ADMINISTRATIVE LAW

Overview of judicial review

13 March 2012 Tutorial 1

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Disclaimer
These tutorials and the notes are designed to assist students in their learning. The tutorials and the notes are not a substitute for the course material, nor should they be relied upon as representative of the subject matter of the course. Neither the Melbourne University Law Students Society nor the student tutor of these tutorials will take responsibility for any consequences flowing from the use of the material.

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Recap: Principles of administrative law

Why do we have administrative law? Administrative law exists to provide accountability for the exercise of public power. The law provides four general areas to facilitate this: 1. Judicial review to control the legality of administrative decision-making; 2. Merits review to provide review for the substantive merits of decisions; 3. Ombudsmen, which are inquisitorial bodies that provide independent accountability for executive policies and actions; and 4. Freedom of information, which ensures that information related to the executive is available to the public. This course focuses on judicial review and merits review.

Statutory interpretation: techniques and approaches

The principles of statutory interpretation are simple, but applying these principles can be complex and difficult.

Reading statutes
When interpreting statutes, you must: 1. Read the statute in its entirety, always in print; 2. Consider first the structure of the statute (ie, its broad components); 3. Consider second the text of the statute, in detail: a. Are there any defined terms used? b. Do any words have meanings that may be unique to the field that the statute governs? c. Which terms are mandatory (must, shall), and which are permissive (may)? d. Are there any terms or provisions that seem to have ambiguous scope or meanings?

General principles
You should already be familiar with the general principles of the modern approach to statutory interpretation: 1. Consider the text (carefully read); 2. in its context (the statute as a whole, including extrinsic materials); 3. in the light of the purpose of the statute (as discerned from the text and, possibly, extrinsic materials).

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Applying the principles

Now, take a step back and ask yourself these questions: 1. 2. 3. 4. What is the purpose of the statute? How does the statute work; ie achieve that purpose? Which provisions are relevant to the facts at hand? How should I understand that provision in light of the purpose?

As with everything in law, you must expose and explain every step of your reasoning and this can be particularly difficult with statutory interpretation.

Some cautions
Students often go wrong when interpreting statutes by making the following mistakes: 1. Relying too heavily on extrinsic materials they are aids to interpretation, and must not be substituted for the texts themselves; 2. Advocacy slants reaching interpretations that may provide a desirable result, but are not justifiable on the text; 3. Making assumptions about the meanings of terms, without considering whether they may have different meanings in the context; and 4. Making assertions when explaining interpretations, rather than providing justifications for conclusions.

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Overview of judicial review

The distinction between merits and legality
The distinction between merits and legality explained, along with the underlying rationale: Attorney-General v Quin (Brennan J) 1. Merits concern the impact on the individual vis--vis the state; 2. The legality of a decision is whether or not the DM followed the law; 3. Courts are not well-equipped to balance the interests of an individual against the community at large; 4. However, courts are entrusted with the power and authority to conclusively determine questions of law.

The requirement of a matter

The constitutional requirement of a matter: Re McBain 1. This case concerned a group of Catholic bishops trying to reopen a decision of the Federal Court concerning whether or not a provision in a Victorian law was inconsistent with a Commonwealth law. 2. A matter is a legal controversy; 3. There was no matter between the parties; therefore the Court could not determine the legal issues.

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