Reconsideration of administrative decisions

Christensen, Cecelia Elizabeth (2007). Reconsideration of administrative decisions MPhil Thesis, School of Law, University of Queensland.

       
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Author Christensen, Cecelia Elizabeth
Thesis Title Reconsideration of administrative decisions
School, Centre or Institute School of Law
Institution University of Queensland
Publication date 2007
Thesis type MPhil Thesis
Supervisor Bernard Cairns
Total pages 284
Language eng
Subjects 18 Law and Legal Studies
Abstract/Summary The decision of Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic. (1990) 21 FCR 193 is the central thread of this thesis. Broadly, the subject matter of this thesis is concerned with those circumstances when an administrative decision-maker does not have the capacity to change the decision. This broad subject matter involves the consideration of two separate questions: (i) whether an administrative decision-maker can, in the exercise of statutory powers, express or implied, reopen an earlier decision either with or without the request of a person affected by that decision; and (ii) whether or not an administrative decision-maker can be estopped from reopening the earlier decision made in the exercise of the decision maker’s statutory, common law or prerogative powers. In responding to these two questions, the writer has dealt with four main issues. First, the writer has considered whether or not an administrative decision-maker may, in the absence of an express statutory power, reconsider an earlier decision. In response to this question, the writer has developed a set of principles determinative of the circumstances where, in the absence of an express power, a power to reconsider may be implied in the terms of the statute. Secondly, the writer has reviewed what are proffered to be exceptions or qualifications to the general principle that estoppel cannot operate to sanction something otherwise prohibited by statute or prevent, hinder or fetter the proper performance or exercise of a statutory power, duty or discretion. Of these exceptions, the writer gives special attention to the sovereign and proprietary distinction and the policy and operational distinction. On the one hand, the sovereign and proprietary distinction purports to allow estoppel to be applied against an administrative decision-maker in the course of making proprietary (or commercial), but not sovereign (or governmental) decisions. On the other hand, the policy and operational distinction purports to allow estoppel to apply, so long as there is no issue of ultra vires or illegality, against an administrative decisionmaker in the course of making an operational decision that gives effect to or implements decisions made in the exercise of a particular government policy. Following a review of the authorities which have cited, applied, distinguished and rejected the policy and operational distinction, and the sovereign and proprietary distinction, the writer concludes that it is not necessary to characterise the type of decision in question to determine whether estoppel should lie against the government. The general principle that estoppel cannot operate to sanction something otherwise prohibited by statute or prevent, hinder or fetter the proper performance or exercise of a statutory power, duty or discretion is sufficient to dispose of any case of estoppel in this particular context. Also, the writer identifies what type of link (direct or remote) between the subject matter of the statutory discretion and the representation or promise is sufficient to demonstrate that the alleged representation would fetter, hinder or prevent the proper exercise of a statutory discretion. The writer concludes that the High Court has adopted a broad approach to resolving this question and that it is sufficient to demonstrate that the subject matter of the alleged representation or promise made by the administrative decision-maker falls within the ambit of, is a matter relevant to, or forms part of the chain of events relevant to, the exercise of the statutory discretion. Last, the writer has considered whether or not estoppel may apply to prevent, hinder or fetter the exercise of prerogative powers by the government. Laker Airways Ltd v Department of Trade [1977] 1 QB 643 is the only case on this topic. The writer concludes that the view of the court in this case should be accepted, namely, that estoppel should be precluded if the government is exercising its prerogative powers.
Keyword Judicial review of administrative acts -- Australia

 
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Created: Fri, 21 Nov 2008, 16:10:49 EST