Administrative Justice - towards Integrity in Government
Creyke, Robin, Melbourne University Law Review
[The concept of administrative justice--justice within the administrative law system is a relatively new one and has received less sustained attention in Australia than elsewhere. This article notes the history of the concept in Australia, how it is used, and examines which bodies should be subject to administrative justice. The most vexed issue, however, is how to assess whether administrative justice has been achieved. By what standard is administrative justice to be measured? The author has chosen a methodology based on that adopted by Australian researchers who mapped national integrity systems. Since administrative law bodies were among the government agencies selected for that research, the hypothesis is that a methodology which applies to the whole can apply equally to the parts. That methodology, was used to map the strengths and weaknesses of the administrative law system, and how coherently the system operates. The results showed that the coherence of parts of the system is questionable and that there are weaknesses in the system, but at the margins, not its core. Overall, the system was providing the outcomes for which it was established. The upshot is that although the definition of administrative justice remains elusive, a start has been made. The tools to undertake the task have been identified and it is now for administrative law institutions' and others in the administrative law community to build on these steps so that this concept--integral to the administrative law system can be better understood.]
CONTENTS I Introduction II The Modern System of Australian Administrative Law III The Concept of 'Administrative Justice' in Australia A 'Administrative Justice' in the Literature 1 Early Writings--The Kerr Committee Report 2 Later Developments B Administrative Law Institutions in Which Administrative Justice Applies 1 Early Writings 2 Later Articles, Chapters and Reports 3 Textbook Writers 4 Courts C Measuring Administrative Justice D A Culture of Administrative Justice IV Administrative Justice: Key Component of Integrity in Government A The NISA Study B NISA Methodology 1 Identification of Administrative Justice Institutions 2 Analysis of the Strengths and Weaknesses of the Institutions C Coherence of System V Conclusion
The concept of 'administrative justice' is a relatively new one. Although the early practitioners in Australia's administrative law system used the expression, it went into abeyance in the late 1980s and did not re-emerge until the turn of this century. With its re-emergence, however, it is timely to explore its meaning. Despite its relative novelty in the lexicon, the importance of the concept has been widely appreciated. As Sir Anthony Mason put it, '[a]dministrative justice is now as important to the citizen as traditional justice at the hands of the orthodox court system'. (1) However, there appears to be no agreement in Australian discourse as to its meaning. The observation by Sir Anthony underlines another justification for exploring the concept. A heightened consciousness of human rights in Australia has fuelled an interest in identifying the extent to which individual elements of administrative law might be developing into some form of human right. (2) At the same time, there is recognition of a competing goal, namely, 'to maximise the common good' as expressed through statutory schemes affecting citizens. (3) The conflict between these views deserves an airing.
For the purposes of this article, it is accepted that the place of administrative justice is within that branch of the law known as administrative law. That is because it is through administrative law institutions and principles that administrative justice is provided. …