Admin Review is the administrative law bulletin of the Administrative Review Council.
Since the last edition of Admin Review, the Council has published its discussion paper The Scope of Judicial Review and its issues paper on Automated Assistance in Administrative Decision-Making. The Council's report on the Council of Australasian Tribunals was tabled in Federal Parliament in October 2002. In view of recent changes in case law and legislation, the Council has also revised its publications dealing with statements of reasons.
More information about the work of the Council is available from the Council's website <www.law.gov.au/arc> and the Council's Secretariat (ph. 02 6250 5800).
Editors
Wayne Martin QC, Patricia Ridley, Christine Charles and Natasha Simmons (Secretariat)
Administrative Review Council
Robert Garran Offices
National Circuit
BARTON ACT 2600
Admin Review is an administrative law bulletin concerned with informing government, private organisations and individuals about developments in Commonwealth administrative law and procedure. It is produced under the auspices of the Administrative Review Council, but the views expressed in it are those of the editors or writers, and not necessarily the views of the Council or any of its members or the members of its committees. Although every care is taken in the preparation of the bulletin, no liability is accepted in respect of matters published in it. The purpose of the bulletin is to provide general information, not legal advice. Readers should carefully check the detail of the legislation, cases and other material discussed in the bulletin.
Improving government decision making
The Scope of Judicial Review discussion paper
The Administrative Review Council
The Administrative Appeals Tribunal
Freedom of information
The courts: case notes
The Commonwealth Ombudsman
Improving the federal merits review tribunal system
The proposed Western Australian Civil and Administrative Review Tribunal
A unified tribunals service in the United Kingdom
The Western Australian Law Reform Commission report on judicial review
The Migration Legislation Amendment (Procedural Fairness) Act
The Privacy Amendment (Private Sector) Act
The Inspector-General of Taxation Act
The Inspector-General of the Australian Defence Force
A music industry ombudsman
Industry ombudsmen
The Aboriginal and Torres Strait Islander Commission Amendment Act
The Designs Bill
The Australian Human Rights Commission Legislation Bill
The Australian Security Intelligence Organisation Legislation Amendment (Terrorism)
Bill
The Transport Safety Investigation Act
The Australian Heritage Council Bill
The Administrative Review Council
The High Court
The Federal Court
The Administrative Appeals Tribunal
Admin Review is an important and effective means of highlighting the work of the Council and seeking your input into and assistance with current Council projects.
It is with sadness that I report the death on 11 March 2002 of my predecessor as President, Mrs Bettie McNee. Bettie was a valued colleague and friend to Council members and secretariat staff who worked with her. As President, she provided excellent leadership for the Council and displayed considerable courage as she continued to promote the Council's interests, and administrative law values generally, despite her illness. A number of projects that had their origins in Bettie's time as President have now come to fruition.
On 6 June 2002 the Council of Australasian Tribunals, or COAT, came into being. The Administrative Review Council supported the establishment of COAT and provided secretariat assistance to the implementing body over several months. The Council has since reported on COAT's establishment; the report has been keenly sought by tribunals. Although the secretariat role has now been handed over to the Chief Executive Officer of the Victorian Civil and Administrative Tribunal, the Council continues to have an interest in COAT and I, as President, am an ex officio member.
In the latter half of 2002 the Council revised two of its publications, Practical Guidelines for Preparing Statements of Reasons and the associated Commentary on the Practical Guidelines for Preparing Statements of Reasons. Originally published in 2000, these publications needed revision in the light of recent changes in case law and legislation. The Council also produced a report on the celebration of its 25th anniversary.
As part of a major project on the availability of judicial review, early in 2003 the Council published The Scope of Judicial Review, a discussion paper exploring the circumstances in which judicial review should be limited and how this might occur. The paper has been widely distributed in the hope of encouraging debate and attracting contributions from people with an interest in the subject. A focus article on the discussion paper appears in this edition of Admin Review.
Work continues on the Council's project on automated assistance in administrative decision making, and on 19 June 2003 the Council published an issues paper for comment. The first focus article in this edition of Admin Review is a paper on the subject, by Christine Charles, chair of the Council's subcommittee for the project.
Both the scope of judicial review and the automated assistance in decision making projects have generated considerable interest across government, academia and, in the case of the scope of judicial review, the courts.
The Council has recently begun work on projects involving examination of the coercive investigative powers of government agencies and exploring amendments to the Administrative Appeals Tribunal Act 1975 and procedural discretions of review tribunals. It also continues its involvement in advising on the adequacy or otherwise of the administrative review decision–making processes provided for in proposed legislation. This has been of most benefit where agencies have sought the Council's advice at an early stage in the legislative process.
Early this year Ron McLeod retired from his position as Commonwealth Ombudsman, and this edition of Admin Review contains a reflection on his term. As the record shows, in his work with agencies Ron made a substantial contribution to improving government administration. Ron was a respected and highly esteemed ex officio member and friend of the Council, and his contributions will be missed.
The interest in Council projects and the increased number of Commonwealth agencies seeking the Council's advice are testimony to the valuable role the Council plays in ensuring that administrative law remains true to its values of lawfulness, fairness, rationality, openness and efficiency. These values - and indeed administrative law itself - are perhaps even more important now than they were some 25 years ago, when the Council was created. Administrative decisions by government continue to affect all Australians. The Council will continue to review the Commonwealth administrative law system and make recommendations for improving it.
This is an edited version of a paper presented at a seminar organised by the Institute of Public Administration Australia in Canberra on 31 May 2002.
The Administrative Review Council has been investigating the use of automated assistance in administrative decision making. This paper briefly outlines the role of the Council and its work in this area.
The Administrative Review Council
The Administrative Review Council was established in 1976 to monitor the then new administrative law arrangements and provide to the Commonwealth Attorney-General independent advice on matters associated with administrative review. The Council celebrated its 25th anniversary in December 2001. The Attorney-General, the Hon. Daryl Williams AM QC MP, noted in his speech at the anniversary dinner, 'In the last 25 years, the Commonwealth's system of administrative review has become well-accepted. Australian citizens have recourse to a number of avenues of administrative review that we now take for granted'. He further noted that it is 'important to ensure that the system evolves to keep pace with the changing times. The Council has recognised this need and has recently embarked on an examination of the use of technology in government decision making'.
The Council's inquiry into automated assistance in administrative decision making is directly relevant to two of the Council's functions:
The aim, as expressed in s. 51 of the Administrative Appeals Tribunal Act 1975, is to ensure that decisions are made in a just and equitable manner.
The scope of the Council's inquiry
The Council established a subcommittee to look at the question of automated assistance in administrative decision making. The former Commonwealth Ombudsman, Ron McLeod AM, and Professor Robin Creyke, from the Australian National University, are also subcommittee members. The subcommittee is examining the use of expert systems, although the focus is on rule-base systems because they are the type of expert system most often used to model legislation.
An expert system is a computing system that, when provided with a certain amount of basic information and a general set of rules instructing it how to reason and draw conclusions, can mimic the thought processes of a human expert in a specialised field.[1]
A rule-base system is one kind of expert system. Rule-base systems involve the modelling of complex or intricate rules (such as legislation) accompanied by an 'engine' that is able to automate the process of investigating those rules by interacting with applicants to extract relevant personal details. The systems have two functions:
Rule-base systems are not new. Their use to model legislation is, however, a new application of the technology and offers an exciting opportunity for government to improve the quality of decision making. The systems are currently used by a wide range of Commonwealth government agencies and by some state government agencies.
As noted, the Council is examining the use of rule-base systems in administrative decision making. The term 'administrative decision making' covers a wide variety of matters, from simple mechanical decisions to more complex decisions involving multiple factors and the exercise of discretion. For the purposes of this project, the Council is particularly interested in decisions that can adversely affect disadvantaged members of the community.
The Council resolved that its inquiry should include consideration of the following:
The subcommittee has published an issues paper on the project. In preparing it, the Council informally consulted a number of government departments and individuals. It also conducted a stocktake of current and proposed use of expert systems in Commonwealth agencies. The results of the stocktake are presented in the issues paper.
What do rule-base systems offer?
Rule-base systems have the potential to make decision-making more accurate, consistent and efficient. An officer using such a system no longer needs to identify the different types of benefits that might be available to an applicant. After the relevant data are entered the rule-base identifies the various types of assistance that might be available. The system also relieves the officer of the need to have detailed knowledge of the legislation in question, any recent legislative changes, and any rarely used provisions. This leaves the officer free to develop expertise in other areas, to conduct research, to focus on and negotiate with clients, and to provide referral advice.
When a rule-base system is used, the same interpretation of the rules will be applied in each case. This promotes consistency across jurisdictions and between metropolitan and regional areas. The result for an applicant in Bourke, for example, should be the same as that for an applicant in Sydney with the same circumstances.
Developing a rule-base and the accompanying commentary can result in the identification of matters in relation to which there is little or no policy, and policy in that area can then be developed. This fosters consistent decision making. Use of rule-base systems can also decrease the time and cost associated with making administrative decisions. The Australian National Audit Office's report entitled Review of Veterans' Appeals against Disability Compensation Entitlement Decisions refers to a Department of Veterans' Affairs evaluation of the rule-base system used by that department. The system was introduced in 1994; the report of the evaluation noted that both the average time taken to process primary-level decisions and the average cost per case had fallen significantly between 1991–92 and 1995–96.[3]
A rule-base system can support an officer's consideration of the evidence needed to obtain certain benefits and guide the officer's exercise of any discretion. It can also help with policy development; for example, an agency can use the rule-base to test the operation of proposed legislation. Further, a rule-base system can assist individual applicants: information entered in the rule-base can be amended to see how a change in the applicant's circumstances (a change in income, for example) would affect an existing entitlement.
Rule-base systems can also make a wide range of service delivery options possible, thus making government more accessible.
Matters for consideration by the subcommittee
Despite rule-base systems' advantages, a number of questions warrant consideration:
It has been claimed that, because the data-collection exercise using a rule-base system can be tailored to a specific client, it is possible to collect a far broader range of information than was previously the case.[4] This raises some privacy questions that warrant attention. There are also a number of administrative review issues that need to be considered in this context. For example, do decisions made using rule-base systems satisfy the requirements for valid decisions as set out in the Administrative Decisions (Judicial Review) Act 1997? Without wishing to overstate the possibilities, there could be bias inherent in a rule-base - for instance, in the way questions are phrased.
Use of a rule-base system could also result in an officer acting under dictation if he or she fails to query a suggested decision of the system or is unable to override a decision. If the officer cannot override the rule-base's decision, is there a valid justification for that? Further to this, use of a rule-base system could result in the inflexible application of a rule or policy, without regard to the merits of the case.
Some of these questions also arise in manual decision making. However, the use of rule-base systems means that the traditional administrative law safeguards might need to be reconsidered.
Among other matters the Council is considering are the following:
Additionally, the Council is interested in the tendency for the statutory criteria governing decisions to be increasingly objective - with little, if any, room for the exercise of discretion - and the relevance of this trend to rule-base systems. Justice Deirdre O'Connor, former President of the Administrative Appeals Tribunal and a former ex officio member of the Council, identified this trend and noted that the reasons for it include the desire for the scope of legislation to be clear and the aim of improving the targeting of benefits. She noted that this practice '... removes any flexibility for tribunals to deal with those difficult cases in which strict legislative criteria fail to make provision for the unique and otherwise legitimate circumstances of a specific individual'.[5] It would be undesirable if the perceived benefits of using rule-base systems led to pressure for increasingly objective statutory criteria and a subsequent loss of discretion in administrative decision making.
Administrative law values
As noted, the Council is charged with ensuring that decisions are taken in a lawful, just, fair and efficient manner. The subcommittee has therefore been evaluating the operation of rule-base systems against the five values the Council has previously identified as critical elements of the administrative review system[6]:
For example, guaranteeing the accuracy of the rules is relevant to lawfulness, rationality and fairness; the way discretion is dealt with in a rule-base is relevant to lawfulness, fairness, rationality and openness; and questions of privacy are relevant to lawfulness, fairness and openness.
Before finalising the issues paper, the subcommittee consulted further with agencies that use rule-base systems for high-volume decision making. The paper was then considered by the full Council before its release for public comment. The Council does not have a firm view on the outcome of this inquiry: it could be principles, a position paper, a checklist to assist agencies, or a combination of these.
Conclusion
The use of rule-base systems - with suitable checks and balances - to assist administrative decision making offers governments unlimited service delivery options. Such systems could also change the nature of the interaction between government and its citizens:
There may emerge a new kind of societal contract, with governments providing to citizens the infrastructure of interactive connectivity, and access to it; distributing the information and processing systems which are the core of so many government services; laying down the ground rules for true e-government; and, most importantly of all, placing trust in the ability of individuals to play a much bigger role ... Citizens would benefit from cheaper, more efficient government; the convenience of access 'anywhere, anytime'; the enhanced customisation and choice; and the satisfaction of empowerment, with responsibility.[7]
Although we can, and should, embrace new technology and new applications of existing technology in administrative decision making, we need to ensure that the traditional safeguards are adapted or that new safeguards are developed to protect the rights of individuals.
The Council hopes that its work will contribute to debate in this area and I encourage all to make a submission in response to the issues paper.
In March 2003 the Council launched its discussion paper The Scope of Judicial Review. The paper explores the desirable scope of judicial review, with particular regard to the need to achieve a suitable balance between individuals' right to test the legality of government actions and the need to prevent litigation from frustrating government policies. The Council hopes that the discussion paper will encourage debate and attract submissions. Its ultimate aim is to develop a set of guidelines for agencies, legislators and commentators exploring policy matters relevant to the scope of judicial review.
In view of the Council's historical involvement with the subject of the scope of judicial review[10] and having regard to significant developments in the history of Australian judicial review, the Council considers it both timely and helpful to revisit the subject. As a result of ss. 39B(1) and 39B(1A)(c) of the Judiciary Act 1903, and the consequent impact on the use of the Administrative Decisions (Judicial Review) Act 1977, the scope of any such consideration must necessarily extend beyond the scope of judicial review for the purposes of the latter Act.
The discussion paper identifies a range of ways in which - having regard to constitutional considerations - judicial review might appropriately be limited. It explores the limitations that can be imposed on judicial review and the role of the executive, parliament and the judiciary in setting those limitations.
Traditionally, privative clauses - or Hickman clauses - have been an important means of limiting judicial review.[11] However, as noted in the discussion paper, there are numerous ways in which the parliament has sought, through legislation, to limit the scope of judicial review, among them the following:
A large part portion of the discussion paper is devoted to the circumstances in which judicial review might appropriately be limited. This discussion encompasses an analysis of judicial, executive and public perspectives and includes consideration of the grounds of review, consistency and predictability, resource-related matters, the nature of the decision, the nature of the decision maker, no impact on the final decision, and alternative remedies.
The discussion paper calls for comments on whether the nature of any grounds of review is sufficient to justify limiting judicial review. Several grounds are examined, including grounds containing the potential for high degrees of factual consideration and/or with a tendency to blur the distinction between merits review and judicial review. Among such grounds are unreasonableness and jurisdictional error.
The nature of procedural fairness also appears to have been a factor for parliament and the executive in seeking to limit judicial review. The executive has suggested that in some circumstances the requirements of procedural fairness are unduly onerous and unnecessary.[14] It has also been noted that 'it cannot be assumed that the provision of additional procedural challenges will necessarily be to the advantage of persons affected by the decision in question'.[15]
In contrast, having regard to the nature of the grounds of review examined in the discussion paper and to the way courts have generally dealt with those grounds, it might also be reasonable to take the view that no ground, in itself, warrants the exclusion of judicial review. There are, however, obviously other important factors - such as cost, speed, finality, accessibility, consistency and predictability - that may need to be taken into account.
The Council seeks comments in this regard.
Consistency and predictability
The discussion paper also explores the question of consistency and predictability. On one hand, the achievement of consistency and predictability does not justify limiting judicial review, because 'consistency is not preferable to justice'.[16] In some instances, the desire for consistency and predictability can override consideration of the implications of a decision in a particular case and lead to decisions that are unjust.
On the other hand, consistency and predictability can enhance justice and are important values underlying judicial review. Courts have an important part to play in maintaining consistency in the interpretation of legislative provisions - particularly new provisions - and in the development of precedent.
The discussion paper calls for comments on where the balance between achieving consistency and predictability and justice might lie.
Resource-related matters cover both financial costs and costs in terms of the use of personnel, time and other resources. Concerns about resources are often inextricably linked to claims of abuse of process and can also underlie concerns about consistency and predictability.
Judicial review has sometimes been seen as an obstacle to government action. In some areas - tax and migration, for instance - it may be that a time advantage is gained by lodging an application for judicial review. However, although applications for judicial review can delay the effecting of government decisions, to deny or limit this right might also impinge on administrative justice by negatively affecting claimants with genuine grievances; it could also have cost implications for society.
The discussion paper suggests that identification of what constitutes an abuse of process is not necessarily reflected in the number of applications for review or in the number of successful (or unsuccessful) applications. It is beyond question that, although there are circumstances where some people may be attempting to delay or frustrate administrative processes, there are others where they are not. The Council therefore raises for consideration the idea that 'abuse of process' should not readily be relied on by government as a reason for limiting review in a particular area. By virtue of the methods courts employ and their necessary focus on the case at hand, it is arguable that courts are better placed to identify 'abuses' in particular cases. The discussion paper seeks further views on this.
Linked to the issue of limiting judicial review on the basis of 'abuse of process' are the related issues of excluding judicial review on the basis of the high volume of applications and the cost of such applications. The Council seeks views on whether these considerations - volume and cost[17] - present sufficient justification for limitations on individuals' challenge of the legality of a government decision.
Resource considerations are a legitimate concern of government and, as a result, may have an important impact on the desirable scope of judicial review. It is reasonable to assume that the executive is in the best position to assess the level of resources it can allocate to a particular area of government decision making. Judges are generally not in a position to determine where resources should be provided or how they should be apportioned. Resource considerations often involve taking account of a range of factors that a court is unlikely to have knowledge of or to be equipped to act upon if it did. The role of a court is to examine cases on an individual basis, so it would seem generally inappropriate for it to involve itself in such broad-based considerations. This view is consistent with the doctrine of the separation of powers.
Another view is that concerns about abuse of process, the high volume of applications and the associated cost could be responded to by means other than reducing judicial review rights. Possible options are greater use by the Federal Court of its discretionary power to refer cases to other suitable avenues of review and the establishment of adequate alternative remedies.[18]
The Council is interested in receiving comments on whether such mechanisms are sufficient for allaying concerns about abuse of process, the high number of applications and the associated cost.
The discussion paper examines whether the particular nature of a decision may, in certain circumstances, justify limiting judicial review. It looks at decisions involving policy, polycentric matters, ongoing relationships, legislative matters, matters relating to the administration of justice, and urgency or emergency circumstances.
The Council seeks comments on when the nature of a decision would warrant limiting judicial review.
The nature of the decision maker
The discussion paper examines whether the nature of the decision maker might be an appropriate factor in limiting judicial review. In particular, it explores whether the status or expertise of the decision maker could justify limiting judicial review and whether judicial review should be limited when the decision maker is a contractor, a government business enterprise, an intergovernmental body, or a consultative and advisory authority that deals directly with the public.
No impact on the final decision
Where an alleged irregularity would not have resulted in a different result being reached, there is some support for the view that there may be a discretion to deny a remedy. As noted in Re Refugee Tribunal; ex parte Aala[19], such a situation may occur where, regardless of any question of procedural fairness or merit, the decision was one that the decision maker was bound by the governing statute to refuse. Alternatively, there may not have been an opportunity to make submissions on a point of law that clearly must be answered unfavourably to the prosecutor.
The Council seeks comments on whether such matters are ones on which the courts or the legislature should rule.
Part VI of the discussion paper focuses on the impact of adequate alternative remedies on the scope of judicial review. It seeks comments on what constitutes an adequate alternative to judicial review; the impact on the 'adequacy' of alternative remedies of applications for review on particular grounds of review; and the circumstances in which the availability of full merits review is sufficient to displace an application for judicial review.
How should limitation of judicial review be achieved?
The final part of the discussion paper considers the way any limitations on judicial review might appropriately be imposed.
The constitutional framework places a significant constraint on parliament's capacity to limit the scope of judicial review.[20] Nevertheless, subject to the overriding requirement that the subject matter of the law lie within Commonwealth legislative power[21], it appears to remain open to parliament to define the powers of a decision maker in such a way as to exclude at least most of the traditional grounds of judicial review.
The principal means by which parliament has in the past sought to limit judicial review has been through the use of privative clauses. As traditionally construed in Australia, these clauses have been read not as purporting to limit the role of the courts but as expanding the powers of a decision maker. This approach to construction, based on the Hickman principle, arguably makes it difficult to identify or predict the clauses' meaning with any real certainty.[22]
The discussion paper suggests that, as a general principle of administrative justice, provisions taking away the right to review of administrative decisions should be clearly stated, their effect should be clearly apparent, and they should focus on the extent of the power conferred rather than on the extent to which a court is precluded from examining an exercise of power.
As an important companion to this view, it is suggested that, in so far as parliament may seek to limit judicial review, it should do so with reference to particular decision-making powers.
The discussion paper calls for comments on the need for clarity and specificity in limiting judicial review.
The Council hopes that the discussion paper will make a significant contribution to the debate about the scope of judicial review. It also hopes that the ultimate objective of the discussion paper - the development of guidelines - will help interested parties identify the circumstances in which, and the area of our constitutional system through which, the exclusion of judicial review is appropriate.
The Council launched its Scope of Judicial Review discussion paper in March 2003. This edition of Admin Review contains a focus article about the paper.
The Council's Report of the Council of Australasian Tribunals was tabled in the Federal Parliament in October 2002, and its Twenty-Sixth Annual Report 2001–2002 was tabled in November 2002.
Revised versions of the Council's Practical Guidelines for Preparing Statements of Reasons and the Commentary on the Practical Guidelines for Preparing Statements of Reasons were published in December 2002.
Since the September 2001 issue of Admin Review the Council has provided letters of advice dealing with the following matters:
In 2002 the Council presented submissions in response to the following government initiatives:
The Council launched its discussion paper The Scope of Judicial Review on 13 March 2003. The paper explores a number of aspects of judicial review, including the following:
The Council's objective is to draw on the comments received in response to the discussion paper and so develop a set of guidelines - for agencies, legislators and commentators - on the appropriate scope of judicial review.
Automated assistance in administrative decision making
The Council has recently launched its issues paper on automated assistance in administrative decision making. The paper considers the implications of the use of expert systems (and specifically rule-base systems) for primary decision making, the potential 'de-skilling' of decision makers, and how decisions made using computer-based systems are reviewed from the administrative standpoint.
The objective of the project is to prepare a final report on the subject, taking into account comments received in response to the issues paper.
Coercive investigative powers of government agencies
The Council has started work on a project examining the coercive investigative powers of government agencies. It intends to carry out a comparative analysis of the coercive investigative powers of a number of Commonwealth agencies that in its opinion provide a representative sample of the powers in use across government.
Consideration of the accountability mechanisms associated with the exercise of coercive investigative powers and the protections available to individuals in respect of whom such powers might be exercised will be an important element of the project.
Amendments to the Administrative Appeals Tribunal Act
The Council will consider several matters arising from amendments to the Administrative Appeals Tribunal Act 1975 in connection with the procedural discretions of review tribunals:
A possible outcome of the project will be recommendations to government on suitable amendments to the procedural discretions provided for in the Act.
The Council of Australasian Tribunals
The Administrative Review Council assisted with the establishment of the Council of Australasian Tribunals, or COAT, which occurred on 6 June 2002 in Melbourne. COAT is made up of Commonwealth, state, territory and New Zealand tribunals, and its primary purpose is to facilitate liaison and discussion between tribunals. It could also support the development of model procedural rules, standards of behaviour and conduct for members, and increased capacity for training and support for members.
At the June 2002 meeting, representatives from Commonwealth, state, territory and New Zealand tribunals were appointed to an interim executive to oversee the first year of COAT's operations. In June 2003 an executive was elected to replace the interim executive.
Publications dealing with the preparation of statements of reasons
In November 2002 the Council revised its Practical Guidelines for Preparing Statements of Reasons and the Commentary on the Practical Guidelines for Preparing Statements of Reasons. The revision was necessitated by changes in case law and legislative provisions. In particular, the publications now take into account the High Court's decision in Minister for Immigration and Multicultural Affairs v. Yusuf.[23]
The Administrative Appeals Tribunal may review a decision only if an Act, Regulation or other enactment provides that the decision is subject to review by the tribunal. The enactments listed here came into operation between January 2002 and May 2003 and either conferred, amended or removed the tribunal's jurisdiction to review certain decisions.
The following enactments confer new jurisdiction on the Administrative Appeals Tribunal:
The following enactments amend the Administrative Appeals Tribunal's jurisdiction to review decision subject to review. The right-hand column shows the affected existing enactments.
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In Zoffanies Pty Ltd and Commissioner of Taxation[24] the applicant, Zoffanies Pty Ltd, sought review of a decision by the Taxation Commissioner whereby Zoffanies was refused permission to obtain a tax deduction under the Income Tax Assessment Act 1936. Zoffanies, a subsidiary company of Macquarie Bank Ltd, claimed it was entitled to a deduction of $109 947, which was part of a loss of over $20 million incurred by Macquarie Syndication (No. 3) Pty Ltd. The Macquarie Syndication company, a joint venture established by Macquarie Bank, was involved in transgenic technology to develop leaner, more food efficient pigs for consumption.
Some of the questions posed by the case were whether under the Income Tax Assessment Act the dealings were at arm's length; if not, whether the amount of Macquarie Bank's expenditure on the technology licence would have been less had the dealing been at arm's length; and whether a reasonable person would conclude that the person who entered into the scheme did so for the purpose of enabling the relevant taxpayer to obtain a tax benefit.
The Administrative Appeals Tribunal held that whether the parties' dealings were at arm's length 'is a question of fact in each case as to whether the parties acted independently and applied their separate minds and wills in forming a bargain'.[25] Cooperation and persuasion do not, by themselves, demonstrate that the parties did not apply their separate minds when bargaining.
The tribunal heard evidence from the initial valuer of the technology licence and from five expert witnesses, who all, using different valuation methodologies, arrived at different valuations for the technology. The tribunal noted that, in the case of new technology, 'where there is no clear market or income stream, no valuation can do more than estimate a range within which a particular valuation may reasonably lie'.[26] It determined that, when an estimation of value has been given by a valuer, the tribunal should be cautious about substituting one valuer's opinion for another without good reason.
On the facts, the tribunal found that the initial valuer acted independently and in good faith. He was sufficiently qualified to make the valuation, and another competent valuer might have made a similar valuation at the time the initial valuation was made.
The tribunal held that, when determining whether it could reasonably be concluded that a person entered into a scheme for the purpose of enabling the relevant taxpayer to obtain a tax benefit, the proper test to be used was whether the predominant purpose for entering into the scheme was tax avoidance. This was in accordance with previous case law.
On the facts, the tribunal concluded that representatives of Macquarie Syndication were actively involved in the scheme through chairing committees, regularly attending meetings, engaging consultants, and preparing detailed progress reports. This behaviour suggested that a reasonable person would conclude that the dominant reason for the applicant entering into the scheme was for investment purposes.
The outcome of the case was that the tribunal set aside the Tax Commissioner's initial decision and substituted its own decision, permitting the applicant to obtain a tax deduction.
When has a veteran been 'interned' under the Compensation (Japanese Internment) Act?
The Compensation (Japanese Internment) Act 2001 provides for a one-off payment of $25 000 to widows and widowers of prisoners of war and civilians interned by Japan during World War 2. In Harvey and Repatriation Commission[27] the applicant sought the payment on the basis that her husband had been interned in Singapore. Her husband had been a civilian living in Singapore at the time of the Japanese invasion, and she was unsure of what had happened to him. It appeared that he had been evacuated from Singapore in the days before the surrender. The tribunal found that this assumption was supported by a death certificate.
The applicant said, however, that an Australian nurse who had been captured told her that she (the nurse) had been sitting on a beach with fellow captives and had noticed a group of Australian servicemen. They were very dirty, but the nurse nonetheless claimed she had seen the applicant's husband. Japanese soldiers subsequently led the servicemen away and murdered them.
The tribunal held that the definition of 'interned' in the Act was to be interpreted widely to cover a person who was held captive for a very short period. It noted that the legislation did not create a presumption of internment and that it is necessary for the decision maker to be satisfied in each case that the individual in question has been interned. The tribunal determined, however, that in this case there was insufficient evidence to support the applicant's claim that her husband had been captured by the Japanese.
Who is a person of Aboriginal race entitled to vote for a regional council under the Aboriginal and Torres Strait Islander Commission Act?
The Aboriginal and Torres Strait Islander Commission Act 1989 establishes regional councils, and Tasmania is one of the regions where a regional council is elected. Under the Act a person can vote in a regional council election only if they are an 'Aboriginal person or a Torres Strait Islander'. 'Aboriginal person' is defined as 'a person of the Aboriginal race of Australia'.
Bruce William Patmore and Others v. Independent Indigenous Advisory Committee[28] involved the compilation of an Indigenous electors roll. Rule 148 of the Aboriginal and Torres Strait Islander Commission (Regional Council Election) Rules 1990 provided that an Australian citizen who was at least 18 years of age and who held an honest belief that an applicant was not an Indigenous person was entitled to lodge an objection with the Independent Indigenous Advisory Committee, which could take the applicant off the electors roll if submissions and information provided by the applicant failed to satisfy it that the applicant was an Indigenous person.
An Indigenous person was defined to mean an 'Aboriginal person or a Torres Strait Islander'. The committee made decisions not to include an applicant on the electors roll on the basis that there was insufficient evidence demonstrating that they were an 'Aboriginal person'.
The question before the tribunal was whether each of the applicants was an Aboriginal person - that is, a person of the Aboriginal race of Australia. The tribunal affirmed Justice Deane's view in the Tasmanian Dam Case, that an Aboriginal person is a person where three characteristics are present: Aboriginal descent; self-identification as an Aborigine; and recognition as an Aborigine by the Aboriginal community.
The tribunal noted that a person with a parent who is a full-blood Aborigine will need to show little or no self-identification or community acceptance, whereas a person with a remote line of Indigenous descent will ordinarily need to demonstrate real self-identification as an Aborigine and substantial community recognition.[29] The tribunal acknowledged the difficulty in demonstrating Aboriginal descent but noted that it can be done through records of births, deaths and marriages as well as family history and tradition.[30] It also assumed that 'self-identification and community recognition of applicants as Aborigines, particularly where there is evidence of a family history or tradition of Aboriginal descent passed on orally, can provide evidence of Aboriginal descent'.[31]
The tribunal held that the committee placed too much weight on public records showing Aboriginal descent, rather than recognising that the absence of archival evidence of Aboriginal descent is not always conclusive. Consequently, it substituted its own decision for that of the committee, finding that nearly all the applicants who sought review should be added to the electors roll as 'Aboriginal persons'.
Does an irregular transfer of apparatus licenses have effect?
The Australian Communications Authority is empowered to issue apparatus licences under the Radiocommunications Act 1992. Such a licence permits the holder to operate radiocommunications devices.
In GB Radio Australia P/L and Australian Communications Authority and Anor[32] a joined party, a director of GB Radio, held licences in his own name. He then sought to transfer them to the company (GB Radio) without using the proper transfer form. The Australian Communications Authority gave effect to the transfer, waiving the usual fee and altering the licence register to show that the company held the licences. The joined party subsequently approached the ACA, asking that the licences be returned to his name on the basis that an effective transfer had not occurred because he had not completed the proper transfer form. The ACA accordingly changed the names on the register, showing the joined party as the holder of the licences. The company requested that its name be restored to the register but the ACA denied this request.
The question for the tribunal was whether the joined party's name should remain on the register or whether the company's name should be restored to the register, identifying it as the rightful holder of the licences. The tribunal held that, even if the ACA had breached a statutory condition by approving the transfer of licences to the company when the proper transfer form had not been used, the ACA's decision to approve the transfer was valid. The change of the register on the basis that there had not been a valid transfer thus amounted to an unlawful termination of the company's licences. As a result, the ACA should have acceded to the company's request to restore its name to the register.
The reasoning of the tribunal was that ss. 131AA and 131AB of the Radiocommunications Act do not reveal a legislative purpose to invalidate transfers effected without use of the proper form. The act of transfer under the legislation was an act of the ACA, not of the parties. If the ACA decides to make effective an application that is not in the usual form there is no legislative policy that suggests the transfer is invalid. Similarly, there was no legislative purpose to invalidate the transfer on the basis that the ACA waived the usual fee. The tribunal therefore set aside the decision to reinstate the joined party as the licensee and the decision not to adjust the register to reinstate the company as the licence holder.
The tribunal made a decision to reinstate the company as the licence holder.
The year 2002 heralded the 20th anniversary of the introduction of freedom of information legislation in Australia. The Freedom of Information Act 1982 was the first legislation of its kind to be introduced into a Westminster-style parliamentary system. It was an extraordinarily innovative piece of legislation at the time, but has it transformed an otherwise secretive bureaucracy and made administrative decision making more transparent?
The Australian Law Reform Commission and the Administrative Review Council jointly reviewed the Act when it was 13 years old. They reported that the Act was designed to make government more open and accountable by allowing individuals to access information in the hands of government. The objectives of the Act were to improve the quality of Commonwealth agencies' decision making, to allow citizens to be kept informed of the decision-making process as it affects them, and to improve the quality of political democracy by giving all Australians the opportunity to participate fully in the political process.[33] The Act's impact after 13 years was significant in transforming the way agencies made decisions and recorded information. The review noted, however, that some parties considered the Act was not achieving its objectives.
Now, after 20 years, we may ask whether the Act continues to be meaningful in the light of changes in government administration and the increasingly pervasive trends to privatisation and outsourcing.
Although recent privacy laws now apply to private sector bodies, freedom of information requirements should generally not be extended to apply to private sector bodies. Such bodies should, however, be subject to certain of those requirements when they contract with government. Freedom of information reform is thus needed, in order to keep pace with the social, political and economic changes that have occurred in the last 20 years.
The Northern Territory legislation provides for the establishment of an Information Commissioner as an independent statutory officer to oversee the regime. This is consistent with a previous Council recommendation[34] for the establishment of a Freedom of Information Commissioner to monitor the Commonwealth Freedom of Information Act. To date, however, the Commonwealth Government has not taken steps to establish such an office.
Five members of the High Court considered whether the applicant had been denied procedural fairness on the basis that the officer's representation created a legitimate expectation that was not fulfilled. The court concluded there was no denial of procedural fairness. The case provides a useful analysis of the concept of legitimate expectation.
The High Court held that the Federal Court had the power to direct that a matter be remitted to the member who constituted the original tribunal. It held, however, that the Federal Court erred by giving such a direction in the particular circumstances of the case. All judges analysed the proper considerations in the exercise of such a discretion, including the meaning of the phrase 'necessary to do justice' found in s. 481 of the Migration Act at the time.
The High Court held that there was no reasonable apprehension of bias or actual bias. McHugh, Kirby and Callinan JJ said,
... a reasonable apprehension of bias may exist where the presiding judge has a substantial personal relationship with a party to, or a person involved in, proceedings or a substantial personal relationship with a member of the family of that party or person. But absent such relationships or others like them, it is absurd to suggest that a reasonable apprehension of bias can exist merely because a person involved in the proceedings comes from a city where the judge once practised professionally or because the judge may have had professional dealings with that person in the course of professional practice.[39]
In Re Minister for Immigration and Multicultural Affairs; ex parte Applicants S134 of 2002[40] and Plaintiff S157 of 2002 v. The Commonwealth[41] the High Court had the opportunity to determine the constitutional validity and the construction of the privative clause in the Migration Act 1958. S157 also involved a challenge to the validity of a time limit clause that allowed an applicant 35 days to apply to the High Court for review of decisions affected by the privative clause.
The privative clause
In S157 the High Court unanimously held that the privative clause, s. 474 of the Migration Act, and the time limit clause, s. 486A of the Act, were valid but construed them so as to substantially deprive them of effect. In S134 a majority of the court dismissed the proceedings on the basis that the decisions were not made in jurisdictional error or any other kind of error.
In S157 all members of the court held that the privative clause could not be read literally since that would be inconsistent with s. 75(v) of the Constitution, which confers jurisdiction on the High Court in matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Joint judges Gaudron, McHugh, Gummow, Kirby and Hayne JJ rejected the notion, pursued by the Commonwealth, that a privative clause is to be read as expanding the jurisdiction of the decision maker to make a decision that conforms only to the conditions set out in R v. Hickman; ex parte Fox and Clinton[42] - that the decision was made bona fide, relates to the subject matter of the Act under which it was made, and was not reasonably referable to the power of the decision maker.
Rather, the question for the joint judges concerns the construction of the privative clause in the light of the whole Act to determine what protection from judicial review the clause provides. Effect must be given to provisions within the Act that provide for inviolable limitations - that is, that set essential limitations on government action that must be followed and where judicial review is permissible. The judges also held that the privative clause did not preclude judicial review for jurisdictional error and therefore that the clause was not inconsistent with s. 75(v) of the Constitution, which entrenches the High Court's jurisdiction to grant prohibition and mandamus. Further, a denial of procedural fairness involves a jurisdictional error, so the decision in question was not protected by the privative clause from a finding of denial of procedural fairness.
In a separate judgment, Gleeson CJ applied to the privative clause principles of construction other than those stipulated in Hickman. These principles included that legislation should be construed in accordance with Australia's international obligations and the rule of law and so as not to curtail fundamental rights and freedoms or deny access to the courts in the context of the Act as a whole. If the parliament had intended to authorise the tribunal to affirm a refusal of a protection visa made unfairly and in contravention of the requirements of natural justice so long as it acted in good faith, it should have made its intention clearer. Callinan J, also in a separate judgment, held that the privative clause did not protect decisions involving 'manifest error of jurisdiction' or 'a departure from an essential imperative requirement'.
In S134, Gleeson CJ and McHugh, Gummow, Hayne and Callinan JJ held that the decisions of the Refugee Review Tribunal and the Minister were not made in error. Gaudron and Kirby JJ dissented in part and held that the tribunal's decision did involve a jurisdictional error. They decided that s. 65(1) of the Migration Act, which required the Minister to grant a visa if satisfied of certain criteria, was a jurisdictional provision that was not protected by the privative clause.
The outcome in relation to the privative clause question is that the parliament cannot restrict judicial review of decisions involving jurisdictional error. Further, a privative clause may have a limited interpretative effect in determining whether a limitation is a jurisdictional one or 'some procedural or other requirement ... not essential to the validity of the decision'.[43]
The time limit clause, s. 486A of the Migration Act, applies to a 'privative clause decision', which is defined in s. 474. The joint judges held that s. 486, like s. 474, does not apply to a decision involving jurisdictional error. They noted that whether a particular decision is a privative clause decision will depend on whether there has been a jurisdictional error and therefore the effect of s. 486A is very minimal. Gleeson CJ also held that a purported decision was not an actual decision made under the Act and that therefore it was not a 'privative clause decision' to which s. 486A applied. Only Callinan J held that s. 486A was inconsistent with s. 75(v) of the Constitution because it denied applicants the remedies available under s. 75(v).
The High Court held that the tribunal was entitled to remake its decision once it had realised its error. The error was characterised differently by the judges: in the opinion of Gleeson CJ, the tribunal's error amounted to a denial of natural justice and a failure to review the decision; the other majority judges found that the tribunal had made a jurisdictional error by not providing a hearing, as required under the legislation. The effect of the error, in either case, was that the tribunal in effect had not made a decision - that is, performed its duty - and was thus entitled to reconsider its earlier decision.
The question before the High Court was whether judicial review of the decision to issue conclusive certificates was possible given that the legislation provided that the issuing of such a certificate 'establishes conclusively that the disclosure of that document would be contrary to the public interest'. The High Court, in agreement with the Federal Court in the first instance, held that the certificates were conclusive within the operation of the Freedom of Information Act. This 'conclusive' nature of the certificates did not, however, preclude judicial review of the decision to grant the certificates because there was no clear intention that judicial review was ousted by the legislation.
The gynaecologist applied to the Federal Court, arguing that s. 8(1) of the Infertility Treatment Act was inconsistent with s. 22 of the Commonwealth's Sex Discrimination Act 1984 to the extent that it limited infertility treatment to women who were married or in a de facto relationship. The Federal Court agreed, with the effect that the Victorian legislation did not apply to the extent of the inconsistency and the gynaecologist could provide infertility treatment to an unmarried woman or a woman not in a de facto relationship. The Australian Catholic Bishops Conference and the Australian Episcopal Conference of the Roman Catholic Church (the applicants), who were friends of the court in the Federal Court proceeding, unsuccessfully opposed the gynaecologist's argument.
The applicants subsequently brought proceedings in the High Court under its original jurisdiction for an error of law on the face of the Federal Court's record. To bring their application, they relied on ss 75(v) and 76(i) of the Constitution and ss 30(a) and 32 of the Commonwealth's Judiciary Act 1903, which generally provides for the High Court's original jurisdiction in certain 'matters'. The Commonwealth Attorney-General also issued to the Episcopal Conference a fiat that was limited to an application for relief on the basis that the Sex Discrimination Act did not apply to the subject of the Victorian legislation - infertility treatment - and was therefore not inconsistent with the Victorian legislation. The applicants sought the remedy of certiorari to quash the Federal Court decision under s. 32 of the Judiciary Act, which empowers the High Court to do so when a 'matter is pending before it'.
A majority of the High Court dismissed the proceedings on the basis that there was no 'matter' to invoke the original jurisdiction of the court. A majority held that applications for certiorari for a non-jurisdictional error of law on the face of the record by non-parties to the initial proceedings did not give rise to a 'matter' within the meaning of Chapter III of the Constitution. A 'matter' invoking the High Court's jurisdiction must include a controversy about some immediate right, duty or liability, rather than a theoretical interest in the subject matter of the case. A minority of the Court held that there was a 'matter' of controversy invoking the Court's jurisdiction - namely, whether there was an error on the face of the Federal Court's record and whether the applicants were entitled to certiorari. The minority did not, however, exercise its discretion to grant certiorari on the basis that the Federal Court orders did not affect the legal rights, duties and interests (including economic) of the applicants.
The High Court held that the Refugee Review Tribunal had denied the two asylum seekers procedural fairness because information favourable to their cases was not given to the tribunal by the department. In both cases the tribunal had written to the applicants, stating that the tribunal had looked at all the material relating to their applications (although the precise wording contained in the letters differed in the two cases). The court held that the tribunal did not receive or consider relevant documents that were favourable to the plaintiffs' cases and that the tribunal had thus misled the plaintiffs in its communication with them. The applicants successfully argued that because of that communication they did not produce the documents before the tribunal and were effectively denied the opportunity to do so.
This article, prepared by the Commonwealth Ombudsman's office, summarises some of Mr McLeod's work and achievements during his term as Commonwealth Ombudsman.
One of the first was to strengthen the network of regional offices to cover all states and territories, particularly through the re-establishment of a presence in Tasmania. Most regional offices now carry out investigations in nominated subject areas, to enable local staff to gain expertise and to conduct more complex and formal investigations. Staff mobility and staff exchanges - such as temporary transfers to cover periods of leave by senior staff - were also encouraged.
With the fairly modest resources available, the Ombudsman promoted the widest program of rural and regional outreach in the history of the office. This included visits to and displays in a wide range of country centres in New South Wales (such as Albury, Dubbo, Bega and Goulburn) and Jervis Bay and visits to Victoria, Tasmania and the Northern Territory. The office was involved in joint presentations with state ombudsmen in regional areas of South Australia, Queensland and Western Australia and with Commonwealth agencies in many regional centres. It also conducted significant outreach to multicultural communities in the Australian Capital Territory.
The office encouraged community access to the Ombudsman's services through the use of new technologies and other mechanisms. During Mr McLeod's term complaints lodged by email and via the internet grew from insignificant numbers to more than 1000 annually. That period also saw the development and rapid expansion of user-friendly websites (Commonwealth and ACT) that provide a large amount of information about complaints and the role of the Ombudsman, as well as straightforward complaint forms that can be submitted electronically.
Multilingual materials specifically designed to help detainees in immigration detention centres understand and make use of their right to access to services from the Ombudsman were also launched. The greatest impact was achieved by means of a striking poster in 10 languages, which is now displayed at all immigration detention centres in Australia.
The Ombudsman's office secured AusAID funding to develop a training and mentoring role for the National Ombudsman Commission of Indonesia, which is now well into its second year. The Ombudsman also sponsored visits to Australia for senior managers and investigators to attend training and liaison activities and to participate in on-the-job training with IT and investigative teams. The office has recently received additional funding from AusAID to conduct similar programs for Thailand and to extend the Indonesian program. In the last two years, the office sponsored activities for other countries in the region, including high-level visits and study programs for ombudsman managers and staff from East Timor, Vanuatu, Papua New Guinea and the Solomon Islands.
Mr McLeod left a legacy of a vibrant and growing relationship with our ombudsman counterparts in the region, who now look to us as a centre of excellence and a mentor as they continue to develop their structures and services.
In a relatively short time the office's Social Support Team has been very successful in achieving those aims. One of its reports dealt with the application of social security penalties and is illustrative of Mr McLeod's constructive, practical approach. The report contained 29 major recommendations for policy and procedural changes by Centrelink and the Department of Family and Community Services. By the time it was released, in October 2002, 19 of those recommendations had already been accepted and implemented and the agencies were committed to serious consideration of the others.
The Social Support Team has also contributed to reports on subjects such as service delivery problems arising from call centres and self-assessment of rights to benefits; it has a variety of complex matters under investigation. Development of the specialist social support function is an initiative the Ombudsman hoped would continue to improve the delivery of government social security programs.
In administrative review circles there has been continuing debate about the effects of the accelerating trend for the contracting-out of government services, including the degree to which the administrative actions of contractors might be subject to the oversight of the Ombudsman. Mr McLeod reported in detail on this matter in successive annual reports and worked with government to bring about legislative change. The government has stated its intention to introduce legislation to reaffirm the Ombudsman's jurisdiction in this area of government, where private contractors are now taking on roles that were once the preserve of government agencies.
In 2000 the new tax system was introduced. The Ombudsman played an important part in building confidence in the new tax arrangements by ensuring that taxpayers' problems were efficiently and effectively dealt with. In addition, there is an important and continuing role for the Ombudsman as the ATO and taxpayers come to terms with the changed environment of tax administration.
More recently, the Ombudsman and the ATO have developed close working relationships, particularly in relation to complaint-handling procedures. The ATO has revamped its structures and processes for dealing with complaints from the public, with the result that in the majority of cases the Ombudsman's office is able to advise complainants to seek to resolve their matters directly with the ATO in the first instance. This has allowed the Ombudsman to focus more on dealing with systemic and complex tax complaints. In early 2003, the Ombudsman completed an 'own motion' investigation into the effectiveness of the ATO's complaint-handling mechanisms. A report including recommendations was issued to the ATO, which has agreed to implement most of the changes. A public version of the report is due for release late in June. The investigation of tax complaints revealed the highest level of defective administration in the Ombudsman's jurisdiction.
The ATO has stated that it continues to strive for excellence and that it welcomes initiatives by government to ensure its transparency and accountability. Legislation to establish the Inspector-General of Taxation, to complement the roles of the Ombudsman and the Board of Taxation, was enacted in April 2003. The Ombudsman will continue to be the main external review body for complaints from the public and it is envisaged that demand will remain quite high.
During Mr McLeod's term of office the Ombudsman's monitoring role was considerably extended. In late 2001, the Parliament gave the Ombudsman the additional responsibility of providing external scrutiny of controlled operations undertaken by the Australian Federal Police and the Australian Crime Commission and of the DNA database administered by CrimTrac. In addition, the Ombudsman was given an increased role in relation to witness protection.
The purpose of monitoring is to provide assurances that the activities concerned are conducted properly and fairly. The Ombudsman's office is well placed to carry out this task because of the independence, impartiality and objectivity that are inherent in the role of the Ombudsman.
The Ombudsman's office also conducts periodic inspections of immigration detention centres, which are administered by the Department of Immigration and Multicultural and Indigenous Affairs, and of remand institutions in the Australian Capital Territory.
The press release states that the reform process will now focus, at least in the short term, on the reform of individual tribunals and that as a starting point it is proposed to reform the Administrative Appeals Tribunal. Among the possible areas for reform foreshadowed in the release are the tribunal's procedures, the constitutional requirements, and the use of ordinary members.
The Council is monitoring developments.
The taskforce, chaired by Justice Michael Barker, conducted an analysis to determine which boards, tribunals and other decision-making bodies were suited to amalgamation into a single state tribunal. The report recommended that the proposed state tribunal hear matters ranging from town planning, strata title, land valuation, revenue, dog licensing, dog destruction orders, and registration of painters and builders through to disciplinary proceedings affecting 23 self-regulated trades and professions.
The structure of the proposed tribunal is based on the structures of the Victorian Civil and Administrative Tribunal and the New South Wales Administrative Decisions Tribunal.
The unified tribunals service was recommended in a review of the UK tribunal system by Sir Andrew Leggatt. A white paper that will form the foundation for policy proposals is expected later this year. The government expects the new system will increase accessibility to tribunals, raise customer service standards, and improve administration.[48]
The Western Australian Attorney-General, Mr Jim McGinty, has announced that the state government has accepted the recommendations of the report in full and that legislation to implement them is being prepared.
Accordingly, the Procedural Fairness Act seeks to amend the Migration Act to provide a clear legislative statement that the codes of procedure specified in the Procedural Fairness Act are an exhaustive statement of the natural justice hearing rule. In effect, the amendments seek to oust common law principles of natural justice and limit the scope for judicial review. The amendments will affect the codes of procedure in the Migration Reform Act 1992 that relate to visa applications, visa cancellations, revocations of visa cancellations without notice, and the conduct of reviews by merits review tribunals. In the Bill's explanatory memorandum, the Hon. Philip Ruddock MP noted that the amendments do not affect the operation of the new judicial review scheme as set out in the Migration Legislation Amendment (Judicial Review) Act 2001.
The Act requires that, when dealing with 'personal information', organisations comply with the National Privacy Principles or an 'approved privacy code'. The National Privacy Principles were developed by the Privacy Commissioner in consultation with business and consumers; they set out minimum standards for how business and other private sector organisations should deal with personal information. Private sector organisations are bound by the National Privacy Principles, unless they have their own privacy code - an approved privacy code - that has been approved by the Privacy Commissioner. The Privacy Commissioner will approve a code only if it provides as much privacy protection as the National Principles.
Despite these changes, it is important to note that the amendments allow a contractual clause between a Commonwealth agency and a contracted service provider to permit a breach of a National Privacy Principle (s. 6A(2)) or an approved privacy code (s. 6B(2)).
An agency that enters into a Commonwealth contract must ensure that the contract contains provisions to ensure that a contractor and subsequent subcontractors do not act in a way, or engage in a practice, that would breach an information privacy principle if that act were done or the practice were engaged in by the agency (s. 95B). The Act provides a model clause to assist Commonwealth agencies in discharging their obligations under s. 95B.
A small business operator that is also a contracted service provider under a Commonwealth contract is subject to the legislation in respect of the performance of the contract but will be exempt in relation to its other acts and practices (s. 6D).
Agencies and contractors are required to release, on request, details of privacy clauses in their contracts (s. 95C).
The Council was initially concerned that the office would unduly duplicate work performed by the Commonwealth Ombudsman. It also considered that the information-gathering powers proposed for the office of Inspector-General do not include gaining confidential information about individual taxpayers without their consent.
In relation to the first of these concerns, after viewing the Bill, the Council concluded that the Bill did not modify the existing legislative powers of the Commonwealth Ombudsman. The Council also understands that practical arrangements are to be developed between the Ombudsman and the office of the Inspector-General in order to avoid duplication in matters under investigation by either office.
In relation to the second concern, although the Bill provided for wide information-gathering powers there was no provision in it to compel individual taxpayers to disclose confidential individual information. Having regard to the Bill's focus on reviews of the tax administration system, to the fact that information relating to individual taxpayers is likely to be incidental to a review of the tax administration system, and to clauses 12, 15, 23 and 37 of the Bill, the Council was satisfied that information about individual taxpayers is afforded sufficient protection.
After a number of events involving allegations and complaints of assault by officers and members of A Company, 3rd Battalion, The Royal Australian Regiment, in October 2000 the Chief of the Defence Force noted his intention to appoint an independent Inspector-General of the Australian Defence Force. The office of the Inspector-General was established to allow members of the ADF to take their complaints to an independent body specialising in dealing with ADF complaints about the military justice system.
The Inspector-General reports directly to the Chief of the Defence Force and will provide the chief with internal audit and review of the military justice system independent of the ordinary chain of command. His functions fall into four principal areas:
The Inspector-General will have the power to conduct investigations on his own initiative, as directed by the Chief of the Defence Force, or on request by the Chiefs of the Navy, Army or Air Force. It is intended that the Inspector-General and his staff will conduct their inquiries under the umbrella of the Defence Inquiries Regulations. Amendments to these Regulations are being pursued to specifically take account of the Inspector-General's responsibilities.
The Inspector-General has a full-time staff of nine military and civilian personnel, including legal officers and service police investigators. These may be supplemented from time to time by part-time staff drawn from the reserve services, whose assistance may be sought to conduct specific inquiries.
Until June 2003 the office of the Inspector-General of the Australian Defence Force was located at Russell Offices, Russell, ACT; it is now located in the RG Casey Building, Barton, ACT.
The establishment of any new administrative review body should be precipitated by a clear need for such a body. In recent times a number of industry ombudsman schemes have been established, especially in relation to areas that were previously publicly owned or regulated.[50] While generally not unsupportive of such schemes, the Council believes that such bodies should only be established where there is a demonstrable case that they would be welcomed by the community and are likely to impose consumer satisfaction by enhancing the efficiency and responsiveness of service delivery.
The Council intends to monitor developments in this area.
Before the ATSIC Act 2002 amendments, the Aboriginal and Torres Strait Islander Commission was empowered by the 1989 Act to make several decisions, including decisions relating to the issue of grants, loans and financial guarantees. The commission could delegate such decisions to the Chief Executive Officer or other ATSIC officers (s. 45 of the 1989 Act) or to a regional council (s. 45A of the 1989 Act). An individual affected by a delegate's decision to issue a grant, loan or guarantee could seek review from either the commission (s. 195 of the 1989 Act) or the Administrative Appeals Tribunal (ss. 196 and 196A of the 1989 Act).
The ATSIC Act 2002 amends ss. 195 and 196 of the 1989 Act to allow bodies corporate and unincorporated bodies affected by such decisions to seek review from the commission and the Administrative Appeals Tribunal when all other avenues of internal review have been exhausted. It also allows the commission to delegate its s. 195 function of reviewing decisions. Where such a review occurs, the complainant cannot seek further internal review (s. 195(3)).
Among the features of the new registration system are a more clearly defined threshold test for obtaining design rights, a broader infringement test, a reduced period of registration, and new enforcement procedures.
The Registrar of Designs determines whether or not to register a design application. Where the registrar refuses to register a design, the registrar must give the applicant written reasons for the refusal (subclause 43(3)). A decision to refuse to register or publish a design, to refuse a design application or to refuse an application for an extension of time is reviewable by the Administrative Appeals Tribunal (clause 136).
If such a decision is made, the Bill requires that a written notice be given to the person whose interests are affected by the decision, stating that an application may be made to the AAT (subclause136(2)). However, failure to give such a notice does not invalidate the decision. A decision to revoke a design can be appealed against in the Federal Court (subclause 68(6)).
Under the Bill the new commission will be able to intervene in court proceedings only if it has either obtained the approval of the Attorney-General (if the president is not, and was not immediately before appointment as president, a federal judge) or notified the Attorney-General of the proposed intervention (if the president is, or was immediately before appointment as president, a federal judge).
The new commission will not be able to recommend the payment of damages or compensation following inquiries into acts of the Commonwealth that may breach a person's human rights or acts of any employer in relation to discrimination in employment.
The Attorney-General will have the power to appoint part-time complaints commissioners to whom the president of the new commission will be able to delegate complaint-handling functions.
The new commission will have powers to delegate under the renamed Australian Human Rights Commission Act 1986, rather than under the Disability Discrimination Act 1992, the Racial Discrimination Act 1975 and the Sex Discrimination Act 1984.
The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 seeks to amend the Australian Security Intelligence Organisation Act 1979. The Bill was laid aside by the House of Representatives on 13 December 2002 and then passed by that House on 27 March 2003. It was introduced into the Senate on 20 May 2003 and at the time of going to press is awaiting debate.
During 2002 the Bill was subject to extensive scrutiny by three parliamentary committees. It was referred to both the Senate Legal and Constitutional Legislation Committee and the Parliamentary Joint Committee on the Australian Security Intelligence Organisation, the Australian Secret Intelligence Service and the Defence Signals Directorate. The Parliamentary Joint Committee reported on 5 June 2002 and the Senate Committee reported on 18 June 2002. The Bill was also reviewed by the Senate Legal and Constitutional References Committee, which tabled its report on 3 December 2002.
The Parliamentary Joint Committee made a number of recommendations - relating to the issue of warrants, the detention regime, and accountability measures - for changes to the Bill. The Senate Legal and Constitutional Legislation Committee agreed with these recommendations. On 24 September 2002 government amendments to the Bill, responding to the recommendations of the committees, were passed by the House of Representatives.
As amended, the Bill would allow the Director-General of Security, with the Attorney-General's consent, to seek a warrant from a federal judge, a federal magistrate or another authority prescribed in regulations. The warrant would authorise the questioning and, if necessary, the detention of a person for up to 48 hours. Questioning under a warrant would take place before a 'prescribed authority'. Depending on the circumstances, a prescribed authority could be a former judge of a superior court, a current judge of a state or territory supreme or district court, or a president or deputy president of the Administrative Appeals Tribunal.
A person detained under consecutive warrants would not be able to be held for longer than seven days. In addition, warrants that would result in a person being held for longer than 96 consecutive hours must be sought from a federal judge.
Other than in exceptional circumstances, the person detained would be able to contact a lawyer. The warrant may require that the lawyer be security cleared. In exceptional circumstances, where the Attorney-General is satisfied that a terrorism offence is being or is about to be committed, access to a lawyer could be delayed for up to 48 hours. After 48 hours, however, the detained person would have the absolute right to contact a lawyer.
At any time a detained person would be able to contact the Inspector-General of Intelligence and Security or the Commonwealth Ombudsman. The Inspector-General of Intelligence and Security is an important accountability mechanism for Australia's intelligence agencies: it operates independently of government and has extensive investigatory powers. If it were concerned about an illegal act or an impropriety occurring during questioning it could advise the prescribed authority. The prescribed authority might then suspend questioning until it is satisfied that the Inspector-General's concerns have been addressed.
The Parliamentary Joint Committee also made recommendations concerning the Bill's application to children. As amended, the Bill would not apply to anyone under the age of 14 years. Young people between the ages of 14 and 18 years could, in exceptional circumstances, be subject to a warrant. This would occur only if the Attorney-General were satisfied that the young person will commit, is committing or has committed a terrorism offence. Young people who are subject to a warrant would be entitled to have a lawyer and a parent or guardian present at all times when questioned.
The Act provides the Australian Transport Safety Bureau with legislative authority in relation to rail safety investigation (currently dealt with under state and territory law) and consolidates the bureau's investigative powers in relation to air and shipping accidents.
The Act creates the position of Executive Director of Transport Safety Investigation, whose powers include the following:
Sensitive information collected during the course of an investigation is subject to restrictions. For example, on-board recording information cannot be used in criminal proceedings against a crew member and can be disclosed only in limited circumstances, such as when it is necessary or desirable for the purposes of transport safety.
The Act was introduced along with the Transport Safety Investigation (Consequential Amendments) Act 2003, which operates to incorporate references to the Transport Safety Investigation Act in existing transport safety and freedom of information legislation.
The primary purpose of the Australian Heritage Council Bill is to establish the Australian Heritage Council, which would replace the Australian Heritage Commission. Among the council's functions will be advising the Minister on heritage matters and maintaining the Register of the National Estate (a register of places and their heritage value). The council may include a place in the register if it has a 'heritage value' and the council has attempted to advise owners or occupiers and Indigenous persons with rights or interests in the place. These people must be given a reasonable opportunity to comment in writing on whether the place should be included in the register. A similar process would apply when the council sought to remove a place from the register.
Upon written request, the Minister may conduct a review of a council decision to include or not include a place in the register or to remove a place from the register. The council must comply with a Minister's direction that a place be included in or removed from the register. Where a person requests them, the Minister must give written reasons for his or her decision within a reasonable time.
The Bill passed through the House of Representatives on 14 November 2002 and at the time of going to press is before the Senate.
The Hon. Justice Mary Gaudron retired from the High Court on 10 February 2003.
The Hon. Justice Dyson Heydon was sworn in as a Justice of the High Court on 11 February 2003.
The Commonwealth Attorney-General announced the following appointments to the Administrative Appeals Tribunal in the period January 2002 to April 2003:
[2] Sutherland P. & Johnson P., 'The impact of technology on decision-making and administrative review', Paper presented to Australian Institute of Administrative Law Conference, Canberra, 1996, p. 9.
[3] Australian National Audit Office, Review of Veterans' Appeals against Disability Compensation Entitlement Decisions, Audit Report no. 29 2000–01, ANAO, Canberra, 2001, pp. 36, 42–3.
[4] See Johnson P. & Dayal S., 'New tricks: towards best practice in the use of rulebase systems to support administrative decision-making', Paper presented to a seminar of the Institute of Public Administration Australia, Canberra, 1999, p. 6.
[5] 'Lessons from the past/challenges for the future: merits review in the new millennium', Paper presented at the 2000 National Administrative Law Forum - 'Sunrise or Sunset? Administrative Law in the new Millennium', June 2000, p. 6.
[6] See the Council's 1996 submission to the Senate Legal and Constitutional Affairs Committee Inquiry into Certain Matters Relating to the Role and Functions of the Administrative Review Council, par. 27, and the Council's A Guide to Standards of Conduct for Tribunal Members, ARC, Canberra, 2001, p. 13.
[7] Long M., 'Beyond traditional boundaries: government in the information age', Australian Journal of Public Administration, Community Consultation - Coombs: 25 years on, vol. 61, no. 1, March 2002, p. 12.
[8] Comments and submissions should be sent to The Executive Director, Administrative Review Council, Robert Garran Offices, National Circuit, Barton ACT 2600.
[9] Phone 02 6250 5800; facsimile: 02 6250 5980; email: arc.can@ag.gov.au; a copy of the discussion paper is also available on the Council's website <law.gov.au/arc>.
[10] The Council's first report, Administrative Decisions (Judicial Review) Act 1977 - exclusions under section 19, in 1978 addressed this topic in the context of exemptions from the application of the Administrative Decisions (Judicial Review) Act.
[11] However, as a result of Plaintiff S157/2002 v. Commonwealth [2003] HCA 2, where the High Court significantly reduced the scope of the privative clause's intended effect, the desirability of using such clauses to limit judicial review is uncertain.
[12] In Project Blue Sky v. Australian Broadcasting Authority (1998) CLR 355, [93] per McHugh, Gummow, Kirby and Hayne JJ, it was found that, rather than seeking to make a distinction between mandatory and directory provisions, the better approach was 'to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid'.
[13] See Goldie v. Commonwealth of Australia (2002) 188 ALR 708, involving consideration of s. 189 of the Migration Act 1958.
[14] In the Migration Reform Bill 1992, the government sought to deal with these difficulties - see Hon. Gerry Hand, Minister for Immigration and Ethnic Affairs, Second Reading Speech to the Migration Reform Bill 1992, Hansard, 4 November 1992.
[15] Dennis Pearce, 'Is there too much natural justice?' AIAL Forum, vol. 1, 1992, p. 94.
[16] Per Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634, 645.
[17] For example, these arguments have been used to support recent amendments to the Migration Act 1958 by the Migration Reform Act 1992, the Migration (Judicial Review) Act 2001 and the Migration Legislation Amendment (Procedural Fairness) Act 2002.
[18] Further mechanisms are examined in the discussion paper.
[19] (2000–2001) 204 CLR 82.
[20] Specifically, the doctrines of the rule of law and the separation of powers, which find particular expression in s. 75(v) of the Constitution.
[21] Plaintiff S157/2002 v. Commonwealth of Australia [2003] HCA 2 [102].
[22] An example of this is the High Court's decision in Plaintiff S157/2002 v. Commonwealth of Australia [2003] HCA 2, where the Court unanimously held that the privative clause and time limit clause in the Migration Act 1958 were constitutionally valid but construed them so narrowly so as to significantly reduce their effect. The privative clause was not considered clear enough to prevent judicial review of an administrative decision involving jurisdictional error and, specifically, involving contravention of natural justice.
[23] (2001) ALR 1.
[24] [2002] AATA 758.
[25] [2002] AATA 124.
[26] [2002] AATA 135.
[27] [2002] AATA 490.
[28] [2002] AATA 962.
[29] [2002] AATA 21.
[30] [2002] AATA 31.
[31] [2002] AATA 32.
[32] [2002] AATA 919.
[33] Attorney-General's Department, FOI Annual Report 1982–83, Australian Government Publishing Service, Canberra, 1983, p. xi.
[34] Administrative Review Council & Australian Law Reform Commission, Open Government: a review of the Freedom of Information Act 1982, Report no. 40, Administrative Review Council, Canberra, recommendation 18.
[35] See the Explanatory Notes to the Freedom of Information Act 2000, 2000, par. 6.
[36] [2003] HCA 6.
[37] [2003] HCA 11.
[38] [2003] HCA 7.
[39] [2003] HCA 33.
[40] [2003] HCA 1.
[41] [2003] HCA 2.
[42] (1945) 70 CLR 598.
[43] (1945) 70 CLR 69.
[44] [2002] HCA 11.
[45] (2002) 188 ALR 302.
[46] (2002) 76 ALJR 694.
[47] [2002] HCA (8 August 2002).
[48] Lord Chancellor's Department, Press Notices, 11 March 2003, <www.gnn.gov.uk/gn>.
[49] [2001] HCA 22.
[50] For example, telecommunications, banking, insurance and energy.