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Report No. 162

3.13. Position in United States of America.-

In USA, the importance in the exercise of power by the administration and judicial control of administrative action was realised. Consequently, the emphasis was laid upon procedural safeguards to ensure the proper exercise of administrative authority, which fact was articulated in the form of legislative enactment in the Federal Administrative Procedure Act, 1946, a law which lays down the basic procedures which must be followed by American Administrative Agencies.

Every administrative law case arises out of a controversy between a private citizen and some organ of the administration of, as it is usually termed in the United States, some administrative agency. According to the definition in the Federal Administrative Procedure Act of 1946 "agency" means each authority of the Government of the United States other than Congress, the Courts, or the Governments of the possessions, Territories, or the Districts of Colombia."

Essentially, this definition equates the agency with the executive branch of Government and under it every governmental organ outside of the legislature and the courts is an administrative agency.

The Administrative Procedure Act contains a number of provisions regulating the conduct of the agency hearings. A hearing examiner may not be assigned inconsistent duties nor may he consult "any person or party on a fact in issue (Section 5 of the Act). Examiners are empowered to administer oaths, to issue subpoenas, to rule upon matters of proof and relevant evidence and generally to regulate proceedings (section 7 of the Act).

In practice the procedure may range from an informal conference type hearing to a hearing which resembles a trial and extend over many days or weeks. Representation before the examinee is of right (section 6). The examiners must keep a record and give a very detailed discussion which becomes part of the record; the reasoned discussion must contain findings and reasons upon all issues of fact, law or discretion presented on record [section 8(b)].

The initial decision by the examiner is deemed to be the final decision in the absence of an appeal to the agency or a motion to review by the agency [section 8(a)]. Judicial review of administrative action is readily available. The Administrative Procedure Act allows for review where there is error of law or where the agency fails to base its decision on substantial evidence on record (section 10) [Principles of Australian Administrative Law by D.G. Benjafied and H. Whitmore, pp. 344-45].

Review of functioning of Central Administrative Tribunal - Customs, Excise and Gold (Control) Appellate Tribunal and Income-Tax Appellate Tribunal Back

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