Open Government and Administrative Law: WACE Year 12 Politics and Law
“Analyse the mechanisms of open government and administrative law and evaluate how effectively they hold the executive to account”
Open government and administrative law hold the executive accountable for its decisions. Freedom of information laws make government records accessible, the ombudsman investigates maladministration, and review of decisions occurs through merits review in tribunals and judicial review in the courts. Each targets a different weakness in executive power.
What this dot point is asking
The executive makes an enormous number of decisions affecting individuals, from welfare and visas to licences and tax. SCSA wants you to map the mechanisms that keep this decision-making accountable and to evaluate how well they work, distinguishing the different tools rather than lumping them together.
Open government and freedom of information
Open government means decisions and information are made accessible so the public and the media can scrutinise the executive. The central tool is freedom of information (FOI) legislation, which gives people a legal right to access documents held by government agencies, subject to exemptions for matters such as national security, cabinet deliberations and personal privacy. FOI supports accountability by exposing the basis of decisions and deterring misconduct. A balanced evaluation notes weaknesses: broad exemptions, delays, fees, and the practice of conducting sensitive discussions informally to avoid creating records.
A statutory right of access to documents held by government agencies and ministers, subject to defined exemptions, designed to make government more open and accountable.
The ombudsman
The ombudsman is an independent officer who investigates complaints about the administrative actions of government departments and agencies, focusing on maladministration such as unreasonable delay, error, unfairness or failure to follow proper process. The ombudsman can investigate, make findings and recommend remedies, and report to Parliament, which adds political pressure. Its strength is that it is free, accessible and investigative. Its main limitation is that its recommendations are not legally binding, so it relies on persuasion and publicity rather than enforceable orders.
Merits review and tribunals
Administrative review comes in two distinct forms, and the syllabus expects you to separate them. Merits review reconsiders a decision on its facts and merits and can substitute a new, correct or preferable decision. It is conducted by tribunals, which are cheaper, faster and less formal than courts. The reviewer effectively stands in the shoes of the original decision-maker and asks what the right decision is. This is the most common way ordinary people challenge government decisions about benefits, visas or licences.
Judicial review
Judicial review is different: a court reviews the legality of a decision, not its merits. It asks whether the decision-maker had the power, followed a lawful process (including natural justice), considered relevant matters and ignored irrelevant ones, and acted reasonably. If the decision is unlawful, the court can quash it and send it back to be remade, but it generally cannot substitute its own decision on the merits. Judicial review enforces the rule of law over the executive and is grounded in the courts' supervisory role.
Merits review (tribunals) asks what the correct or preferable decision is and can replace it. Judicial review (courts) asks only whether the decision was lawful and can quash it but not remake it on the merits. Mixing these up is the most common error in this topic.
Evaluating effectiveness
When you evaluate, judge the system as a layered set of checks. Strengths include multiple complementary avenues (cheap merits review, free ombudsman investigation, and authoritative judicial review), reinforced by open-government laws. Weaknesses include the cost and complexity of judicial review, the non-binding nature of ombudsman recommendations, FOI exemptions and delays, and the ability of Parliament to limit review rights through privative clauses. Use a contemporary example, such as the Robodebt scheme, where a royal commission and litigation exposed unlawful automated decision-making, to show both the failure that prompted accountability and the mechanisms that ultimately responded.
A common task gives a scenario and asks how a person can challenge a government decision. Work through it in steps.
Step 1: Identify what the person wants
If they think the decision is wrong on the facts and want a different outcome, that points to merits review. If they think the decision was made unlawfully, that points to judicial review.
Step 2: Apply merits review
Explain that a tribunal can reconsider the decision on its merits and substitute the correct or preferable decision, cheaply and informally. This suits a disputed visa or benefits decision.
Step 3: Apply judicial review
Explain that a court checks only legality: power, lawful process, natural justice and reasonableness. It can quash an unlawful decision and send it back, but cannot remake it on the merits.
Step 4: Add open-government tools
Note that freedom of information can reveal the documents behind the decision and the ombudsman can investigate maladministration, supporting either review path. Conclude by matching the avenue to the person's goal.
On judicial review a court cannot substitute its own preferred decision. It can only set aside an unlawful decision and require it to be remade lawfully. Replacing a decision on the merits is the role of a tribunal, not a court.
Exam-style questions
Questions in the style of SCSA exam questions on this dot point, each with a worked answer. They are written by ExamExplained unless tagged "Past paper"; the year shows the paper a question is modelled on.
WACE 2022-style12 marksAnalyse the mechanisms of open government and administrative law and evaluate how effectively they hold the executive to account.Show worked answer →
A 12 mark response needs the mechanisms distinguished and an evaluation.
Open government. Freedom of information gives a legal right to access government documents, subject to exemptions, exposing the basis of decisions.
Ombudsman. Investigates maladministration (delay, error, unfairness), makes findings and recommends remedies, but its recommendations are not binding.
Merits review. Tribunals reconsider a decision on its facts and can substitute the correct or preferable decision.
Judicial review. Courts review the legality of a decision (power, process, natural justice, reasonableness) and can quash it but not remake it on the merits.
Evaluation. Strengths: layered, complementary avenues. Weaknesses: cost of judicial review, non-binding ombudsman, FOI exemptions and delays, and privative clauses. Use Robodebt as a contemporary example. Markers reward the merits-versus-judicial distinction and a balanced judgement.
WACE 2020-style6 marksDistinguish between merits review and judicial review of administrative decisions.Show worked answer →
A 6 mark response needs the two forms clearly separated.
Merits review. Conducted by tribunals, it reconsiders the decision on its facts and merits, standing in the shoes of the original decision-maker, and can substitute a new, correct or preferable decision. It is cheaper and less formal.
Judicial review. Conducted by courts, it examines only the legality of the decision (whether the decision-maker had power, followed a lawful process and afforded natural justice). A court can quash an unlawful decision and send it back but cannot remake it on the merits.
Markers reward the merits-versus-legality distinction and the point that only tribunals can substitute a decision.