Comparison of Melbourne administrative law with UK model
Comparison of Melbourne Administrative Law with UK Model
Overview
Melbourne Administrative Law operates within the Australian legal system, heavily influenced by English common law but also developed uniquely through Australian statutes and case law.
The UK Administrative Law model is based on principles of judicial review, rule of law, and evolving statutory frameworks such as the Human Rights Act 1998.
Both systems share a common heritage but differ in structure, statutory provisions, and procedural mechanisms.
Key Comparative Themes
| Aspect | Melbourne Administrative Law | UK Administrative Law |
|---|---|---|
| Foundational Principles | Derived from English common law; emphasis on judicial review for legality, reasonableness, and procedural fairness | Rooted in common law, supplemented by statutes (HRA 1998, Tribunals Acts) emphasizing legality, proportionality, and procedural fairness |
| Statutory Frameworks | Administrative Law Act 1978 (Victoria), Victorian Civil and Administrative Tribunal Act 1998, FOI Act 1982 | Senior Courts Act 1981, Tribunals, Courts and Enforcement Act 2007, Human Rights Act 1998 |
| Judicial Review Grounds | Illegality, irrationality (Wednesbury unreasonableness), procedural fairness, abuse of power | Illegality, irrationality, procedural fairness, proportionality (developed post-HRA 1998) |
| Role of Tribunals | VCAT (Victorian Civil and Administrative Tribunal) with broad jurisdiction | Specialist tribunals with statutory basis, overseen by the Upper Tribunal and Administrative Court |
| Human Rights Influence | Limited direct human rights legislation (Victoria has Charter of Human Rights and Responsibilities Act 2006) | Strong influence of HRA 1998 incorporating ECHR rights |
Detailed Case Laws Illustrating Differences and Similarities
1. Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 162 CLR 24 (Australia)
Context: Decision relating to mining lease affected by administrative discretion.
Principle: Emphasized procedural fairness and reasonableness in administrative decisions.
Significance: Demonstrates Melbourne’s approach focusing on Wednesbury unreasonableness (irrationality) and fairness, closely paralleling UK principles.
Comparison: UK similarly developed procedural fairness but increasingly embraces proportionality as a ground of review.
2. Associated Provincial Picture Houses Ltd v. Wednesbury Corporation (1948) 1 KB 223 (UK)
Context: Classic UK case defining unreasonable administrative action.
Principle: Established the test for Wednesbury unreasonableness: decisions so unreasonable no reasonable authority could make them.
Significance: This remains a foundational test in Melbourne administrative law as well.
Comparison: UK has moved beyond strict Wednesbury test towards proportionality especially after HRA 1998.
3. Plaintiff S157/2002 v. Commonwealth (2003) 211 CLR 476 (Australia)
Context: Examined the limits of Parliament’s ability to restrict judicial review.
Principle: Affirmed the constitutional principle of legality, safeguarding judicial review against ouster clauses.
Significance: Melbourne administrative law strongly protects access to judicial review as an implied constitutional right.
Comparison: UK courts also resist ouster clauses but rely more on statutory interpretation rather than constitutional safeguards (since UK lacks a written constitution).
4. R (on the application of Daly) v. Secretary of State for the Home Department (2001) UKHL 26
Context: UK case involving prisoners’ rights and administrative procedures.
Principle: Emphasized proportionality over traditional Wednesbury unreasonableness.
Significance: Marked a shift in UK administrative law to focus more on balancing individual rights with administrative objectives.
Comparison: Melbourne courts are increasingly receptive to proportionality, particularly in human rights contexts (e.g., under Victoria’s Charter), but Wednesbury remains dominant.
5. Kioa v. West (1985) 159 CLR 550 (Australia)
Context: Immigration decision affected by failure to provide reasons and opportunity to respond.
Principle: Strong statement on natural justice and procedural fairness in administrative decisions.
Significance: Reinforces Melbourne’s rigorous approach to fair hearing rights.
Comparison: UK law similarly demands fairness but has evolved detailed procedural rules especially via Tribunals Courts reforms.
Summary: Core Comparative Insights
| Topic | Melbourne Administrative Law | UK Administrative Law |
|---|---|---|
| Judicial Review | Strong constitutional backing; focus on legality, procedural fairness, Wednesbury test | Evolving from Wednesbury unreasonableness to proportionality, especially post-Human Rights Act |
| Procedural Fairness | Strict natural justice requirements; detailed fairness doctrines | Similar fairness requirements; procedural reforms with specialized tribunals |
| Human Rights Influence | Victorian Charter influences courts moderately | Strong statutory framework via HRA incorporating ECHR |
| Tribunals | VCAT with broad jurisdiction, alternative dispute resolution focus | Specialist tribunals with layered appellate system |
| Legislative Constraints | Constitutional limits protect judicial review | Parliamentary sovereignty limits judicial review but courts interpret narrowly |
Conclusion
Melbourne administrative law shares its common law roots with the UK, including principles of fairness, reasonableness, and legality.
Melbourne has developed constitutional protections for judicial review, whereas the UK relies heavily on statutory interpretation and evolving common law.
The UK’s incorporation of proportionality post-Human Rights Act marks a key divergence, though Melbourne courts are increasingly influenced by similar human rights principles.
Both systems emphasize the importance of procedural fairness, though the structures (like tribunals) and statutory overlays differ.
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