For students: administrative law refresher

Do you need a top-up of what you learned in admin law? Are you wondering what admin law looks like in real life?

Administrative law is the practice area where individual activities come under the remit of government. Applications to do things or permits or licences to do certain things. Migration law is a huge area of administrative law that is always developing, or there’s planning and environment law where you file planning permits and development permits. There are all the regulators where you have to apply to be registered under an act to do an activity, like plumbing under the Building Act 1993 (Vic), which is a State act. Migration is a federal activity and so is the Environment Protection and Biodiversity Conservation Act 1999 (Cth) for the protection and management of unique flora and fauna. So are the Autonomous Sanctions Regulations 2011 (Cth) which permit designated sanctions targets to challenge designations under those regulations in the courts. So it’s an area of law that behaves a bit differently from litigation between individuals like claims for breach of contract.

The thing about administrative law is that there is always some kind of application to a government body. You file a visa application, or you file an application for a permit. If you get rejected, there is almost always a merits review. If you lose at the merits review, you might make a judicial review application. 

I need to tell you about the difference between merits and judicial review because even practising lawyers who don’t work in the area aren’t entirely sure what they are.

• Merits review is a reassessment of the evidence to see whether the criteria for the application is met or not. 

• Judicial review is the consideration of whether there was any error in the decision-maker’s interpretation and application of the law. 

I’m going to give you two examples. 

• Migration law: there’s a list of criteria that you need to prove you meet through your application. A delegate of the Department of Home Affairs looks at your application as against the criteria. If your application is not granted, your first port of call is merits review. (We do not call these appeals). Merits review for migration cases happens in the Administrative Appeals Tribunal, soon to be the Administrative Review Tribunal. Merits review is a reassessment of the evidence and an opportunity to put on new evidence to strengthen the parts of your application that the delegate said did not satisfy the criteria for granting the visa. If the original decision is affirmed by the Tribunal, that’s when you would consider judicial review in the Federal Circuit and Family Court by arguing an error was committed in the applicatio of the law. This is still not an appeal. You can appeal judicial review decisions, but judicial reviews are not appeals.

• Planning and environment law: this is how government regulates things like mining and extractive industries, planning and property development, waste management, contamination of land, and environmental protection. A lot of local councils use this and both state and federal legislation can apply, so it’s a fraught area!

What is not administrative law? I don’t think regulatory prosecution counts as administrative law. Civil penalty proceedings and regulatory prosecutions under, say, the Building Act 1993 (Vic) would be criminal prosecutions and the applicable procedural act is the Criminal Procedure Act 2009 (Vic). That just means not all litigation related to government is administrative law, just as you can be a commercial lawyer employed by a government.