LAW5449 - Advanced administrative law - 2018

Administrative law determines what governments can and cannot do. It is a dynamic and rapidly changing area of law and practice. This unit will enable students to understand key issues affecting contemporary administrative law, how and why the law is changing, and what those changes might bring.

The unit will cover three key contemporary questions in administrative law. The first is whether and how public law does and should take account of commercial issues. This part of the course will ask whether administrative law remedies such as judicial review should apply to private sector bodies that perform "quasi-public" functions. It will also consider whether judicial review and other administrative law remedies should apply, or be modified, to government decisions that could be regulated by other commercial law principles. Should judicial review apply to government tendering decisions? Are notions of "commercial in confidence" a sound reason to withhold details about government contracts from the public? Should companies have standing in administrative law to challenge government decisions which benefit competing companies?

The second key issue the course will consider is whether the courts are always the best forum to challenge government decisions. Public law remedies traditionally involve one party who challenges a single decision, but many decisions are "polycentric" because they raise many issues and affect many people. This part of course will examine those "polycentric decisions", such as planning and revenue decisions, and consider why some decisions are less suited for review by courts and tribunals than are other decisions that are not polycentric (or, at least not polycentric to such an extent). It will also compare the position in Australia with that in England where the courts have developed legal principles to regulate public consultation.

The third issue the course will consider concerns national security - how, when and why issues of national security can affect administrative law review? This problem has emerged as governments in Australia and other common law jurisdictions have sought to limit the rights of people to challenge decisions, or receive information, in cases involving national security. This part of the course will examine those decisions in Australia where normal rights of review by the courts or tribunals are limited for reasons of national security. This part of the course will also consider when and how the Australian Constitution might require a minimum level of fairness in such cases.

On completion of this unit students will be able to:

• apply knowledge and understanding of important contemporary issues in administrative law and government decision making, together with the framework of legal, political and ethical principles that affects government and the related principles of parliamentary supervision, with creativity and initiative to new situations in professional practice and/or for further learning;
• investigate, analyse and synthesise complex information, problems, concepts and theories in relation to administrative law and government decision making;
• conduct research into public law, administration and decision making, using comparative perspectives from legal and non-legal approaches to assess government action, and communicating effectively and persuasively to specialist or non-specialist audiences and peers, based on knowledge of appropriate research principles and methods; and
• use cognitive, technical and creative skills to generate and evaluate at an abstract level complex ideas and concepts relevant to administrative law and public decision making.

One research assignment (3,750 words): 50%

One take-home examination (3,750 words): 50%

24 contact hours per teaching period (either intensive, semi-intensive or semester long, depending on the Faculty resources, timetabling and requirements)