Book contents
- Frontmatter
- Contents
- Foreword
- Preface
- About the contributors
- Table of cases
- Table of statutes
- 1 Australian administrative law: The constitutional and legal matrix
- 2 Administrative law in Australia: Themes and values
- 3 The public/private distinction in Australian administrative law
- 4 Australian administrative law: The human rights dimension
- 5 Administrative tribunals
- 6 Australian Ombudsman: A continual work in progress
- 7 Freedom of information
- 8 Delegated legislation
- 9 The concept of ‘justiciability’ in administrative law
- 10 Standing
- 11 Reasons for administrative decisions: Legal framework and reform
- 12 Relevant and irrelevant considerations
- 13 Improper purpose
- 14 Reasonableness, rationality and proportionality
- 15 The ‘no evidence’ rule
- 16 Failure to exercise discretion or perform duties
- 17 Procedural fairness: The hearing rule
- 18 The doctrine of substantive unfairness and the review of substantive legitimate expectations
- 19 The impact and significance of Teoh and Lam
- 20 The rule against bias
- 21 Jurisdictional error without the tears
- 22 Privative clauses and the limits of the law
- 23 Administrative law judicial remedies
- Endnotes
- Index
5 - Administrative tribunals
Published online by Cambridge University Press: 05 June 2012
- Frontmatter
- Contents
- Foreword
- Preface
- About the contributors
- Table of cases
- Table of statutes
- 1 Australian administrative law: The constitutional and legal matrix
- 2 Administrative law in Australia: Themes and values
- 3 The public/private distinction in Australian administrative law
- 4 Australian administrative law: The human rights dimension
- 5 Administrative tribunals
- 6 Australian Ombudsman: A continual work in progress
- 7 Freedom of information
- 8 Delegated legislation
- 9 The concept of ‘justiciability’ in administrative law
- 10 Standing
- 11 Reasons for administrative decisions: Legal framework and reform
- 12 Relevant and irrelevant considerations
- 13 Improper purpose
- 14 Reasonableness, rationality and proportionality
- 15 The ‘no evidence’ rule
- 16 Failure to exercise discretion or perform duties
- 17 Procedural fairness: The hearing rule
- 18 The doctrine of substantive unfairness and the review of substantive legitimate expectations
- 19 The impact and significance of Teoh and Lam
- 20 The rule against bias
- 21 Jurisdictional error without the tears
- 22 Privative clauses and the limits of the law
- 23 Administrative law judicial remedies
- Endnotes
- Index
Summary
Australia has a developed system of administrative tribunals, a unique feature being its generalist merit review tribunal. At the same time, Australia has experimented with most forms of tribunals and tribunal process. There are various reasons for this use of adjudicative bodies other than courts. Tribunals generally have more speedy processes and less formal procedures than courts, including an absence of any requirement to follow rules of evidence. Tribunals are generally cheaper than courts and there may be limits on legal representation in tribunal hearings. In other words, tribunals are constituted and function differently from a court. These features have meant it is common for the merits review function to be committed to a tribunal. A tribunal is more suited than a court to undertake the merit review task, that is, to examine whether a decision is substantively correct, after consideration of all relevant issues of law, fact, policy and discretion, than is a court.
Another incentive for the Commonwealth to rely on tribunals arises from the constitutional separation of powers doctrine. The Commonwealth Constitution prevents the High Court and other federal courts from exercising non-judicial power. As a consequence, there has been a necessity for the merits review function, which has non-judicial elements, to be undertaken by tribunals. The constitutional impetus does not apply to state courts. Nonetheless, the advantages of tribunal review have also seen the advent of numerous tribunals in the states and territories.
- Type
- Chapter
- Information
- Australian Administrative LawFundamentals, Principles and Doctrines, pp. 77 - 99Publisher: Cambridge University PressPrint publication year: 2007
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