Sources of administrative law in Victoria and federal Australia
📚 Sources of Administrative Law in Victoria and Federal Australia
Administrative law in Australia—at both federal and state (e.g., Victoria) levels—controls how government decisions are made and reviewed. Its sources are derived from:
🧩 I. Sources of Administrative Law
1. Statute (Legislation)
Primary source of administrative powers and review rights.
✅ Federal:
Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act)
Migration Act 1958 (Cth)
Freedom of Information Act 1982 (Cth)
Ombudsman Act 1976 (Cth)
✅ Victoria:
Administrative Law Act 1978 (Vic)
Victorian Civil and Administrative Tribunal Act 1998 (Vic)
Charter of Human Rights and Responsibilities Act 2006 (Vic)
2. Common Law (Judge-Made Law)
Provides foundational principles like:
Natural justice (procedural fairness)
Legitimate expectation
Reasonableness
Jurisdictional error
These apply unless clearly excluded by statute.
3. Constitutional Law
Federal Constitution (especially Section 75(v)) guarantees judicial review in the High Court for administrative decisions involving officers of the Commonwealth.
4. Institutional Sources
These bodies enforce and interpret administrative law:
Courts (e.g., Federal Court, High Court)
Tribunals (e.g., AAT at federal level; VCAT in Victoria)
Ombudsman (e.g., Commonwealth and Victorian Ombudsman)
Freedom of Information Commissioners
5. Soft Law / Guidelines
Policy manuals, ministerial directions, and codes of conduct (though not enforceable as law) may shape expectations and be relevant to legitimate expectations or fairness.
⚖️ Key Case Laws – Detailed Explanation
1. Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
(High Court of Australia – Federal)
Facts:
An asylum seeker’s visa application was denied. A privative clause in the Migration Act attempted to oust judicial review.
Issue:
Can judicial review under the Constitution be excluded by statute?
Held:
No. Section 75(v) of the Constitution ensures judicial review cannot be ousted. Errors of law affecting jurisdiction are still reviewable.
Principle:
Constitutional entrenchment of judicial review is a foundational source of federal administrative law.
2. Kioa v West (1985) 159 CLR 550
(High Court of Australia – Federal)
Facts:
Mr. and Mrs. Kioa were subject to deportation. The Department relied on adverse material without giving them a chance to respond.
Issue:
Was procedural fairness required in administrative decisions?
Held:
Yes. Natural justice is a common law principle that applies unless explicitly excluded.
Principle:
The common law of procedural fairness is a fundamental source of administrative law, applying to both federal and state decisions.
3. Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
(High Court – Federal)
Facts:
An asylum seeker claimed persecution due to homosexuality. The tribunal rejected the claim, doubting credibility due to past behaviour.
Issue:
Was the tribunal's reasoning legally unreasonable?
Held:
No jurisdictional error found, but clarified that “legal unreasonableness” is a common law ground for review.
Principle:
Common law’s role in defining limits of reasonable decision-making is central to administrative law.
4. Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480
(High Court – Victoria-based case)
Facts:
Concerns arose about how VCAT dealt with expert medical evidence in workers' compensation matters.
Issue:
Did VCAT fail to exercise jurisdiction properly?
Held:
Yes. VCAT was required to independently assess expert evidence and not merely adopt it.
Principle:
Reinforces that even state tribunals like VCAT must follow legal standards when exercising statutory powers.
5. Burgess v Director of Housing (2005) VSC 280
(Supreme Court of Victoria)
Facts:
The Victorian Director of Housing refused to offer a lease renewal without giving reasons or a hearing.
Issue:
Was there a breach of natural justice and the Charter of Human Rights?
Held:
Yes. The decision was quashed. Procedural fairness and Charter obligations were breached.
Principle:
In Victoria, statutes like the Charter of Human Rights and Administrative Law Act are key sources of rights in administrative decisions.
📝 Summary Table
| Source | Case Example | Principle |
|---|---|---|
| Statute (Federal) | ADJR Act, Migration Act | Judicial review of federal decisions |
| Statute (Victoria) | Administrative Law Act 1978 (Vic) | State-based administrative law rules |
| Common Law | Kioa v West | Procedural fairness as implied common law duty |
| Constitution (Federal) | Plaintiff S157 v Commonwealth | Judicial review under Section 75(v) |
| Tribunal Law (Victoria) | Wingfoot v Kocak, Burgess v Director | VCAT decisions must follow legal and procedural standards |
✅ Conclusion
In Victoria and Federal Australia, administrative law draws on multiple sources:
Legislation that creates powers and rights of review
Common law doctrines of fairness and reasonableness
Constitutional guarantees of judicial oversight
Statutory institutions like VCAT, AAT, and Ombudsman
And principles arising from key judicial decisions
These sources together ensure that government power is exercised legally, fairly, and accountably across jurisdictions.
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