The past year in Administrative Law has seen the courts continue to affirm longstanding principles in administrative decision making and, in doing so, the courts have weighed in on how we understand the limits of power, the substance of fairness, and the practical realities of modern decision making.
Across a series of significant decisions from visa cancellations and regulation to housing policy and civil penalties, courts have consistently reinforced a central theme: Administrative law is no longer just about whether power exists, but how it is exercised, perceived, and experienced in practice.
We reflect on the emerging themes that defined the last 12 months.
1. Legal Unreasonableness: A High Threshold, but Not an Empty One
The Full Federal Court’s decision in XKTK v Minister for Immigration confirms that legal unreasonableness remains a high bar, but not an illusory one.
The Court accepted that it was not unreasonable for the Minister to find that the cancellation of the visa was in the ‘national interest’ in order to protect the Australian community, and the Australian community would expect the visa to be cancelled even where:
- removal from the Country is not currently practicable, and
- detention is not available.
The Applicant sought to argue that this reasoning was unreasonable, illogical or irrational. The Court held that although the ‘national interest’ encompassed a broad range of considerations, the Minister was still required to ensure the reasoning:
- was intelligible,
- engaged with the statutory purpose, and
- fell within the broad (and often political) evaluative space given to ministerial decision-makers in assessing the national interest.
Insight:
For government, this reinforces the importance of structured reasoning in decision making, even in relation to a subjective jurisdictional fact allowing the Minister to consider matters affecting the national interest. Although the Court held that when read fairly and as a whole, the decision was not affected by error, this decision also demonstrates the importance of updating decisions in order to address developments in the law or facts as they arise.
2. When ‘Informal’ Action Becomes Reviewable Power
Few cases this year have broader operational impact than eSafety Commissioner v Baumgarten.
The Full Court made clear that:
- a decision does not need to be validly characterised as statutory to be treated as such, and
- the objective effect of a communication, especially on the recipient, is a legitimate consideration.
In this case, a ‘complaint alert’ sent via a platform portal was found, in substance, to operate like a statutory removal notice, triggering review rights and scrutiny.
Critically, the Court endorsed a Lawlor principle that:
A “purported” exercise of power can constitute a decision for review, regardless of the decision-maker’s intention.
Insight:
This is a cautionary tale for modern regulators and agencies. In an era of:
- automated workflows,
- platform engagement, and
- informal enforcement tools,
form will not save you from substance.
The judgment makes clear that external communications capable of influencing rights or interests of an individual may attract:
- merits review, and
- judicial scrutiny.
3. Procedural Fairness Still Bites – Even in Policy-Driven Decisions
The High Court’s decision in Badari v Minister for Territory Families reaffirms a foundational principle:
Common law procedural fairness is presumed, and it is difficult to displace without express legislative provisions.
Even where a decision:
- affects thousands of individuals, and
- implements a broad Cabinet-endorsed policy,
the Court held that fairness obligations persisted because:
- the decision had direct, individualised consequences (rent levels), and
- those consequences varied person-to-person.
Notably, the Court rejected the argument that:
- policy-based decisions, or
- ‘formulaic’ approaches
can eliminate the need to consult.
Insight:
This decision highlights the need for agencies to closely consider whether they can rely on policy as it may not shield decisions from fairness obligations where individuals are affected and the governing legislation does not expressly provide for procedural fairness processes.
It also signals increasing judicial sensitivity to:
- the vulnerabilities of individuals impacted by administrative decisions, and
- the desire to afford procedural fairness even in circumstances where the decision-maker is not obliged to consider the affected individuals in making a decision
4. Bias and Judicial Decision Making: Robust Findings are Not Disqualifying
In SunshineLoans v ASIC, the High Court pushed back against a common litigation strategy, using forceful judicial language as a basis for alleging bias.
Despite strongly worded credibility findings, the Court held:
- there was no reasonable apprehension of bias,
- no reasonable apprehension of bias can arise as a result of a judge properly discharging their judicial function (e.g. by making findings of fact),
- where the relevant legislation allows for bifurcated decision making, judges are not required to ‘reset’ their views between liability and penalty phases of the decision making process.
The key principle reaffirmed:
There must be a logical connection between the alleged source of apprehended bias and a Judge’s departure from the proper course of deciding the case on its legal and factual merits.
Insight:
By this decision, the Courts are signalling that:
- conducting civil penalty proceedings by hearing them in two parts does not give rise to any tension in relation to the orthodox principles of bias and recusal.
- robust fact-finding is part of the judicial function, and
- not every unfavourable finding can be reframed as partiality provided the findings were reasonable and open on the evidence.
5. Freedom of Speech Meets Executive Power at the Border
In Farmer v Minister for Home Affairs, the High Court addressed the intersection of:
- migration decision making, and
- the implied freedom of political communication.
The Court confirmed:
- the freedom of political communication is not a personal right but acts as a limit on legislative and executive power,
- it does not extend to those seeking to enter Australia, and
- restrictions on the freedom can be justified where they serve legitimate purposes (e.g. preventing harmful discord).
Importantly, the Court clarified that:
- ‘inciting discord’ means to ‘stir up’ or encourage real and harmful dissension affecting the community or a segment of the community. It means more than mere disagreement and does not require an intention to cause harm.
Insight:
The decision reinforces the limits on the implied freedom of political communication and the strength of executive decision making at the border, even where decisions intersect with Constitutional freedoms.
Looking Ahead: Administrative Law in a System Under Pressure
The cases this year point to a shift:
1. Substance over Form
Whether it is a ‘complaint alert’ or a policy-driven determination, courts are focused on:
- what decisions do, not what they are called.
2. Expansion of Reviewability
As decision making becomes:
- more digital,
- more informal, and
- more distributed,
what amounts to reviewable conduct is expanding.
3. Renewed Focus on the Individual
Large-scale decisions (housing, migration, regulation) and a move to more efficient decision making (‘on the papers’) will continue to be being assessed through the lens of:
- individual impact, and
- renewed focus on what is the content of fair process.
4. Pressure from Technology
With AI-assisted decisions and automated decision making on the horizon, the principles emerging now, especially around:
- reasoning,
- transparency, and
- fairness,
will only become more critical.
Final Thought
If there is a single takeaway from this year, it is this:
Administrative decision-makers have broad discretion, but that discretion remains constrained by legality — especially reasonableness, procedural fairness, proper characterisation of power, and the need to act within the statutory purpose.
For decision-makers, that means:
- disciplined reasoning,
- careful communication,
- understanding the legal consequences of the decision, and
- meaningful engagement with affected individuals.
It has been a privilege to work alongside our clients in a year, that continues to consider the boundaries of power, process and perception in Administrative Law.
If any of these themes are relevant to your organisation, we would welcome the conversation.
Sarah Thompson
Partner
T: +61 3 8372 1117
Tegan Weir
Special Counsel
T: +61 3 8687 7343
https://www.moray.com.au/insights-events/media-release/administrative-law-decisions-year-in-review/