“Australian administrative law”的意思、由来-开放百科全书

Australian administrative law defines the extent of the powers and responsibilities held by administrative agencies of Australian governments. 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. Its notice and comment requirements for the making of delegated legislation have parallels to the United States. Australia's borrowings from overseas are still largely shaped by its evolution within a system of parliamentary democracy that loosely follows a Westminster system of responsibility and accountability. At the same time, its application has been limited by a shift toward deregulation and privatisation.

History

The constitutional framework and development of administrative law in Australia was highly influenced by legal developments in the United Kingdom and United States. 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. As a result, Australian administrative law before World War II developed in an unplanned way.

The present administrative law is largely a result of growing concern about control of bureaucratic decisions in the 1960s. In response a set of committees were established in the early 1970s, whose recommendations constituted the basis for what became known as the "New Administrative Law". The most important of these, the Kerr Report, recommended the establishment of a general administrative tribunal which could review administrative decisions on the merits, codification and procedural reform of the system of judicial review, and the creation of an office of Ombudsman. These proposals were put into practice with the passing of a package of federal statutes: the Administrative Appeals Tribunal Act 1975,^[1] the Ombudsman Act 1976,^[2] the Administrative Decisions (Judicial Review) Act 1977,^[3] and the Freedom of Information Act 1982.^[4] Some of those have since been replicated in states and territories.

Judicial review

The grounds for challenging administrative action were developed at common law^[1] and have been codified in the Administrative Decisions (Judicial Review) Act 1977.^[2]{{rp|ss 5–7}} The kinds of error which would give rise to judicial review appeared to have been identified with reference to a list of categories such as relying on irrelevant considerations, improper purpose, Wednesbury unreasonableness,^[3]^[4]^[5] error of law, breaching the hearing or bias rules^[6]^[7] of natural justice.^[8]

One of the most important features of common law systems, considered to be an aspect of "equality before the law", is that judicial review is conducted by the ordinary courts and there are no special administrative or constitutional courts. 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."^[9] Superior courts of general jurisdiction are traditionally regarded as having inherent jurisdiction to review administrative actions.

The Federal Court has also been vested with original jurisdiction "with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth".^[14] This mirrors s75(v) of the Constitution,^[10] 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.

"Matters"

The High Court's original jurisdiction is over "matters" as provided in Constitution sections 75,^[10] and 76.^[13] The Court has held, with a view to separation of powers, that the category "matter" is confined to issues that are appropriate for judicial determination, although the justices have taken a range of views upon what is appropriate.^[15] In general, however, the issue will constitute a "matter" if it requires an immediate determination of the legal rights and interests of an individual.^[16]^[17]^[18] In addition, hypothetical issues are not regarded as justiciable, since not involving a "matter".^[19] Further, whether a claim is justiciable may depend on whether the decision would rely upon "legal grounds" rather than "political considerations".^[20]

Justiciability

Under the doctrine of a strict separation of powers, courts can review only the "legality" (the legal validity) of executive decisions and actions, and not their "merits".^[21]^[22] 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.^[5]^[24]^[25]

Unlike in the United States, and in the United Kingdom,^[26] there is no doctrine forbidding the courts from reviewing "political questions".^[27] While no specific exclusion exists it is likely that the courts would be reluctant to intervene in certain matters. Historically, the courts have generally not inquired into certain classes of administrative actions, such as decisions exercising the vice-regal "prerogative powers"^[22]^[28]^[29]^[30] or that involve foreign policy,^[31]^[26] a declaration of war, national security or the award of official honours. However, there is no general rule preventing this, and the courts sought to focus more on the individual circumstances of application and the nature of the power being used rather than categorical dismissal based on government powers.^[32]^[33]

The High Court has refused to rule on an Attorney-General's decision not to intervene in a case,^[34] and to intervene in the politically sensitive area of national security beyond the scope of judicial review.^[35]^[36] Furthermore, the justiciability of prerogative decisions cannot arise under the Administrative Decisions (Judicial Review) Act 1977 (Cth) as the Act is limited to decisions made "under an enactment" of the Commonwealth.^[2]{{rp|s 5}}

Polycentric disputes involving complex policy issues relating to the economic, political and social consequences,^[32] which are often marked by numerous, complex and intertwined issues, repercussions, and of the interests and people affected,^[37] could result in a finding the matter was non-justiciabile or a reluctance of the court to intervene.^[38]

Standing

The common law traditionally requires a plaintiff to show standing before being given the right to take action.^[34]^[39]^[40]^[41]^[42]^[43]

A 'special interest' in the subject matter of the action will confer standing on an individual.^[39] 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.^[40] Only a select few cases exist where a person has gained standing with no 'special' interest in the matter.^[44] The plaintiff needs special interest peculiar to himself. "Special damage" is not limited to actual pecuniary loss and the words "peculiar to himself" do not mean that the plaintiff, and no one else, must have suffered the damage.^[39]

Claims based solely on public interest, an emotional or intellectual concern, or a mere desire to enforce a public duty will not confer standing.^[39]^[45]^[46]^[47] While the High Court has favoured a more liberal approach to standing,^[34]^[48] and the Australian Law Reform Commission has called for broader rules of standing,^[49] there has been a reluctance to embrace 'open' standing as favoured by Canadian courts.^[50]

If proceedings are instituted under the Administrative Decisions (Judicial Review) Act 1977 (Cth), the claimant can be "a person who is aggrieved" by a reviewable decision.^[2]{{rp|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.^[2]{{rp|s 3(4)}} ^[51]

Future

The Administrative Review Council conducted a comprehensive survey of federal judicial review of administrative action and delivered its report in September 2012.^[52]]

Administrative Appeals Tribunal

The Administrative Appeals Tribunal (AAT) conducts independent merits review of administrative decisions made under Commonwealth laws. The AAT can review decisions made by Commonwealth ministers, departments and agencies. In some circumstances, decisions made by state governments, non-government bodies or under Norfolk Island law can also be reviewed.^[53] 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.^[54]

The AAT was established by the Administrative Appeals Tribunal Act 1975 (Cth) as a hybrid between court and administrative agency. Among the tribunal's objectives is to provide a mechanism for review that upholds the ideas of being "fair, just, economical, informal and quick."^[55]{{rp|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.^[55]{{rp|s 28}}

On 1 July 2015, the Migration Review Tribunal (MRT), Refugee Review Tribunal (RRT) and Social Security Appeals Tribunal (SSAT) merged with the AAT.^[56]

The AAT has a standing requirement that must be satisfied before an application for review can be accepted. An application for review can be made by, or on behalf of, "any person or persons...whose interests are affected by the decision.^[55]{{rp|s 27(1)}} A leading authority on the meaning of the phrase "interests are affected" is McHattan and Collector of Customs (NSW).^[57]^[58] An application for review can also be made by "an organisation or association of persons...if the decision relates to a matter included in the objects or purposes of the organisation or association".^[55]{{rp|s 27(2)}} However, mere correlation to an organisation’s objects or purposes will not grant standing as the relationship between the object of review and of the organisation must be ‘real or genuine’.^[59]

The AAT was designed to be accessible. It is free to file an application for review of a decision listed in section 22 of the Administrative Appeals Tribunal Regulation 2015^[55]{{rp|s 22}} which, among other things, includes some decisions made by Centrelink, decisions made with regards to military or veteran compensation, and some Freedom of Information decisions. For most other decisions, a standard application fee applies of A$884, however a reduced fee of $100 is available to those eligible for concession or who are experiencing financial hardship.^[60]

State administrative law tribunals

Some of the states and territories of Australia also have tribunals similar to the AAT. They vary in terms of the degree of formality, focus on mediation, procedure and jurisdiction.

Victoria

New South Wales

The Administrative and Equal Opportunity Division of the New South Wales Civil and Administrative Tribunal was established in 2014.^[64] It replaced the Administrative Decisions Tribunal of New South Wales, previously established in 1998,^[65] alongside 21 other tribunals.^[66]

Western Australia

The State Administrative Tribunal of Western Australia was established in 2004.^[67]

Queensland

South Australia

The South Australian Civil and Administrative Tribunal was established in 2015.^[69]

In other states and territories

In South Australia and Tasmania, some of the functions of the tribunals are performed by the courts.

Ombudsman

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.^[70]{{rp|s8A}}

An Ombudsman has an investigative role: firstly, to investigate complaints from members of the public (e.g. OB Act s 5(1)(a)); secondly, to undertake investigations upon the office's own initiative, termed "own motion" investigations (e.g. OB Act s 5(1)(b)).

The investigations are initially conducted privately (s 8) and informally, through preliminary inquiries (s 7A). However, an Ombudsman has the same powers as a royal commission: to require attendance and examination of witnesses, to enter premises, to administer oaths and to require documents to be produced (ss 9, 13 and 14). If the Ombudsman believes that an agency has not taken appropriate action, it can report to the Prime Minister and thereafter to the parliament (ss 16 and 17).

In recent times the Ombudsman offices have been subject to tight budgetary constraints. Privatisation of formerly governmental functions has also removed many activities from the jurisdiction of an Ombudsman.

Freedom of information

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. The Freedom of Information Act 1982 (Cth) provides access to government information.^[71] Similar legislation is now in force in the Australian Capital Territory,^[72] and the individual States of Australia.

Freedom of information is designed to allow individuals access to personal and governmental information, and to allow individuals the opportunity to challenge and where appropriate have their personal information amended.^[71]{{rp|s 3}} It is also intended to provide open government.

Every person has a legally enforceable right to obtain access to a document of an agency or Minister, other than an exempt document, in accordance with the Act.^[71]{{rp|s 11}} Whether an item can be classified as a document for FOI purposes is assessed with regard to their relation to "the affairs of an agency or department."^[73] This means that many political, administrative and personal documents are beyond the reach of an application. Applications are made to the agency or Minister concerned.

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. This object of this fee structure is "a means of deterring frivolous and excessively broad FOI requests".^[74] This application must then be acknowledged within 14 days and a decision made within 30 days.^[71]{{rp|s 15}}

In the 1999 Needs to Know report, the Ombudsman reported that the average charge per request rose from $123 in 1994-1995 to $239 in 1997-1998.^[75] There is evidence that some agencies have intentionally inflated charges in order to discourage applicants from pursuing claims.^[76]

A basic principle involved in the FOI regime is that standing is not an issue: that all members of the public should be entitled to access of government information irrespective of the purpose for which the information is sought. However, one obvious exception has been in the disclosure of personal information. Personal information is almost always exempted from disclosure, in order to protect individuals' private information.^[77]

Another very important object underlying the Act is the general intention of Parliament that government information should be disclosed and to encourage this disclosure. Accordingly, the Act uses language which indicates the discretion to deny access to information is just that: a discretion, and thereby encourages agencies to disclose documents or matter even where it may be exempt. There has also been an acknowledgement that general public interest arguments also should influence an agency decision to disclose.

Exemptions

There is a long list of general exemptions to freedom of information.^[71]{{rp|Part IV}} Certain agencies, such as the Australian Security Intelligence Organisation, are given a blanket exemption. Exemptions also apply to documents held by contractors and those relating to commercial activities.^[78] Even within the scope of permitted material, there must be regard to the statutory boundary that Parliament has imposed.^[79]

Most exemptions are subject to a public interest test, with the onus on the agency to show that it would be contrary to the public interest to release a document coming under one of these heads.^[71]{{rp|ss 11A, 11B}}

Before 2009, Ministers could issue conclusive certification that a document or documents are exempt because disclosure would not be in the public interest.^[71]{{rp|ss 33A(2), 3(4)}} However, conclusive certificates were abolished in 2009.^[80]

Review

Parties unhappy with the decision of the agency or Minister may go to the next stage of external review, where the original decision to disclose or not disclose will be reconsidered. Under the Commonwealth Act, this external review function is undertaken by the Administrative Appeals Tribunal. Some States have this external review function vested in an Information Commissioner. Appeals from the AAT are to the Federal Court,^[2]{{rp|s 16}} and are ordinarily limited to a question of law.^[81]

Alternatively, the case may go under the ADJR act where it is a source of defining the scope of action to be included or excluded in judicial review and the jurisdiction of any court vested with the function of reviewing that executive action. The legislation is interpreted against a backdrop of other public policy law considerations concerning the legitimate scope of judicial review. The ADJR Act confers jurisdiction on the 'Federal Court and Federal Circuit Court to undertake review of ‘a decision to which this Act applies’,^[2]{{rp|s 5}} and ‘conduct for the purpose of making a decision to which this Act applies’.^[2]{{rp|s 6}}

Ultra vires

Simple ultra vires

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.^[36]^[82] This 'authority to decide' is known as jurisdiction.^[15] 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".^[83]^[84] This ultra vires, known as jurisdictional error is where the decision maker either: exceeds the jurisdiction, by ‘flouting a statutory limitation, breaching natural justice, asking the wrong question or being wrongly constituted’^[85]^[86]^[87] i.e. the decision is invalid; or fails to exercise its jurisdiction to make a particular decision.^[85]

Abuse of power

Administrative decisions, including those exercising a discretionary power, must be designed to achieve a purpose or object authorised by the empowering legislation.^[88]^[89]^[90]^[91]

Procedural fairness

The doctrine of procedural fairness, or natural justice, stems from common law and was associated with the jurisprudential tradition of natural law. The courts have emphasised its flexible character, with Justice Brennan referring to the "chameleon-like" character of its rules.^[92]^[93]^[94]^[95]

Procedural fairness encompasses the prior hearing rule and the bias rule.^[96] The right to procedural fairness is assumed to exist in administrative decision-making environments, except where it is clearly excluded by statute.^[97]^[98] Since the 1960s, the courts have tended to extend the right to procedural fairness to matters where not only legal rights are at stake but also the "legitimate expectations"^[99]^[100] of protection of various interests, notably commercial interests, employment, individual liberty and reputation.^[101]^[102]^[103]^[104] In particular, procedural fairness applies when an administrative decision-maker has made an allegation that is credible, relevant and damaging and when a decision is made that will affect a right, interest or legitimate expectation of a person.^[92] However, there is controversy around the scope of “legitimate expectations” and the High Court has said that the focus should be on whether an individual’s interests were affected.^[105]

However, there is no obligation to accord natural justice beyond the statute.^[106] An example of procedural fairness is that a defendant has a right to respond to a case being made against them.^[92]^[107]

Judicial remedies

At common law, the traditional remedies are the prerogative writs,{{efn|name=prerogative|The term was used because it was protecting the prerogative of the Crown in relation to the administration of justice. In Australia there is often a statutory basis for the writs, see for example {{cite Legislation AU|NSW|act|sca1970183|Supreme Court Act|69}}}} referred to as "constitutional writs" in the exercise of federal judicial power,{{efn|name=constitutional writs|s 75(v) of the Constitution,{{refn|name=s75}} provides that they are part of the original jurisdiction of the High Court.{{refn|name=2004 CLR 82}}{{rp|per Gleeson CJ at [20].}}}} — principally certiorari,{{efn|name=certiorari|Certiorari is not a remedy within s 75(v) of the Constitution,{{refn|name=s75}} however the High Court has held it is ancillary or incidental to the effective exercise of prohibition and mandamus.{{refn|name=2004 CLR 82}}{{rp|per Gleeson CJ at [13].}}}}{{refn|name=2004 CLR 82|{{cite AustLII |litigants=Re Refugee Review Tribunal; Ex parte Aala|HCA|57|2000|parallelcite=(2000) 204 CLR 82}}}} prohibition,^[108] and mandamus,^[87]^[109]^[110] and the former equitable remedies, declarations and injunctions.^[39]

Certiorari is granted either on two grounds: error of law on face of the record or jurisdictional error.^[111] Certiorari can only be granted if it is "possible to identify a decision which has a discernible or apparent legal effect upon rights".^[112] Certiorari may also be granted to correct errors of law that can be established on the face of the record.^[113] "The record" includes documents that initiate proceedings, pleadings of the parties, ultimate order in the proceedings etc.^[114] However, it does not include transcripts of proceedings, exhibits, or the reasons given for decisions, unless the tribunal chooses to incorporate reasons.^[87]

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.^[115]

The main statutory remedies are those available at the federal level under the Administrative Decisions (Judicial Review) Act 1977 (Cth),^[2] 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.^[10]

See also

Notes

References

1. ^{{cite AustLII |litigants=Australian Communist Party v Commonwealth |year=1951 |court=HCA |num=5 |parallelcite=(1951) 83 CLR 1}}
2. ^¹²³⁴⁵⁶⁷⁸{{Cite Legislation AU|Cth|act|adra1977396|Administrative Decisions (Judicial Review) Act 1977}}
3. ^{{cite BAILII |litigants=Associated Provincial Picture Houses v Wednesbury Corporation |year=1947 |court=EWCA | division = Civ |num=1 |parallelcite=1948] 1 KB 223}}
4. ^{{Cite AustLII|HCA|16|2010|litigants=Minister for Immigration and Citizenship v SZMDS |parallelcite=(2010) 240 CLR 611 |courtname=auto}}
5. ^¹{{cite AustLII |litigants=Minister for Immigration and Citizenship v Li |year=2013 |court=HCA |num=18 |parallelcite=(2013) 249 CLR 332}}
6. ^Dr Bonham's Case (1610) 8 Co Rep 113b at 118 per Coke CJ
7. ^{{cite web |author=French, CJ |author-link1=Robert French |title=Procedural Fairness - Indispensable to Justice? |work=Sir Anthony Mason Lecture, The University of Melbourne Law School |date=7 October 2010 |url=http://www.hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frenchcj07oct10.pdf}}
8. ^{{Cite web|url=http://www.austlii.edu.au/au/journals/FedLawRw/2005/5.html |last=Beaton-Wells |first=C |title=Judicial Review of Migration Decisions: Life After S157}} (2005) 33(1) Federal Law Review 141.
9. ^{{cite book|last=Dicey|first=A. V.|title=Introduction to the Study of the Law of the Constitution|publisher=Macmillan|place=London|date=1959|edition =10|page=193}}
10. ^¹²³{{Cite Legislation AU|Cth|act|coaca430|Constitution|75}} Original jurisdiction of High Court.
11. ^{{Cite Legislation AU|Cth|act|coaca430|Constitution|128}} Mode of altering the Constitution.
12. ^{{cite AustLII |litigants=Plaintiff S157/2002 v Commonwealth |year=2003 |court=HCA |num=2 |parallelcite=(2003) 211 CLR 476}}
13. ^¹{{Cite Legislation AU|Cth|act|coaca430|Constitution|76}} Additional original jurisdiction.
14. ^{{Cite Legislation AU|Cth|act|ja1903112|Judiciary Act 1903|39B}}(1).
15. ^¹{{cite AustLII |litigants=Abebe v Commonwealth |year=1999 |court=HCA |num=14 |parallelcite=(1999) 197 CLR 510}}.
16. ^¹{{cite AustLII |litigants=Re McBain |year=2002 |court=HCA |num=16 |parallelcite=(2002) 209 CLR 372}}.
17. ^{{cite AustLII |litigants=Coutts v Commonwealth |parallelcite=(1985) 157 CLR 91|HCA|40|1985}}
18. ^{{cite web|author=O'Neill, A |title=Coutts v Commonwealth |url=http://www.austlii.edu.au/au/journals/FedLRev/1986/9.pdf}} (1986) 16(2) Federal Law Review 212.
19. ^{{cite AustLII |litigants=Re Judiciary and Navigation Acts |parallelcite=(1921) 29 CLR 257|HCA|20|1921}}.
20. ^{{cite AustLII|NSWCA|277|2009|litigants=Stewart v Ronalds|parallelcite=(2009) 76 NSWLR 99}}.
21. ^{{cite AustLII|litigants=Green v Daniels|HCA|18|1977}}.
22. ^¹{{cite AustLII |litigants=Minister for Aboriginal Affairs v Peko-Wallsend Ltd|HCA|40|1986|parallelcite=(1986) 162 CLR 24}}.
23. ^{{cite AustLII |litigants=Attorney-General (NSW) v Quin |HCA|21|1990|parallelcite=(1990) 170 CLR 1}}.
24. ^{{cite AustLII |litigants=re Tabag v Minister for Immigration and Ethnic Affairs |FCA|276|1982|parallelcite=(1982) 70 FLR 61}}.
25. ^{{cite web|author=Cuthie, A L |title=Tabag v Minister for Immigration and Ethnic Affairs |url=http://www.austlii.edu.au/au/journals/FedLRev/1983/4.html}} (1983) 13(3) Federal Law Review 269.
26. ^¹{{cite BAILII |litigants=Council of Civil Service Unions v Minister for Civil Service |year=1987 |court=UKHL |num=9 |parallelcite=[1985] AC 374}}, where the House of Lords accepted that specific exclusions exist.
27. ^Re Ditfort; Ex Parte Deputy Commissioner of Taxation (NSW) [https://jade.io/article/323708 [1988] FCA 490] (1988) 19 FCR 347.
28. ^{{cite AustLII |litigants=Ruddock v Vadarlis |FCA|1329|2001}}.
29. ^{{cite AustLII |litigants=Pape v Commissioner of Taxation|HCA|23|2009}}.
30. ^{{cite AustLII |litigants=State of New South Wales v Cadia Holdings Pty Ltd |NSWCA|174|2009}}
31. ^{{cite AustLII|FCA|1186|2002|litigants=Applicants WAIV v Minister for Immigration & Multicultural & Indigenous Affairs}}
32. ^¹{{cite AustLII|FCA|304|1987|litigants=Minister for Arts, Heritage and Environment v Peko-Wallsend |parallelcite=(1987) 15 FCR 274; (1987) 75 ALR 21}}; {{cite web|url=http://www.austlii.edu.au/au/journals/UTasLawRw/1989/5.html |title=Case note: Private interests in world heritage properties: Peko-Wallsend versus The Commonwealth |author=Bedding, J}} (1989) 9(3) University of Tasmania Law Review 316.
33. ^{{cite AustLII|litigants=Hicks v Ruddock|FCA|299|2007|parallelcite=(2007) 156 FCR 574}}.
34. ^¹²{{cite AustLII|HCA|49|1998|litigants=Batemans Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd |parallelcite=(1998) 194 CLR 247}}.
35. ^{{cite AustLII|HCA|78|1982|litigants=Church of Scientology Inc v Woodward|parallelcite=(1982) 154 CLR 25}}.
36. ^¹{{cite AustLII|HCA|67|1984|litigants=A v Hayden |parallelcite=(1984) 156 CLR 532}}.
37. ^{{cite web|author=Kirk, J |title=Rights, Review and Reasons for Restraint |url=http://www.austlii.edu.au/au/journals/SydLawRw/2001/2.html}} (2001) 23(1) Sydney Law Review 19 at p. 26.
38. ^{{cite web|author=Fuller, L |title=The Forms and Limits of Adjudication |url=https://people.rit.edu/wlrgsh/Fuller.pdf}} (1979) 92 Harvard Law Review 353 at pp. 394-5.
39. ^¹²³⁴{{cite AustLII|HCA|1|1979|litigants=Australian Conservation Foundation v Commonwealth |parallelcite=(1979) 146 CLR 493}}.
40. ^¹{{cite AustLII|HCA|50|1981|litigants=Onus v Alcoa of Australia Ltd |parallelcite=(1981) 149 CLR 27}}.
41. ^{{cite AustLII |litigants=Re Mactiernan; Ex Parte Coogee Coastal Action Coalition Incorporated|WASC|264|2004}}.
42. ^{{cite AustLII|HCA|11|1985|litigants=Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA)}}.
43. ^{{cite AustLII|FCA|443|1986|litigants=Australian Institute of Marine and Power Engineers v Secretary, Department of Transport}}.
44. ^{{cite AustLII|HCA|5|1997|litigants=Croome v Tasmania |parallelcite=(1997) 191 CLR 119}}
45. ^{{cite AustLII|FCA|1060|1995|litigants=Right To Life Association (NSW) Inc v Secretary, Department of Human Services and Health and Family Planning Inc (Vic) |parallelcite=(1995) 56 FCR 50; (1995) 128 ALR 238}}.
46. ^{{cite AustLII|NSWSC|221|2007|litigants=Animal Liberation Ltd v Department of Environment and Conservation}}.
47. ^{{cite AustLII|FCA|615|2007|litigants=Access For All Alliance (Hervey Bay ) Inc v Hervey Bay City Council}}.
48. ^see {{cite AustLII|HCA|11|2000|litigants=Truth About Motorways v Macquarie |parallelcite=(2000) 200 CLR 591}}; and {{cite AustLII|FCA|262|1986|litigants=Ogle v Strickland}} for commentary on a more flexible approach to standing.
49. ^{{cite web|title=Beyond the Doorkeeper - Standing to Sue for Public Remedies |url=http://www.austlii.edu.au/au/other/lawreform/ALRC/1996/78.html |publisher=Australian Law Reform Commission}}.
50. ^For the Canadian approach, see {{cite CanLII|litigants=Finlay v Canada (Minister of Finance)|1986|6|format=canlii|parallelcite=[1986] 2 S.C.R. 607|courtname=auto}}.
51. ^See also {{cite AustLII|FCA|121|1981|litigants=Tooheys Ltd v Minister for Business and Consumer Affairs |parallelcite=(1981) 54 FLR 421; (1981) 4 ALD 277}}.
52. ^{{cite web |title=Federal Judicial Review in Australia |url=http://www.arc.ag.gov.au/Publications/Reports/Documents/ARCReport50-FederalJudicialReviewinAustralia-2012.PDF |publisher=Administrative Review Council |work=Report 50 |date=September 2012}}
53. ^{{Cite web |url=http://www.aat.gov.au/about-the-aat/what-we-do |title=What We Do |publisher=Administrative Appeals Tribunal |access-date=27 July 2016}}
54. ^{{cite AustLII |AATA|179|1979|litigants=Drake and Minister for Immigration and Ethnic Affairs}}.
55. ^¹²³⁴⁵{{Cite Legislation AU|Cth|act|aata1975323|Administrative Appeals Tribunal Act 1975}}
56. ^{{Cite web |url=http://www.aat.gov.au/about-the-aat/what-we-do/amalgamation-of-tribunals |title=Amalgamation of Tribunals |publisher=Administrative Appeals Tribunal |access-date=26 July 2016 |archive-url=https://web.archive.org/web/20160711004013/http://www.aat.gov.au/about-the-aat/what-we-do/amalgamation-of-tribunals |archive-date=11 July 2016 |dead-url=yes |df=dmy-all }}
57. ^{{cite AustLII |AATA|22|1977|litigants=McHattan and Collector of Customs}}.
58. ^see also {{cite AustLII |AATA|85|1978|litigants=Kannan and Minister for Immigration and Ethnic Affairs}}.
59. ^{{cite AustLII |AATA|78|1980|litigants=Control Investments Pty Ltd and Australian Broadcasting Tribunal}}.
60. ^{{Cite web|url=http://www.aat.gov.au/applying-for-a-review/fees|title=Fees |publisher=Administrative Appeals Tribunal |access-date=26 July 2016}}
61. ^{{Cite Legislation AU|Vic|act|vcaata1998428|Victorian Civil and Administrative Tribunal Act 1998}}
62. ^{{cite web|url=http://www.vicbar.com.au/GetFile.ashx?file=generalfiles/VCAT%20Paper%20vicbar.pdf |title=A beginners guide to VCAT Civil Jurisdiction |last=Ruddle |first=Elizabeth H. |publisher=Victorian Bar Association |accessdate=22 October 2012}}
63. ^{{cite web |url=http://www.vcat.vic.gov.au/about-vcat/who-we-are-0 |title=Who we are |work=Victorian Civil and Administrative Tribunal |publisher=Government of Victoria |accessdate=22 October 2012}}
64. ^{{Cite Legislation AU|NSW|act|caata2013326|Civil and Administrative Tribunal Act 2013}}.
65. ^{{Cite Legislation AU|NSW|act|adra1997335|Administrative Decisions Review Act 1997}}
66. ^{{cite web |url=http://www.ncat.nsw.gov.au/Pages/about_us/about_us.aspx |title=About NCAT |publisher=New South Wales Civil and Administrative Tribunal}}.
67. ^{{Cite Legislation AU|WA|act|sata2004320|State Administrative Tribunal Act 2004}}.
68. ^{{Cite Legislation AU|Qld|act|qcaata2009428|Queensland Civil and Administrative Tribunal Act 2009}}.
69. ^{{cite news|url=http://www.adelaidenow.com.au/news/opinion/rocco-perrotta-sacat-sas-new-onestop-super-tribunal/news-story/9d0fa151c98f05c4da04bca9a369901e|title=SACAT, SA's new one-stop super tribunal|last=Perrotta|first=Rocco|date=29 March 2015|work=Adelaide Now|accessdate=17 December 2017}}
70. ^¹{{Cite Legislation AU|Cth|act|oa1976114|Ombudsman Act 1976}}.
71. ^¹²³⁴⁵⁶⁷{{Cite Legislation AU|Cth|act|foia1982222|Freedom of Information Act 1982}}.
72. ^{{Cite Legislation AU|ACT|act|foia1989222|Freedom of Information Act 1989}}.
73. ^{{cite AustLII |AICmr|12|2011|litigants=Parnell and Prime Minister of Australia (No.2)}}.
74. ^{{Cite web |url=https://www.oaic.gov.au/freedom-of-information/foi-resources/foi-reports/review-of-charges-under-the-freedom-of-information-act-1982 |title=Review of charges under the Freedom of Information Act 1982: Report to the Attorney-General |publisher=Office of the Australian Information Commissioner |access-date=9 March 2017}}
75. ^{{cite web|title=‘Needs to Know’ Own motion investigation into the administration of the Freedom of Information Act 1982 in Commonwealth agencies |url=http://www.ombudsman.gov.au/__data/assets/pdf_file/0025/26269/investigation_1999_03.pdf |publisher=Commonwealth Ombudsman |access-date=2 July 2006}}
76. ^{{Cite book|title=Australia: The State of Democracy|last=Sawer|first=Marian|publisher=Federation Press|year=2009|isbn=9781862877252|location=Sydney|pages=167}}
77. ^{{cite AustLII |AICmr|7|2011|litigants=C and Department of Immigration and Citizenship}}.
78. ^{{cite AustLII|HCA|57|1996|litigants=Breen v Williams ("Medical Records Access case") |parallelcite=(1996) 186 CLR 71|date=6 September 1996 |courtname=High Court}}.
79. ^{{cite AustLII |AICmr|10|2011|litigants=Parnell and Prime Minister of Australia}}.
80. ^{{Cite Legislation AU|Cth|num_act|foioccaoma2009709|Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009}}.
81. ^{{cite web |url=http://www.fedcourt.gov.au/law-and-practice/guides/appeals/from-other-bodies/aat |title=Appealing from a decision of the AAT |publisher=Federal Court of Australia |access-date=16 May 2017}}
82. ^{{cite BAILII |litigants=Entick v Carrington |year=1765 |court=EWHC | division = KB |num=J98 |parallelcite=95 {{abbr|ER|England Reports}} 807}}.
83. ^{{cite AustLII|HCA|4|1957|litigants=Shanahan v Scott |parallelcite=(1957) 96 CLR 245}}.
84. ^{{cite AustLII|HCA|50|1984|litigants=Foley v Padley |parallelcite=(1957) 154 CLR 349}}.
85. ^¹{{cite AustLII|HCA|7|1938|litigants=Parisienne Basket Shoes Pty Ltd v Whyte |parallelcite=(1938) 59 {{abbr|CLR|Commonwealth Law Reports}} 369}}.
86. ^{{cite AustLII|HCA|57|2000|litigants=Re Refugee Review Tribunal; Ex parte Aala |parallelcite=(2000) 204 CLR 82}}.
87. ^¹²{{cite AustLII|HCA|58|1995|litigants=Craig v South Australia |parallelcite=(1995) 184 CLR 163}}.
88. ^{{cite AustLII|HCA|33|1950|litigants=Thompson v Randwick Corporation |parallelcite=(1950) 81 {{abbr|CLR|Commonwealth Law Reports}} 87}}.
89. ^{{cite AustLII|HCA|4|1975|litigants=Johnson v Kent |parallelcite=(1975) 132 CLR 164}}.
90. ^{{cite AustLII|FCA|48|1988|litigants=Schlieske v Minister of Immigration and Ethnic Affairs}}.
91. ^{{cite AustLII|HCA|3|1989|litigants=South Australia v Tanner |parallelcite=(1989) 166 CLR 161}}.
92. ^¹²{{cite AustLII|litigants=Kioa v Minister for Immigration and Ethnic Affairs (West)|link=Kioa v West|HCA|81|1985|parallelcite=(1985) 159 CLR 550}}.
93. ^{{cite web |first=G. |last=Johnson |title=Natural justice and legitimate expectation in Australia |url=http://www.austlii.edu.au/au/journals/FedLawRw/1985/2.pdf}} (1984) 15 Federal Law Review 39.
94. ^{{cite AustLII|litigants=Public Service Board of NSW v Osmond|HCA|7|1986|parallelcite=(1986) 159 CLR 656}}
95. ^{{cite AustLII |litigants=Re Bineshri Prasad v Minister of Immigration and Ethnic Affairs|FCA|47|1985|parallelcite=(1985) 6 FCR 155}}
96. ^{{cite AustLII |litigants=Ebner v Official Trustee in Bankruptcy|HCA|63|2000|parallelcite=(2000) 205 CLR 337}}.
97. ^{{cite AustLII |litigants=Re Minister for Immigration and Multicultural Affairs; Ex parte Miah|HCA|22|2001|parallelcite=(2001) 2206 CLR 57}}.
98. ^{{cite AustLII |litigants=Plaintiff S157/2002 v Commonwealth|HCA|2|2003|parallelcite=(2003) 211 CLR 476}} per Gleeson CJ at [25].
99. ^{{cite AustLII |litigants=Haoucher v Minister for Immigration and Ethnic Affairs|HCA|22|1990|parallelcite=(1990) 169 CLR 648}}.
100. ^{{cite AustLII |litigants=FAI Insurances Ltd v Winneke|HCA|26|1982|parallelcite=(1982) 151 CLR 342}}.
101. ^{{cite AustLII |litigants=Annetts v McCann|HCA|57|1990|parallelcite=(1990) 170 CLR 596}}.
102. ^{{cite AustLII |litigants=Ainsworth v Criminal Justice Commission|HCA|10|1992|parallelcite=(1992) 175 CLR 564}}.
103. ^{{cite AustLII |litigants=Plaintiff M61/2010E v Commonwealth of Australia|HCA|41|2010|parallelcite=(2010) 243 CLR 319}}.
104. ^{{cite AustLII |litigants=Momcilovic v The Queen|HCA|34|2011|parallelcite=(2011) 245 CLR 1}}.
105. ^{{cite AustLII |litigants=Plaintiff S10/2011 v Minister for Immigration and Citizenship|HCA|31|2012|parallelcite=(2012) 246 CLR 636}}.
106. ^{{cite AustLII|HCA|45|1977|litigants=Salemi v McKellar|parallelcite=(1977) 137 CLR 396}}.
107. ^{{cite AustLII |litigants=SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs|FCA|59|2006}}.
108. ^{{cite AustLII |litigants=R v Wright; Ex parte Waterside Workers' Federation of Australia|HCA|35|1955|parallelcite=(1955) 93 CLR 528}} at pp. 541-2.}}
109. ^John Fairfax & Sons Ltd v Australian Telecommunications Commission [1977] NSWLR 400 LawCite records.
110. ^{{cite AustLII |litigants=Sinclair v Mining Warden at Maryborough|HCA|17|1975|parallelcite=(1975) 132 CLR 473}}.
111. ^{{cite AustLII |litigants=Kirk v Industrial Relations Commission of NSW|HCA|1|2010|parallelcite=(2010) 239 CLR 53}}.
112. ^{{cite AustLII |litigants=Hot Holdings Pty Ltd v Creasy|HCA|44|1996|parallelcite=(1996) 185 CLR 149}}.
113. ^{{Cite web|author1=Fitzgerald, J.M. |author2=Elliott, T.D. |last-author-amp=yes |title=Certiorari: Errors of Law on the Face of the Record |url=http://www.austlii.edu.au/au/journals/MelbULawRw/1964/21.pdf}} (1964) 4 Melbourne University Law Review 552.
114. ^{{cite BAILII |litigants=R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw |year=1951 |court=EWCA | division=Civ |num=1 |parallelcite=[1952] 1 KB 338}}.
115. ^{{cite AustLII |litigants=R v War Pensions Entitlement Appeal Tribunal|HCA|30|1933|parallelcite=(1933) 50 CLR 228}}.