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Book review: Katzen, H. and Douglas, R. Administrative Law Butterworths: Australia (1999)

BY SUSAN BOTHMANN

Title: Administrative Law

Authors: Katzen, H. & Douglas, R.

Published by Butterworths, Australia (1999).

ISBN: 0 409 3 1 570 2.

pp: 317.

 

This relatively slim volume (considering its topic) is a fine introduction to the subject of administrative law in Australia. It is pitched specifically at students, and the language throughout suggests the audience is undergraduates who are being exposed to the subject for the first time. In that regard it is somewhat too simplistic in coverage to be of much interest to practitioners. It is published by Butterworths in their ‘Tutorial Series.

As a student’s entree to a complex area of the law the book is especially useful. The Introduction puts administrative law in context and explains the related importance of statutory construction and interpretation. The focus of the book is ‘the core areas’ (14) of administrative law, review on merit and judicial review.

The authors are both university lecturers and it is clear from the refreshingly down-to-earth tone of the prose that they have tried to make a seemingly dry and often complex subject-matter approachable to students.

Part 2, from pages 16 to 65 deals with merits review in terms of its form and nature and the procedures involved. This part concentrates on the Commonwealth Administrative Appeals Tribunal, the NSW Administrative Decisions Tribunal and the Victorian Civil and Administrative Tribunal with some passing references to other tribunals where some particular distinction can be drawn. The text notes generally the great proliferation of tribunals established throughout Australia in recent years.

The authors remind the reader on a number of occasions about the essential difference between the role of merit review tribunals and courts engaging in judicial review. This highlights that fundamental principle in administrative law which is often hardest for students to comprehend, namely that courts do not revisit the original decision to make their own decision on the facts.

The style used in explanations is laudably clear. For example:

[T]he objectives of merit review indicate a tension between the need to ensure individual justice through a process of open and accountable government, and the demands of administrative efficiency.(27)

The layout for each section of the book consists of fairly short, numbered paragraphs, there are no footnotes or endnotes but each chapter ends with a useful up-to-date ‘Further Reading’ list. Each chapter also contains a posed problem and a model resolution. ‘Further tutorial discussion’ points are also included.

Part 3, from pages 66 to 235 is the largest section of the book and deals with judicial review. The sub-headings in this section include judicial reviewability, access, rule-making and discretionary powers, legality and grounds for review. Again, the material presents a creditable coverage of the major features of the topic.

Part 4 covers ‘Access to Information’ (236) which deals with the issue of the right of a party affected to be given reasons for the decision, and the more formal right to access through the Freedom of Information Act 1982 (Cth).

Part 5 deals with ‘Other Avenues of Accountability’ (273) involving a practical discussion about the office of Ombudsman. The book points out that the office was first established in Sweden in 1809 ‘to receive complaints from the public and inquire into action undertaken by the government.’(274) It also notes that New Zealand was the first English speaking country to provide for an Ombudsman. The role and jurisdiction of the Ombudsman in different Australian jurisdictions is covered briefly.

Part 6 is the final short section dealing with ‘Choice of Forum’ (309). The stated objectives of this chapter are to ensure that the reader will come to understand ‘legal factors which affect choice of forum’ and ‘strategic factors bearing on choice of forum.’(309)

Unfortunately the book’s major shortcoming for students in the South Pacific is its focus exclusively on Australian administrative law. Australia has moved a long way from and in quite different directions from the developments in administrative law in England. Neither the network of tribunals, the judicial pronouncements nor the legislation at state and Commonwealth levels providing for review of government decision-making in Australia, is easily transposed into any of the South Pacific jurisdictions. Many of the general principles covered in the book are relevant and valid in most common law jurisdictions but they are clothed with the specific provisions of Australian law and for a South Pacific student to try to identify the relevant parts may lead to greater confusion than clarity.

In those South Pacific countries, like Vanuatu, that have an Ombudsman, the chapter on that topic might be helpful from a comparative point of view.

The tutorial exercises would provide useful workshop topics and teaching tools provided the resolutions were re-worked to suit the relevant South Pacific jurisdiction.

Administrative law tends to be in its infancy in the South Pacific but is rapidly developing into an important part of island jurisprudence. For future policy makers in this area the book would provide a helpful guide to Australian models.


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