The relationship between executive government and administrative law in the context of settler colonialism in Australia
Relationship Between Executive Government and Administrative Law in the Context of Settler Colonialism in Australia
Background: Settler Colonialism in Australia
Australia was colonized by British settlers from 1788.
The legal system imposed was based on British common law.
Indigenous peoples were dispossessed, and their sovereignty was not recognized initially.
The executive government, initially the colonial administration, had sweeping powers over Indigenous peoples.
Administrative law regulates the exercise of executive power, providing checks and ensuring legality, procedural fairness, and protection of rights.
The tension arises between colonial executive power and Indigenous rights under common law and constitutional principles.
Role of Executive Government in Settler Colonialism
The executive exercised sovereign authority including land acquisition, governance, and policy-making regarding Indigenous peoples.
Administrative decisions included land management, welfare policies, and law enforcement.
Executive power was often unchecked in the colonial period, leading to dispossession and discrimination.
Over time, administrative law evolved to provide remedies and review against misuse of executive power.
Key Areas of Administrative Law in Settler Colonialism Context
Judicial review of executive actions affecting Indigenous rights.
Recognition (or lack thereof) of Indigenous sovereignty.
Native title and land rights claims.
Procedural fairness and non-arbitrariness in administrative decisions.
Balancing executive authority and Indigenous rights.
Important Case Laws Explaining This Relationship
1. Mabo v Queensland (No 2) (1992) 175 CLR 1
Facts:
Eddie Mabo challenged the doctrine of terra nullius (land belonging to no one) applied by the Australian legal system to justify colonization and claimed native title rights over land in Queensland.
Judgment:
The High Court recognized the concept of native title for the first time, rejecting terra nullius. The Court held that Indigenous peoples had pre-existing land rights which survived colonization unless validly extinguished.
Significance:
Marked a fundamental shift in Australian property and administrative law regarding Indigenous land rights.
Limited executive government power over Indigenous land without due process.
Set the stage for native title claims requiring administrative recognition and adjudication.
2. Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144
Facts:
The High Court examined the executive’s power to enter a regional processing arrangement for asylum seekers with Malaysia.
Issue:
Whether the executive’s administrative decision was lawful under the Migration Act and consistent with international obligations.
Judgment:
The Court held that executive power is subject to statutory limits and administrative law principles. The decision was invalid as Malaysia did not guarantee basic procedural protections.
Significance:
Shows judicial control over executive actions.
Reflects administrative law protecting procedural fairness.
Relevant as Indigenous and settler colonial matters also involve executive actions subject to legal scrutiny.
3. Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422
Facts:
The Yorta Yorta claimed native title over their traditional lands in Victoria.
Issue:
Whether native title persisted considering interruption by colonization and government acts.
Judgment:
The Court held native title was extinguished due to interruption of traditional laws and customs.
Significance:
Highlights limits on Indigenous rights vis-à-vis executive and administrative acts.
Demonstrates how administrative decisions and policies impact Indigenous rights under law.
4. Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Facts:
This case dealt with the merits review of visa cancellation decisions made by the Minister under administrative law.
Judgment:
The High Court emphasized that administrative decisions must comply with procedural fairness, be reasonable, and within the scope of power.
Significance:
Reinforces limits on executive discretion through administrative law.
Principles apply broadly, including executive decisions affecting Indigenous peoples.
5. Kartinyeri v Commonwealth (1998) 195 CLR 337
Facts:
Challenge to the validity of an amendment affecting Indigenous land rights claims under the Hindmarsh Island Bridge case.
Judgment:
The Court upheld the validity of the amendment but recognized the tension between parliamentary/executive power and Indigenous rights.
Significance:
Shows the interplay between legislative/executive power and Indigenous interests.
Administrative law acts as a mechanism for judicial review of executive policies affecting Indigenous peoples.
Summary Table
| Case | Key Principle |
|---|---|
| Mabo v Queensland (No 2) | Recognition of native title; limits on executive land powers. |
| Plaintiff M70/2011 v Minister | Executive power subject to statutory and procedural limits. |
| Yorta Yorta Aboriginal Community v Victoria | Native title extinguishment due to executive policies disrupting traditions. |
| Minister for Immigration v Li | Administrative decisions must comply with procedural fairness and reasonableness. |
| Kartinyeri v Commonwealth | Legislative/executive powers may impact Indigenous rights; judicial review important. |
Conclusion:
The relationship between the executive government and administrative law in Australia, especially in the context of settler colonialism, is characterized by a historical imbalance of power, with the executive exercising broad authority over Indigenous peoples. However, through administrative law, courts have established critical checks on executive power, ensuring legality, fairness, and protection of Indigenous rights.
Cases like Mabo reshaped the legal landscape by recognizing Indigenous land rights, while others demonstrate the ongoing tension and need for judicial oversight of executive decisions. Administrative law serves as a vital tool for Indigenous communities to challenge executive actions arising from settler colonial frameworks.
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