Federalism and Administrative Discretion in Australia, with European Comparisons
| Date | 01 June 2000 |
| Author | Leslie Zines |
| DOI | 10.22145/flr.28.2.7 |
| Published date | 01 June 2000 |
| Subject Matter | Article |
FEDERALISM
AND
ADMINISTRATIVE DISCRETION
IN
AUSTRALIA, WITH EUROPEAN COMPARISONS
Leslie Zines
INTRODUCTION
My
subject is
the
extent to
which
the federal features of the Constitution restrict
the
power
of
Parliaments
in
Australia to legislate to confer discretionary
powers
on
executive
and
administrative officers. Ishall also examine
the
relevance
of
the
ayailability
and
scope of administrative
law
remedies to
that
issue.
By "the federal features of the Constitution" I
mean
the distribution of
powers
between
the
Commonwealth
and
the States
and
provisions
that
deal
with
the
relationship
of
the several States
with
each other
and
with
the
Commonwealth,
such
as
ss 92
and
117;
and
those limitations
on
federal powers
designed
to
prevent
State
favouritism, for example ss 99
and
51(ii), (iii).
Iwill
not
be
dealing
with
the effect of the separation of
the
judicial
power
of
the
Commonwealth
on
the administration,
under
Chapter
III of the Constitution. While
an
independent
and
separate
central judiciary
may
be
regarded
as
an
essential
ingredient
of afederal state, its role
and
function extend further,
providing
a
guarantee
of
the
rule
of law,
which
is, of course,
just
as applicable to non-federal states.
AUSTRALIA
The doctrine
with
which I
am
concerned is
that
which
provides
that
the
Parliaments
and
governments of Australia
cannot
be
final judges of their
own
constitutional
power
nor
can
they
give
that
power
to
an
administrative
or
executive officer.
In
its
present
form the doctrine
was
most
clearly described
by
Williams Jas follows:
It
is clear to
my
mind
that
it
is
the
duty
of
the
Court
in
every
constitutional case to
be
satisfied of
every
fact
the
existence of
which
is necessary
in
law
to
provide
a
constitutional basis for legislation.1
That
statement
was
later
approved
by
Dixon
CJ,
McTiernan
and
Fullagar
JJ
in
a s 92
case. They
added:
1Australian Communist Party vCommonwealth (1951) 83 CLR1
at
222.
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