Last updated 20 May 2022
Administrative law is concerned with:
- access to information held and generated by government
- rules that regulate government when undertaking administration
- the right to review government decisions including mechanisms for internal and external oversight.
Access to information
Access-to-information laws are a feature of administrative law, establishing free or low-cost access to government information.
Administrative law includes the right to access information held and generated by governments. Right-to-information laws provide members of the public with access to documents held by the government for free or at a low cost.
Right-to-information laws aim to ensure transparency in government, participation in government processes and provide individuals with avenues to access and amend information held by government about them.
For more information see the Right to Information and Freedom of Information chapter.
The rules of administrative law apply to the executive branch of government when undertaking administration, which include the daily operation of systems established in law.
Structure of government
Democratic governments based on the Westminster system traditionally consist of three branches: the legislature, the executive and the judiciary. The legislative branch is responsible for making laws. The administrative branch of government is responsible for putting the laws and policies of the legislature into effect, and the judicial branch is responsible for interpreting and enforcing laws.
Most government administrative work is carried out by a government department. The administrative head of a government department is a senior public servant with a title such as Director-General. The political head of a department is the minister, who is a member of the government in power. The minister is responsible for formulating government policy, which the department will put into effect. The minister is accountable to parliament and ultimately the people for the department’s activities. However, in many departments power is delegated to departmental employees.
Departments are not the only administrative organ of government. Sometimes special statutory bodies are set up with a particular administrative function. An example of such a body at the Commonwealth level is the Repatriation Commission. Although most statutory bodies operate outside the confines of the normal public-service regime, they remain just as much a part of the government administrative branch as mainstream departments and are ordinarily equally accountable for their administrative actions and decisions.
Legislation normally places the power to make decisions with the holder of a specific position such as the relevant minister or the permanent head of a department. Modern departments are often huge entities with thousands of employees. It would be impossible for one person to perform all of the functions entrusted to them, and it is quite usual for functions to be delegated to others.
For example, under the Information Privacy Act 2009 (Qld), the principal officer for a government agency must deal with an application to access or amend information held by the agency. Rather than relying on the principal officer to deal personally with every application, the law permits the principal officer to delegate this and much of the other day-to-day work within the agency. However, the principal officer remains responsible for ensuring that delegated functions are carried out properly (s 27A(10A) Acts Interpretation Act 1954 (Qld)).
The rules of administrative law apply mainly to the activities of the executive branch, but some activities of the legislature and judiciary are administrative in character and may be subject to administrative law.
Administrative decisions made by local councils, government ministers, officers working in government department, lower courts (e.g. the Magistrates Court in Queensland) and tribunals are generally subject to administrative law. Examples of administrative decisions include:
- a judicial officer issuing a warrant
- the decision by a minister to cancel a visa on character grounds
- a local council placing conditions on a planning permit.
However, not all decisions by such bodies can be described as administrative. For instance, by-laws made by an elected local authority are legislative in character and not subject to judicial review under pt 3 of the Judicial Review Act 1991 (Qld) (Judicial Review Act) (see Paradise Projects Pty Ltd v Gold Coast City Council  1 Qd R 314) but may be challenged under the common law as it is preserved in pt 5 of that Act. Similarly, judicial decisions made by lower courts are not administrative decisions (see Stubberfield v Webster  2 Qd R 211).
The head of the executive branch of government is the Governor-General in Council (for the Commonwealth Government) or the Governor in Council (for state governments). The High Court of Australia has made it clear that, at common law, the rules of administrative law apply to both the Governor-General and the state governors in the same way that they apply to other administrative decision makers. However, in judicial review applications in Queensland, the appropriate respondent in matters concerning decisions of the Governor in Council is the responsible minister (s 53 Judicial Review Act).
Administration versus policy
Another category of government action and decision making is policy. Policy matters are neither legislative, judicial or administrative. The formulation of policy is a political function. Courts and administrative tribunals cannot normally review government policy, unless it can be shown that the particular policy is unlawful or if a policy is being applied without proper regard to the merits of an individual case.
Policy is concerned with the implementation of a desired course of government action. For example, a decision to introduce a system by which an individual must be approved for working with children such as the Queensland Blue Card system. The decision to set up some form of working-with-children assessment to implement the policy forms part of the policy decision.
The daily operation of systems created as a result of policy decisions is administrative and is subject to the requirements of administrative law. For example, the assessment of Blue Card applications within the system that governs individual decisions to grant or refuse a Blue Card is administrative.
The distinction is important because the formulation of policy is a purely political matter, and none of the redress avenues of the administrative law discussed in this chapter will ordinarily apply.
Complaints about the administrative decisions made under a policy (e.g. decisions concerning the application of the policy to particular circumstances such as the refusal of a Blue Card) are, however, generally subject to review.
Some other decisions may not be subject to administrative law because they are contractual or managerial in nature (for more information as to which decisions are subject to administrative law see the Complaints Against Government – Judicial Review chapter).