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The latest issue of the Australian Journal of Administrative Law (Volume 27 Part 3) contains the following material:
EDITORIAL – General Editors: Matthew Groves and Greg Weeks
- Soft Law and Liability in Tort
CURRENT ISSUES – Editor: Justin Davidson
- Letters to the Queen
Government agencies dealing with freedom of information (FOI) laws sometimes encounter applicants seeking access who engage in oppressive or disruptive behaviours. That can include harassment or intimidation of staff, unreasonably interfering with agency operations, or otherwise misusing FOI laws. This article looks at how each Australian jurisdiction deals with these behaviours in trying to draw a balance between maximising disclosure on one hand and maintaining government efficiency on the other. Some jurisdictions have enacted vexatious applicant provisions, vexatious application provisions, or something different in dealing with these difficult behaviours. Despite the differences between jurisdictions, are there common threads which can be drawn?
Administrative justice is a highly contested concept. Mashaw and others discerned at least two models, respectively dealing with bureaucratic rationality and legality. Bureaucratic rationality emphasises accurate, efficient and cost-effective decision-making while in contrast, the legal model focuses on “court-centred adjudication”, in which the parties’ competing interests are fairly determined. I argue that these two conceptions of administrative justice are set against one another throughout the visa cancellation system but that when the Administrative Appeals Tribunal performs its decision-making function, the legal model dominates. When analysed through the lens of these competing models of administrative justice, we gain insight and understand the reasons for the resulting tension and criticism of Tribunal decision-making. Adjudicative independence, however, is an inherent aspect of fairness, which is in turn the key value of the legal model. For that reason, the Tribunal must be allowed to undertake the function it was designed to fulfil, namely independent merits review.
The High Court’s 1998 decision in Project Blue Sky Inc v Australian Broadcasting Authority, with its close attention to specific statutory context and purpose, has had an important influence on Australian administrative law. Not least, it appears to have led to some “repatriation” of freestanding standards of administrative legality. Yet close analysis reveals that this evolution is best understood as part of broader dynamic, namely a two-stage search for flexibility in judicial review principles – in response to changing contexts and new challenges. The first stage has seen some careful calibration of principle to statutory context, and the second a calibration to consequence (as reflected in the new “materiality” overlay in jurisdictional error doctrine). This search for flexibility builds agility into the principles but appears to come at some cost – including to the consistency, predictability and normative influence of administrative law. These evolutions, and the attending dilemmas, warrant close consideration as Australian administrative law has perhaps found itself at a new crossroads.
BOOK REVIEWS – Editor: Matthew Groves
- More Essential (for Lawyers) Than Toilet Paper, by Janina Boughey, Ellen Rock and Greg Weeks – Reviewed by Bruce Dyer
- Interpreting Executive Power, edited by Janina Boughey and Lisa Burton Crawford – Reviewed by Dr Maria O’Sullivan
For the PDF version of the table of contents, click here: AJ Admin L Vol 27 No 3 Contents.
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