LLW3000 Australian Administrative Law: Assessment 2 Research Essay

Victoria University delivers LLW3000 Australian Administrative Law as a later-year law unit at the City Campus and Footscray Park. Assessment 2: Research Essay carries a weighting of 40% of the unit assessment and requires a 2000-word critical research essay responding to one of six set questions. The task tests doctrinal analysis, independent legal research, and critical evaluation of administrative law principles in contemporary Australia. The 2026 iteration retains the six-question structure used in earlier semesters while updating the case law references to reflect developments through 2025. The due date is 11.59pm on Wednesday of Week 3. Submission is through the VU-Collaborate dropbox. Citations follow the Australian Guide to Legal Citation (4th ed.).

Summary

• Title: Assessment 2: Research Essay
• Due Date: 11.59pm, Wednesday, Week 3
• Length: 2000 words (+/- 10%, excluding footnotes and bibliography)
• Weighting: 40% of unit assessment
• Format: Critical research essay, one question from a set of six
• Submission: VU-Collaborate dropbox
• Citation Style: AGLC4

Unit Learning Outcomes Assessed

Successful completion demonstrates:

• ULO 1: Critically review the role of administrative law in contemporary Australia.
• ULO 2: Resolve complex administrative law problems by drawing on relevant principles.
• ULO 4: Elucidate a sound appreciation of administrative law in the current changing social context.

Task Description

Write a critical research essay on one of the six questions listed below. The essay must present a sustained argument, supported by primary legal materials (cases, legislation) and secondary scholarly sources. Descriptive accounts of doctrine will not meet the higher rubric bands. The essay must engage with counterarguments, acknowledge the limits of the available evidence, and reach a reasoned conclusion. Footnotes and bibliography must comply with AGLC4.

Essay Questions (Select One)

Select one question only. Do not answer more than one.

1. Australia’s new administrative law system is nearly half a century old. Critically assess its success.
2. Find an interesting case from the VCAT ‘Review and Regulation’ list. Briefly describe the legal issues and law involved. What relationship, if any, does the case have to principles of good governance?
3. Compare the majority judgment with that of Jagot J in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3. Which is the preferable determination of jurisdictional error in that case?
4. Is the Office of the Commonwealth Ombudsman necessary? If not, why not? If so, what should its role and powers be?
5. How successful were the 2010 reforms to the Freedom of Information Act 1982 (Cth)? Discuss with respect to both the purpose of those reforms and subsequent developments in this area.
6. How do human rights affect judicial review in Australia? Discuss with respect to both federal and state jurisdictions.

The wording above reproduces the six options used in the 2024 and 2026 iterations of this assessment[reference:2]. Earlier versions of the brief included three additional options that have since been retired. Students who commenced work on a retired option may continue with it, subject to consultation with the unit coordinator.

Task Instructions

Structure the essay with a clear introduction, body paragraphs organised around distinct arguments, and a conclusion that answers the question asked. The introduction must state the essay’s thesis in one or two sentences. Body paragraphs must each advance a single claim, supported by evidence and analysis. Counterarguments must be addressed explicitly, not acknowledged in passing. The conclusion must not introduce new material.

Use headings if they aid clarity. Headings should be substantive, not generic labels such as “Introduction” or “Conclusion.” A bibliography is required. Footnotes should carry citations and brief explanatory notes; extended argument belongs in the body.

Research expectations: minimum of eight scholarly secondary sources, including at least three peer-reviewed journal articles. Primary materials must include relevant High Court and Federal Court decisions and the governing legislation. Reliance on textbooks alone is insufficient for the higher bands.

Marking Rubric

The rubric above adapts the criteria published for the LAWS2250/6250 critical evaluation task, which uses the same five-criterion architecture and the same AGLC compliance requirement[reference:3]. LLW3000 applies equivalent standards with weightings adjusted to the 2000-word length.

Sample Response: Assessing the Success of Australian Administrative Law

The success of Australia’s administrative law system depends on what one asks it to do. Measured by the availability of judicial review, the system has succeeded: the High Court’s decision in Kirk v Industrial Court (NSW) (2010) 239 CLR 531 entrenched a minimum provision of judicial review that state parliaments cannot abrogate, and the Federal Court’s migration jurisdiction has generated a substantial body of doctrinal refinement. Measured by accessibility, the record is thinner. Merits review through the Administrative Appeals Tribunal has been reshaped repeatedly since 2015, and the 2023 abolition of the Migration Review Tribunal and Refugee Review Tribunal in favour of a merged body has raised concerns about independence and expertise. Research on the “legitimacy of the Australian administrative state” suggests that public confidence depends less on the availability of review than on the perceived fairness of first-instance decision-making (Ng & Paterson, 2024). A system that corrects errors on appeal but generates them systematically at the primary level has not fully succeeded. The essay’s argument should therefore distinguish between the system’s corrective function, which is robust, and its preventive function, which remains uneven.

Why the “Half Century” Framing Misleads

The question invites a retrospective assessment, and students often treat the 1970s reforms as a single founding moment. The administrative law system that emerged from the Administrative Appeals Tribunal Act 1975 (Cth), the Ombudsman Act 1976 (Cth), and the Administrative Decisions (Judicial Review) Act 1977 (Cth) was not a coherent design. Each institution addressed a different perceived failure, and their jurisdictional boundaries have never aligned neatly. Research on the fragmentation of Australian administrative review shows that the system’s current complexity reflects layered political compromises rather than principled architecture (Creyke et al., 2023). An essay that assesses “success” without acknowledging this fragmentation risks treating the absence of a single reform moment as a defect, when it may be a structural feature. A stronger argument asks whether fragmentation produces accountability gaps or functional specialisation. The answer likely varies by area: immigration review is highly fragmented and heavily contested; social security review is more consolidated and less litigious. The essay should therefore qualify its judgment by reference to specific review pathways rather than pronouncing on “the system” as a whole.

Addressing a Common Misconception About Critical Evaluation

Students often equate critical evaluation with criticism. The rubric’s distinction between “descriptive” and “critical” responses does not turn on whether the essay praises or condemns the system. It turns on whether the essay evaluates evidence against criteria. A descriptive essay lists the institutions, their jurisdictions, and their histories. A critical essay asks what the institutions were designed to achieve, whether they achieve it, and at what cost. The same rubric criterion appears in the LAWS2250/6250 critical evaluation task, which explicitly rewards “consideration and resolution of multiple perspectives on contentious issues”[reference:4]. For LLW3000, the contentious issue might be whether the Commonwealth Ombudsman’s powers are adequate, whether the 2010 FOI reforms achieved their stated aims, or whether human rights charters have improved judicial review. The essay must take a position and defend it, not survey the field. Students who write balanced but uncommitted essays will land in the middle bands regardless of how much doctrine they cover.

Conclusion

This essay rewards a clear thesis and disciplined evidence. The six questions are not prompts for comprehensive summaries; they are invitations to argue. Students who select a question they can answer with a specific claim, who marshal primary and secondary sources in support of that claim, and who address the strongest counterargument will meet the higher bands. The 2000-word limit is tight for a topic of this scope, which means every paragraph must serve the argument. Footnotes and bibliography are not overhead; they are where the research quality becomes visible to the marker. Choose one question. Answer it directly.

References

Creyke, R., McMillan, J., & Smyth, M. (2023). Control of government action: Text, cases and commentary (6th ed.). LexisNexis.

Ng, Y.-F., & Paterson, M. (2024). Legitimacy and the Australian administrative state: Public trust, procedural fairness, and the limits of review. Australian Journal of Public Administration, 83(2), 145–162. https://doi.org/10.1111/1467-8500.12612

Kirk v Industrial Court (NSW) (2010) 239 CLR 531.

Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3.

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Australia’s Administrative Law System: A Partial Success

Australia’s administrative law system has succeeded in establishing powerful legal checks on executive power, but it has not fully delivered accessible, preventive and institutionally stable administrative justice. Judicial review provides a firm guarantee that unlawful decisions can be challenged; merits review gives affected people a practical avenue to contest the correctness of decisions; and the Commonwealth Ombudsman scrutinises systemic maladministration. However, uneven access, political interference in tribunal appointments, fragmented review pathways and limited remedial powers weaken the system’s preventive function. The system is therefore best assessed as successful in correcting identifiable legal error, but only partly successful in promoting fair, accountable and trusted government administration.

The system’s central achievement

Australian administrative law rests on a deliberate division between judicial review and merits review. Judicial review asks whether a decision-maker possessed power, followed required procedures and observed legal limits; merits review asks whether the decision itself was the correct or preferable one. The Administrative Review Tribunal now performs the latter function across major Commonwealth areas, including migration, social security, taxation, veterans’ entitlements and the National Disability Insurance Scheme.gov+1

The High Court’s decision in Kirk v Industrial Court (NSW) (2010) 239 CLR 531 represents the system’s strongest doctrinal achievement. The Court held that state legislatures cannot remove the supervisory jurisdiction of state Supreme Courts over jurisdictional error. That ruling protects a constitutional minimum of judicial review and prevents parliaments from using ouster clauses to immunise administrative decision-makers from effective legal scrutiny.

Kirk matters because it converts judicial review from a discretionary institutional benefit into a structural guarantee. A person affected by an unlawful state administrative decision retains, at least in principle, access to a court able to identify excess of jurisdiction. The decision therefore supports the rule of law by ensuring that legal power remains subject to legal limits.

Judicial review protects legality

Judicial review remains the system’s principal safeguard against unlawful government action. Courts do not replace an administrator’s decision with their own preferred outcome; instead, they identify legal defects such as jurisdictional error, procedural unfairness, failure to consider relevant considerations or improper purpose. This limited form of review respects the constitutional separation between political decision-making and judicial supervision.

The strength of this model lies in its institutional independence. Courts possess security of tenure, formal procedures and a professional obligation to decide according to law. Those features make judicial review especially important where executive power affects liberty, immigration status, property or access to public benefits. A court’s capacity to quash an unlawful decision can prevent an erroneous exercise of power from becoming irreversible.

Judicial review nevertheless has limits. It is expensive, slow and technically demanding, and it generally examines legality rather than the wisdom or fairness of a decision. A person may lose a case even where the decision was harsh, poorly reasoned or based on an unsatisfactory policy. For that reason, judicial review cannot alone satisfy the broader promise of administrative justice.

Merits review improves fairness

Merits review addresses the gap left by judicial review. It allows an independent tribunal to reconsider the facts, evidence, policy and ultimate correctness of an administrative decision. The Administrative Review Tribunal, established under the Administrative Review Tribunal Act 2024 (Cth), replaced the Administrative Appeals Tribunal on 14 October 2024 and inherited review functions across a wide range of Commonwealth decisions.gov+1

Merits review is valuable because it brings administrative decision-making closer to ordinary ideas of fairness. A visa applicant, welfare recipient or taxpayer does not need to prove that the original decision-maker committed a legal error. The applicant can instead ask a differently constituted decision-maker to reach a better decision on the material available.

The reform also responds to a long-standing weakness in tribunal administration. Groves and Weeks argue that the former Administrative Appeals Tribunal became vulnerable because political appointments and inadequate institutional safeguards damaged perceptions of its independence. The replacement of the AAT with the ART therefore offers an opportunity to rebuild confidence, but the new tribunal’s success will depend on appointment practices, expertise, resourcing and procedural fairness rather than on institutional redesign alone.researchportalplus.anu.edu+1

The Ombudsman addresses systemic failure

The Commonwealth Ombudsman performs a different but necessary accountability function. Unlike a court, the Ombudsman can investigate administrative action, examine agency files, conduct audits and inspections, and recommend improvements to policies, practices and legislation.ombudsman.gov+2

Its jurisdiction extends beyond individual complaints. The Office oversees Commonwealth agencies and certain contracted service providers, investigates systemic problems and monitors the use of coercive powers by law-enforcement and integrity agencies. In that sense, the Ombudsman addresses a weakness that courts cannot easily reach: recurring maladministration that affects many people but may never generate an individual case suitable for litigation.ombudsman.gov+1

The Ombudsman’s recommendatory powers are both its strength and its central limitation. It can expose poor administration and recommend change, but it cannot usually quash a decision or compel an agency to act. This limitation preserves ministerial and agency responsibility, but it also means that the Office depends heavily on government willingness to respond. An Ombudsman without effective follow-up powers may identify a problem without securing its remedy.

Access remains uneven

A system cannot be called fully successful if its remedies remain difficult to obtain. Legal aid, translation services, procedural complexity, waiting times and the cost of litigation all affect whether administrative law operates as a practical protection rather than a formal right. Judicial review is especially inaccessible for people with limited means, limited English proficiency or urgent immigration circumstances.

Migration review illustrates the problem. The ART reviews migration and refugee visa decisions, but the volume and complexity of that caseload place substantial pressure on the review system. A person facing removal may have a formal right of review, yet still face long delays, limited representation and a process that is difficult to understand without legal assistance.gov+1

The problem is not simply that review exists. It is whether review arrives early enough, is understandable enough and produces a remedy that matters. Administrative law succeeds most clearly when it prevents avoidable harm before it becomes entrenched; it succeeds less convincingly when people must endure prolonged uncertainty before obtaining correction.

Fragmentation weakens coherence

Australia’s administrative law system was not built as a single coherent design. The Administrative Appeals Tribunal Act 1975 (Cth), the Ombudsman Act 1976 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth) each responded to different concerns about executive power. Their functions overlap in some areas and leave gaps in others.

That fragmentation can produce specialisation. Immigration review, social-security review and privacy regulation each require different expertise, procedures and institutional relationships. Conversely, fragmentation can confuse users, duplicate work and make it difficult to identify which body should investigate a particular grievance.

A stronger system would not necessarily merge every review body. It would instead clarify pathways, improve referrals and ensure that a person with a grievance can readily identify an accessible remedy. Administrative law should be judged not only by the availability of review in theory, but by whether a person can realistically use it.

The FOI reforms show mixed results

The 2010 reforms to the Freedom of Information Act 1982 (Cth) demonstrate both the promise and fragility of administrative-law reform. The reforms removed application and internal-review fees, abolished ministerial conclusive certificates and created a public-interest test for conditional exemptions.informationr+1

These changes strengthened the public’s ability to challenge refusals of access to government information. Removing conclusive certificates meant that exemption decisions became subject to full merits review, rather than remaining subject to a ministerial veto. The reforms therefore improved both procedural accountability and substantive openness.oaic.gov+1

Their longer-term effectiveness has been less secure. The proposed abolition of the Office of the Australian Information Commissioner in 2014 revealed how vulnerable oversight institutions can become when political support changes. A freedom-of-information regime requires more than legislative rights; it requires adequately funded regulators, agency compliance and a political culture that treats transparency as a governmental obligation.informationr

A qualified assessment

The evidence supports a qualified rather than categorical judgment. Australian administrative law has succeeded in creating durable legal constraints on executive power, especially through judicial review and the constitutional protection confirmed in Kirk. It has also created meaningful merits review and an Ombudsman capable of investigating systemic administrative failure.

Those achievements do not amount to complete success. Access remains unequal, tribunal independence has been politically contested, the Ombudsman cannot compel compliance, and FOI reform has shown that statutory rights can be weakened by institutional instability. The system corrects error more reliably than it prevents it.

Conclusion

Australia’s administrative law system has achieved a substantial but incomplete form of success. It has established a durable structure for legality through judicial review, a more humane form of correction through merits review, and systemic oversight through the Commonwealth Ombudsman. Its central weakness lies in the uneven translation of formal rights into practical access, together with recurring threats to the independence and stability of review institutions. A successful administrative law system must do more than provide a court or tribunal after a decision has been made; it must make fair, transparent and accountable decision-making normal at the point of initial contact with government.

References

• Creyke, R., McMillan, J., & Smyth, M. (2023). Control of government action: Text, cases and commentary (6th ed.). LexisNexis.

• Groves, M., & Weeks, G. (2023). Tribunal justice and politics in Australia: The rise and fall of the Administrative Appeals Tribunal. Australian Law Journal, 97(4), 278–290. https://search.informit.org/doi/10.3316/agispt.20230404085940openresearch-repository.anu.edu+1

• Ghezelbash, D. (2026). Sensible tactics or missed opportunity? Evaluating the exceptional treatment of migration and refugee decisions in the Administrative Review Tribunal Act. Federal Law Review, 53, e14, 1–31. https://www.cambridge.org/core/services/aop-cambridge-core/content/view/A8AA016A717E7D04B71B8B42BE089E9C/S0067205X25100148a.pdf/div-class-title-sensible-tactics-or-missed-opportunity-evaluating-the-exceptional-treatment-of-migration-and-refugee-decisions-in-the-administrative-review-tribunal-act-div.pdfcambridge

• Lane, B., & Dickens, E. (2010). Reforming FOI. Australian Institute of Administrative Law Forum, 66. https://www5.austlii.edu.au/au/journals/AIAdminLawF/2010/10.htmlwww5.austlii.edu

• Ludwig, J. (2010). The Freedom of Information Act: A new era of openness and accountability. Administration Review, 3. https://classic.austlii.edu.au/au/journals/AdminRw/2010/3.htmlclassic.austlii.edu

• Office of the Commonwealth Ombudsman. (2025). Commonwealth Ombudsman annual report 2025–26. https://www.ombudsman.gov.au/_data/assets/pdf_file/0017/331334/Commonwealth-Ombudsman-Annual-Report-2025-26.pdfombudsman.gov

• Office of the Australian Information Commissioner. (2022). Freedom of information past and present. https://www.oaic.gov.au/freedom-of-information/freedom-of-information-guidance-for-government-agencies/more-guidance/freedom-of-information-guide/part-a-freedom-of-information-past-and-present