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Public Law Essentials

Your public law essentials toolkit

For government decision-makers, administrative law can be bewildering, with its legal jargon and unfamiliar concepts. Our Public Law Essentials toolkit will guide you through the basics of decision-making and how to make your decisions as fair and robust as possible.

Please get in touch if you would like to talk through a specific issue or scenario.

Remaking decisions
Traditionally, the courts have held that a decision-maker is prevented from remaking an earlier decision by the doctrine of functus officio. The doctrine, based on the principles of finality, means that the power to make a decision has already been spent and cannot be re-exercised.
Delegations and authorisations
It is a fundamental principle of administrative law that when Parliament vests power in a person that person is required to exercise the power personally, but it may not be practicable, nor effective, for a person to personally exercise the vested power.
Legislation and the legislative process
The law that governs Australia is made up of legislation and common law, with three major sources of legislation: an Act of Parliament, regulations (a form of delegated legislation) and legislative instruments. By contrast, the common law is derived from cases which have been decided in courts of law.
Enforcement and regulatory decision-making
Regulation and enforcement are essential government functions. Regulation protects the legitimate interests of the community, businesses, individuals, the environment, and the economy (among others).
Procedural fairness
Procedural fairness in administrative decision-making relates to the fairness of the procedure by which a decision is made: it is made in accordance with statute and the requirements of natural justice.
Statements of Reasons
Whether required by statute or not, a statement of reasons can improve decision-making and make the resulting decision more robust if challenged or reviewed.
What happens when things go wrong?
Lawyers assisting decision-makers should be attuned to the concept of legal risk management, including the risks of challenge, and how a decision can be buttressed against those risks.

 

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