Law for the Human Services: Judicial and Non-Judicial Review Essay

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Updated: Mar 14th, 2024

Good decision-making in the provision of human services requires knowledge and understanding of administrative law principles. This is because the administrative law provides the necessary standards against which the provision of human services can be observed and examined. According to Kennedy and Richards, (2007) social workers require the administrative law to guide them in their pursuit of dignity and social justice as they interact with their clients who are service users.

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Administrative law refers to the legislation that governs the application of administrative decisions in all government bodies. This law regulates decision-making in the relationship between the social workers and their clients in the course of service delivery. The operation of the administrative law can be looked at in two ways. The administrative law concerns the review of both judicial and the non –judicial decisions. (Swain, 2002)

Judicial review

This is normally inherited by a superior court in the hierarchy and reviews a decision made by government authorities. Judicial review is based on the rules of natural justice in the provision of human services. This review focuses mainly on administrative law and the position of the Ombudsman. (Barry, 2007)

Non-judicial review

This concerns the review of government decisions by other alternative mechanisms like parliament. Within the government, the administrative decision should be reviewed by a senior administrative body in the hierarchy. In the course of human service provision, the public can address their complaints through relevant statutory offices within the government. This can lead to parliament paying attention to the complaints and therefore facilitating non –judicial review of administrative decisions. This can also be achieved through independent parliamentary commissions or through any other independent body given the mandate to investigate issues concerning decision-making in human services provision.

Social workers can be said to be compliant with the administrative law because they carry on their duties guided by ethics and the principles of natural justice and other essentials of administrative law. It is the duty of the decision-makers to act legally in accordance with administrative law while being guided by principles of transparency, accountability, and fairness. This is because the decisions they come up with concern people who are in the future affected as they continue pursuing social services. According to Swain, (2002), good practice of administrative law in social services calls for the participation of all the stakeholders in the decision-making process. Therefore individuals should be given a chance to express their opinion in the decision-making process. ( Kennedy& Richards, 2007)

There are fundamental issues that need attention on the part of the social workers. First of all, decisions have to be legal and within the administrative law framework. They have to avoid making decisions outside the administrative law framework which can result in jurisdictional errors. In the pursuit of justice and fairness, social work decisions must be made in accordance with the principles of natural justice. The high court has observed that it is the general principle of the common law that decision-makers have a duty to act fairly. The administrative decisions which affect the rights of individuals and legitimate expectations should be handled with procedural fairness. (Ellis-Jones, 2003)

The concept of natural justice according to Ife, (2001), aims at upholding certain principles in the exercise of power by government authorities. For judicial systems to be called just, all cases must be listened to without biasness by following the procedures established in the various relevant statutes. this has to be done while those in charge keeping in mind that they have a duty to provide justice. These principles all apply to human rights and social work decision-makers. With this in mind, then it is clear that all the service users have to be given a chance to make their case known before the decision that affects them is made. The existence or non-existence of the rights of individuals depends on the circumstances of the decision-making process. It also concerns the relevant legislation and the general practice as understood by the parties involved. Decision-making in social services has to be free from biasness. The process should not be seen to favor any side of the parties involved. The rule against bias covers both apprehended and actual bias. An apprehended bias can be conceptualized in the sense of a fair–minded observer reasonably apprehending that the judge might not bring an impartial mind to the resolution of the question. (Swain, 2002)

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Actual bias demands evidence that the decision-maker was actually prejudiced against the party complaining about the bias. With no adequate proof, such a bias is difficult to sustain. When decision-maker does not portray the necessary fairness or courteous behavior to a party, then apprehended bias comes in. (Ife, 2001)

In conclusion therefore the concepts of administrative law are fundamental to sound decision making in the practice of human service. Without these principles errors are likely to be present in the decision making process and they tend to affect individual service users. Winning of public trust and confidence requires social workers to apply the administrative law with farness in accordance with the procedures and rules of natural justice.

References

Barry, R (ed) 2007, the law handbook, 10 th edn, Redfern Legal Centre Publishing, University of NSW Press ltd, Sydney.

Ellis-Jones, 2003, Procedural Fairness. In essential administrative law. Canedish Publishing, Sydney, pp. 27-52.

Ife, 2001, Human rights in a globalised world, in human rights and social work towards right based practice, CUP, Cambridge, pp 1-23

Kennedy, R & Richards, J 2007, Integrating human service law and practice, 2nd edn, Oxford University, South Melbourne.

Swain, P, 2002, Advoacacy administrative law and social work practice in the shoadow of the law: The legal context of social work practice, 2nd edn. P.Swain, Federation Press, Armadale, NSW.

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