What is administrative action? 

Administrative law regulates the exercise of executive power. Before asking whether a decision was lawful, fair, or open to review, a student must first ask a prior question: is this decision administrative action at all? The answer determines which body of doctrine applies, and which accountability mechanisms are available.

Defining administrative action

Administrative action is the exercise of executive power to apply existing law to a particular set of facts. A delegate approving a visa application, a regulator imposing a licence condition, a tribunal officer assessing eligibility for a payment, and a minister deciding whether to cancel a permit are all engaged in administrative action. The common thread is that the decision-maker takes a rule that already exists — whether in statute, delegated legislation, or policy — and applies it to a specific person or circumstance to produce a concrete outcome.

This is different from making the rule and different from authoritatively resolving a dispute about it. Administrative action operates in the space between those two functions: it implements law that Parliament or a rule-maker has already settled, rather than creating new general rules or delivering a binding, final determination of a contested legal question between parties. Griffith University v Tang (2005) 221 CLR 99¹ shows this has real limits — but be precise about which limits. Tang construes the words “made ... under an enactment”, the gateway to STATUTORY judicial review under the Judicial Review Act 1991 (Qld) and its ADJR-style relatives, and holds that two criteria must both be met: the decision must be expressly or impliedly required or authorised by the enactment, and it must itself confer, alter or otherwise affect legal rights or obligations. So a decision does not pass that gateway merely because a statutory body made it, or because it occurred within a statutory setting. What Tang does not do is state a universal test of reviewability: supervisory jurisdiction at common law, and under s 75(v) of the Constitution, is not reached through that statutory definition, and an answer that applies Tang's two criteria to every route of review has over-read it.

Distinguishing legislative action

Legislative action is the making of rules of general application — rules that bind an open class of people or situations, rather than resolving one person's case. Parliament enacts statutes; under a statutory power, the executive often also makes delegated legislation, such as regulations or rules, which likewise state a general norm rather than deciding an individual's circumstances.

The line is not always sharp. A single instrument can look legislative in form but operate close to individual decision-making, or vice versa. Courts and commentators typically ask whether the instrument determines the content of a rule to be applied generally in the future, or whether it disposes of a particular case by applying a rule that already exists. An instrument that merely applies settled criteria to one applicant's file is administrative; an instrument that changes what the criteria are for everyone is legislative, even if made by the same official under the same statutory head of power.

The distinction matters because legislative instruments are typically subject to their own accountability mechanisms — parliamentary scrutiny, disallowance, and publication requirements — that do not apply in the same way to individual administrative decisions, and because administrative law's grounds of review are built around decisions made about particular facts, not about the wisdom of general rules.

Distinguishing judicial action

Judicial action is the authoritative and binding resolution of a legal controversy, exercised by a court (or a body exercising judicial power) applying law to facts in a manner that finally and conclusively determines the rights of the parties. Chapter III of the Constitution structures the exercise of federal judicial power and reserves it to courts within the constitutional sense of that term: s 71 vests it in the High Court, in the federal courts Parliament creates, and in the courts it invests with federal jurisdiction.²

Administrative decision-makers often look like they are doing something similar — they apply law to facts and produce a determinative outcome for the person affected. What differentiates administrative action is that it is not an exercise of judicial power in the constitutional sense: it does not carry the same institutional independence, the same binding and conclusive character as between the parties in the strict sense, and it remains susceptible to correction through merits review, judicial review, or both, in ways that a final judicial determination is not. A tribunal that conducts merits review, for example, exercises administrative rather than judicial power, even though its process resembles adjudication.

Why the distinction matters

The classification is not academic. It determines:

• What accountability is available. Administrative action can typically be corrected on its merits (by internal review or a tribunal) and challenged for legal error (by judicial review). Legislative instruments are principally checked through parliamentary mechanisms. Judicial determinations are corrected only by appeal or, exceptionally, other judicial mechanisms.
• What standard applies. Judicial review of administrative action asks about legality, not merits — a court will not simply substitute its own preferred outcome. That restraint reflects the separation of powers: courts supervise the legality of executive action without themselves exercising the executive function.
• Who has standing and what remedies exist. The remedies developed for supervising administrative action — such as orders quashing a decision or compelling a decision-maker to act according to law — are shaped around the character of administrative power specifically.

Applying this in a problem question

1. Identify the decision-maker and the source of their power — is it a statute, delegated legislation, the prerogative, or a contractual or policy source?
2. Ask whether the decision applies an existing rule to particular facts (administrative) or creates a new rule of general application (legislative).
3. Ask whether the decision is made by a court exercising judicial power in the constitutional sense, or by an executive officer or tribunal (administrative).
4. Note any features that blur the categories, and explain which characterisation is more persuasive and why.
5. Once the decision is characterised as administrative action, identify which accountability mechanism is engaged — internal review, tribunal merits review, or judicial review — before applying its specific doctrine.