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The latest issue of the Australian Journal of Administrative Law (Volume 20 Part 4) contains the following material:
- Apprehended bias
- Tribunals’ reasons and findings
- Time limits on procedural fairness
Understanding Dranichnikov: A new ground within a new label, or a less structured approach to judicial review? – Jonathan Warren Hirsowitz
This article begins by examining the possibility that the decision in Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 77 ALJR 1088; 197 ALR 389 has created a new limb of natural justice. Viewed in the light of Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531, an even broader view might be plausible. Kirk’s softening of the boundaries between the various grounds of review, and its declaration that there is no definitive list of permissible grounds, prompts the possibility that one need now ask only whether the decision-maker was engaged and doing their job. At a more significant level, the article will examine the possibility that Dranichnikov takes a functional rationalisation of procedural fairness (the engagement of a decision-maker) and turns into a rule.
A well-intentioned move was made in late 2012 when Nicola Roxon, then the Attorney-General, inaugurated the office of the Independent Reviewer for Adverse Security Assessments. The appointment was designed to improve the lot of refugees detained by virtue of receiving an adverse security assessment from ASIO, affording those persons an avenue for review where none (of any practicality) previously existed. Yet as this article argues, the office’s effectiveness is severely undermined by flaws in its own Terms of Reference, and in failing to ensure procedural fairness and other relevant human rights for affected refugees, also falls short of the standard set by international counterparts.
The provision of human services by private entities contracted by government agencies is now a core part of the operation of the modern Australian state. However, the embrace of outsourcing by Australian governments has led to significant concern about the extent to which previously “public” human services may now be excluded from the reach of public sector accountability and redress mechanisms. Further, given what appears to be the significant diminution of redress mechanisms for recipients of outsourced human services, questions must be asked about the appropriateness of a rigid approach to the public/private law divide in Australia, particularly given the inadequacy of private law remedies as a substitute for administrative law mechanisms.
CASENOTES – Rebecca Heath
- Minister for Immigration & Citizenship v Li
WORK AND EMPLOYMENT – Joo-Cheong Tham and Beth Gaze
- FairWork Ombudsman’s regulatory powers: The use of enforceable undertakings
For the pdf version of the table of contents, click here: WAU – AJ Admin L Vol 20 Pt 4 Contents.