Administrative Law

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Part 1: The Rule of Law and its application


The concept of the rule of the rule of law is associated with renowned British constitutional scholar, A.V XXX sacrosanct is the concept that it is embraced in most modern-day legal systems in the world and considered as an integral part of constitutional democracy. This paper will attempt to properly define the rule of law, its elements and its scope and application.

Meaning and elements of the rule of law 

As propounded by A.V Dicey, the rule of law encompasses three important elements. First, State power must be limited and circumscribed within statutory and Constitutional rules, meaning that the State does not enjoy wide, arbitrary and unlimited powers. This component serves to ensure that governments are accountable and responsible in the exercise of their powers, hence restraining the exercise of the “rule of man”, which may be unreasonable and founded on indiscernible personal whims. 

The second limb demands that all persons must be considered as being equal before the law and that all persons are subject to the law, regardless of the position they might hold in society. This principle is in tandem with the arguments postulated by John Locke in his masterpiece, The Second Treatise of Civil Government, thus: 

No man in civil society can be exempted from the laws of it: for if any man may do what he thinks fit, and there be no appeal on earth,………..,”[Emphasis supplied]

 Lastly, the ultimate power to interpret and enforce the law rests with the Judicial arm of the government. This principle is pertinent because it encapsulates the right for every person to be subject to a fair trial before a Court of competent jurisdiction and the right to seek judicial remedies for violation of their rights and fundamental freedoms.The landmark case of Marbury v. Madison is quite instructive as to the powers enjoyed by Courts of law in protecting the rule of law. In that case, the US Supreme Court expressed held that the duty to determine what the law is and how it should apply is emphatically Judicial.

The scope of the rule of law

Having established the meaning of the rule of law, it is imperative to determine the scope of rule of law and who is subject to it. From the analysis set elsewhere above, it emerges that the rule of law seeks to have all persons, whether state or non-state actors, to be subject to established laws and rules and that power is not left unregulated. Therefore, in an ideal society, the rule of law would have a broad scope of application, binding both governments and their subjects.

However, scholars have advanced arguments to the effect that the application of the doctrine would, for practical reasons, vary in democratic and autocratic societies. In the latter, governments enjoy unfettered powers which may not be restrained in law. That notion is deeply rooted in the Hobbesian theory of government which envisages absolutism and dictatorship as a form of government.

In constitutional democracies, the rule of law forms a cornerstone, upon which governments are founded and its application is mandatory. Former Indian Attorney General, Sorabjee Soli, while affirming this position, made the following pronouncements (in part):

“It needs to be emphasized that there is nothing western or eastern about the principles underlying the concept of Rule of Law. It has a global reach and dimension. Rule of Law symbolizes the quest of civilized democratic societies’, be they eastern or western, to combine that degree of liberty without which law is tyranny with that degree of law without which liberty becomes licence”

Application of the rule of law in Australia 

Australia is a constitutional democracy. As such, the manner in which government officials and individual citizens conduct themselves is constrained by the Australian Constitution, with the aim of safeguarding rights and freedoms. This has been illustrated in a number of Australian Court decisions including Tasmania v. The Commonwealth, and Mallard v The Queen. In both cases, the High Court ruled in favour of the petitioners’ individual rights and fundamental freedoms. In Tasmania (supra), the Court issued injunctive orders to restrain the damage of vulnerable while in Mallard (supra), the Court set aside the appellant’s murder conviction on the basis of the unfairness of the trial court.


Flowing from the above discussion, it can be inferred that the rule of law is an important aspect of governance and binds both State and non-State actors. Moreover, the rule of law is multi-faceted and entails limit of State power, equality of all persons before the law and the power of Courts to enforce laws and interpret the law. However, as has emerged, the application of the rule of law differs in democratic and autocratic societies. 

Part 2: Do merits review tribunals and bodies complement or clash with judicial review?


Administrative Law is a system of legal rules enacted to regulate the manner in which government and administrative Agencies exercise their powers. Under this area of law, Courts are empowered to determine whether Agencies have acted within their statutory powers. Where Courts establish non-compliance with a statute, they may, by way of Judicial Review, issue the Judicial Review remedies of; certiorari, quashing the impugned actions, mandamus, compelling performance of a certain obligation, or prohibition restraining certain impugned actions.

However, under Australian public law, Agencies have the power to commit a decision to a merit review of a decision by a person or body, different from the initial decision maker. Upon conducting an independent review of the applicable laws, facts and the circumstances, the merits review tribunal may either make a new decision or affirm the initial decision.

This paper shall discuss the nature and characteristics of both Merits Review and Judicial Review and the relationship between the two. The paper shall make a conclusion on the issue as to whether the two systems of Administrative Law complement or clash with each other. 

Merits Review

As already stated, merits review is not a Judicial process but an administrative process through which a non-judicial body or person is presented with an opportunity to scrutinize an Administrative decision and determine whether the same was properly made. In the leading case of Shi v. Migration Agents Registration Authority, the Court expressed the view that the role of a Review Tribunal is to arrive at a conclusion, “as to what is the correct decision, by conducting its own, independent, assessment and determination of the matters necessary to be addressed”

Merits review powers are statutory and may either be internal or external. Different Agencies have different procedures for internal review of decisions made by their officers, but such procedures are usually ad hoc. Once an aggrieved party registers their dissatisfaction with a decision of an Agency, the Agency may then appoint an official to conduct a review and either vary, set aside or even affirm a decision, depending on the merits disclosed by the facts. External reviews, on the other hand, involve fresh consideration of the decision by an external independent body, whose power is granted by statute. Although there exist many Federal review tribunals in Australia, the Administrative Appeals Tribunal (AAT) established under the Administrative Appeals Tribunal Act of 1975 is the apex merits tribunal. Like the internal review, the end result of external reviews is usually to determine whether an Administrative decision was correctly made and accordingly, to either affirm or vary it.  

Judicial Review

Unlike merits review, Judicial Review is a Court process by which the legality and validity of decisions of Administrative tribunals is assessed. Although Judicial Review is a process entrenched in common law, Australia has a specific legal framework to govern it. These include the Constitution of Australia, the Administrative Decisions (Judicial Review) Act 1977, and the Judiciary Act 1903.  

In the case of Church Scientology v Woodward, the High Court considered the scope of Judicial Review and summarized it as thus:

“Judicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of the individual are protected accordingly

Unlike merits tribunals, the scrutiny in Judicial Review relates to the legality of the decision, and not its merits. The power of the Court is, therefore, limited to determining whether or not an Administrative body has acted within the applicable statutory framework, and does not extend to varying or substituting the decision with a more preferable decision. The common remedies in judicial review are mandamus, certiorari and or prohibition. 


In view of the above analysis, it becomes clear that merits tribunals and Judicial review are complementary in nature as they relate to different aspects of administrative decisions, to wit, the merits and the legality, respectively. While merits review tribunal is Administrative in nature, Judicial Review is exclusively Judicial and if the former procedure is applied appropriately, it could avoid unnecessary Judicial Review litigation.


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