“Administrative functions have been bifurcated into Legislative, Judicial, Administrative and Quasi-Judicial functions”. Illustrate & Explain
Introduction
Administrative functions Administrators, broadly speaking, engage in a common set of functions to meet the organization’s goals. These “functions” of the administrator were described by Henri Fayol as “the 5 elements of administration” (in bold below).
- Planning – is deciding in advance what to do, how to do it, when to do it, and who should do it. It maps the path from where the organization is to where it wants to be. The planning function involves establishing goals and arranging them in a logical order. Administrators engage in both short-range and long-range planning.
- Organizing – involves identifying responsibilities to be performed, grouping responsibilities into departments or divisions, and specifying organizational relationships. The purpose is to achieve coordinated effort among all the elements in the organization (Coordinating). Organizing must take into account delegation of authority and responsibility and span of control within supervisory units.
- Staffing – means filling job positions with the right people at the right time. It involves determining staffing needs, writing job descriptions, recruiting and screening people to fill the positions.
- Directing (Commanding) – is leading people in a manner that achieves the goals of the organization. This involves proper allocation of resources and providing an effective support system. Directing requires exceptional interpersonal skills and the ability to motivate people. One of the crucial issues in directing is to find the correct balance between emphasis on staff needs and emphasis on economic production.
- Controlling – is a function that evaluates quality in all areas and detects potential or actual deviations from the organization’s plan. This ensures high-quality performance and satisfactory results while maintaining an orderly and problem-free environment. Controlling includes information management, measurement of performance, and institution of corrective actions.
- Budgeting – exempted from the list above, incorporates most of the administrative functions, beginning with the implementation of a budget plan through the application of budget controls.
Legislative function:
The Parliament, constituted in Queensland by the Legislative Assembly and the Governor as the Sovereign’s representative, has power to make or amend laws for the “peace, welfare and good government” of the State. This power is referred to as the “plenary power” of the Parliament. The only real limit on the law-making power of the Queensland Parliament is the Commonwealth Constitution and the entrenched provisions of the Queensland Constitution.
One of the principal functions of the Legislative Assembly, therefore, is to be an integral part of the law-making or legislative process. It is in the Legislative Assembly where Bills (law-making instruments) are introduced, debated, amended and passed. When a Bill is passed it is given Royal Assent by the Governor and, at that time, converted to an Act – a new law or an amendment to an existing law. “Act” is short for Act of Parliament, and comes from the Latin via Norman French, which was the original language of the British Parliament. The Latin term “Actum”, means a thing completed or formally done. “Bill” is thought to be a derivative of Medieval Latin “Bulla” (Seal) originally a sealed written document.
The legislative power of the Queensland Parliament extends to delegating legislative power to other bodies, such as the Governor in Council, so that those bodies can make laws called subordinate or delegated legislation. Regulations, by – laws and ordinances are all examples of subordinate legislation. The Legislative Assembly, as a precondition to the delegation of legislative power, provides for mechanisms by which subordinate legislation is monitored and, if the Legislative Assembly decides, ‘disallowed’.
Judicial Function:
The main function of the judicial branch is to make sure all laws that are passed are considered constitutional and do not go in any way against the Constitution.
It can also be described as the forum where disputes between persons, legal entities and/or government agencies are settled through the process of a trial so that disputes are handled peacefully. It is also the function where the guilt or innocence of a person charged with a crime or violation of a law is determined.
The structure basically is one trial level court (where the initial lawsuit is heard), one appellate level (where claims that mistakes were made in the trial court leading to wrong decisions are determined) and one Supreme Court (where claims that mistakes were made in the appellate court leading to wrong decisions there can be determined).
The trial level courts are set up so that specialized cases are treated in specialized courts for greater efficiency. At the Federal level, bankruptcy cases are heard in the Bankruptcy Court, Immigration cases are heard in the Immigration Court, contract claims against the federal government are heard in the US Court of Federal Claims and other types of specialized cases.
Many states have similar specializations such as separate Tax Courts for tax issues, Equity or Chancery courts for equitable relief, etc.
Quasi-judicial function:
Quasi-judicial refers to actions by a group of people, or perhaps one authorized individual, that is charged with determining facts, holding hearings, and possibly even issuing subpoenas for individuals. The goal is often to come to understanding as to the facts of a case and make a judgment call regarding possible outcomes or consequences. The term implies that this body is not routinely responsible for holding such proceedings and often may have other duties.
One example of such a body is a city council that may choose to enforce some of its own ordinances, especially those with a civil penalty component. The council may assess fines or even pull or suspend a business license. If the city council acts as a quasi-judicial body, it may be required to hold hearings that are very similar to courtroom proceedings from time to time. The introduction of evidence and calling witnesses are a couple of the things that may be done during these hearings.
Typically, the quasi-judicial body can make a decision that then becomes legally binding, unless appealed. At the point where an appeal takes place, the case often moves into a traditional court system. The judge, in such cases, may not be in the role of the assessing the facts of the case in particular, but rather simply be charged with determining whether the quasi-judicial entity made a decision it had the authority to make, and was within the confines of the law and any administrative rules.
Statements:
- Statutory Vagueness and the Non-Delegation Doctrine
- Background on the Delegation Issue
i. Agencies typically wield powers that are characteristic of each branch of government.
1. Legislative – issue rules that control private behavior (often carry civil or criminal penalties for violations)
2. Executive – investigate potential violations of rules and to prosecute offenders.
3. Judicial – adjudicate disputes over whether a party has failed to comply with rules.
ii. Justification for Delegation
1. Legislatures cannot specify detailed rules of conduct for rapidly changing fields.
2. Agencies have superior experience and expertise in particular subject areas.
- Constitution limits Congress’ ability to confer legislative power on agencies.
i. Article I, § 1: “All legislative Powers herein granted shall be vested in a Congress…”
ii. In early years, Court pronounced absolutist “no delegation” language, but never invalidated a delegation Congress saw fit to make. Only few cases where delegation was struck down as unconstitutionally broad.
1. Panama Refining Co. v. Ryan (1935) (Hot Oil Case)
a. National Industrial Recovery Act (NIRA) authorized President to prohibit interstate shipments of contraband oil. Purpose was to stabilize the oil industry.
b. Holding: NIRA gave no guidance as to the circumstances under which President should impose the prohibition.
2. ALA Schechter Poultry Corp (1935) (Sick Chicken Case)
a. NIRA empowered agency to issue “codes of fair competition” for particular industries if the code “tended to effectuate the policy of this title.”
b. Court could not find a clear policy directive in the legislation.
1.1 A classic statement of the scope and nature of judicial review is to be found in the judgment of Brennan J in Attorney-General (NSW) v Quin:
The essential warrant for judicial intervention is the declaration and enforcing of the law affecting the extent and exercise of power: that is the characteristic duty of the judicature as the third branch of government…The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error.
1.2 Judicial review is not the re-hearing of the merits of a particular case. Rather, it is where a court reviews a decision to make sure that the decision-maker used the correct legal reasoning or followed the correct legal procedures.
1.3 On review, if a court finds that a decision has been made unlawfully, the powers of the court will generally be confined to setting the decision aside and remitting the matter to the decision-maker for reconsideration according to law. It follows from this that there will be circumstances in which although a decision is not the correct or preferable decision on the facts, it will not be open to judicial review. Conversely, there may be situations where a decision is the correct or preferable one, but may be set aside because it is subject to legal error.
1.4 Judicial review is a more limited right than a right of appeal. As noted by Mason J (as he then was) in Minister for Aboriginal Affairs v Peko-Wallsend Ltd:
The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion, which the legislator has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned.[1]
Whereas merits review is available in relation to decisions specified under the Administrative Appeals Tribunal Act 1975, judicial review is available for all decisions of an administrative character.
Further aspects of judicial review
Judicial review at common law and under the Administrative Decisions (Judicial Review) Act 1977
Judicial review remedies existed in Australia prior to the introduction of the Administrative Decisions (Judicial Review) Act 1977 (the AD(JR) Act) and have coexisted with that Act since its introduction. The traditional common law means of challenging the validity of administrative action is by way of the prerogative writs of prohibition, certiorari and mandamus or the equitable remedies of injunction or declaration.
Additionally, there are actions for damages for misfeasance in public office, for recovery of moneys exacted colore officii or paid by mistake[2] and for trespass, detinue and conversion where the plaintiff challenges the validity of the authority relied upon by the defendant as an answer to the allegedly tortious acts. Remedies in contract and negligence may also be available.
Jurisdiction under the AD (JR) Act is conferred on the Federal Court, and review under that Act may be considered to be that court’s principal judicial review jurisdiction. However, applications for review are not as significant as appeals under the Administrative Appeals Tribunal Act 1975 or other legislation permitting appeals as to the merits of the decision.
Further jurisdictional bases for judicial review in Australia include:
· section 75(iii) of the Constitution which confers upon the High Court original jurisdiction ‘in all matters…in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party’
· the High Court’s power under section 75(v) of the Constitution to issue the remedies of mandamus, prohibition, or injunction against an officer of the Commonwealth
· section 39B(1) of the Judiciary Act 1903 which confers the High Court’s Constitutional writ jurisdiction, as described above, on the Federal Court, and section 39B(1A)(c) which has given the court jurisdiction in relation to any matter ‘arising under the laws of the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter’; and
· Section 44 of the Judiciary Act which permits the High Court to remit matters to the Federal Court. Matters which may be remitted include those in which mandamus or prohibition is sought against a Commonwealth officer or in which a person is being sued or suing on behalf of the Commonwealth is a party.
At the time of the passage of the AD(JR) Act the expectation was that review of administrative decisions under that Act would become the predominant form of review in Australia. As a result of limitations on review by the Federal Court under the AD(JR) Act[3] however, review by way of section 75(v) of the Constitution and section 39B of the Judiciary Act continues to represent significant alternatives to AD(JR) Act review.
While some decisions are excluded from review under the AD(JR) Act, the Federal Court can nonetheless deal with such matters by virtue of the jurisdiction bestowed on it by the Judiciary Act. The High Court also has original jurisdiction in relation to such matters. Although noting these jurisdictional interfaces, it is not the Council’s intention, in developing the discussion paper, to focus upon them.
Grounds of review
While it has been said that the grounds of judicial review ‘defy precise definition’, most if not all are concerned either with the processes by which a decision was made or the scope of the power of the decision-maker. As noted, results or outcomes of the decision-making process are not primary concerns of judicial review.
Although the common law grounds are reflected in large part in the grounds of review set out in sections of the AD(JR) Act, there are some differences. For example, under the AD(JR) Act, the common law distinction between errors of law on and off the record
the ‘catch all’ ground of ‘otherwise contrary to law’ and the ‘no evidence’ ground, which is different from considering whether a decision-maker has wrongfully included or excluded evidence or included irrelevant evidence.
Common law judicial review covers some areas of administration not covered by the AD(JR) Act, such as decisions not made under an enactment.
For the purposes of this discussion paper, the Council will take account of the following grounds of judicial review. While the grounds are not mutually exclusive, they provide a framework for discussion:
· Failure to observe natural justice including:
· the right to be heard
· the rule against actual and apprehended bias; and
· the probative evidence rule;
· Decisions which are not authorised, including:
· no substantive power/failure to comply with procedure;
· abuse of power including:
· bad faith
· power not exercised for purpose given
· unreasonableness including duty to inquire;
· taking into account irrelevant considerations in the exercise of a discretion or failing to take account of relevant considerations;
failure to exercise discretion, including:
acting under dictation;
References
[1] (1990) 170 CLR 1, 35 – 36.
2 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 578-579, 598-600.
3 (1986) 162 CLR 24, 40-41 citing Wednesbury Corporation [1948] 1 KB, 228.
4 See for instance Beasley J, Aerolineas Argentinas & Ors v Federal Airports Corporation (1995) 63 FCR 100.
5 Described by the High Court in Re Refugee Tribunal; Ex parte Aala (2000- 2001) 204 CLR 82, [20] per Gaudron and Gummow JJ. The Court has indicated on a number of occasions that certiorari is not available in the exercise of its jurisdiction under section 75(v) ‘except as ancillary to the Court’s jurisdiction and power to grant one or more of the remedies there mentioned’: per Kirby J in Re McBain; Ex parte Australian Catholic Bishops Conference; Re McBain; Ex parte Attorney-General (2002) ALJR 694, [176].
6 Including as a result of the limitations imposed on review by Schedule 1 of the AD(JR) Act itself.
7 M Aronson, B Dyer, Judicial Review of Administrative Action,2000, p 72.
8 The AD(JR) Act was the result of the recommendations made by the Commonwealth Administrative Review Committee, ‘Report August 1971’, Parliamentary Paper No 144, 1971 (the Kerr Committee report); supported by the Prerogative Writ Procedures, ‘Report of Committee of Review’, Parliamentary Paper No 56, 1973(the Ellicott Committee report), and was enacted with a view to rationalising the common law grounds of review and providing a simpler procedure.
9 See sections 5(1)(j) and 6(1)(j) of the AD(JR) Act.
10 Sections 5(1)(h) and 6(1)(h) of the AD(JR) Act.
11A number of these grounds of review are examined in greater detail in Part III(I), of the discussion paper.
12 A decision may be held to be invalid on this ground on the basis that there is no evidence to support the decision or that no reasonable person could have reached the decision on the available facts i.e. there is insufficient evidence to justify the decision taken.
13 The doctrine of ultra vires may be narrow or extended. The first form is that a public authority may not act beyond its statutory power: the second covers abuse of power and defects in its exercise.
14 An exercise of discretionary power in bad faith is where the power has been exercised for an ulterior purpose, that is, for a purpose other than a purpose for which the power was conferred.
15 Where the power is not exercised for the purpose for which it has been given. The purpose of the discretion may be determined from the terms and subject matter of the legislation or the scope of the instrument conferring it.
16 Where a decision is so unreasonable that no reasonable person could ever have arrived at it.
17Where an official exercises a discretionary power on direction or at the behest of some other person or body. An official may have regard to government policy but must apply their mind to the question and the decision must be their decision.
[1] (1986) 162 CLR 24, 40-41 citing Wednesbury Corporation [1948] 1 KB, 228.
[2] See for instance Beasley J, Aerolineas Argentinas & Ors v Federal Airports Corporation (1995) 63 FCR 100.
[3] Including as a result of the limitations imposed on review by Schedule 1 of the AD(JR) Act itself.