Ellen Rock

Administrative lawyers around Australia likely issued a collective—albeit tentative—sigh of collective relief when the government introduced its tribunal reform package into Parliament in 2023. There is a lot to like about the proposed Administrative Review Tribunal (ART). The ART Bill and First Consequential Bill, recently supplemented by the Second Consequential Bill, go a long way towards addressing the most pressing concerns that had prompted plans to abolish the Administrative Appeals Tribunal (AAT). The government has also taken the opportunity in these Bills to mop up a number of other longstanding administrative law bugbears.

While the proposed reforms are largely welcome, it would be surprising if plans on this scale were free of any shortcomings. This post highlights some of the key issues likely to attract attention in the coming months, including in the Senate Committee inquiry that is due to report in late July.

Matthew Groves

A sexual assault is alleged to have occurred several years ago in the federal Parliament building. Mr Bruce Lehrmann was alleged to have sexually assaulted Ms Brittany Higgins. Mr Lehrmann sought a stay of the charges, arguing that he could not possibly get a fair trial. That claim failed, so a trial followed. The jury was discharged after five days of deliberation. A retrial was planned but the prosecution was discontinued because of concerns about Ms Higgins’ mental health and the impact a second trial might have upon her.

Janina Boughey

Among English-speaking common law jurisdictions Australia has been the most resistent to doctrines of deference in the administrative law context. It is often said that Australia’s High Court has rejected deference. In fact, a majority of the High Court has rejected Chevron deference, but only in obiter. Nevertheless, it is true that Australia has no ‘doctrine’ of deference, that Chevron deference specifically is generally thought to be inconsistent with the Australian conception of the separation of powers, and that the very mention of the word ‘deference’ seems to provoke the ire of some judges.

Narelle Bedford

Darren O’Donovan

The Final Report of the Robodebt Royal Commission was released on 7 July 2023, in a landmark moment for Australian public administration. The report makes searing findings against senior public servants and politicians. In this post I discuss how, in her report, Commissioner Catherine Holmes AC SC effectively inverts a generation of public service thinking about cabinet confidentiality and the duty to give frank and fearless advice. I argue that the Report’s final two recommendations – suggesting reform to cabinet confidentiality and record creation – are the lynchpins for successful public service reform after Robodebt.

Maria O’Sullivan

The recent High Court decision in Davis v Minister for Immigration; DCM20 v Secretary of Department of Home Affairs contains some important statements on the reviewability of non-statutory ministerial guidelines. The key questions before the High Court were whether the Court could determine whether non-statutory executive action by federal departmental officers was unlawful on the ground of legal unreasonableness, and whether the guidelines used by officers to ‘screen’ visa applications to be presented to the Minister were valid.

Craig Lenehan

Scott Stephenson

Samuel Naylor

On 2 December 2022, the Full Federal Court unanimously dismissed an appeal brought by Santos NA Barossa Pty Ltd (Santos) against a decision of Bromberg J: Santos NA Barossa Pty Ltd v Tipakalippa. This set aside the decision of the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) to accept Santos’ Drilling EP. On appeal, all judges held that Santos and in turn NOPSEMA had failed to understand the correct meaning of the statutory language and the decision of the regulator was set aside.

In this case note, I discuss how the parties and, in turn, the Court in this case approached the issue of whether a decision maker had lawfully reached a state of ‘reasonable satisfaction’: a subjective jurisdictional fact, or precondition, to the acceptance of the Drilling EP prepared by Santos. I suggest that while the Full Court took an orthodox approach, the judgment at first instance illustrates the uncertainties which trouble this form of judicial review.