LAWS50032 · Administrative Law
Introduction to Administrative Law
Administrative law is the system of principles, institutions and remedies that shapes and controls the actions of government. LAWS50032 focuses on statutory executive power — power conferred by an Act of Parliament, not the inherent or prerogative power under s 61 of the Constitution. It rests on two constitutional pillars, the rule of law (government acts only under the law, and official power must trace to a lawful source) and the separation of powers (legislature makes law, executive applies it, judiciary polices legality), and it gives effect to a set of values through two control pathways: merits review (executive correctness) and judicial review (legality only). Topic 2 adds Freedom of Information — the FOI Act 1982 (Vic) access right, exemptions and review through OVIC and VCAT. These opening topics are mostly Part-B essay fodder, not the Part-A spine: the essay can ask whether judicial review, the values and the institutions deliver real accountability, so you must be able to name the values, explain the two pillars, and draw the merits-versus-judicial-review line cleanly.
What this chapter covers
- 01What administrative law is and why it matters
- 02The two constitutional pillars: rule of law and separation of powers
- 03The underpinning values (legality, accountability, transparency, fairness)
- 04Three accountability modes: judicial review, merits review, integrity/information
- 05Merits review vs judicial review — the two pathways
- 06Freedom of Information (Topic 2): the FOI Act 1982 (Vic)
Worked example: placing a complaint on the accountability map
- +1Wrong on the facts: this is a merits complaint — the remedy is merits review before a tribunal (VCAT in Victoria), which steps into the shoes and remakes the decision — but only if a statute confers the right.
- +1Made unfairly: a procedural-fairness defect is a legality complaint — the pathway is judicial review in a court, which polices legality and can quash, but cannot remake the decision.
- +1Wants the documents: this is an information/transparency claim — the pathway is FOI under the FOI Act 1982 (Vic), with review through OVIC and VCAT.
Key terms
- Rule of law
- The principle that government is subject to, and acts only under, the law; no one is above it, and official power must trace to a lawful source. It underpins the legality ground and the whole of judicial review.
- Separation of powers
- The division of government into legislative (makes law), executive (administers and applies law) and judicial (interprets law and polices legality) branches. Courts on judicial review police the boundary of executive power without taking over the executive's role.
- Merits review
- Reconsideration of a decision on its merits by an executive body that can remake it (affirm, vary, set aside and substitute, or remit) to reach the 'correct or preferable' decision. Available only where a statute provides it.
- Judicial review
- Review by a court of the legality of a decision — not whether it was correct on the merits. The court can quash an unlawful decision but cannot substitute its own; it polices the limits of power.
- Freedom of Information
- The statutory right of access to government documents (FOI Act 1982 (Vic) at State level), subject to exemptions, with review through the Information Commissioner (OVIC) and VCAT. A transparency mechanism, distinct from merits and judicial review.
Introduction to Administrative Law FAQ
What is the difference between merits review and judicial review?
Merits review asks whether the decision was correct or preferable and is done by an executive tribunal (ART at Commonwealth level, VCAT in Victoria) that can remake the decision. Judicial review asks only whether the decision was lawful and is done by a court, which can quash an unlawful decision and remit it but cannot substitute its own. The legality/merits line is the single most tested distinction in the subject.
Does administrative law cover all government power?
No — LAWS50032 focuses on statutory executive power, power conferred by an Act of Parliament. The inherent and prerogative power under s 61 of the Constitution is covered earlier and is largely outside the subject's scope. When you spot the power, first ask what its statutory source is.
Are Topics 1–2 examinable in Part A?
They are mostly Part-B essay material rather than the Part-A spine. The values, the rule of law, separation of powers and the accountability institutions are what a critique essay draws on. FOI is examinable but is more likely a Part-B or take-home thread than the Part-A advice memo.
Exam move
Learn the scaffolding here cold because every later chapter slots into it. Be able to name the values, state the two constitutional pillars in one line each, and draw the three accountability modes — judicial review (courts, legality), merits review (tribunals, correctness) and integrity/information (Ombudsman, FOI, reasons). Above all, drill the legality vs merits line until it is reflexive: it decides which pathway a complaint takes and it is the backbone of every Part-B essay. Keep FOI light unless your released materials flag it — know the FOI Act 1982 (Vic), the access right, exemptions and OVIC/VCAT review, but do not over-invest.
