Some form of administrative review of executive action is accepted in the common law world for the reason that it serves certain basic values and goals. This study draws on political, legal and management theory in considering the values that underlie administrative review. It is primarily concerned with the role of tribunal review. A full range of values are considered, including fairness, justice, consistency, rationality, dignity, respect, accessibility, equity, efficiency and economy. Some are seen as fundamental to the administrative review system while others have different purposes. There is general agreement on many of the values and goals of administrative review. In their practical application however, values compete, overlap and evolve in accordance with economic, social, political and legal change. There are value tensions in, for instance, the role of independent tribunals as a check on the power of the executive while they are also within the executive, in the extent of the obligation on administrative tribunals to apply government policy and in the setting of proper limits of judicial review. There is continuing tension in demands for individual dignity and rights to fair treatment on the one hand and notions of the 'public interest' on the other. This thesis argues that the provision of tribunal review of administrative decisions is increasingly ideologically driven and focussed on 'functional' or 'management' values. At times these have trumped other values in decisions about entitlements to procedural fairness, access to review, effectiveness in public administration and the achievement of the 'correct and preferable' decision in the instant case. The focus of this thesis is a case study of migration decision-making. The importance of this area of study is evident in the potentially devastating consequences that migration decisions can have for individuals and families. In the context of Australia's history of inadequate and racially based migration policies, independent administrative review provides security against arbitrariness and discrimination in decision-making. An analysis of administrative review of decisions made under the Migration Act 1958 (Cth) by the Migration Review Tribunal, and its predecessor the Immigration Review Tribunal, illustrates the claim that values, in their application, have real, practical and local importance. Issues of tribunal independence and accountability, the normative goal of review and procedural justice are considered in depth. It is argued that where compromises are made in administrative review, underlying values should be revealed so that their practical consequences may be better understood. The need to articulate and analyze these issues has never been greater. The Australian administrative review system is in a period of change analogous to that of the introduction of the 'new' administrative law in the 1970s. If tribunals are to continue to play an effective role then it is important to think clearly about how they can, in practice, embody the right mix of administrative law values.
| Identifer | oai:union.ndltd.org:ADTP/283185 |
| Date | January 2001 |
| Creators | Fleming, Gabriel Catherine |
| Publisher | University of Sydney. Law |
| Source Sets | Australiasian Digital Theses Program |
| Language | English, en_AU |
| Detected Language | English |
| Rights | Copyright Fleming, Gabriel Catherine;http://www.library.usyd.edu.au/copyright.html |
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