Administrative law is about the legal rules and institutions aimed at keeping the ‘governors’ (principally, decision-makers in the executive arm of government) ‘accountable’. For this reason administrative law is at the coal-face of the legal relationship between the governors and the governed.
Judicial review is an important aspect of administrative law which focuses on the relationship between the courts and the executive arm of government. This course will cover the most of the significant legal principles that arise in judicial review applications, though it will not be possible to cover the law in a comprehensive way. An important goal is to identify and consider important current trends and problems in the law of judicial review.
Topics to be covered include:
1.    The Scope of Judicial review (ie judicial review jurisdiction)
2.     Judicial review remedies
3.     The legality/merits distinction and jurisdiction error
4.     Jurisdictional facts and rationality review
5.     Excluding procedural fairness obligations
6.     The content of procedural fairness (and national security)
7.     Relevant considerations
8.     Unreasonableness and Reasons
9.     Judicial review of rule-making
10.     Statutory Attempts to Restrict Judicial Review
11.     Standing
12.    The Impact of Judicial Review

 

Learning Outcomes

Upon successful completion, students will have the knowledge and skills to:

1. Identify, explain and distinguish the major principles relating to judicial review of administrative action;
2. Research, identify and critically examine recent cases to identify trends in judicial review;
3. Research, critically evaluate and apply the functional impact of court review on government administrative decision-making
4. Demonstrate, at masters level, the ability to plan and execute a research project applying legal research principles and methodologies through critical, detailed analysis.

Research-Led Teaching

The course will include consideration of current research and contemporary issues and taught by scholar who actively publishes in the area of judicial review of government action.

Recent papers in administrative law include:

• ‘The Purpose of Administrative Law and the Legitimacy of Administrative Government’ (2019) Public Law Review (forthcoming)
• ‘Jurisdictional Error as Conceptual Totem’ (2019) UNSW Law Journal 1019
• ‘Graham and the Constitutionalisation of Australian Administrative Law' (2018) 91 AIAL Forum 47
• ‘The Normative Structure of Australian Administrative Law’ (2017) 45 Federal Law Review 153 (with Will Bateman)
• ‘Reasons, Reasonableness and Intelligible Justification in Judicial Review’ (2015) 37 Sydney Law Review 467
• 'Rethinking Unreasonableness Review' (2014) 25 Public Law Review 117

The major assessment provides an opportunity for students to produce their own research. The class presentation provides an opportunity for feedback on a research plan.

Required Resources

In view of the intensive nature of the course, the expectation is that required readings are read prior to classes. The course is split into two teaching blocks to facilitate this.

The required reading will be available in an E-Brick, which will be posted on the course Wattle site. A detailed ‘Course Overview and Reading Guide’ will also be posted on the course Wattle page, along with a timetable of session topics for each block of classes. Students should consult the reading questions in the course overview document when preparing for class.

Although there is no prescribed text, students who have not studied administrative law recently may find it useful to consult Peter Cane, Leighton McDonald and Kristen Rundle, Principles of Administrative Law, 3rd ed (OUP, 2018) to help understand the required readings in the context of a bigger picture. This text is available in the library or for purchase at the Harry Hartog bookshop in Kambri. Another option for background reading is Matthew Groves (ed), Modern Administrative Law in Australia: Concepts and Context (Cambridge University Press, 2014), which contains a number of helpful essays.

Recommended Resources

Recommended reading will also be included in the E-brick on the course WATTLE page.

Staff Feedback

Students will be given feedback in the following forms in this course:

• Written comments
• Verbal comments
• Feedback to the whole class, to groups, to individuals, focus groups

Student Feedback

ANU is committed to the demonstration of educational excellence and regularly seeks feedback from students. Students are encouraged to offer feedback directly to their Course Convener or through their College and Course representatives (if applicable). The feedback given in these surveys is anonymous and provides the Colleges, University Education Committee and Academic Board with opportunities to recognise excellent teaching, and opportunities for improvement. The Surveys and Evaluation website provides more information on student surveys at ANU and reports on the feedback provided on ANU courses.

Other Information

Task submission times refer to Canberra time (AEST/AEDT).

Extensions late submission and penalties: https://law.anu.edu.au/current-students/policies-procedures/extensions-late-submission-and-penalties

Deferred examination: http://www.anu.edu.au/students/program-administration/assessments-exams/deferred-examinations

Special consideration: http://www.anu.edu.au/students/program-administration/assessments-exams/special-assessment-consideration

Penalties for excess word length: https://law.anu.edu.au/current-students/policies-procedures/word-length-and-excess-word-penalties

Further Information about the course: is available from the course WATTLE page. Students are required to access the WATTLE site regularly throughout the course for any announcements relating to the course.

Class Schedule

Week/Session	Summary of Activities	Assessment
1	This is a semi-intensive course that will be delivered Thu, Fri 9am-1pm from 5 Aug to 13 Aug, 23 Sep to 1 Oct. Judicial review jurisdiction
2	Judicial review remedies and the resurgence of ‘jurisdictional error’
3	The centrality of jurisdictional error?
4	Jurisdictional error and common sense: the threshold of materiality
5	Excluding procedural fairness obligations (and the principle of legality)
6	Procedural Fairness, non-compellable powers and the legal control of discretion
7	Content of Procedural Fairness: recent cases
8	Jurisdictional Facts and Rationality Review
9	Unreasonableness and Reasons
10	The Consideration Grounds
11	Soft Law and Inflexibility
12	Standing
13	Techniques to Restrict Judicial Review
14	Making sense of Australian Judicial Review Law
15	Student presentations

Assessment Summary

Assessment task	Value	Due Date	Return of assessment	Learning Outcomes
Class Participation	10 %	*	08/10/2021	1,2,3,4
Research Essay Plan and Presentation	15 %	*	08/10/2021	1,2,3,4
Research Essay	75 %	01/11/2021	13/11/2021	1,2,3,4

* If the Due Date and Return of Assessment date are blank, see the Assessment Tab for specific Assessment Task details

Policies

ANU has educational policies, procedures and guidelines, which are designed to ensure that staff and students are aware of the University’s academic standards, and implement them. Students are expected to have read the Academic Misconduct Rule before the commencement of their course. Other key policies and guidelines include:

• Student Assessment (Coursework) Policy and Procedure
• Special Assessment Consideration Policy and General Information
• Student Surveys and Evaluations
• Deferred Examinations
• Student Complaint Resolution Policy and Procedure

Assessment Requirements

The ANU is using Turnitin to enhance student citation and referencing techniques, and to assess assignment submissions as a component of the University's approach to managing Academic Integrity. For additional information regarding Turnitin please visit the ANU Online website Students may choose not to submit assessment items through Turnitin. In this instance you will be required to submit, alongside the assessment item itself, hard copies of all references included in the assessment item.

Moderation of Assessment

Marks that are allocated during Semester are to be considered provisional until formalised by the College examiners meeting at the end of each Semester. If appropriate, some moderation of marks might be applied prior to final results being released.

Participation

For all courses taught in any mode (whether face to face or online), the ANU College of Law considers participation in the classes offered to be an important part of the educational experience of the graduate program. Students are expected to attend all classes.

If circumstances arise which are beyond a student’s control and they are unable to attend a class, the student should contact the Course Convenor in advance (where possible), so that the convenor can adjust their expectations in relation to numbers for that class. If it is not possible to give advance notice, students should send the convenor an email as soon as possible with evidence to support the reason for failure to attend. 

Assessment Task 1

Class Participation

Nature of the task: Students will be asked to participate in discussion and engage in exercises throughout the course. For this reason it is very important to consult the Course Overview and Reading Guide available on the course WATTLE page well and to undertake the required reading prior to class. Students will also be asked to provide feedback on presentations by other students.

Weighting: 10%

Assessment criteria

Marks will be awarded on the basis of:

• Quality of the contribution to class discussion, demonstrating an understanding of the material being discussed and issues being considered.
• Engagement in group and individual exercises throughout the course in a way which demonstrates an understanding of the issues being explored through the exercises.
• Willingness and ability to provide constructive and practical feedback to other students after listening to their presentations.

Participation marks will be allocated within approximately a week of the completion of the course.

Return of assessment date: 8 October 2021.

Assessment Task 2

Research Essay Plan and Presentation

Nature of the task: This task is compulsory. Failure to present the essay plan, or hand in your outline, will result in a mark of 0 for the task. Students will be given the opportunity to present an essay plan. Students are required to propose their own topics. Topics must be approved by the convenor, and it may not be possible to allocate all students their preferred presentation/essay topic (given the need to avoid unhelpful overlap in the use of class time students may not be able to present on a topic which is too close to a topic about which another student has already had a topic approved.)

All topics should be approved prior to or by 13 August 2021 at the latest. Students are invited to discuss potential topics with the Convenor at any time leading up to the start of the course and during the first two days of classes. If students are struggling to find topics, then the convenor will assist with the process of developing an appropriate topic.

The order of presentations will be finalised by a week prior to the second block of intensive classes of the course and notified to students on the course WATTLE page.

 

Presentations will be approximately 20 minutes and will include 5-10 minutes for questions on each presentation. The exact time allocated for presentations will be advised during or soon after the first block of intensive classes (as it depends in part on final enrolment numbers). Students must provide a 1-2 page outline of their presentation at the time of delivery.

 

There are two alternative approaches that may be taken to the essay plan presentation:

1.   Present a structured essay plan which:

• Sets out what you propose to investigate (ie clearly states your essay question)
• Explains the significance of the topic
• Explains the structure you propose
• Gives a sense of the overall argument you expect to make and the contribution the paper will make to the literature, and
• Presents, at least in preliminary form, your argument or a key aspect of it.

 

2.   Critically assess an important source/s (article, book, case, report, etc) for your essay, which involves

• An explanation of why the source is significant in the context of your chosen essay question
• Makes an argument about that source and indicates why that argument will be of importance in the context of the essay

 

Weighting: 15%

Assessment criteria

Presentations will be assessed on the quality of oral presentation—that is, the clarity of argument and ability to engage the class and stimulate discussion—and the extent the presentation:

• demonstrates an understanding of the context and issues involved in the chosen essay question;
• enhances the audience’s understanding of the context and issues involved in the chosen area;
• provides an indication of the contribution the student is expecting to make in exploring the issue further in their essay;
• suggests at least an initial exploration of the issue through relevant and appropriate research into the topic area; and
• provides a critical and constructive analysis of the material presented.

The main, overarching, criterion of assessment is depth of thinking, which applies to all areas of assessment in this course. Depth of thinking is the extent to which you are able to analyse, synthesise, abstract and generalise the principles, practices, concepts, arguments, or theories being considered to make an argument.

 

Submission Date: Presentations will be scheduled on Day 3 or 4 of the course. Due to the nature of the task, late submission or extension is not permitted.

Return of assessment date: 8 October 2021.

Assessment Task 3

Research Essay

Nature of the task: This task is compulsory. If you do not submit an essay you will receive a mark of 0 for the task. The main component of assessment in this course will involve completion of a 4000-5000 word essay. Any substantial changes to the essay topic, approved for the purposes of the class presentation, must be approved by the course convenor at least 3 weeks prior to submission.

Length: 4000-5000 words

Weighting: 75%

Assessment criteria

The essay will be assessed on the extent it:

• demonstrates a sophisticated understanding of the context and issues involved in the chosen topic.
• enhance the reader’s understanding of the context and issues involved in the chosen topic
• makes an interesting and illuminating contribution to the scholarship or commentary on the chosen topic
• makes appropriate use of extensive, relevant and considered research into the chosen topic
• provides a critical and constructive analysis of the material, scholarship and commentary available on the chosen topic
• conforms to the citation style set out in the Australian Guide to Legal Citation, 4th ed.

 The main, overarching, criterion of assessment is depth of thinking, which applies to all areas of assessment in this course. Depth of thinking is the extent to which you are able to analyse, synthesise, abstract and generalise the principles, practices, concepts, arguments, or theories being considered.

Submission date: 5pm, Friday 1 November 2021. Late submissions (without an extension) are permitted, but late penalties will apply. 

Return of assessment date: 13 November 2021

Academic Integrity

Academic integrity is a core part of our culture as a community of scholars. At its heart, academic integrity is about behaving ethically. This means that all members of the community commit to honest and responsible scholarly practice and to upholding these values with respect and fairness. The Australian National University commits to embedding the values of academic integrity in our teaching and learning. We ensure that all members of our community understand how to engage in academic work in ways that are consistent with, and actively support academic integrity. The ANU expects staff and students to uphold high standards of academic integrity and act ethically and honestly, to ensure the quality and value of the qualification that you will graduate with. The University has policies and procedures in place to promote academic integrity and manage academic misconduct. Visit the following Academic honesty & plagiarism website for more information about academic integrity and what the ANU considers academic misconduct. The ANU offers a number of services to assist students with their assignments, examinations, and other learning activities. The Academic Skills and Learning Centre offers a number of workshops and seminars that you may find useful for your studies.

Online Submission

The ANU uses Turnitin to enhance student citation and referencing techniques, and to assess assignment submissions as a component of the University's approach to managing Academic Integrity. While the use of Turnitin is not mandatory, the ANU highly recommends Turnitin is used by both teaching staff and students. For additional information regarding Turnitin please visit the ANU Online website.

Hardcopy Submission

For some forms of assessment (hand written assignments, art works, laboratory notes, etc.) hard copy submission is appropriate when approved by the Associate Dean (Education). Hard copy submissions must utilise the Assignment Cover Sheet. Please keep a copy of tasks completed for your records.

Late Submission

Individual assessment tasks may or may not allow for late submission. Policy regarding late submission is detailed below:

• Late submission not permitted. If submission of assessment tasks without an extension after the due date is not permitted, a mark of 0 will be awarded.
• Late submission permitted. Late submission of assessment tasks without an extension are penalised at the rate of 5% of the possible marks available per working day or part thereof. Late submission of assessment tasks is not accepted after 10 working days after the due date, or on or after the date specified in the course outline for the return of the assessment item.
• Late submission is not accepted for take-home examinations.
• Late submission with an extension. To ensure equity for all students, the 5% penalty per working day for late submission of work does not apply if you have been given an extension. Where an extension is granted, the revised due date and submission time is provided in writing. Please note that the revised due date is calculated by including weekends and public holidays. Regardless of which day of the week the revised due date falls on, students who submit after that date are penalised by 5% of the possible marks available for the assessment task per day or part thereof.

Referencing Requirements

Accepted academic practice for referencing sources that you use in presentations can be found via the links on the Wattle site, under the file named “ANU and College Policies, Program Information, Student Support Services and Assessment”. Alternatively, you can seek help through the Students Learning Development website.

Extensions and Penalties

Extensions and late submission of assessment pieces are covered by the Student Assessment (Coursework) Policy and Procedure The Course Convener may grant extensions for assessment pieces that are not examinations or take-home examinations. If you need an extension, you must request an extension in writing on or before the due date. If you have documented and appropriate medical evidence that demonstrates you were not able to request an extension on or before the due date, you may be able to request it after the due date.

Privacy Notice

The ANU has made a number of third party, online, databases available for students to use. Use of each online database is conditional on student end users first agreeing to the database licensor’s terms of service and/or privacy policy. Students should read these carefully. In some cases student end users will be required to register an account with the database licensor and submit personal information, including their: first name; last name; ANU email address; and other information. In cases where student end users are asked to submit ‘content’ to a database, such as an assignment or short answers, the database licensor may only use the student’s ‘content’ in accordance with the terms of service — including any (copyright) licence the student grants to the database licensor. Any personal information or content a student submits may be stored by the licensor, potentially offshore, and will be used to process the database service in accordance with the licensors terms of service and/or privacy policy. If any student chooses not to agree to the database licensor’s terms of service or privacy policy, the student will not be able to access and use the database. In these circumstances students should contact their lecturer to enquire about alternative arrangements that are available.

Distribution of grades policy

Academic Quality Assurance Committee monitors the performance of students, including attrition, further study and employment rates and grade distribution, and College reports on quality assurance processes for assessment activities, including alignment with national and international disciplinary and interdisciplinary standards, as well as qualification type learning outcomes. Since first semester 1994, ANU uses a grading scale for all courses. This grading scale is used by all academic areas of the University.

Support for students

The University offers students support through several different services. You may contact the services listed below directly or seek advice from your Course Convener, Student Administrators, or your College and Course representatives (if applicable).

• ANU Health, safety & wellbeing for medical services, counselling, mental health and spiritual support
• ANU Diversity and inclusion for students with a disability or ongoing or chronic illness
• ANU Dean of Students for confidential, impartial advice and help to resolve problems between students and the academic or administrative areas of the University
• ANU Academic Skills and Learning Centre supports you make your own decisions about how you learn and manage your workload.
• ANU Counselling Centre promotes, supports and enhances mental health and wellbeing within the University student community.
• ANUSA supports and represents undergraduate and ANU College students
• PARSA supports and represents postgraduate and research students