1
/ Diploma in Law /LEGAL PROFESSION
ADMISSION BOARD
/ /LAW EXTENSION COMMITTEE
LAW EXTENSION COMMITTEE SUBJECT GUIDE
09 ADMINISTRATIVE LAW
SUMMER SESSION 2017-18
This Guide includes the Law Extension Committee’s course information and teaching program and the Legal Profession Admission Board’s syllabus. The syllabus is contained under the heading “Prescribed Topics and Course Outline” and has been prepared in accordance with Rule 27H(a) of the NSW Admission Board Rules 2015.Course Description and Objectives / 1
Lecturers / 1
Assessment / 2
March 2018 Examination / 2
Lecture Program / 3
Weekend Schools 1 and 2 / 4
Texts and Materials / 5-6
Compulsory Assignment / 6
Assignment Question / 6
Sample Examination Questions / 7-12
Prescribed Topics and Course Outline / 13-113
1
LAW EXTENSION COMMITTEE
/SUMMER 2017-18
09 administrative law
COURSE DESCRIPTION AND OBJECTIVES
Administrative law is a branch of public law that is concerned with the legal control of decisions and actions of governmental agencies and officials, and those of non-governmental bodies which affect the public.
In Australia today, governmental and non-governmental regulation - at federal, state and local government levels - impinges on most areas of life. Notable examples include social security, education, immigration, broadcasting and television, public sector employment, industry and commerce, exploration and mining, ownership and use of property, occupational licensing, town planning and the environment.
The emphasis of the course is on the principles and procedures of administrative law relating to the review of such governmental and non-governmental administrative action.
At state and local government levels, these principles and procedures are to be found mainly in the common law of judicial review. This includes the grounds of judicial review - denial of natural justice, ultra vires, jurisdictional error and error of law - and the judicial remedies - prohibition, certiorari, mandamus, injunction and declaration. Administrative review is by the Ombudsman and the Administrative Decisions Tribunal. Freedom of Information legislation has also been enacted.
At federal level, a comprehensive system of review is provided by statute. This involves judicial review by the Federal Court of Australia and administrative review by the Commonwealth Ombudsman and the Administrative Appeals Tribunal. Freedom of information legislation has also been enacted.
The fundamental objective of the course is to give students an understanding of the various principles and procedures and their practical application.
This will be achieved primarily by means of an analysis of the relevant decided cases, legislation, and academic writings.
LECTURERs
Mr Francisco Esparraga, BJuris LLB (UNSW), LLM (Syd)
Francisco is a lawyer who has worked in Sydney and Canberra in both State and Federal Government Departments, including the NSW Attorney-General's Department and the Independent Commission Against Corruption. He has also been a part-time member of the Consumer, Trader and Tenancy Tribunal and been in private practice. He is a committee member of the Australian Institute of Administrative Law; a committee member of the International Bar Association and a judge of the VIS International Arbitration Moot; the International Client Consultation Competition and International Mediation Competition. His speciality is Administrative Law. He also teaches Alternative Dispute Resolution and has also taught Contracts, Torts, Evidence, Legal Research & Writing and Litigation at the University of Sydney, UTS and University of NSW. He has also taught in Spain and China. He is a senior lecturer at the School of Law, University of Notre Dame Australia. Since 2015, Francisco has been undertaking research in the area of Legal Ethics.
Ms Cathy Williamson, BA, LLB (Syd), LLM (UNSW)
ASSESSMENT
To be eligible to sit for the Board’s examinations, all students must complete the LEC teaching and learning program, the first step of which is to ensure that you have registered online with the LEC in each subject for which you have enrolled with the Board. This gives you access to the full range of learning resources offered by the LEC.
To register with the LEC, go to www.sydney.edu.au/lec and click on the WEBCAMPUS link and follow the instructions. Detailed guides to the Webcampus are contained in the material distributed by the LEC, in the Course Information Handbook, and on the Webcampus.
Eligibility to Sit for Examinations
In accordance with the Legal Profession Admission Rules, the LEC must be satisfied with a student’s performance in a subject in order for the student to be eligible to sit for the examination, conducted by the Legal Profession Admission Board (LPAB). Assignments are used to assess eligibility.
Students are expected to achieve at least a pass mark of 50% in assignments to be eligible to sit for examinations. However, a category of “deemed eligible” has been introduced to offer students whose assignment mark is between 40-49% an opportunity to sit for the examination. In these circumstances students are often advised not to sit. A mark below 40% means a student is not eligible to sit for the examination.
Assignments as part of the Board’s Examinations
Assignment results contribute 20% to the final mark in each subject.
The Law Extension Committee (LEC) administers the setting and marking of assignments. The LEC engages the LPAB’s Examiners to assess or supervise the assessment of assignments.
Submission
Assignments must be received by 11:59pm on the due date unless an extension has been granted. Extensions must be requested by email prior to the due date. Specific supporting evidence must be provided. Assignments that are more than ten days late will not be accepted. Late assignments attract a penalty of one mark out of 20, or 5% of the total marks available, per day.
Assessment
Assignments are assessed according to the “Assignment Grading and Assessment Criteria” outlined in the Guide to the Presentation and Submission of Assignments. Prior to the examination, assignments will be returned to students and results posted on students’ individual results pages of the LEC Webcampus. Students are responsible for checking their results screen and ascertaining their eligibility to sit for the examination.
Review
Where a student’s overall mark after the examination is between 40-49%, the student’s assignment in that subject will be included in the Revising Examiner’s review. The final examination mark is determined in accordance with this review. Assignment marks will not otherwise be reviewed.
MARCH 2018 EXAMINATION
Candidates will be expected to have a detailed knowledge of the prescribed topics. Candidates will be expected to have made a study of the prescribed materials in relation to those topics and to have analysed cases referred to in the Law Extension Committee's course outline.
All enquiries in relation to examinations should be directed to the Legal Profession Admission Board.
Examination Prize
A cash prize is awarded each session to the student with the best examination result in Administrative Law. The prize is named the H L and W G Spencer Prize for Administrative Law.
LECTURE PROGRAM
Lectures will be held on Wednesdays from 6.00pm to 9.00pm. This program may be varied according to need. Readings are suggested to introduce you to the material to be covered in the lecture, to enhance your understanding of the topic, and to encourage further reading. You should not rely on lectures alone.
WEEK / TOPIC / KEY READING / VENUE1
8 Nov / Introduction to Administrative Law / Creyke, McMillan & Smyth Ch 1 & 5
Esparraga & Ellis-Jones Ch 1 / New Law LT 104
2
15 Nov / Rule Making / Creyke, McMillan & Smyth Ch 6
Esparraga & Ellis-Jones Ch 2 / New Law LT 104
3
22 Nov / Decision Making in Tribunals / Creyke, McMillan & Smyth Ch 3
Esparraga & Ellis-Jones Ch 3 & 5 / New Law LT 104
4
29 Nov / Judicial Review: Procedural Fairness / Creyke, McMillan & Smyth Ch 10
Esparraga & Ellis-Jones Ch 4, 6–9 / New Law LT 104
5
6 Dec / Merits Review and Administrative Tribunals / Creyke, McMillan & Smyth Ch 3
Esparraga & Ellis-Jones Ch 3 & 5 / New Law LT 104
6
13 Dec / Judicial Review: The Framework / Creyke, McMillan & Smyth Ch 2
Esparraga & Ellis-Jones Ch 7 & 8 / New Law LT 104
Study Break: Saturday 16 December 2017 – Sunday 7 January 2018
7
10 Jan / Legislative Scope and Purpose and Grounds of Judicial Review / Creyke, McMillan & Smyth 9-14
Esparraga & Ellis-Jones Ch 7 / Carslaw 273
8
17 Jan / Jurisdictional Error and Invalidity / Creyke, McMillan & Smyth Ch 12-16
Esparraga & Ellis-Jones Ch 8 / Carslaw 273
9
24 Jan / Reasons for Decision and Freedom of Information / Creyke, McMillan & Smyth Ch 19 & 21
Esparraga & Ellis-Jones Ch 11 / Carslaw 273
10
31 Jan / Ombudsmen and Privacy / Creyke, McMillan & Smyth Ch 4 & 20
Esparraga & Ellis-Jones Ch 10 & 12 / Carslaw 273
11
7 Feb / Standing and Privative Clauses / Creyke, McMillan & Smyth 18 & 16
Esparraga & Ellis-Jones Ch 8 & 9 / Carslaw 273
12
14 Feb / Judicial Review Remedies / Creyke, McMillan & Smyth Ch 17
Esparraga & Ellis-Jones Ch 9 / Carslaw 273
1
Weekend SchoolS 1 and 2
There are two weekend schools primarily for external students. Lecture students may attend on the understanding that weekend schools are primarily for the assistance of external students.
It may not be possible to cover the entire course at the weekend schools. These programs are a general guide, and may be varied according to need. Readings are suggested to introduce you to the material to be covered in the class, to enhance your understanding of the topic, and to encourage further reading. You should not rely on lectures alone.
Weekend School 1
TIME
/MAJOR TOPICS
/ KEY READINGSaturday 25 November 2017: 4.00pm – 8.00pm in Abercrombie Case Study Lecture Theatre 2090
4.10pm-5.20pm / Introduction to Administrative Law / Creyke, McMillan & Smyth Ch 1 & 5
Esparraga & Ellis-Jones Ch 1
5.30pm-6.35pm / Rule Making / Creyke, McMillan & Smyth Ch 6
Esparraga & Ellis-Jones Ch 2
6.45pm-8.00pm / Decision Making in Tribunals / Creyke, McMillan & Smyth Ch 3
Esparraga & Ellis-Jones Ch 3 & 5
Sunday 26 November 2017: noon – 4.00pm in Abercrombie Case Study Lecture Theatre 2090
12.15pm-1.25pm / Judicial Review: Procedural Fairness / Creyke, McMillan & Smyth Ch 10
Esparraga & Ellis-Jones Ch 4, 6–9
1.30pm-2.40pm / Merits Review and Administrative Tribunals / Creyke, McMillan & Smyth Ch 3
Esparraga & Ellis-Jones Ch 3 & 5
2.45pm-3.55pm / Judicial Review: The Framework / Creyke, McMillan & Smyth Ch 2
Esparraga & Ellis-Jones Ch 7 & 8
Weekend School 2
TIME
/ MAJOR TOPICS / KEY READINGSaturday 3 February 2018: 4.00pm – 8.00pm in New Law School Lecture Theatre 106 (New LSLT 106)
4.10pm-5.20pm / Legislative Scope and Purpose and Grounds of Judicial Review / Creyke, McMillan & Smyth 9-14
Esparraga & Ellis-Jones Ch 7
5.30pm-6.35pm / Jurisdictional Error and Invalidity / Creyke, McMillan & Smyth Ch 12-16
Esparraga & Ellis-Jones Ch 8
6.45pm-8.00pm / Reasons for Decision and Freedom of Information / Creyke, McMillan & Smyth Ch 19 & 21
Esparraga & Ellis-Jones Ch 11
Sunday 4 February 2018: noon – 4.00pm in New Law School Lecture Theatre 106 (New LSLT 106)
12.15pm-1.25pm / Ombudsmen and Privacy / Creyke, McMillan & Smyth Ch 4 & 20
Esparraga & Ellis-Jones Ch 10 & 12
1.30pm-2.40pm / Standing and Privative Clauses / Creyke, McMillan & Smyth 18 & 16
Esparraga & Ellis-Jones Ch 8–9
2.45pm-3.55pm / Judicial Review Remedies / Creyke, McMillan & Smyth Ch 17
Esparraga & Ellis-Jones Ch 9
TEXTS AND MATERIALS
Course Materials
· Supplementary Materials in Administrative Law (available via the link to Law Library in the Course Materials section of the LEC Webcampus)
· Guide to the Presentation and Submission of Assignments (available on the LEC Webcampus)
Prescribed Legislation
· Administrative Appeals Tribunal Act 1975 (Cth)
· Administrative Decisions Tribunal Act 1997 (NSW)
· Administrative Decisions (Judicial Review) Act 1977 (Cth)
· Archives Act 1983 (Cth)
· Australian Information Act 2010 (Cth)
· Australian Information Commissioner Act 2010 (Cth)
· Freedom of Information Act 1982 (Cth)
· Freedom of Information Amendment (Reform) Act 2010 (Cth)
· Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009 (Cth)
· Freedom of Information Act 1989 (NSW)
· Government Information (Public Access) Act 2009 (NSW)
· Government Information (Information Commissioner) Act 2009 (NSW)
· Health Records and Information Privacy Act 2002 (NSW)
· Interpretation Act 1987 (NSW)
· Migration Act 1958 (Cth)
· Ombudsman Act 1976 (Cth)
· Ombudsman Act 1974 (NSW)
· Privacy and Personal Information Protection Act 1998 (NSW)
· Privacy Act 1988 (Cth)
· Privacy Amendment (Private Sector) Act 2000 (Cth)
· Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth)
· Subordinate Legislation Act 1989 (NSW)
· Surveillance Devices Act 2007 (NSW)
· Telecommunications Act 1997 (Cth)
· Workplace Surveillance Act 2005 (NSW)
Recommended Texts
· Creyke, R & McMillan, J & Smyth, M Control of Government Action: Text, Cases and Commentary, 4th ed. LexisNexis, 2015
· Esparraga, F & Ellis-Jones, I, Administrative Law Guidebook, 2nd ed. Oxford University Press, 2016
Reference Materials
· Aronson & Groves, Judicial Review of Administrative Action, 6th ed. Thomson Reuters, 2017
· Cane & McDonald, Cases and Materials for Principles of Administrative Law, 2nd ed. OUP, 2013
· Cane & McDonald, Principles of Administrative Law, 2nd ed. OUP, 2012
· Douglas & Head, Douglas and Jones’s: Administrative Law, 7th ed. The Federation Press, 2014
· Lane & Young, Administrative Law in Australia, Thomson Reuters, 2007
· Pearce, D, Administrative Appeals Tribunal. 4rd ed. LexisNexis Butterworths, 2016
· Reilly, Appleby, Grenfell & Lacey, Australian Public Law, OUP, 2011
· Robinson, M, Judicial Review: The Laws of Australia, Thomson Reuters, 2014