In Australia, the prerogative of mercy or power of pardon is exercised as a last resort after all avenues of appeal have been exhausted. I contend that the prerogative of mercy retains an important role in recognising the role of mercy at the "rough edges" of the system for the administration of criminal justice in Australia, and in a system of responsible government that its exercise is consistent with the rule of law. The relatively uncontentious exercise of the prerogative or executive pardon in Australia demonstrates the robustness of our accountability mechanisms. By contrast, the exercise of the pardon power in the United States Constitution in the Presidential system of government in the United States is replete with instances of abuse of the power and there is not infrequently an overreach of executive power.
Section 501BA of the Migration Act 1958 (Cth) empowers the Minister to personally override a Tribunal decision revoking a mandatory visa cancellation, provided the visa-holder fails the character test and cancellation is in the "national interest". Natural justice is expressly excluded, enabling swift executive action. Though intended as an "exceptional" safeguard, the power is now used with increasing frequency, often against long-term residents who had successfully appealed to the AAT. Judicial review in the Federal Court has rarely curtailed its use, with intervention limited to cases of material factual error or illogical reasoning. While courts emphasise that fairness concerns do not displace Parliament's design, persistent reliance on 501BA risks eroding the transparency and authority of merits review. The article argues that without restraint or reform, the routine use of this override power undermines rule-of-law values and public confidence in migration decision-making.
Since the early 2020s casino operators have been found guilty of engaging in money laundering, organising illegal junkets, failing to pay taxes, falsifying documents, exploiting vulnerable gamblers and generally engaging in conduct that has been described as illegal, dishonest, unethical and exploitative. One legislative response was to increase the maximum penalties available to regulators to $100 million. This article examines the legislation relating to the nature of, and grounds for, disciplinary action, the disciplinary sanctions and the processes involved in the exercise of those powers. It argues that there are significant shortcomings in the various schemes, particularly the lack of clear criteria to be applied by regulators when exercising their sanctioning powers, the lack of requirements to give reasons for their decisions, the unavailability of rights of appeal and review of some important decisions and the powers given to Governors in Council and Ministers to impose significant pecuniary penalties.
The question of the right to peacefully protest is a perennial one, given renewed currency by the COVID pandemic era, continued world conflict, and strong community sentiment about a range of contentious issues. The right to so protest is considered fundamental in a democratic society. This article considers the extent to which the right to protest has been protected in fact in Australia. It reveals that, often, the right to protest has been curtailed in favour of other interests. Sometimes, content-based restrictions on speech have apparently been applied. In contrast, comparable jurisdictions have often upheld the right to peacefully protest in a more robust fashion. The article suggests constitutional difficulties with the existing schemes by which protest and assembly are regulated in Australia, based on the rule of law and implied freedom of political communication.
Claims involving governments and their agencies are often quite different to all others. There is a range of reasons for this, including: the unique and uniquely complex functions of government; the singular impact that the decisions of public agencies can have; and the vast resources that governments and their agencies can hold when compared to those who challenge their decisions. The powerful position of government is offset, to some extent, by special obligations that fall onto public sector litigants. One is the duty of government parties to act as a model litigant. Another is the duty of parties to tribunal cases to assist the tribunal. Most of the attention given to these duties have focused on the federal level, by reason of the detailed Model Litigant Rules approved by the Commonwealth Attorney-General under the Judiciary Act 1903 (Cth) and the longstanding duties of parties in federal tribunal proceedings to assist the relevant tribunal. Victoria has adopted a modified version of model litigant guidelines based on the federal model, but they have received far less judicial and academic analysis. The legislation governing the key Victorian merits review body (VCAT-the Victorian Civil and Administrative Tribunal) does not include a duty of parties to assist VCAT. This article examines how the incomplete application of two well-settled federal principles to VCAT operate and how they could be reformed. The article argues that changes to specific procedural duties should occur as part of a wider ranging review of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). The article also considers how these issues may be affected by the absence in the VCAT Act of a provision that expressly states the objectives of VCAT.
The Legal Profession Uniform Law (Vic) (Uniform Law) regulates the vast majority of lawyers in Australia through the application of a uniform law framework. One of its key objectives is to protect clients and the public. This article examines who among these stakeholders receives procedural fairness hearing rights in the context of complaint handling about lawyers. It does so by reference to both the common law and statute. It then considers who should receive procedural fairness using the legal and philosophical justifications for the doctrine along with the regulatory objectives of the Uniform Law. Ultimately, this article argues for an extension of procedural fairness hearing rights to aggrieved clients and consumers by an amendment to the Uniform Law. This proposal builds on a novel provision in the Uniform Law that already provides complainants with the right to make a written submission in response to a draft disciplinary matter determination about the conduct of a lawyer.
Abramov v Minister for Foreign Affairs (No 2) concerned a Russian national who challenged the Minister of Foreign Affairs' decisions to "designate" and "declare" him twice under reg 6 of the Autonomous Sanctions Regulations 2011 (Cth) (the Regulations) (which were supported by s 10(1) (a) of the Autonomous Sanctions Act 2011 (Cth) (the Act). One of the key issues in the case was whether the Act and Regulations excluded a duty of procedural fairness for the making of regulations designating persons and entities. This article critiques the Court's holding that procedural fairness was excluded on the basis that the Court's analysis overlooked the difference between the presence and content of procedural fairness, as well as the importance of protecting individual interests.
Preventive regimes have appeared upon the Australian legal landscape before. However, they have never appeared in such a concerted way, across State, Territory and Federal jurisdictions. The current proliferation permits greater than ever post-detention supervision of individuals beyond any court mandated sentence, on the basis of risk. A fact which marks a fundamental shifting of paradigms; whereby our legal system moves away from the punitive and rehabilitative principles historically underscoring criminal justice towards the acceptance of civil schemes, predicated on a primary concern for community protection. With such a significant shift away from the interests of the individual; the remnant rights of those placed upon such orders becomes a matter of piquancy. It is in this context that two recent cases are discussed: Fuller v Lawrence and Wallace v Tannock. These cases confirm for the first time-the ability of such individuals to have recourse to judicial oversight (the judge over the shoulder) for day-to-day decisions relating to their supervision.
This article argues that recent amendments to the Migration Act 1958 (Cth)-in particular ss 76AAA, 189, 196 and 198AHB-create an architecture that is fundamentally incompatible with Australian administrative-law values. By allowing a Bridging (Removal Pending) visa to cease automatically once a non-citizen gains even conditional "permission" to enter a third country, and by expressly excluding the rules of natural justice, s 76AAA triggers a statutory pipeline to mandatory, potentially indefinite detention under ss 189 and 196. Section 198AHB simultaneously empowers the Commonwealth to support opaque third-country reception arrangements with minimal scrutiny. The article demonstrates that the scheme undermines procedural fairness, violates the principle of legality, strains the constitutional separation of judicial power, and positions Australia as an international outlier. It concludes with a suite of legislative and doctrinal reforms designed to restore fairness, legality and human dignity.
From the time AAT was established, a key issue in modern Australian merits review has been the question of how to deal with invalid decisions: can these be reviewed by a merits review tribunal? With a view to the importance of ensuring access to administrative review, in the case of Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd the Federal Court articulated the principle that, in the absence of contrary indication, a merits review tribunal is able to undertake a review of a decision even where that decision is invalid. That principle has been robust, being consistently applied in a variety of contexts. Its limits were tested in the case of XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, in the distinctive context of visa "character cancellation", but it remains an important principle in Australian administrative law, relevant to the work of the recently established Administrative Review Tribunal.
The Department of Defence's procurement activities often receive media and public attention due to their scope, risk and value. Military capability may be compromised if procurement risks have been inappropriately managed. If procurement costs exceed initial estimations, questions are raised as to whether value for money has been achieved. Although military procurement relies on a complex process of government decision-making, the relevance of administrative law principles is often overlooked. This article assesses the extent to which those administrative law decision-making principles apply to Defence procurement decisions. It does so by providing an overview of Defence procurement, assessing the application of administrative decision- making principles as a matter of law, examining the relevance of concepts relating to procedural fairness and, finally, considering the administrative character of legal review and remedies. The article draws the conclusion that the public interest is well served if the rules under which Defence procurement decisions are made remain strongly analogous to administrative legal principles.
On Friday 11 October 2024 the Administrative Appeals Tribunal (AAT) held its final sitting ahead of the inaugural sitting of the Administrative Review Tribunal on Monday 14 October. This address to the final sitting of the AAT recognises its achievements in conducting merits review of thousands of decisions each year since the mid-1980s, providing to persons affected by government decisions the opportunity to tell their story and be heard by the tribunal member who personally determined the review. By conduct of those reviews the AAT made a singular contribution to improving the quality of primary decision-making and respect for the law. The address highlights the AAT's contribution to law and policy on the relationships between impairment, disability and economic engagement; and to the development across the Australian legal system of a sophisticated understanding and deployment of inquisitorial methods in tandem with more traditional adversarial approaches.
Recent times have seen an increase in the use of secrecy measures in the context of a legal proceeding, by which a person the subject of legal action may not see or hear evidence being used against them. This is contrary to fundamental characteristics of judicial process, including procedural fairness. This article discusses a recent High Court decision where growing dissatisfaction with the use of such procedures is evident, with three members finding such provisions unconstitutional. The article places these developments within the broader context of the development of Chapter III jurisprudence. The recent decision shows the Court in a phase where it seeks to more robustly apply the separation of powers reflected in Chapter III, with positive implications for liberty. It might also herald the eventual adoption of proportionality analysis in this context.
This article presents analysis of a data set of over 26,000 applications for review of Protection Visa decisions in Australia's Administrative Appeals Tribunal. The data suggest that the rate at which applications for review are successful may vary based on the member who hears the case and a number of other factors. We outline how statistics of the nature analysed in our study could inform interventions and reforms aimed at improving the administrative review of Protection Visa cases, and outline lessons for the design and operation of Australia's new Administrative Review Tribunal.
Social security decisions have immense impact. A huge number of social decisions are made and they can have immense impact on people, but these decisions are not easy or simple. Social security legislation is extremely complex and the individual circumstances of people who need social security can also be very complex. Despite these factors, the review of social security decisions has received little attention. This article traces the origins of that review, how it was formalised into the Social Security Appeals Tribunal and then the Administrative Appeals Tribunal (AAT). The article argues that AAT review of social security did not meet the guiding principles of informal and quick review. It also questions whether those goals will be met by the Administrative Review Tribunal Bill 2023 (Cth).
This article was delivered for the Whitlam Institute at the conference "Whitlam's Legal Transformations: Spotlight On Administrative Law - A New System Of Federal Administrative Review". The article provides an account of the history of administrative merits review in Australia from pre-Federation to current day. This historical background provides the context for current developments in administrative review in Australia including the introduction by the Federal Government of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Bill 2023 (Cth) and the Administrative Review Tribunal Bill 2023 (Cth).
The Administrative Review Tribunal Act 2023 (Cth) contains provisions to establish a new version of the Administrative Review Council (ARC). The ARC was established under the Administrative Appeals Tribunal Act 1975 (Cth) and was long an important aspect of our administrative law framework. The ARC remains a part of the Administrative Appeals Tribunal legislation but the Council has been inactive for many years. The article explains the original purpose of the ARC, how it fell into slumber and the functions and potential value of a revived ARC. The article argues that the newly formed ARC may be stronger than its previous incarnation.
Oral advocacy has long occupied a central place in common law adjudication. Most of the discussion of that tradition occurs in the context of court proceedings, but advocacy is equally vital to decision-making outside the courts. This article explains how and when oral advocacy can provide benefits to administrative decision-making, particularly merits review. The article also examines how those benefits are sought to be fostered within the framework of the Administrative Review Tribunal Bill 2023 (Cth). The article concludes that many of the purposes of the proposed Administrative Review Tribunal will be furthered, and will sometimes demand, an oral hearing.
Global Administrative Law (GAL) is a relatively recent addition to the longstanding and settled theory of administrative law. It attempts to account for a newfound emergence of administrative law principles in international, inter -governmental and trans -governmental organisations. The World Trade Organization (WTO) is one of many organisations GAL purports to have now incorporated and codified administrative law principles. Procedural fairness in Art X (Publication and Administration of Trade Regulations) is claimed by GAL to be a significant advancement in the adoption of administrative law principles within international law. However, this is not the whole picture. The article explores how Art X's history and application have moulded and defined its operation, incorporating a particular conception of procedural fairness. In so doing, the article problematises GAL commentary on Art X, ultimately assessing whether the jurisprudential expectations GAL discourse places on Art X can truly be attributed to it as a provision that embodies fairness".
