
There might be control of administrative power within the executive branch of government by merit
review, particularly, via [ statutory] external review, such as by the Administrative Appeal Tribunal.
There might be control of executive power under the constitutional principle of separation of
powers
Judicial branch of government controls the executive by means of judicial review. [Legality does not
merit].
Judicial review at common law is rooted in inherent general supervisory jurisdiction of the superior
court of record [ Court of King’s Bench] over inferior tribunals.
S 71 of the Constitution (Cth): The High Court of Australia is the ‘Federal Supreme Court’.
S75 (v) of the Constitution (Cth): Judicial review in the High Court of Australia [ under its original
jurisdiction] via constitutional remedies- prohibition, mandamus, and injunction ‘against an officer of
the Commonwealth’.
S39 (1) of the Judiciary Act 1903: judicial review in the Federal Court [under its original
jurisdiction] via prohibition, mandamus, and injunction ‘against an officer of the Commonwealth’.
Prohibition A prerogative writ to prevent making decision-
outside the officer’s authority: ultra vires
Mandamus A prerogative writ to compel the making of a
decision performance of a public duty
Injunction-equitable remedy Negative injunction restrains unlawful/
inequitable action.
Mandatory injunction compels performance of
some duty decision.
Associated jurisdiction Federal statutory or implied powers to grant
complete relief [ in addition to expressly granted
statutory remedies]
Certiorari A prerogative writ by a superior court on to
quash an unlawful decision, particularly for
‘error of law on the face of the record’.
Declaration- equitable remedy To declare legal/ equitable rights without
compulsion on the parties.
Mandamus and Prohibition are remedies for jurisdictional errors.
There is an entrenched minimum of judicial review- review for jurisdictional errors under the High
Court constitutional writs jurisdiction: Plaintiff S157/2002 v Cth (2003) HC.1
1
S 75(V) of the Constitution entrenches a “minimum provision of judicial review” which cannot be removed by
statute.
, Threshold jurisdictional error Simple/Narrow Ultra vires Lack of Power
Includes error of jurisdictional fact (R v
Hickman)
Extended jurisdictional error Broad/ Extended Ultra Vires Excess of Power/
improper exercise (abuse) of power [ during
enquiry] amounting to going beyond jurisdiction
Historically, ‘jurisdictional error’ was applied to judicial bodies and was confined to matters the body
could not commence to hear and orders it was not allowed to make. Now it is preferred general term
(encompassing/ supplanting ‘ultra vires’)
Re Refugee Review Tribunal; Ex parte Aala (2000)2 HC per Hayne: There is a jurisdictional error
when the decision-maker decides outside the limits of the functions and powers conferred on her or
him or does something which he or she lacks power to do.
All powers come from somewhere?3 ‘Administrative decision-makers’ powers [i.e., jurisdiction]
come from the primary legislation at hand (?)
[Simple/narrow jurisdictional error at threshold?]
Anisminic Ltd v Foreign Compensation Commission [1969]4 1 AC 147- HL per Lord Reid:
Jurisdiction in the narrow sense means the authority of a tribunal enter the enquiry. But often when
a tribunal has jurisdiction to enter an inquiry it does something in the courts of enquiry that
renders the decision a nullity:
Bad faith.
Decision beyond power.
Breach of natural justice
Re……..
Refusal to consider something required to be considered.
Based as decision on something it had no right to consider
[Extended] Jurisdictional Error during the Judiciary?
Craig v South Australia (1996)5 184 CLR 163; an administrative tribunal might examine jurisdictional
error If it
Addresses the wrong issues or
The HC held that section 474 was valid but largely inactive.
2
The HC held that the denial of procedural fairness by an officer of the Commonwealth, where the duty to
observe it has not been validly limited or extinguished by statue will result in a decision made more than
jurisdiction and thus attract the issue of prohibition.
3
There is more complicated issue of residual prerogative powers of the Crown [ as a source of sovereignty
‘Queen/King in the Parliament’].
S 61 of the Constitution of the Commonwealth of Australia executive power is vested in the Queen and is
exercisable by the Governor-General.
4
The decision illustrates the court’s reluctance to give effect to any legislative provision that attempts to exclude
their jurisdiction in judicial review.
It also establishes that any error of law by a public body will result in its decision being ultra vires.
5
Held: In considering what constitutes “jurisdictional error”, it is necessary to distinguish Between on the one
hand, the inferior courts which are amenable to certiorari and, on the other, those other tribunals exercising
governmental powers which are also amenable to the writ.
