Admin Review

No. 56 June 2004
ISSN 0814 - 1231

Admin Review is the administrative law bulletin of the Administrative Review Council.

The Council will shortly be launching a new publication, Legal Training for Primary Decision Makers: a curriculum guideline. The Council's The Scope of Judicial Review and Automated Assistance in Administrative Decision Making are also nearing completion.

More information about the work of the Council is available from the Council's website http://www.law.gov.au/arc and from the Secretariat (ph. 02 6250 5800).


Editors

Wayne Martin QC, Professor David Weisbrot, Melanie Sloss SC and Trevor Mobbs (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 the bulletin are those of the editors or writers and not necessarily the views of the Council or any of its members or the members of any 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 and not legal advice. Readers should carefully check the detail of legislation, cases and other material included in the bulletin.


Contents

President's comments

Some reflections on the Council's discussion paper on the scope of judicial review

Conducting an inquiry

Launch of the issues paper on automated assistance in administrative decision making

The Department of Veterans' Affairs Compensation Claims Processing System

Regular reports

The Administrative Review Council

The Administrative Appeals Tribunal

Freedom of information

Case notes

Admin law watch

Personalia

President's comments

The previous issue of Admin Review was published shortly after the Council released initial papers for two major projects. This current issue, my second as President, finds the Council on the verge of publication of final reports for both of those projects.

The Council's discussion paper The Scope of Judicial Review attracted much interest. This issue of Admin Review includes one commentator's response to matters raised in the paper. The Council's final report on the project will, I believe, be a useful contribution to an essential aspect of administrative law.

The other major project nearing completion is Automated Assistance in Administrative Decision Making. As part of this project, the Council held an information and consultation forum in Melbourne on 12 November 2003. The forum was well attended and attracted considerable interest in this developing area. This issue of Admin Review contains one of the presentations made at the forum and an article on the project by Council member Professor Robin Creyke.

A third Council project nearing completion is a curriculum guideline for people involved in developing legal training programs for primary decision makers. The Council hopes the guideline, Legal Training for Primary Decision Makers, will provide a core framework for training programs that can be tailored to the needs of individual government agencies. Good primary decision making is fundamental to the quality of the administrative system as a whole.

As well as these substantial longer term projects, the Council continues to provide advice to government agencies on the administrative review facets of particular legislative proposals and to make submissions to inquiries by other bodies, such as committees of Parliament, where the Council's knowledge of administrative law and practice can be of assistance.

Finally, late last year saw the passage of the Legislative Instruments Act 2003. It may have taken a little over a decade to come to fruition, but the Council's original proposal for reform of the way delegated legislation is created and enforced has consistently received broad support on both sides of politics. The commencement of this legislation will see a basic change in administrative practices that is testimony to the importance of the work of the Council.

Wayne Martin QC


Some reflections on the Council's discussion paper on the scope of judicial review

Chris Finn[*]

Overview

As an opening observation, it may be noted that, although the Council's 2003 discussion paper is entitled The Scope of Judicial Review, the emphasis of the paper is clearly on restriction of that review. Little or no space is devoted to a consideration of possible arguments in favour of an expanded scope for judicial scrutiny of government action. Part Two of the paper contains a well-made exposition of the significance of judicial review, as an element of the 'rule of law', in improving accountability - and, indeed, in offering valuable feedback on administrative decision-making processes - but the paper does not appear to suggest any deficits in these areas for which more expansive judicial review might be a possible solution.

In this, the discussion paper captures much of the flavour of current commentary on the respective roles of the courts and the executive in relation to administrative decision making. Critiques of 'interventionist' courts are unsurprisingly led by governments that find such intervention inconvenient and frustrating and are not afraid to respond strongly, stridently and often, by all means at their disposal, in support of the various policies for which they claim a political mandate. The vexed area of migration law is an obvious example here, and the litany of government measures designed to ensure that the executive of the day prevails in this policy field need not be recited. But still it is frequently asserted that it is the courts that are the primary transgressors across the less-than-bright constitutional line between executive and judicial responsibility. Moreover, this is a view that attracts a considerable degree of academic support.

Defending judicial review

This article asks, however, whether such an adverse account of judicial review misses more than it sees. Should judicial review be subject to even further restriction? Or is it now in need of stalwart defence, as a vital element in our constitutional heritage? In a nutshell, it is argued here that the Council should exercise caution before recommending any further limits to the scope of judicial review. As the discussion paper correctly observes, access to the courts is a fundamental aspect of the democratic relationship between government and individuals and allows the lawfulness, fairness and rationality of government action to be assessed by an independent arbiter with no direct stake in the outcome. Given the manifold ways in which government necessarily regulates the actions of individuals in the broader public interest, this independent assessment provides an essential check and balance to what might otherwise appear as the arbitrary exercise of power by government agencies. While this is of obvious benefit to affected individuals, it is also of broader benefit to government. The existence of a strong and independent review mechanism does much to ensure that government action is legitimised, precisely because of its exposure to that independent scrutiny. Judicial review is an important - indeed, crucial - element of the rule of law.

Existing limits on judicial review

As the discussion paper observes, there are already numerous legislative and judicial techniques for limiting the scope of judicial review. To the extent that judicial review requires limitation, those devices are more than adequate for the task. There are both external legislative and internal judicial constraints on judicial review. It is not implausible to suggest that, given judicially imposed limits such as justiciability and standing rules, as well as legislative exclusions such as privative clauses (and the range of more subtle techniques noted in the discussion paper), there is a strong case for more, not less, judicial review.

Judicially imposed self-constraints

The discussion paper notes that the courts already have a number of methods for limiting the scope of judicial review. Some at least of these are themselves open to question. The Australian Law Reform Commission has previously reported at length on standing rules and recommended their relaxation.[1] This is a position that still deserves support, despite long legislative inaction on the matter. Strangely, the discussion paper makes little reference to standing rules as an existing technique for limiting the scope of judicial review.

The role of judicial deference should also not be overstated. Judicial deference on questions of fact is inherent in the nature of judicial review and is reflected in the parameters of the various grounds that constitute the substance of that review. When a decision maker has clearly erred in law, however, it is difficult to see why deference is appropriate. It is well established that in the Australian constitutional system the judiciary is the final arbiter of questions of law. This is because only the judiciary possesses the necessary degree of independence from government to make the required judgments as to the lawfulness of the intrusive exercise of government powers.

'Policy' decisions and polycentricity

The discussion paper suggests that the 'polycentric' nature of a decision might be a basis for refusing review and classifying a decision as 'non-justiciable'. However, this is questionable. As the discussion paper itself observes, there are few if any administrative decisions that are not in fact polycentric, in the broad sense that, although they might concern an individual and have direct consequences for that individual, they are also a particular instance of the implementation of a general policy. It is difficult to imagine any class of administrative decision that is made in a policy vacuum. Such decisions inevitably and rightly take into account the broader public interest, as understood by the decision maker and taking into account relevant formal or informal policy guidelines. More than that, most administrative decisions involve the balancing of a range of policy factors and interests. It may be that they involve the allocation of finite resources, in the sense that a decision involving the award of a benefit of some kind necessarily implies the non-award of that benefit to another party.

Even in the most extreme of these cases it does not follow that review by the courts is inappropriate. The initial decision made by an administrator might be polycentric in nature, but the matters faced by a review court will be different. Thus, the court does not ask whether a decision allocating a limited resource (for example, a visa) is the correct one but simply whether the decision was made fairly - that is, whether affected people (in particular the applicant in the matter) received a 'fair' hearing. This may not be a question that admits of a simple and obvious answer in all cases, but it is a quite different question from that decided by the original administrator. Equally, the reviewing court asks whether the impugned decision was made lawfully and rationally, without remaking the decision for itself.

It is argued, therefore, that 'policy and polycentric issues' do not provide a strong basis for limiting the scope of review, beyond those limits that flow from the nature of the grounds of review. The 'policy' nature of a discretion ought not in itself be sufficient reason for excluding or limiting judicial review. It should, however, be recognised that such decisions will be amenable to review only in limited circumstances, such as simple lack of power or jurisdiction. Other grounds are unlikely to be made out, because of the lack of a sufficiently individualised decision or the broad nature of the policy-making discretion at issue. There are already sufficient judicial techniques for dealing with such cases.

The status of the decision maker

Similarly, the status of the decision maker should be of little or no account in determining the appropriate scope for judicial review. As noted, however, the nature of the decision-making power itself will be relevant, with policy-laden decisions tending to involve broader discretions and consequently decreased scope for review on grounds such as relevant and irrelevant considerations or unreasonableness. Finally, and despite the decision of the High Court in Jia[2], it would be dangerous to accede too far to the proposition that 'political' decision makers such as the Minister in that case are thereby absolved of the responsibility to make decisions in a fair and impartial manner. To do so is to rob administrative decision making of the appearance of fairness, which is integral to its continued legitimacy in the public eye.

The expertise of the decision maker

The discussion paper correctly observes that 'courts already show considerable deference to the expertise of expert decision makers' (paragraph 5.195). There is little or no warrant for legislative attempts to further reinforce this deference. The legislature already has the ability to condition the existence of a jurisdiction on the subjective (albeit reasonable) opinion of a decision maker that relevant facts exist, rather than the objective existence of such facts. This approach appears to accord a suitable degree of deference to expert factual decision makers.

Decisions of a 'legislative' nature

It is inappropriate to impose broad limitations on the review of 'legislative' decisions. Such decisions must, at a minimum, be shown to be within the scope of the relevant grant or grants of power. Just as a court is able to review the exercise of legislative power, albeit on limited constitutional grounds, so too should it be able to review the lawfulness of 'legislative' decisions. The distinction between 'legislative' and 'administrative' decisions can be a difficult one, productive of arid litigation. Eliminating this distinction and replacing it with a presumption in favour of the availability of judicial review would be a useful simplification.

It should be noted that the predication of both standing requirements and procedural fairness on the decision having an individualised effect will in many cases suffice to exclude effective judicial review. Classification of decisions as 'legislative' is therefore redundant. In other cases, where the asserted ground is excess of power, judicial review is an appropriate mechanism for ensuring that government acts within the limits of its statutory and other powers. Thus the practical result is consistent with that recommended in paragraph 5.172 of the discussion paper, with a limited range of grounds being available at the judgment of the courts.

Urgent or emergency situations

Even in the case of urgent or emergency decisions, it is doubtful that legislative limitations on review will often be appropriate or necessary. Use of such powers could involve considerable intrusion on individual rights and freedoms. This in itself suggests that arguments for blanket exclusion of judicial review should be treated with great caution. Although abuse of such power could be expected to be rare, a judicial response should be available in those rare circumstances. It is to be expected that judicial intervention would be equally rare and may be limited to situations where a decision is simply beyond power or was not made in good faith. In the vast majority of cases, the nature of the grounds of review themselves will prevent review of emergency decisions, rendering a blanket exemption unnecessary.

Is the nature of any ground of review sufficient in itself to justify limitation or exclusion of review?

The discussion paper explores at length suggestions that the nature of particular grounds of review justifies further limits on the scope of judicial review. In fact, it is noteworthy that the majority of the principal grounds for such review are listed in the discussion paper as attracting negative comment. The extensive list includes unreasonableness, the relevant or irrelevant considerations grounds, error of law, jurisdictional error, and procedural fairness. Judicial review would be little more than an empty shell if review on each of these grounds were to be wholly excluded. That fact alone strongly suggests that legislative attempts to exclude review on the basis of one or more of these grounds should be avoided. What should be, and is, recognised, however, is that some grounds (for example, unreasonableness) require significant judicial restraint in their deployment. It is suggested that, despite this, the discretionary nature of judicial restraint or intervention means that it can be more appropriately targeted to the facts of individual cases than a legislative attempt to limit review on the basis of particular grounds.

The 'public perspective'

The discussion paper refers to the 'public perspective' on the scope of judicial review. Notably, this raises questions of accessibility and affordability. Matters such as the need for consistency and predictability, potential 'abuse of process', and the volume and cost of cases can also be usefully considered under this heading. Each of these is discussed briefly in the sections that follow.

Two other matters warrant mention in relation to the public perspective. First, it must be asked whether legislative attempts to further limit review - with the result that complexity is added to the review process - are truly in the public interest. Legislative barriers such as the privative clause in the Migration Act 1958 have been strikingly unsuccessful in diminishing the volume or complexity of litigation. They have simply increased the complexity, cost and length of such litigation. It is difficult to see that this is in the public interest. Similarly, legislative measures to prohibit class actions are difficult to reconcile with a stated commitment to accessibility and affordability.

Legislative devices aimed at excluding judicial review will also exclude the educative and corrective effect of that review. It is well accepted that one of the benefits of judicial review lies in its potential to improve the quality of primary decision making, to the benefit both of the relevant agency and of people subject to that decision making. The most effective and rational way of lessening the demand for judicial review is to maintain that high quality of primary decision making. Exclusions from review might have the opposite effect.

Consistency and predictability

Although consistency is obviously desirable, it is more important that administrative decision makers make the correct and preferable decision on the facts of the individual case before them. In any event, in high-volume jurisdictions there will already be a high degree of consistency (and hence predictability) in decision-making processes. The availability of judicial review would probably have only a marginal impact on this.

One might also ask exactly how the availability of judicial review affects consistency and predictability. Differing outcomes are to be expected within any given class of administrative decisions since the facts will vary from case to case. Consistency here cannot mean consistency of outcome: it can only mean consistency in the decision-making process. At most, this will mean somewhat more elaborate decision-making processes in particular cases, as the facts of those cases require it. But the principles of fairness and rationality to be applied to those facts remain consistent.

Abuse of process

In fields such as migration the spectre of 'abuse of process' looms large in the government mind. The scale of such 'abuse' in reality and the appropriate response to it are different matters.

The first question to be asked must be exactly what constitutes abuse of process. It can hardly be abuse to exhaust the full range of legal rights available to one. Moreover, in a field such as migration, where the majority of such concerns appear to arise, many applicants are unrepresented and thus in a very poor position to assess the legal strength of their own claims. This is even more the case when the legal matters to be argued concern not the factual merits of a visa application but the judicial review question of whether the process of determining that application has miscarried in a manner that might attract judicial intervention.

Even where it is possible to argue in hindsight that abuse of process may have occurred, such abuse is difficult to detect in advance unless it is very clear. On the rare occasions that it is clear, the court has suitable mechanisms for acting. Statements of claim can be, and are, struck out if they disclose no reasonable cause. But broad-brush legislative attempts to limit judicial review on the basis of perceived abuse of process should be strongly resisted. These measures cannot distinguish in advance between the meritorious and the unmeritorious cases. This can rarely be done until the arguments have been heard. To attempt a legislative limit on review in order to block purported abuse would have the unfortunate, and unjust, consequence of also blocking a large number of meritorious claims.

The volume and cost of cases

The volume and cost of cases ought not be a prima facie justification for limiting the scope of judicial review. A high volume of cases may well be an indication of lower quality primary decision making, as the discussion paper suggests. The 'ready availability of legal aid' is not a significant factor.

Transgression of the legality-merits distinction

Judicial review traces and delineates a key constitutional divide between the realm of the executive branch of government and that of the courts. The crucial distinction is the one between judicial review and merits review. As the discussion paper observes, courts will, and on occasion do, transgress beyond the proper constitutional limits of their role. It is difficult to see how it could be otherwise when a social institution is asked to answer difficult questions of interpretation and principle. A far more important question, and a correspondingly more difficult one to answer, is how frequently this occurs. It is equally important to ask if there are corresponding occasions when review is inappropriately declined by courts because of an excess of constitutional sensitivity. It is unlikely that the errors will all be in one direction.

The difficulty with legislative restrictions on judicial review

While executively inspired attempts to limit review can be seen as one possible response to instances of judicial transgression, it would seem impossible to 'target' legislatively imposed limits to just such cases. Rather, the result would be a blanket ban on review in the relevant field, which would give rise to a possibility of subsequent injustice when an admittedly faulty administrative decision is placed beyond review. In short, the cure might be worse than the disease, which does not seem very virulent. Constitutional restraint should be seen as a two-way street, not a burden placed on the judiciary alone.

In this respect judicial self-restraint - while permitting the possibility of occasional error - has a broad advantage over legislative exclusions in that it is more discretionary and can be tailored to the facts of an individual matter. In general, judicial techniques for limiting the scope of judicial review are preferable to legislative measures for several reasons.

First, as noted, a judicial response - in essence involving a decision against an applicant on any of the number of discretionary elements that must be considered in the course of a judicial review - can be tailored and adapted to the facts of the matter at hand. The case can be judged on its 'legal' merits. Pre-emptive judgment, ill-adapted to as yet unforeseen legal issues, is avoided, as are its attendant injustices. It is worth re-emphasising the degree of injustice that is likely to flow from legislative attempts at a blanket restriction on judicial review in a class or classes of cases.

Second, it cannot be assumed that legislative techniques designed to exclude review will be effective. S157 shows that courts are unlikely to simply accept the more forceful attempts to oust their jurisdiction, at least where that jurisdiction is sourced to the Constitution.[3] It is doubtful if a single judicial review matter will be deterred by means of the privative clause tested in that case. Indeed, from the point of view of speeding up and simplifying the judicial review process (that is, 'administrative efficiency'), privative clauses are likely to be strongly counterproductive. Their practical effect is to provide a further, and highly complex, matter to be litigated - quite apart from the substantive merits of the particular ground or grounds to be argued. As with standing rules, the result is likely to be longer, more complex litigation rather than the exclusion of judicial review. Thus, if it were true that litigants in some fields (for example, migration) were 'abusing' the review process in order to delay the implementation of decisions taken against them, the use of devices such as privative clauses would aggravate rather than solve the problem. It would merely provide further areas for dispute. This is not in the interests of the courts, the litigants or administrative efficiency.

Finally, the question of constitutional propriety must be considered. Judicial review is in essence an accountability mechanism designed to provide a check on the power of the executive branch of government. Given that, the executive should not be able to finely calibrate its level of accountability to suit the needs of the day. Executive government ought not be the sole determiner of its own level of accountability to the courts, to parliament, and ultimately to the Australian people. If government is to be accountable solely on terms of its own choosing, that accountability is virtually meaningless. To put it bluntly, judicial review should, on occasion, be inconvenient for the executive if it is to be an effective accountability mechanism. An independent and impartial review of the legality of administrative action is one of the essential elements of a developed democratic society. Ultimately - and taking into account the decline in the doctrine of ministerial responsibility - it is one of the few devices left to ensure that the scope of executive activity remains consistent with legislative intent. It is fundamental that the executive branch be kept within the lawful range of its statutory and other powers. Were this not the case, there would be little substance to the requirement for the democratic assent of parliament.

Alternative remedies as a reason for excluding judicial review

There might be potential for some useful rationalisation in the area of alternative remedies. However, the judicial discretion to deny relief when an adequate alternative remedy is available involves legislative and judicial cooperation. The legislature must first provide a genuine functional alternative to judicial review. The adequacy of that alternative is crucial. An essential element in any 'adequate' alternative remedial system will always be provision for determination of questions of law by an independent judicial body.

This turns on a broad understanding of the term 'question of law'. It is therefore suggested that a statutory appeal on a question of law will provide an adequate alternative to judicial review as long as it is understood that such an appeal encompasses the normal judicial review grounds, such as denial of procedural fairness. The statutory appeal to the Federal Court on a question of law provided by s. 44 of the Administrative Appeals Tribunal Act 1975 is a well-known example.

As the discussion paper suggests (in paragraph 6.20), 'merits' review will provide an adequate - and in many cases superior - alternative remedy as long as it is full and comprehensive. That merits review cannot, however, be a dead end: provision must be made for an appeal from the merits review body on a question of law if required. An appeal 'on the merits' alone is not an 'adequate' alternative remedy in the relevant sense. Critically, a merits review body is not constitutionally authorised to determine questions of law. It possesses highly competent and dedicated members, but it is denied the necessary degree of constitutional independence from the executive, whose actions it is meant to scrutinise. As a consequence, it cannot 'adequately' perform the supervisory role of a judicial review court.

Where an avenue for merits review exists, it should generally be used in the first instance, except in cases where a contentious question of law will inevitably reach the courts however it is determined by the tribunal. Thus, the availability of merits review in the Administrative Appeals Tribunal, allied with the possibility of further appeal under s. 44 of the Administrative Appeals Tribunal Act, provides 'adequate' alternative remedies in the relevant sense, and courts should generally decline judicial review when these remedies are available. The most significant exception to this approach would be when a question of law is in serious dispute and it is apparent that any decision made by the tribunal on that question would probably be subject to appeal. Such circumstances would usually be dealt with under s. 45 of the Administrative Appeals Tribunal Act. In short, the current situation seems adequate and appropriate. The view taken by the Administrative Review Council in its submission to the Senate Legal and Constitutional Committee's Inquiry into Migration Legislation Amendment in January 1998 (quoted in paragraph 6.75 of the discussion paper) seems entirely appropriate.

The tax and workplace relations schemes

Without making a detailed point-for-point comparison, it appears that the tax and workplace relations schemes described in the discussion paper provide adequate functional alternatives for normal merits and judicial review. More detailed consideration would be required to reach a final conclusion, but it is tentatively suggested here that nothing in the nature of these regimes makes them unique. Similar regimes could in theory be considered for other areas of administrative decision making. This would, however, have the substantial disadvantage of introducing further complexity into the system of merits and judicial review for Commonwealth administration and as a result might not be in the public interest so far as accessibility of justice is concerned. Consequently, such a suggestion should be viewed with caution. This is one area - the availability of review - in which consistency is clearly desirable.

Alternative remedies in the criminal justice system

There are good policy reasons for limiting judicial review in the criminal justice system, so as to avoid fragmenting the process. This view is subject to the availability of adequate alternative remedies. Appeals to independent courts are, of course, a feature of the criminal justice system. The views expressed in the discussion paper (paragraph 5.145) on this point seem appropriate.

Legislative clarity and specificity

The foregoing comments make it apparent that, except in quite limited circumstances, the author does not favour additional legislative attempts to limit the scope of judicial review. For example, the author does not support further attempts to include privative clauses in Commonwealth legislation, since these clauses not only attempt to deny rights that should be accorded in a society that respects the rule of law but are also difficult and complex in their interpretation and certain to lead to additional litigation as a result.

The discussion paper suggests (paragraph 7.28) that legislative attempts to limit review should 'focus on the ambit of the power conferred, rather than on the extent to which a court is precluded from examining an exercise of power'. That said, it is reiterated that a desire to avoid the inconvenience of review is a poor reason for reconfiguring statutory discretions.

Discretions should be neither broadened nor narrowed with an eye to limiting judicial scrutiny. They should be drafted to confer the level of discretion most appropriate to the administrative or regulatory task at hand. Over-emphasis on defensive drafting would probably limit the effectiveness with which that task is carried out and, paradoxically, lead to more review.

Judicial review is better avoided by the making of high-quality, fair, lawful and reasonable decisions. Where this standard is not achieved, judicial review not only serves individual justice but also provides a useful corrective and feedback mechanism for the executive. Legislatures should be careful to avoid 'shooting the messenger' in such instances.

Should judicial review be limited when there is no impact on the final decision and/or no injustice?

As the discussion paper acknowledges, there will be rare instances where it can safely be said that a procedural irregularity will have had no impact on the outcome of a decision-making process and/or will have resulted in no injustice. In these circumstances the judicial discretion to refuse relief is well established. The views expressed about this in the discussion paper seem to be soundly based. To the extent that this outcome of the administrative process turns on a question of law that must be decided against the applicant, it may be appropriate for the courts to refuse relief. If, however, it is the facts that appear against the applicant, procedural irregularities might have resulted in an imperfect assessment of those facts and the matter should normally be remitted for a new decision.

In general, situations where the decision could not have been affected by the breach are difficult to foresee in advance and so are best left for judicial determination. Particular care should be taken by courts in reaching this conclusion where it appears that it might require them to descend to the merits of the administrative decision in question.

Conclusion: restriction, expansion or rationalisation?

It is argued that there is little reason for decreasing the scope of judicial review, given the range of judicial and legislative devices already in existence. The availability of an adequate alternative remedial structure provides the best rationale for such restriction, preserving as it does the constitutional role of the courts as the final, independent arbiters of legality.

In some respects it is arguable that the scope of judicial review should be increased rather than decreased. In particular, the standing rules deserve legislative rationalisation, and it is appropriate that outsourced service providers remain fully accountable to the courts and the public. In this, the positions previously taken by the Australian Law Reform Commission and the Administrative Review Council in earlier reports[4] should be endorsed and deserve reconsideration by government.

It is notable that there are three Commonwealth avenues for review - provided by s. 75(v) of the Constitution, the Administrative Decisions (Judicial Review) Act 1977, and s. 39B of the Judiciary Act 1903. In addition, there are statutory appeals on a question of law, as well as statute-specific schemes such as the taxation and workplace relations schemes discussed in the discussion paper. Some degree of rationalisation might be possible. This could be a matter for the Council to consider in the future, if not in the context of this particular inquiry.

Perhaps the time has come for a substantial updating of the Administrative Decisions (Judicial Review) Act, such that it 'covers the field'. Is there still any valid rationale for excluding from review 'legislative' decisions, such as the making of regulations, or decision-making powers formally conferred on the Governor-General? And what of the numerous and ad hoc exclusions from review (and the right to obtain reasons) that have accumulated over the years in the Act's schedules? It may be that a broader scope for judicial review - with the elimination of unnecessary technical restrictions on access - would best serve fair and rational government administration and the Australian community.


Conducting an inquiry

Wayne Martin QC[*]

This is an edited version of a paper presented at the 2003 National Administrative Law Forum, held by the Australian Institute of Administrative Law in Canberra on 3-4 July 2003.

Introduction

This paper provides an overview of some of the questions that commonly arise in the conduct of an inquiry and discusses some ways in which they might be resolved. Its focus is practical and procedural, rather than legalistic. Any attempt to analyse the legal principles governing all aspects of the conduct of an inquiry would require a book rather than a paper, and there are a number of good legal texts on the subject.[5]

The paper pays particular attention to the role of counsel assisting an inquiry, partly because of the egocentricity of the author (who recently spent 18 months as Counsel Assisting the HIH Royal Commission) but also because it is the author's view that there is considerable scope for greater use of that role in a wide variety of tribunals and administrative proceedings.

The range of inquiries

Inquiries come in a wide variety of shapes and sizes. The term 'inquiry' is broad enough to cover virtually all procedures that include the ascertainment or determination of facts or issues. There is no limit to the subjects on which inquiries can be and are conducted - including such diverse topics as criminal conduct, professional misconduct, administrative entitlement (from refugee status to broadcasting licence to welfare benefit) and high-level government policy. In procedural terms they occupy every point on the spectrum between something closely resembling a curial proceeding and an informal administrative investigation. They can be and are conducted for a wide variety of purposes, such as the making of a report or an administrative determination or the imposition of a disciplinary penalty (such as loss of livelihood). They exist in forms too numerous to list, but among them are royal commissions, the permanent corruption and crime commissions that are now found in most jurisdictions, parliamentary committees, disciplinary tribunals, and the plethora of administrative tribunals that exist in each jurisdiction and multiply like wire coathangers - inexplicably and geometrically.

Even within some categories of inquiry there are wide variations. For example, the matters inquired into by royal commissions vary greatly in subject and significance. In the United Kingdom in 1857 there was a royal commission into drawing. In 1903 in Western Australia there was a royal commission into the question of whether the Supreme Court building should be constructed of Donnybrook stone or brick. At the other end of the spectrum, some royal commissions in Australia have had a profound effect on the political history of this country; the Petrov and Costigan Royal Commissions are examples.

Adversarial versus inquisitorial

The adjectives 'adversarial' and 'inquisitorial' are often used to describe the procedure of an inquiry, as if the terms are mutually exclusive and clearly delineated. I think the distinctions are more semantic than substantive, and the difference between the two terms is often blurred and indistinct. For example, an inquiry into professional discipline has many of the facets of an adversarial proceeding, in the sense that the subject of the inquiry will be presented with particulars of the alleged misconduct before the inquiry begins (much in the manner of a criminal charge), a person will usually be appointed whose task is to attempt to prove the alleged misconduct, and a spectator sitting in the back of the hearing room will find the proceedings almost indistinguishable from proceedings in a court. But at a more substantive level it will often be the case that a tribunal appointed to conduct an inquiry is obliged to ascertain for itself whether or not the subject of the inquiry is a fit and proper person to carry on his or her profession. The tribunal is therefore required to direct and control the conduct of the investigation into that fact - a requirement that in my view goes beyond merely adjudicating on evidence presented by protagonists and extends to the taking of all steps necessary to gather the information needed to form the requisite view. Thus, despite an adversarial appearance, the proceedings could be characterised as substantively inquisitorial.

This is not to say that the terms lack utility. On the contrary, they are a convenient, if imprecise, way of differentiating between a proceeding in which the inquiring body itself takes a direct and active role in the investigative process - that is, the gathering of information and evidence - and a procedure in which that role is performed by someone else.

This brings me immediately to the role of counsel assisting because such a person can, of course, perform the important role of differentiating the function of the person or entity that must make the determination or findings of fact from the function of the person who is gathering the information or evidence. Such a differentiation of function has obvious benefits in terms of reducing the risk of partisanship or at least the appearance of partisanship that can often accompany the role of investigator - which is why we distinguish between, for example, the policing function and the magisterial function, although there are other models in which those roles are less distinct, such as in Europe. But even where there is a clear distinction between the determining person or body and the investigative agent of that body it may nevertheless be appropriate to describe the process as inquisitorial, because its fundamental function is to inquire into and establish facts.

I am optimistic that much greater light will be shed on these questions and a clearer understanding of the distinction between adversarial and inquisitorial proceedings will emerge after my colleague on the Administrative Review Council, Professor Robin Creyke, has completed a project sponsored by the Australian Institute of Judicial Administration, which will deal with the following:

Setting the agenda

In my opinion the primary question to be dealt with when embarking on an inquiry concerns precisely what it is that will be inquired into. Obviously, the terms of reference, commission or jurisdiction will be a convenient starting point, but I refer to a much more specific agenda of facts, events or topics to be examined.

In advancing this proposition I do not overlook the fact that one of the things that distinguishes an inquiry from, say, judicial proceedings is that the former is an iterative process, the course of which might be influenced by facts or evidence uncovered as the process takes place, whereas the latter is generally defined by the pleadings, or the charge, established at the outset. An inquiry must therefore retain the flexibility to adapt and respond to evidence or issues that emerge in the course of its conduct.

Nevertheless, in my opinion there are at least three sound reasons for trying to identify, with as much specificity as possible and as early as possible, the particular facts, events or topics that are to be examined. Three particular advantages flow from this course:

This is another function conveniently and appropriately performed by counsel assisting or someone with an equivalent role. That person can effectively set the agenda to be followed by the inquiry at an early stage, on the basis of the preliminary information available. Thereafter they can supervise and/or conduct the investigation in accordance with the agenda that has been identified, planning and programming those investigations with greater efficiency by reason of knowing the overall course to be followed.

That person is also best equipped to promote the procedural fairness advantages I refer to. Those advantages can be achieved in a number of different ways, among them:

Gathering the evidence

The gathering of evidence is conveniently segregated into what occurs before any formal process of hearing and what occurs during the hearing process.

Dealing first with evidence gathering that occurs outside the hearing, evidence and information can in turn be conveniently classified according to their sources - that is, data and prospective witnesses. By 'data' I refer to documents and, increasingly today, information recorded in electronic form. Generally, inquiries are given the power to compel the production of data and require the attendance of witnesses to give evidence, but those powers are usually restricted to the formal hearing process. In many instances this can cause inefficiency by impeding the process of gathering information before the hearing begins. As a result, it is becoming increasingly common, and in my view appropriate, for the power to compel the production of data to a formal hearing to be accompanied by the power to compel the production of data administratively to an official outside the formal hearing process.

In relation to witnesses, if they are not prepared to cooperate and provide information voluntarily there is usually little alternative but to compel them to attend the formal hearing process. Even when witnesses are cooperative, however, there is often a concern that the provision of information otherwise than under compulsion could amount to an abandonment of the privilege that might otherwise attach to the provision of the information under compulsion - such as the privilege that attends the giving of evidence in a royal commission. One device that can be used to overcome this concern is to invite the prospective witness to record the information they would provide in writing and then compel the production of the document, which, being provided under compulsion, would have all the privileges that attach to compulsory production. It must be said, though, that this is something of an artifice, and I think it desirable to regularise this process by extending any privilege that attends compulsory provision of information to all information voluntarily provided.

Turning now to the provision of data and the calling of witnesses in the course of a formal hearing, the practices and procedures pertaining to this process are fairly well known and need not be detailed here. Perhaps the most common difficulty encountered is the sheer amount of time the process takes, which is leading to increasing use of devices such as the provision of evidence in the form of witness statements or declarations.

It is common for statutes to provide that inquiries are not bound by the rules of evidence, and this facilitates the use of less formal techniques with a view to expediting the process, at least in relatively non-contentious areas. Care must, however, be taken to ensure that any determination or report is based on material that is logically probative of the facts found or determinations made; otherwise the process is likely to be vulnerable to collateral legal attack. Thus, although the rules of evidence are not applicable, they often provide a reliable guide to a logical process for the establishment of disputed or contentious facts.

The form of the evidence received can also have implications for procedural fairness. For example, while hearsay evidence is commonly and properly received, if it is the sole source of evidence on a controversial and critical fact it could be argued with some force that any party against whom an adverse finding has been made based on the basis of that evidence has been denied procedural fairness. This is because they have been deprived of the opportunity to test the critical evidentiary source, since that person has not been presented before the tribunal.

Reverting to the subject of the role of counsel assisting, the evidence-gathering process is another area in which such a person can play a vital role, both outside and inside the hearing. Outside the hearing, as noted, the presence of such a person enables the evidence-gathering and investigative process to be differentiated from the process of fact or issue determination - with obvious advantages. Within the hearing, there are increasing numbers of tribunals and inquiries in which the adducing of data or questioning of witnesses is undertaken by the tribunal itself. There are potential dangers in this course. One of the most obvious is the perception that the manner in which the questions are posed, or the data are produced, might suggest a preconceived view or attitude toward the matters in hand, thereby potentially infringing another aspect of procedural fairness.

The rights of the subject of inquiry

People who are the subject of an inquiry have a number of rights that can constrain the scope or conduct of the inquiry itself. Probably the most significant of those rights are the right to procedural fairness and the various privileges that can preclude the compulsory provision of evidence or limit its use.

Procedural fairness

Books have been written on the subject of procedural fairness, and identification of all the aspects of the rights grouped together under that heading is well beyond the scope of this paper. The rights are generally grouped into two classes: the right to a hearing free of bias or the apprehension of bias; and the right to know and meet the case.

In the case of the bias rule, the courts are, in my opinion, demonstrating a rather more robust view of bias or the apprehension of it in the context of administrative inquiries. This might be in recognition of the desirability of those conducting such an inquiry taking an active part in its processes, including the questioning of witnesses and the expression of preliminary views.

In relation to the right to know and meet the case, it is important to note that this right will be infringed only if the person concerned has not had the opportunity to meet the case at the conclusion of the entire process. As a result, infringement of the right cannot be meaningfully assessed until the process is complete, and it has to be ascertained on the basis of the inquiry as a whole.[6] Thus, provided that a party is given notice of adverse findings and given an opportunity to put submissions in relation to those findings before they are made, the right will not be infringed merely because the risk of those adverse findings was not made clear at the outset of the inquiry. Equally, a witness called to give evidence has no right to advance notice of the topics that are to be pursued in evidence - save to the extent necessary to enable the witness to assess whether the compulsory process served on him or her is valid.

Further, the better view in Australia seems to be that the right to meet the case does not include the right to call additional evidence and is therefore limited to the right to make submissions.[7] The same line of authority establishes that procedural fairness does not, of itself, confer a right to cross-examine, although the refusal of cross-examination may in a particular case, when combined with other circumstances, lead to the conclusion that a person has been denied a meaningful opportunity to meet the case against them.

Similarly, although the right to know the case to be met will generally confer a right of access to all the evidence to be relied on in support of a possible adverse finding, it will not extend to a right of access to other material, not adduced in evidence, that might be used by the person to advance their case. A party potentially adversely affected by an inquiry thus has no right to discovery or disclosure of materials in the possession of the inquiry, unless and until those materials are relied on for the purposes of a possible adverse finding.

Statutes authorising the conduct of inquiries often, but not invariably, stipulate whether legal representation is an entitlement or is prohibited or discretionary. In the absence of such a provision, it is debatable whether there is a right at common law to legal representation. However, like cross-examination, absent express statutory authority, refusal of legal representation is a factor that might be combined with other factors to lead to the conclusion that a person was substantively denied the opportunity to meet the case against them.

Privilege

Four areas of privilege are commonly encountered in the conduct of an inquiry:

Self-incrimination

It is clear that privilege against self-incrimination will ordinarily be implied in favour of natural persons (not corporations or other artificial entities) unless expressly abrogated by statute.[8] It is increasingly common for statutes to provide that self-incrimination shall not be an excuse for refusing to provide data or evidence but at the same time limit the extent to which the data or evidence provided can be used against the person providing it - sometimes on conditions such as a requirement that the privilege be claimed at the time of production, thus leading to the farcical process in a number of proceedings in which a witness precedes every answer with the word 'privilege'. Such statutory provisions generally do not preclude derivative use of the information provided; that is, its use for the purpose of gathering other evidence that can be used against the subject and that is not subject to the immunity deriving from compulsory production.

Legal professional privilege

The scope and availability of legal professional privilege has of course been widened by the decision of the High Court adopting the 'dominant purpose' test in lieu of the 'sole purpose' test.[9] Further, a relatively recent decision of the High Court establishes that statutes will seldom be construed as impliedly overriding legal professional privilege, which should therefore be presumed unless expressly abrogated.[10]

Public interest immunity

Public interest immunity is essentially that class of privilege that precludes compulsory production of data or the provision of evidence that will be contrary to the public interest in the confidentiality of aspects of the workings of government. It commonly protects data relating to the workings of the highest levels of government (Cabinet and the Executive Council) and such things as criminal law enforcement and various other areas of government activity.

Parliamentary privilege

Parliamentary privilege has its origins in Article 9 of the English Bill of Rights, which has in turn been incorporated in Commonwealth law by s. 49 of the Australian Constitution and by the Parliamentary Privileges Act 1987. It prohibits any act 'impeaching or questioning' any words that are spoken or written in parliament. The Parliamentary Privileges Act provides that the privilege extends to all words spoken and acts done in the course of, or for the purposes of or incidental to, the transacting of the business of a House or of a committee of a House. Thus, communications between members of parliament that occur outside parliament, or between members of parliament and their staff, may well be protected if they are related to some matter pending in parliament; for example, a briefing provided in respect of a possible parliamentary question would almost certainly be covered by the privilege. Care should therefore be taken before attempting to compel the production of any material of this class or before receiving in evidence any Hansard relating to the proceedings of parliament.

Determining the claim of privilege

One of the practical problems arising from a claim of any of these privileges in the course of an administrative proceeding is the usual inability to authoritatively and definitively determine the claim within the scope of the proceeding itself. The difficulty generally arises when a person claims the privilege in answer to the exercise of a power to compel the production of data or to attend to answer questions. Tribunals or inquiries are rarely, if ever, given the power to impose punishment for failure to answer compulsory process and could not be validly given such a power in the Commonwealth sphere because of the implied separation of powers found in the Constitution.[11] The usual consequence of the failure to answer compulsory processes relating to the provision of data or evidence is vulnerability to criminal prosecution for the commission of an offence created by the statute authorising the compulsory process. Thus, the scope of the privilege and its availability will generally have to be determined in criminal proceedings and will often determine the outcome of those proceedings. This seems somewhat unsatisfactory, but at least in the Commonwealth sphere, given the limitations imposed by Brandy, there do not seem to be many satisfactory alternative procedures available.

Contempt of court

It is not uncommon for an inquiry to be conducted into matters that are the subject of pending criminal or civil proceedings. In this circumstance those conducting the inquiry need to take care to avoid conduct that might constitute a contempt of the court in which those proceedings are pending. The danger is greatest in the case of criminal proceedings and, although much reduced, should not be considered negligible in relation to civil proceedings.

Possible contempt usually arises in two areas. The first involves the use of process to compel the provision of data or information that could be used to the disadvantage of a person awaiting criminal trial at a time when that person has the so-called right to silence.[12] The second area of possible contempt lies in the making of a determination on precisely the same point or issue to be determined by the court. In such a circumstance it can be argued that it is a contempt to pre-empt the decision of the court because it might be seen as conduct intimidatory of the judicial process. The risk of such a conclusion is much greater when the process involves trial by jury rather than trial by judge alone.

Submissions

The provision of submissions to an inquiry is a fundamental and vital part of the process. Those submissions have two important functions:

It is impossible to provide a universal prescription or recommendation on the most effective way of dealing with the process of submissions. The order in which they are to be presented and the form they are to take (that is, whether written or oral) depends very much on the circumstances and context.

Reverting again to the role of counsel assisting or some person with an analogous task, such a person is ideally placed to provide submissions to an inquiry. The availability and use of such a person to provide those submissions facilitates the achievement of procedural fairness and precludes the perception or apprehension of bias that would flow from the tribunal itself putting parties who might be adversely affected on notice of the findings that might be made against them. The submissions also give the tribunal a helpful and, it is hoped, objective view as to the findings that might be made. In this respect the submissions from counsel assisting should be different in kind from those presented by parties in an adversarial proceeding, in the sense that they should not seek to advance a particular cause or case but instead seek to fairly and objectively analyse the material that has been produced before the tribunal. Submissions of this kind provide for a tribunal a resource that will not ordinarily be available in adversarial proceedings, in which all submissions are put by parties with a particular axe to grind or case to promote.

The role of counsel assisting

At a number of points in this paper the useful role that might be performed by either counsel assisting or somebody with an analogous task is noted. Although such people are often part of particular forms of inquiry, such as royal commissions, it seems to me there is considerable potential for extending their use to less formal or contentious areas of inquiry, such as the inquiries commonly conducted by a wide variety of administrative tribunals. In those cases, it might be more efficient, in arriving at the right and preferable decision, for public resources to be expended on providing a form of assistance to the inquiry, as opposed to expending those resources on the partisan representation of a government respondent to such an inquiry. Efficiency would be promoted in such a case because counsel assisting would have the advantage of adopting an impartial and objective approach, rather than the partisan approach of attempting to uphold the government decision or advance the government position. Of course, this advantage will be lost if there is an inappropriate relationship between the tribunal and the person assisting: liaison and consultation are obviously desirable, and probably essential, but they must occur on terms that preserve each party's independence of thought and action.

Launch of the issues paper on automated assistance in administrative decision making

Robin Creyke[*]

This is an edited version of a speech given at the launch of Automated Assistance in Administrative Decision Making in Canberra on 19 June 2003.

One of Australia's better known expatriates, Sir Les Patterson, once said on returning to his homeland that the closer one gets to the Australian coastline, the louder gets the back thumping! Whatever one's views about that perception, this is one occasion on which the back thumping is more than justified. Not only has Australia pioneered developments in the use of expert systems for assisting with government decision making: this issues paper will probably be the first in the world that has considered the implications of these developments for administrative law.

The introduction of automated decision making, particularly through the use of rule-base systems, is a development that first occurred in a systematic way in Commonwealth public administration in the early 1990s. However, governments and the private sector have embraced this technology with such speed that the sections of the issues paper that chronicle that usage - Part 2 and Appendix B - had to be expanded considerably.

The speed with which Australia has adopted rule-base systems has meant the nation is at the forefront of such technological developments. It also created an impetus for the Council's examination of the change. The Council's initial consideration of expert systems is described in the issues paper. The final report will be published in 2004, taking into account comments from people developing such systems, as well as users and consumers.

The scope of the inquiry

The Council focused on rule-base systems, a particular type of expert system. The Macquarie Dictionary defines an 'expert system' as a computing system that, when provided with basic information and a general set of rules instructing the program how to reason and draw conclusions, can mimic the thought processes of a human expert in a specialised field. A legal expert system can be defined as 'a computer program that performs tasks for which the intelligence of a legal expert is usually thought to be required - whether the legal expertise be that of a lawyer or of a non-lawyer with legal expertise in a particular area of the law'.[13]

A significant breakthrough occurred when legal expert systems could be programmed using ordinary language: access by anyone, whether they understood programming languages or not, then became viable. The rule-base technology is of particular interest for administrative law because a rule-base system is capable of modelling complex or intricate rules (such as legislation) and this means such systems can be used in administrative decision making.

Although a rule-base system can model legislation, it is also capable of going further. A particular value of the rule base is that it is often an amalgam of the legislation, policy and relevant case law and might also contain explanatory material to help the user understand the reason for each question and how to answer it. These additional sources of information replicate the resources traditionally available to administrative decision makers exercising powers under legislation.

The technology allows people who use rule-base systems - departmental officers or even applicants - to view on screen commentary about the questions, the source legislation, relevant cases, and departmental policy. The applicant enters information that is processed through a combination of the expert system and a human decision maker when judgment or discretion is required.

When the question-and-answer process is complete, the questions and answers can be printed and, where appropriate, the applicant can sign the form. The rule-base system then produces a report on whether the person is eligible for the benefit and provides detailed reasons for the result.

Rule-base systems are not new, but their use to model legislation is a relatively new application of the technology. The systems can deal with simple mechanical decisions, such as calculation of youth allowance when informed of the amount earned by an allowee during the preceding fortnight, as well as more complex decisions involving multiple factors and the exercise of discretion, such as whether a person is a 'member of a couple' for the purposes of receiving benefits under the Commonwealth's Social Security Act 1991.

The Administrative Review Council is the administrative law system watchdog, so the focus of the issues paper is administrative law. Rule-base systems offer the potential to have a profound impact on administrative law. It is the Council's view that the technology could be moving the need for administrative accountability from the review process - the 'back end' of the system - to the input process at the 'front end' of the system. The consequence of such a development would be to open a new chapter in administrative law.

The advantages and disadvantages of rule-base systems

Rule-base systems offer a number of advantages. Principal among these is their ability to minimise human error. Guided by a database of questions that might need to be asked and decision-making 'trees' that insist that all matters be considered, the decision maker cannot avoid taking account of all relevant considerations and will not be permitted to consider matters that are not relevant. That leads to more accurate and consistent decisions. Further, these decisions should be more uniform across the nation, with decisions in Redfern being replicated in like circumstances in Roebourne. In administrative law terms, this is a distinct advantage.

But the picture is not all rosy. There are administrative law and practical shoals. At the practical level such systems are only as good as their continuing accuracy. If they are not maintained and updated their usefulness is much diminished.

Expert systems can also breach administrative law standards. Inflexible application of policy is an example. If programmers do not correctly interpret policy instructions when entering policy into the database, or if they implement policy that lies outside the legislation, decision makers using the system will also breach that ground of review. If agencies do not institute honest and robust auditing of the information in the database, such errors continue to be perpetuated, including errors that amount to breaches of administrative law rules. External verification of the expert system by people familiar with the law, the policy and expert systems is also essential to ensure that any such problems do not persist.

Although the use of rule-base systems can decrease the time and costs associated with making administrative decisions - and this is evidenced by an Australian National Audit Office report on the Department of Veterans' Affairs Compensation Claims Processing System - the thoroughness the system insists on might also mean that new users take longer to process applications.

The future

Examining the evidence for and against rule-base systems is the task the Administrative Review Council has embarked on, considering the subject from an administrative law and public administration perspective. The Council's issues paper is the beginning of this examination process. Once agencies have had time to consider the issues paper, it is planned to hold a consultation forum before finalising the report. One of the recommendations might be that some form of external monitoring be instituted.

The issues paper marks a new stage in the work of the Council. To date, the Council's work has largely focused on monitoring and fine-tuning the package of administrative law reforms that was introduced, in some cases, over 25 years ago. With this issues paper, the Council has moved to lead, rather than react to, developments affecting administrative law.

Expert systems developments and their impact on administrative law principles and institutions are also a signal example of the continued growth and change of administrative law. This is a novel frontier for administrative law to explore. However, marching as it does alongside government, administrative law must reflect on and respond to changes that occur in the public sector if it is to continue its role of setting legal standards of good administration. And, as the body charged with monitoring developments in administrative law, the Administrative Review Council must match that growth and development of government if it is to continue to perform its monitoring task effectively.


The Department of Veterans' Affairs Compensation Claims Processing System

Ian Campbell[*]

This is an edited version of a presentation to the Administrative Review Council's information and consultation forum, held as part of the Council's project on automated assistance in administrative decision making in Melbourne on 12 November 2003.

Overview

In 1994 the Australian Government Department of Veterans' Affairs implemented a computerised system for investigating and determining claims from veterans and widows for compensation for disabilities or deaths caused by war service. The system is called the Compensation Claims Processing System, or CCPS.

CCPS has been a major success, resulting in vastly improved client service and considerable savings in administrative expenditure each year. Independent evaluations have shown productivity has improved by 80 per cent, claims processing costs have reduced significantly, and the average time taken to process a claim has fallen from 157 days to about 60 days. Consistency of outcomes has improved, and the cost of implementing the change was recouped within three years of full implementation. Customer satisfaction is at an all-time high and staff have more satisfying jobs.

It would, however, be simplistic to think these achievements were the result of the implementation of the technology alone. As innovative and powerful as the computer system is, its introduction could not by itself have achieved the extensive improvements to the compensation process without other associated policy and administrative changes.

Business process re-engineering was undertaken, dramatically changing the way staff processed claims and liaised with clients.

Important policy changes were introduced to establish an independent agency - the Repatriation Medical Authority - to determine legally binding statements of principles that established causal connections between diseases, injuries and death and service based on sound medical-scientific evidence.

The role of the ex-service community in the claims process and its relationship with the Repatriation Commission was revised. Changes included a jointly developed and delivered training program for ex-service organisations' practitioners to help them with preparing claims for veterans. Grants are also provided to ex-service organisations to support their claims practitioners.

All these elements of change - technology, policy change, business re-engineering, and the Repatriation Commission's relationship with the ex-service community - were closely interrelated and developed concurrently under an overarching change process. In essence, the technology enabled and enhanced the harvesting of benefits through a far-sighted and holistic approach to service delivery. As a result, when we talk about the implementation of CCPS, we in fact are talking about a substantial, multi-faceted change process for which the technology development provided the catalyst and focus.

The totality of the changes has provided greater openness and transparency in the claiming and decision-making processes and led to improved acceptance and cooperation by the veteran community.

A new Military Compensation Scheme is proposed for implementation from July 2004. This will require a new processing system. Following the success of the introduction of CCPS, the Department proposes to use the rule bases developed for CCPS (and Defcare), statements of principles, and business re-engineering concepts for administering the new Compensation Scheme.

Background

One of the core businesses of the Department of Veterans' Affairs is to pay compensation in the form of fortnightly pensions to veterans and widows for the veterans' injuries, diseases or deaths that are accepted as war-caused. This business has been a feature of the Australian repatriation system since it was established at the start of World War 1.

The Compensation Program covers the following conflicts and peacekeeping operations: World Wars 1 and 2, Korea, the Malaysian Emergency, the Indonesian Confrontation, Vietnam, Namibia, Cambodia, the Gulf War, Somalia, Rwanda, Bougainville, East Timor, Afghanistan and Iraq. It pays 158 000 disability pensions and 114 000 war widows and orphans pensions, with annual expenditure of about $2.7 billion.

The law applying to the decisions that link medical conditions or death to war service is complex and has been changed and reinterpreted many times over the years. This complexity is now compounded by the amount of time that has elapsed since some service was rendered.

Before 1994 the Department processed claims using what was essentially a manual, paper-based system that had changed little since World War 1. There were four main steps in the process: receipt, investigation, medical recommendation, and decision on the claim. Different staff completed different steps.

There was heavy reliance on the departmental medical officer's recommendations about the relationship between the veteran's service and their disabilities or death and also (for deciding the rate of disability pension) the extent of the veteran's disability. The decision maker, a delegate of the Repatriation Commission, would be required to understand and apply the law and Commission policy with little practical guidance on how to make such decisions. As a result, outcomes were inconsistent. The system was also highly process bound, with little focus on the claimant's needs.

By the late 1980s the Department had reached the view that patching the existing system was not going to bring about the necessary improvements: a major overhaul of the system and an innovative approach were needed.

In the late 1980s and early 1990s the Department had been trialling the use of expert systems for internal dissemination of legislation and policy guidelines. This work suggested that expert systems could be applied to the compensation process. In early 1992 it was decided to commission a Canberra-based information technology firm, SoftLaw, to build an expert computerised system for processing claims, as the cornerstone of a comprehensive business re-engineering project. It was a bold step to use an outside organisation for a major redesign of the business system.

In 1993 the Australian National Audit Office reviewed the operations of the Compensation Program. The key findings of the review described a system with the following characteristics:

This confirmed what the Department already knew and provided support for the reform process.

What is the Compensation Claims Processing System?

The technology

CCPS is an innovative blend of workplace technologies. It delivers a unique whole-of-job claims management system to the desktop of officers processing compensation claims. The system combines expert systems and multimedia hypertext technologies, built with SoftLaw's STATUTE Expert product. It has a client-server database, document generation facilities, case management and mainframe legacy systems integration, all within a Microsoft Windows environment.

The system combines a natural language claims processing checklist with a sophisticated, object-oriented case management system and uses a massive medical knowledge rule base to direct the investigation and determination of compensation eligibility and assessment.

The knowledge rule base of CCPS contains all the logic of the policy and the questions that have to be answered to apply the policy, as well as commentary on interpretation of the policy. It also has a Research Library that includes military history, repatriation history, legislation and departmental instructions.

CCPS was the first application in the Australian Government to use expert technology for large-scale processing.

Claims processing

CCPS provides support for all aspects of claims processing:

CCPS produces personalised correspondence to the claimant, appointment letters for claimants and doctors, and draft reasons for a decision.

How we did it

Policy review

Throughout the history of the repatriation system in Australia, the question of how to determine whether a veteran's disability or death was war-caused has been the subject of many legislative changes. During the 1980s and 1990s the law had also been subject to testing and clarification by tribunals and courts. Around the mid-1980s it was clear that not only were there inconsistencies in decision making between primary-level decision makers, but the review bodies, tribunals and courts were also adding to system inconsistency through widely varying decisions. A large part of the problem was that medical-scientific matters were being decided in an adversarial environment by lay people sitting on tribunals and courts.

In 1993 the government of the day established an independent review of the fundamentals of repatriation compensation policy. The report of the review was published in March 1994.[14] In response to the report, the government decided to make a number of major changes to the Veterans' Entitlements Act 1986, to improve the consistency of decision making. The changes were as follows:

Parliament also added a review body to the SOP process by establishing the Specialist Medical Review Council to act as an appeal body from RMA decisions.

All claims lodged with the Department after 1 June 1994 were to be determined using the RMA's statements of principles.

The Repatriation Medical Authority and statements of principles

The RMA was established in July 1994 as an independent body of five eminent medical specialists appointed by the Minister for Veterans' Affairs. It was to provide a forum for the resolution of medical-scientific questions at all levels of the determining system. The 1994 amendments meant that only mainstream medical opinion would be regarded as meeting the requirements to link service and medical conditions, and any alternative opinions would have to have a sound medical-scientific basis.

The RMA has now produced over 700 instruments that cover around 4500 individual disabilities and causes of death. About 95 per cent of claimed disabilities are now covered by SOPs. Only the rarer diseases and injuries are without SOPs, these claims being decided on the best evidence available.

This legislative change has brought about far greater openness and transparency in decision making and has given the ex-service community an opportunity to have input. Importantly, it has placed the debate about complex medical questions with a body competent to deliberate on these things.

Involvement of the ex-service community

A number of initiatives were introduced in order to engender a cooperative partnership with ex-service organisations and to improve the quality of compensation claims from veterans.

A program of training for ex-service organisation practitioners was developed with veteran organisations. Training modules under the Training Information Program are developed jointly by the Department and veteran organisations and are presented by skilled practitioners from the veteran community.

Grants are also provided to ex-service organisations so they can help veterans prepare and submit pension claims to the Repatriation Commission and represent veterans in appeals against decisions by delegates of the Commission.

These programs have increased the understanding of the disability compensation system and contributed to an improvement in the claims presented to the Commission. They have also resulted in a much more cooperative relationship with the general ex-service community.

CPPS and business re-engineering

Desired outcomes

The aim of CCPS was to improve the performance and lower the cost of administering compensation claims. It was decided that CCPS should seek to provide the following:

CCPS was to have four central elements:

Development

Development of CCPS involved a number of steps:

The deployment of CCPS was timed to coincide with, and augment, a significant business process re-engineering exercise that included:

Changing the staffing structure

The new system led to a major cultural change for claims processing staff. Previously, this group had been hierarchically organised, with seniority determined by expertise and a track record in adjudication. When single-officer determinations were introduced there were significant changes for staff.

Reduced classification and numbers of decision makers

With the 'system' containing the knowledge to assist the decision makers, it was no longer necessary to use senior officers in this process. Mid-range officers now had the necessary skills for determining claims, and one-third fewer staff members were required.

Learning about and interacting with the new technology

Many of the former officers were used to files and paper-based procedures. CCPS required a major program of training in PC-based systems, which meant about 250 officers being trained in word processing and database query skills.

Implementation of team-based structures throughout the Department's compensation sections

Claims assessors were placed in teams with departmental medical officers and their support staff. This required training of staff in how to work in teams.

Staff accepting responsibility for an entire process and being more accountable to clients

The new process required claims assessors to take responsibility for a claim from receipt to payment, rather than just their own input as a part of the processing.

Managers focusing on client service, rather than managing the sum of the parts of the process

Introduction of CCPS required a focus on client service supported by comprehensive training and quality assurance programs. Managers became accountable for outcomes, rather than their area's particular input to the process.

Implementation

CCPS was introduced progressively in all states between March and September 1994. The project took two-and-a-half years from commencement to implementation, but at the end of that period the resultant product was substantially superior to that envisaged at the start.

Implementation required an enormous effort in human resource management to overcome the pessimism and scepticism of some affected staff, a reduction in staff numbers, and recruitment and training of new staff.

Achievements of CCPS

The first full year of CCPS operation was 1995-96 and performance was outstanding. The Department received a record 54 000 claims, processed a record 59 000 claims, and reduced its work holding from 16 000 to a then record low of 11 000. Today, work holdings have stabilised at around 8000 claims at any one time.

The key results are as follows:

Evaluations of CCPS

In 1996 the Australian National Audit Office conducted a follow-up to the 1993 audit. The principal finding of the follow-up was that the reforms to the Department's processes, including the introduction of CCPS, had led to substantial improvements in the efficiency and administrative effectiveness of claims processing. The Audit Office stated, 'CCPS has clearly brought considerable benefits to the Department and the veteran community'.

In March 1995 the Department and the Community and Public Sector Union conducted a post-implementation review of CCPS, reporting favourably on the implementation process and recommending some refinements to the system and improvements in processes and the training of staff.

In September 1996 the Department and the Union began a formal portfolio evaluation of CCPS against its original objectives. The evaluation included an updated cost-benefit analysis and concluded that CCPS had achieved all its objectives.

The Repatriation Medical Authority and the system of statements of principles were the subject of a ministerial review by an independent reviewer, Emeritus Professor Dennis Pearce of the Australian National University. Professor Pearce concluded that implementation of the regime had resulted in a more equitable system for the compensation of veterans than had existed previously.

Lessons learnt

The change process

Whilst the emergence of innovative technology can be the catalyst for change, the benefits of innovation were maximised by embarking on the change process with a broad strategic outlook. This approach incorporated a review of policy, processes, staffing structures and the needs and wishes of the client group against stated government and organisational service delivery objectives. Importantly, it also took into account and involved the range of stakeholders early in the process of exploring possibilities for improvement and in reaching the desired outcomes.

In terms of the change process itself, our experience was to establish a clear and explicit set of business requirements through a thorough business analysis process before moving to explore the technology. The business analysis was motivated by an acknowledgment that our current system was not providing an effective and efficient service. In essence, we took a 'clean sheet' approach and started by asking the question: In an ideal environment, how can we best process compensation claims in an efficient, fair and consistent way? Once the business requirements were established, it was possible to synergise the three primary elements of the change process - that is, the policy, the technology, and the business process re-engineering - so that maximum benefits could be realised.

Staff culture

The effort required to inform, involve and manage affected staff during such a change cannot be underestimated.

The focus of jobs changed from process to people skills. It was necessary to carefully match selection and performance criteria to the new environment and provide a completely new training and support regime for those moving into the new environment. Valued competencies and behaviours moved from those traditionally associated with expertise in the subject matter to new areas of communication, client skills, team skills and willingness to accept responsibility.

Some experts felt their influence was downgraded, and many concerns were expressed about loss of expertise through transfer of knowledge to a computer system. This required careful management. The subsequent evaluations of CCPS showed that these fears were largely unfounded and that staff had more satisfying jobs through greater responsibility and providing a whole service to clients. But not all staff adapted successfully.

Where the system has gone since

Ongoing updates

CCPS is a dynamic system that is regularly updated - approximately three major releases a year - to reflect new and changed statements of principles and other policy changes. There is a robust maintenance and review system involving a support team, internal users and scrutiny by ex-service organisations to ensure that the system accurately reflects law and policy.

Extension to internal review of decisions

CCPS has since been extended to support internal review (appeals) of primary decisions. Appeals lie to independent bodies - in the first instance the Veterans' Review Board and then the Administrative Appeals Tribunal. The Department can, however, intervene in appeal cases where the evidence suggests the case should be reconsidered. At the time CCPS was implemented for primary claims in 1994, the Department rarely used its internal powers of review when a claimant appealed against a decision. This appeal system proved cumbersome for veterans, with waits of up to two years before appeals were heard by the Veterans' Review Board.

Using the Department's internal review powers, there is now a process whereby all decisions appealed to the Veterans' Review Board are first reviewed internally. If the evidence is sufficient - often new evidence lodged with the appeal - the decision is reviewed using the CCPS rule base. Under this system, appeals to the Board are generally reviewed internally within 30 days of lodgment.

This change using the CCPS tool has resulted in improved service to clients, reduced costs associated with the external review process, and fewer cases going to an external Veterans' Review Board hearing. It is another example of combining a policy or procedural change with technology to achieve a better outcome.

ELMnet

ELMnet is a CCPS-related computer system the Department has developed in association with SoftLaw. It is a web-enabled product that is used to test whether a person's service in the armed forces is eligible service for a range of departmental benefits. The system asks a series of questions and produces a report on a person's eligibility to apply for benefits. It is used by internal decision makers but, because it is web-enabled and available as a stand-alone system on the Department's website, it can also be used by veterans wishing to test their eligibility for certain benefits.

Continued monitoring

It is important that suitable governance and security arrangements are adopted to ensure adherence to administrative law standards and the correctness and fairness of decisions. Monitoring arrangements need to be tailored to the jurisdiction and the client group that is subject to the decision-support system.

There are a number of internal and external mechanisms for providing assurance that CCPS is being applied correctly:

It should also be noted that the external review bodies - the Veterans' Review Board and the Administrative Appeals Tribunal - are subject to the statements of principles and their decisions and feedback also provide scrutiny of the decision-support systems that apply the SOPs.

These mechanisms have worked to improve the administration of compensation claims and to provide an effective assurance that CCPS and its outcomes:

Conclusion

The Department considers that the changes introduced, as outlined in this paper, have successfully combined policy, business re-engineering and systems development reforms, bringing significant benefits in the delivery of disability compensation pensions to veterans.

Legislation will soon be presented to parliament to establish a new Military Compensation Scheme, with an anticipated commencement date of July 2004. This scheme will not replace the Veterans' Entitlements Act 1986 or the Safety Rehabilitation and Compensation Act 1988 (SRCA) for injuries or diseases resulting from service before the new Act is operational. Accordingly, the new scheme will require its own system. The Department proposes to use the rule bases developed for CCPS and Defcare (SRCA), the statements of principles regime and the business re-engineering concepts that have been developed for the existing schemes.

Postscript

The legislation to establish the new Military Rehabilitation and Compensation Scheme has been passed by parliament and will commence on 1 July 2004. The new scheme will provide rehabilitation and compensation cover for all service in the Australian Defence Force from this date.

Implementation of the new scheme will introduce new complexity and challenges into the Department's compensation environment. Although incorporating key elements of the existing Safety Rehabilitation and Compensation Act and Veterans' Entitlements Act schemes, the new scheme contains different legislative rules and differences in the detail of benefits provided. The Department will also need to retain for many years the capacity to process compensation claims under the two existing schemes, which will continue to apply for service rendered before 1 July 2004.

Development work is well under way to introduce system support for the new scheme along lines similar to CCPS, including updated rule-base decision-making support for the statements of principles as they will apply under the new scheme, as well as continuing to support the existing Veterans' Entitlements Act scheme. This new rule base, being developed by SoftLaw, incorporates SoftLaw's latest STATUTE Expert technology, which will support eventual web deployment and be able to integrate with new enterprise-wide application software under consideration by the Department.

The long-term aim of this development is to create a single web-based desktop environment capable of handling claims lodged under the new Military Rehabilitation and Compensation Scheme and the existing schemes, seamlessly streaming claims to arrive at the appropriate outcomes under the relevant Act(s). The existing CCPS and Defcare systems will be decommissioned over time; the new system will be based around re-usable modules with a minimum of duplication of function and will make use of other IT initiatives under way in the Department, such as electronic document management and electronic lodgment of claims.


Regular reports

The Administrative Review Council

Publications

The Council officially launched its Automated Assistance in Administrative Decision Making issues paper on 19 June 2003 and its Twenty-Seventh Annual Report 2002-03 was tabled in Parliament in November 2003.

Letters of advice

Since publication of the previous issue of Admin Review the Council has provided letters of advice dealing with the following matters:

Submissions

Since publication of the previous issue of Admin Review the Council has presented submissions to the following:

Recent work

The scope of judicial review

The Council is working on its final report on the scope of judicial review, following receipt of submissions in response to the discussion paper released in March 2003.

The final report will consider constitutional principles relevant to the scope of judicial review. It will document arguments that have been presented for limiting judicial review and consider the manner in which legislative limitations on the scope of judicial review should be imposed. It will also include a set of framework principles to assist agencies, legislators and others when considering matters relevant to the appropriate scope of judicial review.

Automated assistance in administrative decision-making

As part of its project on automated assistance in administrative decision making, the Council released an issues paper in June 2003. It also held an information and consultation forum at Parliament House in Melbourne on 12 November 2003. Among the speakers at the forum were Council member Professor Robin Creyke; Mr Ian Campbell, Deputy President of the Repatriation Commission; Mr Norman Reaburn, Chairperson of National Legal Aid; Mr George Masri, business consultant, SoftLaw; and Ms Fiona McLeod, the Victorian Energy and Water Ombudsman. Approximately 60 people attended the forum, among them representatives of Commonwealth and Victorian government agencies, Victorian courts, information technology firms, consulting firms and community welfare organisations.

The Council is finalising its report for this project. The final report will focus on the benefits of and concerns about using expert systems in administrative decision making. It will also consider the types of administrative decisions best suited to the use of expert systems and will provide best-practice guidelines for the system's development and operation.

Legal training for primary decision makers

The Council's work on an administrative law curriculum guideline is nearing completion, with a draft being circulated to selected agencies for comment. The guideline is not itself a training document: rather, it is a resource for people who are responsible for developing training or accreditation programs, either at agency level or more broadly across the Australian Public Service. Agencies might also be able to use the guide to assess externally provided courses.

Coercive investigative powers of government agencies

Work on a project examining the coercive investigative powers of government agencies continues; the focus is on agencies' powers to require the provision of information through documents and answers to questions. The legislation and practices of a number of key regulatory, revenue-collecting and revenue-spending agencies are being assessed in order to establish the use to which powers provided for in legislation are put in practice.

The project's main objective is to determine whether greater consistency in these powers across government is desirable or achievable. It will also consider the accountability mechanisms associated with the exercise of coercive investigative powers and the legal protections available to people affected by exercise of those powers.

Procedural discretions of tribunals

Research into the procedural discretions given to tribunals is under way, with particular regard to discretions to extend time limits, amend normal standing rules and stay decisions under review. Consideration is also being given to tribunals' capacity to grant or refuse legal representation. The project will look at the circumstances in which modifications to tribunal discretions are appropriate.

Recommendations of the HIH Royal Commission

The Council has been considering those recommendations of the HIH Royal Commission that relate to administrative law - in particular, the availability of merits review of decisions made by the Australian Prudential Regulation Authority. A study of the various mechanisms provided in relevant legislation is being conducted.

The Administrative Appeals Tribunal

Changes to jurisdiction

The Administrative Appeals Tribunal may review a decision only if an enactment provides that the decision is subject to review by the Tribunal.

Between 1 May 2003 and 30 April 2004 the following enactments (including delegated legislation) conferred new jurisdiction on the Tribunal (the date from which jurisdiction is conferred is noted for each enactment):

Between 1 May 2003 and 30 April 2004 the Tribunal's jurisdiction under the following enactments was amended, either increasing or decreasing the range of decisions subject to review:

Decisions of interest

Jurisdiction, use of summons and entitlement to reasons for decision

In a series of decisions relating to a single matter, the Tribunal constituted by the Acting President has explored the means whereby a prospective applicant for review of a decision can obtain material relating to that decision.

The applicant made a complaint pursuant to s. 536 of the Corporations Act 2001 to the Australian Securities and Investments Commission about the conduct of the liquidator of One.Tel Limited. This section of the Act allows ASIC to make inquiries into the conduct of a liquidator in certain circumstances (including if a complaint is made) but any resultant action is taken by the Federal Court, not ASIC.

After some initial consideration and correspondence, ASIC decided not to proceed further. The applicant then sought a statement of reasons for that decision. ASIC refused to provide this, asserting that the power to make the decision came from its general powers under the Australian Securities and Investments Commission Act 2001, rather than the Corporations Act, and was therefore not reviewable by the Tribunal. As a result, reasons were not required to be provided under the Administrative Appeals Tribunal Act 1975.

The application to the Tribunal was for a decision under s. 28(1AC) of the AAT Act as to whether the applicant was entitled to a statement of reasons. There was no application for review of the alleged substantive decision.

The applicant sought issue of a summons requiring ASIC to produce documents associated with its conduct in connection with the initial complaint. In its first decision, the Tribunal granted leave for the issue of the summons. It held that the applicant was entitled to at least seek to prove that ASIC's conduct included making a reviewable decision under s. 536. The documents that came into existence within ASIC in connection with its inquiries would at least in part determine whether a decision had been made.[16]

ASIC answered the summons but objected to the production of the documents to the applicant, on the grounds that the application for a statement of reasons would inevitably fail and the documents would effectively grant the applicant reasons he was not entitled to obtain. ASIC argued that s. 536 of the Corporations Act simply sets out one of its functions and that power to perform those functions was conferred by the ASIC Act. Therefore there would never be any decision under s. 536 capable of review.

After considering relevant authorities and the terms of s. 536, the Tribunal rejected this argument. Section 536 did not merely identify ASIC's inquiry function: it also conferred the power to make those inquiries. The documents produced under summons were therefore capable of revealing that a reviewable decision had been made, and as a consequence the applicant's case was not hopeless.[17]

In its third decision the Tribunal examined the correspondence between the applicant and ASIC and other documents that showed ASIC had earlier investigated its own separate concerns about the liquidation of One.Tel and received assurances from the liquidators. The Tribunal held that, on receipt of the applicant's complaint, ASIC had in effect re-examined its own inquiries and had concluded that it remained satisfied with the results of those inquiries. This constituted a new decision under s. 536 to not inquire further. The applicant was therefore entitled to a statement of reasons for this decision.[18]

Notification of a decision to attribute income and assets of a trust to recipients of a pension

In Re Peura and Secretary, Department of Family and Community Services[19] the applicants were recipients of an aged pension and a wife pension. In November 2001 one of the applicants was advised by letter that, with the introduction of new private trust and private company attribution rules, Centrelink would attribute the income and assets of a family trust to the applicants from 1 January 2002. The letter also stated, 'You and/or your partner will be advised of this decision in December 2001 and its effect on entitlements'. The same applicant had also received a letter in February 2001, advising her of the proposed new rules and asking her to supply information about the family trust.

Both applicants received a letter dated 10 December 2001 that purported to advise them of a decision. Although the letters provided details of the amounts of payment that would be made, they made no reference to the previous correspondence and did not state that the change in payment was a result of application of the new rules. One of the applicants gave evidence that she regularly received letters making small adjustments to the rate of pension without explanation, which were virtually indistinguishable from the letters of 10 December 2001.

The applicants advised Centrelink in May 2002 that the trust had been inactive since June 2001. In consequence, Centrelink decided to cease attributing the income and assets of the trust to the applicants. However, it refused to pay arrears of the pensions for the period January to May 2002 on the basis that the applicants had failed to seek review of the December 2001 decision within the statutory period of 13 weeks after notice had been given.[20]

After reviewing a number of authorities, the Tribunal decided that the correct approach in deciding whether the letters constituted notice of the relevant decision could be summarised as follows:

The Tribunal concluded that the letters of 10 December 2001 only constituted advice of the effect of the decision on the applicants' rates of pension. They failed to advise what the relevant decision was - that is, that the rates of payment had been varied as a result of the application of the new income attribution rules - and so were not intelligible in that they did not constitute notice of the relevant decision within the meaning of the section imposing the 13-week period.

This was despite previous correspondence making clear that advice of both the decision and its impact could be expected. The Tribunal considered that the letters of 10 December 2001 should not be interpreted by reference to the earlier correspondence since they made no reference to that earlier correspondence.

The Tribunal held that, because no notice had been given, arrears should be paid to the applicants for the period in contention.

Scholarship by reduction in fees not to be assessed as income

In Re Torv, Bond University Limited and Secretary, Department of Family and Community Services[21] Mr Torv was offered a half-scholarship to Bond University to undertake studies in law. The scholarship was structured so as to reduce the fees payable by Mr Torv. He did not receive any of the scholarship money in his hand.

Centrelink assessed the scholarship as income pursuant to s. 8 of the Social Security Act 1991. This meant that Mr Torv was not entitled to receive Youth Allowance because his income exceeded the threshold for eligibility. Centrelink argued before the Tribunal that the scholarship came within the Act's definition of income because it was valuable consideration: Mr Torv had the benefit of paying only half the normal tuition fee.

The Tribunal rejected this approach. Neither Bond University nor the student received any money as a result of the scholarship. The fees were simply not payable. What other students might pay for the same degree was not relevant to the question of whether Mr Torv was receiving income.

In the Tribunal's view there was a significant difference between a scholarship drawing monies out of a trust fund to pay tuition fees and a scholarship where the fees were never payable. A scholarship in the latter category, as in Mr Torv's case, would not constitute income.

Freedom of information

The Law and Justice Legislation Amendment Act 2004 modernised the language of the definition of 'request' in s. 4(1) of the Freedom of Information Act 1982. The new definition refers to an application being made 'under' s. 15(1) of the FOI Act, rather than 'in accordance with'.

Section 45(1) of the FOI Act was also altered so that it refers to 'an agency or the Commonwealth', rather than merely 'the Commonwealth'. This corrects a drafting oversight and aligns s. 45(1) with s. 45(2)(b).

Finally, Schedules 1, 2 and 3 of the FOI Act were updated by removing references to repealed legislation and abolished companies and substituting the name of a new company where relevant.

Other legislation has made minor amendments to Schedule 3, which lists secrecy provisions that are exempt from the FOI Act:


Case notes

Asylum seekers: defining the relevant 'social group'

In both Dranichnikov v Minister for Immigration and Multicultural Affairs[22] and Appellant S395/2002 v Minister for Immigration and Multicultural Affairs[23] the High Court considered the correct definition of a 'social group' for the purpose of a claim for refugee status. Under Article 1A(2) of the United Nations Convention Relating to the Status of Refugees, a well-founded fear of persecution because of membership of a particular social group is one of the grounds for refugee status.

In Dranichnikov both the original decision maker and the Refugee Review Tribunal had rejected the applicant's claim on the basis that there was no evidence that he was persecuted for being a businessman in Russia. By a four-one majority the High Court held that the Tribunal had misstated the applicant's case and failed to respond to his true claim, which was membership of a narrower social group of businessmen who publicly criticised law enforcement authorities for failing to take action against crime or criminals.

In the view of the majority, the applicant had consistently emphasised his public stance against crime and corruption as the basis of his claim to refugee status. Failure to respond to his case not only constituted a failure to accord him natural justice (which was not a basis for review of the decision under s. 476 of the Migration Act 1958 as it then stood): it was a constructive failure of the Tribunal to exercise its jurisdiction. Relief was therefore available in the form of writs of certiorari, prohibition and mandamus.

In S395 the two applicants claimed they had been persecuted in Bangladesh because they were homosexuals. Although the Refugee Review Tribunal rejected some of their evidence, it accepted that homosexuality was not accepted or condoned in Bangladesh and that it was impossible to live openly as a homosexual. In rejecting the applicants' claim for refugee status, the Tribunal made several comments to the effect that it was generally possible for homosexuals to avoid difficulties if they were discreet and that the applicants had lived and would continue to live discreetly if they returned to Bangladesh.

By a four-three majority the High Court held that the Tribunal had made an error of law. McHugh and Kirby JJ, in a joint judgment, and Gummow and Hayne JJ, in a second joint judgment, considered that the Tribunal had not responded to the reasons for the applicants living discreetly and had not considered whether the applicants' fear of persecution was well founded. On the question of 'living discreetly', McHugh and Kirby JJ said,

The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many - perhaps the majority of - cases, however, the applicant has acted in the way that he or she did only because of the threat of harm.[24]

They also considered that the Tribunal had effectively divided homosexual males in Bangladesh into 'discreet' and 'non-discreet' categories. This was erroneous. It did not necessarily follow that 'non-discreet' homosexuals would suffer persecution or that 'discreet' homosexuals would not suffer persecution:

Whether members of a particular social group are regularly or often persecuted usually assists in determining whether a real chance exists that a particular member of that class will be persecuted. Similarly, whether a particular individual has been persecuted in the past usually assists in determining whether that person is likely to be persecuted in the future. But neither the persecution of members of a particular social group nor the past persecution of the individual is decisive. History is a guide, not a determinant. Moreover, helpful as the history of the social group may be in determining whether an applicant for a protection visa is a refugee for the purpose of the Convention, its use involves a reasoning process that can lead to erroneous conclusions. It is a mistake to assume that because members of a group are or are not persecuted, and the applicant is a member of that group, the applicant will or will not be persecuted. The central question is always whether this individual applicant has a 'well-founded fear of being persecuted for reasons of ... membership of a particular social group'.

It follows that whether or not a Bangladeshi male homosexual applying for a protection visa has a well-founded fear of persecution cannot be determined by assigning him to the discreet or non-discreet group of homosexual males and determining the probability of a member of that group suffering persecution. An applicant claiming refugee status is asserting an individual right and is entitled to have his or her claim considered as an individual, not as the undifferentiated member of a group.[25]

Gummow and Hayne JJ expressed similar reasoning:

[T]here is a serious risk of inverting the proper order of inquiry by arguing from an a priori classification given to the applicant, or the applicant's claim, to a conclusion about what may happen to the applicant if he or she returns to the country of nationality, without giving proper attention to the accuracy or applicability of the class chosen. That is, there is a real risk of assuming (wrongly) that a particular applicant will be treated in the same way as others of that race, religion, social class or political view are treated in that country. It would, for example, be wrong to argue from a premise like 'homosexuality is generally ignored in Bangladesh' to a conclusion that 'this applicant (a homosexual) will not be persecuted on account of his sexuality', without paying close attention to the effect of the qualification of the premise provided by the word 'generally'. Thus it would be necessary in the example given to consider whether, on return to Bangladesh, the applicant would stand apart from other homosexuals in that country for any reason.[26]

The dissenting judges concluded that the applicants had never claimed before the Tribunal that they had needed to live discreetly for fear of harm. They had based their claim for refugee status on specific events of persecution, which the Tribunal found had not occurred because it rejected their evidence as lacking credibility.

Availability of public law remedies against a private company

In NEAT Domestic Trading Pty Ltd v AWB Ltd[27] the High Court considered whether the decisions of a corporation were subject to the Administrative Decisions (Judicial Review) Act 1977.

Responsibility for the commercial aspects of wheat marketing had been transferred to three companies, including Australian Wheat Board (International) Limited. An independent statutory body known as the Wheat Export Authority was also created. Section 57 of the Wheat Marketing Act 1989 provided that it was an offence to export wheat without the written consent of the Authority, but AWBI was exempted from the prohibition. Before giving consent to any export of wheat the Authority had to consult AWBI and the Authority could not give a 'bulk export' consent without the prior approval of AWBI.

NEAT Domestic Trading made six separate applications to the Authority for consent to export wheat. On each occasion the Authority forwarded the request to AWBI, which refused to give approval. The primary judge found this refusal was pursuant to a general policy not to approve bulk export permits. NEAT argued that the withholdings of approval were decisions of an administrative character made under the Wheat Marketing Act and that AWBI had improperly exercised its discretionary power in accordance with a rule or policy without regard to the merits of the case.

In a joint judgment McHugh, Hayne and Callinan JJ held that 'public law remedies' were not available. Their Honours emphasised, however, that their decision depended on the particular structure of the Wheat Marketing Act and did not answer the more general question of whether public law remedies could be granted against private bodies.

AWBI was not created by the Wheat Marketing Act; it was incorporated under the Corporations Law, and its powers and obligations derived largely from that source. For that reason their Honours did not consider the decisions by AWBI were made under the Wheat Marketing Act. In addition, AWBI was obliged by its constitution to pursue its private objective of maximising returns to its wheat growers. It was not obliged to consider any wider 'public' considerations arising from the Wheat Marketing Act, and no sensible accommodation could be made between the public and private considerations if AWBI was required to take both into account.

Gleeson CJ also dismissed NEAT's appeal, but on a different basis. Although it was not strictly necessary for him to decide, he preferred the view that AWBI's decision was of an administrative nature and made under an enactment. AWBI represented the interests of a large class of primary producers and held at least a potential statutory monopoly in the bulk export of wheat, which was seen to be in the national interest. It was inaccurate to describe AWBI as representing purely private interests. In substance, it exercised a statutory power to deprive the Authority of the capacity to consent in a given case.

There was, however, nothing inherently wrong with AWBI pursuing a policy of not approving bulk export permits since this was consistent with the 'single-desk' policy of the Wheat Marketing Act. No reason had been advanced why AWBI should depart from its policy in the present case. NEAT did not present evidence or argument in support of a change of the single-desk policy, nor did it seek to show that the policy was irrelevant to its particular export proposals.

Kirby J, in dissent, emphasised that it was the administrative character of the decision, and not the decision maker, that determined whether review under the Administrative Decisions (Judicial Review) Act was available. The nature of AWBI as a corporation was relevant but not determinative. Other factors suggested that the decision to grant or withhold approval was administrative: the Wheat Act involved AWBI in a regulatory scheme; those seeking export approval were not in a contractual relationship with AWBI; remedies under the Trade Practices Act were foreclosed; and both AWBI and the Authority made decisions pursuant to the same provision regulating the export monopoly. AWBI's decision was made 'under an enactment' because it only had the power to control the Authority's consent by force of the Wheat Marketing Act; the Act gave its decision legal force. Further, AWBI had a duty to make a decision, since the scheme created under s. 57 of the Act would otherwise become unworkable. Section 57 also showed that Parliament intended AWBI to make individual decisions rather than apply a 'blanket' policy.

Standards of proof and rules of evidence for statutory prosecutions

Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd[28] concerned prosecutions for breach of the Customs Act 1901 and the Excise Act 1901. The appellant had commenced action against the respondents in the Supreme Court of Queensland, seeking convictions for offences contrary to each Act and an order for the recovery of penalties. Questions arose as to the standard of proof required for conviction and whether the proceedings were to be treated as criminal proceedings for the purpose of Queensland's Evidence Act.

Delivering the leading judgment, Hayne J said that the standard of proof required could not be determined by classing the proceedings as 'civil' or 'criminal'. Litigation could not be divided into two simple classes because some proceedings had characteristics of both. While the Customs and Excise Acts provided for the practice and procedure when commencing or proceeding with a prosecution, neither Act could be construed as including the standard of proof as a matter of practice and procedure. Otherwise the standard of proof could be fixed by rules of court or by direction of the court or judge in a particular case, and the Acts 'are not to be construed as permitting such results'.[29] It was therefore necessary to turn to the Judiciary Act 1903, which in turn provided that the common law was to apply. Alternatively, the Crimes Act 1914 directed attention to the common law.

It was 'strongly arguable' that the common law required proof beyond reasonable doubt when conviction for an offence against a law of the Commonwealth was sought. It was also 'strongly arguable' that, where no conviction was sought but only other remedies (such as a declaration and order for monetary penalties), proof to a civil standard would suffice. Hayne J concluded that, because convictions were sought in the current proceedings, proof beyond reasonable doubt was required.

The rules of evidence, on the other hand, were matters of practice and procedure. The Customs and Excise Acts required the Supreme Court of Queensland to apply its usual practice and procedure for civil cases in the proceedings. Therefore the provisions of the Queensland Evidence Act that usually applied in civil cases were to be used.

Requirement to give reasons for a decision

One of the questions in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme[30] concerned the effect of a failure to fulfil a statutory requirement to give written reasons for a decision. Section 501G of the Migration Act 1958 requires the Minister to give written notice to a person whose visa has been cancelled, setting out, among other things, the reason for the decision. However, s. 501G(4) provides that 'a failure to comply with this section in relation to a decision does not affect the validity of the decision'.

By a four-one majority the High Court held that the prosecutor could not use the failure to give reasons as a direct means for quashing the decision to cancel his visa.

As a matter of construction, s. 501G did not impose a step preliminary to a decision; it assumed that a decision had been made and imposed a duty with respect to notification of that decision. The prosecutor could seek a writ of mandamus and thus compel the Minister to provide reasons, but he had chosen not to do so. Once reasons had been provided it was possible that they might disclose an error that could attract prohibition to quash the Minister's decision, but the interim step of using mandamus could not be bypassed.

In dissent, Kirby J held that '[i]n the circumstances, that failure [to give reasons] indicates that the decision was an arbitrary one made outside the decision-maker's jurisdiction'.[31]

Ability to deport British subjects

In Shaw v Minister for Immigration and Multicultural Affairs[32] the High Court again considered whether a person could be classified as an 'alien', and therefore be liable to be deported, in the context of a factual situation bearing many similarities to that in Re Patterson; ex parte Taylor.[33]

The applicant in Shaw arrived in Australia from the United Kingdom in 1974 at the age of 18 months but had never applied for Australian citizenship. His visa was cancelled in 2001 and moves were made to deport him on the basis of his criminal record. The prosecutor in Patterson had arrived in Australia from the United Kingdom in 1966 as a young child and his visa had been cancelled on the same basis.

A four-three majority in Patterson held that British subjects who came to Australia before a certain date were not aliens, even though they were also not citizens. The majority in that case disagreed as to the relevant date, but because it was either 1973 or 1987 the distinction was not relevant to the outcome.

The majority in Shaw - consisting of Gleeson CJ and Gummow, Hayne and Heydon JJ[34] - ruled that any person entering Australia after the commencement of the Australian Citizenship Act 1948 who had not been naturalised was an alien for constitutional purposes and thus able to be deported. They regarded citizenship as the obverse of alienage and considered that the decision in Patterson had not established a clear principle.

The dissenting judges in Shaw - McHugh, Kirby and Callinan JJ[35] - held that British subjects who arrived before 3 March 1986, when the Australia Act 1986 came into force, were not aliens.

Inflexible application of policy

One of the questions in Jackson v Minister for Immigration and Multicultural and Indigenous Affairs[36] was whether the Migration Tribunal had inflexibly applied policy, rather than using it as a guide.

The applicant had applied for a visa as a 'special needs relative' providing substantial and continuing assistance in relation to both his parents. The Tribunal accepted that the applicant had been providing and continued to provide financial and emotional support to his mother and had provided physical support to his father until the latter's death from cancer. The Tribunal found, however, that this support was not substantial, relying on a policy manual that listed seven circumstances that 'on their own' did not require substantial and continuing assistance. The Tribunal identified three of these circumstances as describing the care given by the applicant and stated that this care was 'of the kind excluded by the policy'.

The Full Court of the Federal Court held that the Tribunal had failed to consider for itself whether the assistance being provided was substantial. It had considered the manual as determinative of the matter, rather than as a guide - and may also have misconstrued the manual. It would be incorrect to say that particular kinds of assistance could never amount to substantial assistance.

Procedural fairness in relation to 'dob-in' letters

In Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[37] the Refugee Review Tribunal disavowed any reliance on a letter that had been forwarded to it claiming to be from someone having a personal association with the applicants. The Tribunal's reasoning was that it was unable to test the veracity of the letter's contents. The letter had been sent to the Department 'in confidence'. The Tribunal decided to regard the letter as 'non-disclosable information' under s. 424A of the Migration Act 1958 and did not provide a copy to the applicants.

Merkel J held that the Tribunal's disavowal of reliance on the letter was not sufficient to justify the failure to provide the applicants with any information about the letter's contents, which were prejudicial to the applicants. The letter was apparently credible and related to matters that were relevant and significant. Even where information was provided in confidence, procedural fairness might require that the substance of the information be disclosed.

His Honour also held that, even if the statutory scheme did not require the information to be disclosed, it did not actually prohibit disclosure, except in narrow circumstances that were not relevant to the case. Any natural justice or procedural fairness obligations had not been ousted by the statutory scheme as it then stood.

Need for a causal connection between an 'occurrence' and operational service

In Woodward & Gundry v Repatriation Commission[38] the Full Court of the Federal Court ruled that previous remarks about the Veterans' Entitlements Act 1986 in Repatriation Commission v Keeley[39] were not part of the reasons for decision and contained an erroneous statement of the law in relation to entitlements to pension for war-caused death, injury or disease.

Both ss. 8(1)(a) (war-caused death) and 9(1)(a) (war-caused injury or disease) of the Act contain the phrase 'an occurrence that happened while the veteran was rendering operational service'. Citing remarks in a joint judgment in Keeley, the applicants argued that a temporal connection between an event and service rendered was sufficient to meet the definition of war-caused death or injury, even if there was no causal link between the 'occurrence' and the service rendered. For example, Mrs Gundry argued that in order to claim a war widow's pension it was sufficient that during service in 1941 her husband had developed asthma, which ultimately led to his death from emphysema, irrespective of whether his asthma had been causally related to his service.

Additionally, the applicants argued - again relying on remarks in Keeley - that it was not necessary for them to raise a reasonable hypothesis by reference to a statement of principles (s. 120A of the Act) because no medical or scientific opinion was required to establish a temporal link.

The Full Court rejected this approach. It held that ss. 8(1)(a) and 9(1)(a) required that a death, injury or disease results from an 'occurrence that happened while the veteran was rendering operational service' [emphasis in judgment] and that these were words of causation requiring a link between the veteran's service and the death, injury or disease [as opposed to a causal link between the occurrence and the death, injury or disease but only a temporal link between service and the occurrence]. Once a causal connection was required, it was inevitable that proof would be determined by reference to a statement of principles.

Judicial review of a dismissal from the Army

In Stuart v Chief of Army[40] the applicant used several different grounds in the Administrative Decisions (Judicial Review) Act 1977 to challenge both her dismissal and the rejection of her application for redress of grievance. The first decision maker issued a notice that would lead to dismissal, citing the applicant's conduct record (including convictions for insubordinate behaviour and disobedience), a psychological report recommending discharge, and her overall service history. The applicant responded by claiming the dismissal notice was part of an ongoing campaign of harassment aimed at getting rid of her, including charges for 'trivial' or 'insubstantial' offences. The same decision maker then confirmed the dismissal, finding no substance to the claim of harassment.

The applicant then sought redress in relation to her pending dismissal. A second decision maker found there was no evidence of differential treatment and that, while some of the applicant's individual offences were indeed minor, there was a continuing pattern of behaviour that showed she was not suitable for the armed forces.

The applicant claimed that both decisions were unreasonable because the decision makers failed to take steps to ascertain readily available and relevant facts relating to her allegations, that there was a failure to take relevant considerations into account, that irrelevant material was taken into account (particularly material she had not been able to comment on), that procedural fairness was lacking, and that, in the case of the second decision, there had not been a true exercise of discretion since the decision maker had adopted a report by another officer.

Justice Wilcox found that none of the grounds of review was made out. The allegations that the decision makers had not dealt with were not relevant to the question of whether the applicant was suitable for the armed forces. It was not necessary for the decision makers to follow up a freedom of information request that the applicant herself had failed to pursue. The allegedly irrelevant material concerned a matter the applicant herself had raised in her response to the first notice. Finally, it was not improper to adopt a recommendation so long as a decision maker 'approaches his or her task with an open mind and a readiness to make whatever decision he or she thinks to be proper in the circumstances'.

Secrecy provision affecting public servants held to be invalid

In Bennett v President, Human Rights and Equal Opportunity Commission[41] the Federal Court held that a Public Service regulation prohibiting disclosure of information in broad terms was invalid because it was an excessive burden on freedom of political communication.

The applicant had made a complaint to the Human Rights and Equal Opportunity Commission as a result of a dispute with his employer, the Australian Customs Service. He was also President of the Customs Officers Association, in which role he had made comments in the media on several occasions, including after a warning from his employer not to do so. He was then charged with and found to have breached a regulation prohibiting disclosure of 'any information about public business or anything of which the employee has official knowledge'. The disciplinary action was later revoked on the basis of legal advice. HREOC declined to continue its investigation because it determined that the applicant had an obligation to comply with lawful direction under the regulation.

Finn J held that the regulation was not reasonably appropriate and adapted to furthering the proper and efficient operation of the Government. It attempted to prohibit all disclosure, regardless of the type of information or the consequences of disclosure, and did not allow public servants to participate in public debate. He also held that the regulation was not necessary for the protection of public order under the International Covenant on Civil and Political Rights.

It was possible, however, that Customs could lawfully issue directions based on the applicant's common law duty of loyalty and fidelity to his employer. Whether the duty had properly been invoked and the directions were justifiable on that basis had not been dealt with by HREOC. His Honour therefore remitted the matter for further consideration.

Recognition of an action for invasion of privacy

The Queensland District Court has awarded damages for invasion of privacy, which is believed to be the first express recognition of this tort in Australia. In Grosse v Purvis[42] the plaintiff claimed a range of remedies for the defendant's alleged behaviour over a number of years, broadly described as stalking. Skoien SJ found many of the allegations to have been made out. His Honour noted that much of the conduct constituted unlawful stalking under Queensland's Criminal Code. He then analysed the judgments in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd[43] and concluded that nothing in that decision prevented recognition of an action for invasion of privacy. He went on to outline that action:

It is a bold step to take, as it seems, the first step in this country to hold that there can be a civil action for damages based on the actionable right of an individual person to privacy. But I see it as a logical and desirable step. In my view there is such an actionable right.

...

It is not my task nor my intent to state the limits of the cause of action nor any special defences other than is necessary for the purposes of this case. In my view the essential elements would be:

(a) a willed act by the defendant,

(b) which intrudes upon the privacy or seclusion of the plaintiff,

(c) in a manner which would be considered highly offensive to a reasonable person of ordinary sensibilities,

(d) and which causes the plaintiff detriment in the form of mental psychological or emotional harm or distress or which prevents or hinders the plaintiff from doing an act which she is lawfully entitled to do.

Clearly acts of the type specified in s. 359B(c) of the Code ... would be actionable behaviour ... The suffering of embarrassment, hurt, distress and, a fortiori, PTSD [post-traumatic stress disorder] would be actionable detriment as would enforced changes of lifestyle caused by the intrusion ...

It is unnecessary for me in the circumstances of this case to decide whether a defendant would be liable for negligent acts as opposed to willed acts. The conduct of the defendant which I have found to be proved consisted of willed acts.

It seems to me that a defence of public interest should be available (see Lenah at para 34). No such concept was involved in this case. It is unnecessary for me to decide whether a defence of actual intention to protect, or cause a benefit to, the plaintiff should be a defence, as was argued by the defence in this case because I have expressly found that such an intention did not motivate the defendant. In any event, it could lie uneasily with the element set out in para [444(c)] above.[44]

Inability of a same-sex partner to obtain benefit as a veteran's dependant

The United Nations Human Rights Committee has ruled that Australia violated the rights of a homosexual man who was not able to obtain benefits under the Veterans' Entitlements Act 1986 following the death of his partner of 38 years, a war veteran. Mr Edward Young made a claim as a veteran's dependant. The definitions in the Act provided, however, that a 'member of a couple' was either legally married to another person or living with a person of the opposite sex. The Repatriation Commission and the Veterans' Review Board rejected Mr Young's claim for this reason, and the Human Rights and Equal Opportunity Commission denied his complaint because he had been subject to the automatic and non-discretionary operation of the Act.

Australia argued the case before the Human Rights Committee on the basis that, on the facts as a whole, no partner of the deceased veteran, regardless of gender, would have been entitled to a pension and that therefore Mr Young had not been discriminated against. The Committee rejected this argument in its view[45], because Mr Young could never obtain a pension, even if he met all the other criteria of the legislation. Australia had failed to provide any evidence of reasonable and objective reasons for the distinction made between same-sex partners and unmarried heterosexual partners. In a separate, concurring, opinion two members of the Committee commented that Australia had in a real sense not contested the case.


Admin law watch

Passage of the Legislative Instruments Act

The Legislative Instruments Act 2003 received Royal Assent on 17 December 2003, over a decade after publication of the Administrative Review Council report that provided the impetus for the legislation. The Council's 1992 report, Rule Making by Commonwealth Agencies, made a total of 31 recommendations for the purposes of improving the quality and transparency of delegated legislation. The principal elements of the Council's proposals were as follows:

Although the Act does not precisely mirror the Council's recommendations, it does incorporate the main features of the proposed regime. It establishes an authoritative register of legislative instruments, with registration required for an instrument to be enforceable. It also encourages consultation when instruments are being made, emphasises high standards of drafting, ensures parliamentary scrutiny, and provides for sunsetting of instruments after approximately 10 years.

The Act is expected to commence on 1 January 2005. The Law and Justice Legislation Amendment Act 2004 makes some minor technical adjustments, with the amendments to come into effect immediately after the Legislative Instruments Act commences.

The Tasmanian review of administrative appeal processes

In April 2003 the Tasmanian State Service Commissioner reported on a review of administrative appeal processes in that state. The review examined the relationships between existing offices and institutions and considered such matters as duplication of roles, standardisation of access arrangements and uniformity of mediation procedures. Among the report's recommendations were the following:

The Tasmanian Government subsequently accepted the recommendations and announced the establishment of a high-level working party to consider matters associated with creating a tribunal.

Overall, the report's recommendations have been divided into eight separate projects, overseen by a single steering committee. The first recommendation implemented was enactment of the Public Interest Disclosures Act 2002 on 1 January 2004.

In January 2004 a review of the Ombudsman Act 1978 was announced, implementing another recommendation of the report. This review will consider matters such as clarifying the Ombudsman's jurisdiction, modernising the investigation process, and providing a power to resolve complaints through conciliation.

Priority has also been given to establishment of the Tasmanian Administrative Review Advisory Council, with terms of reference recently approved and membership now being finalised. This body will have a role that is broadly similar to that of the federal Administrative Review Council, although it will not be established in legislation.

A copy of the Commission's report is available on the Department of Justice website <www.justice.tas.gov.au>. Further information can also be obtained from Mr Dale Webster <dale.webster@justice.tas.gov.au>.

The UK Council on Tribunals Guide to Drafting Tribunal Rules

The Council on Tribunals, a statutory body that supervises the constitution and working of a wide range of tribunals in the United Kingdom, published its Guide to Drafting Tribunal Rules in November 2003. The guide contains templates for procedural rules likely to be required by a tribunal, covering aspects such as lodgment of applications, case management, evidence, hearing procedures, decisions and appeals. It is intended for use in drafting procedural rules for a newly formed tribunal or updating the rules of an existing tribunal.

A copy of the guide is available on the Council on Tribunals website <www.council-on-tribunals.gov.uk>.

A new tribunal in Queensland

The Commercial and Consumer Tribunal began operation in Queensland on 1 July 2003, replacing the Queensland Building Tribunal, the Property Agents and Motor Dealers Tribunal, the Retirement Villages Tribunal and the Liquor Appeals Tribunal. The new Tribunal can be given additional jurisdiction by additions to the list of 'empowering Acts' in Schedule 2 of its enabling legislation. Matters relating to gaming machines and tourism services have been added to the Schedule since the Tribunal began operation.

Proposals for reform of courts and tribunals in New Zealand

On 16 March 2004 the New Zealand Law Commission released Delivering Justice for All: a vision for New Zealand courts and tribunals. The report completes the Commission's work on a reference to review the structure of all state-based adjudicative bodies in New Zealand, including consideration of the role of tribunals and their relationship to the courts.[46]

The report recommends the creation of a Community Court as one of a collective group of 'primary courts'. The Court would deal with high-volume, less serious matters in both criminal and civil jurisdictions. The report emphasises the importance of the Court as the place where most people would encounter the court system. For particularly small civil claims, the current Disputes Tribunal and Tenancy Tribunal would be maintained as the Disputes and Tenancy Divisions of the Community Court.

Several of the other primary courts - the Primary Civil Court, the Primary Criminal Court, the Family Court, the Youth Court and the Environment Court - are currently parts of or closely associated with the District Court, which would no longer exist as a separate entity. The existing Employment Court, the Maori Land Court and the Coroners Court would be maintained as primary courts.

Appeals from the primary courts would generally be as of right on both fact and law to the High Court, the only exception being the Maori Land Court, which would have an intermediate appeal process before proceeding to the High Court. Further appeal from the High Court would be on a matter of law only and would require leave of the Court of Appeal.

The Commission's report recommends the creation of a unified tribunal framework or umbrella structure, which would have a Primary Civil Court judge as its president and two deputy presidents with legal qualifications. The report identifies the Victorian Civil and Administrative Tribunal as a desirable model. It envisages that tribunals or groups of tribunals would operate in a manner analogous to the Victorian Tribunal's divisions and lists. The president of the unified framework would be in a position to consider rationalisation of the number, function and processes of tribunals. The report also specifies bodies that should not be included in the new structure.

The proposed appeals process is partly modelled on the Administrative Decision Tribunal in New South Wales. Appeals would be heard by a three-member panel consisting of the president or deputy president, a member of the tribunal being appealed from, and a member of another tribunal within the unified framework. Appeals to the panel would be on matters of both fact and law. Unlike the New South Wales Tribunal, leave would not be required for an appeal on the facts or merits. Further appeal to the High Court would be confined to matters of law and would require leave.

The report also makes recommendations on broad matters such as improving access to the legal system, use of alternative processes, and the openness of proceedings. It is available on the Law Commission's website <www.lawcom.govt.nz>.

The Inquiry into Governance on Norfolk Island

The Joint Standing Committee on the National Capital and External Territories tabled Quis custodiet ipsos custodes? Inquiry into Governance on Norfolk Island on 3 December 2003.[47] The report contains a wide range of recommendations aimed at providing accountability mechanisms that are not currently present, among them the following:

The report is available at <www.aph.gov.au/house/committee/ncet/ NorfolkGov/report.htm>.

A report on child custody

On 29 December 2003 the House of Representative Standing Committee on Family and Community Affairs tabled Every Picture Tells a Story: report on the inquiry into child custody arrangements in the event of family separation. Among the Committee's recommended changes to the family law system is the creation of a Families Tribunal, with powers relating to parenting responsibility and arrangements and, by agreement of the parents, property matters. The Committee recommended that members of the Tribunal be appointed from professionals practising in the family relationships area. Conciliation and non-adversarial processes would be a feature of Tribunal procedure. Hearings would be conducted by a panel of three members, each with distinct qualifications - a mediator, a child psychologist or other professional able to represent the child's perspective, and a legally qualified person. Legal representation would not be permitted, but the Tribunal would be able to appoint legal counsel and other experts to assist it as required.

The role of courts in parenting disputes would be limited to hearing particularly serious cases (such as those involving violence or child abuse), enforcement of Tribunal orders, and review of Tribunal decisions on limited grounds.

The Committee also proposed creation of a single entry point to the family law system - distinct from the Tribunal but with close administrative and operational links to it. The entry point would provide access to a full range of dispute-resolution options.

At the time of Admin Review's publication the Government had not yet formally responded to the report.

Trans-Tasman agreement on therapeutic goods

On 10 December 2003 Australia and New Zealand signed a treaty to establish a single trans-Tasman agency regulating therapeutic goods. In Australia this will replace the Therapeutic Goods Administration.

Decisions of the new agency will be subject to both merits review and judicial review. The merits review process will include both internal review and an independent review tribunal. In Australia the Administrative Appeals Tribunal will act in this capacity. New Zealand is to set up its own body. In both countries there is to be a right to appeal tribunal decisions on a question of law, and tribunal and court decisions will have effect in the other country. Existing judicial review processes will be adapted to the scheme, again with decisions in one country having effect in the other.

Before the treaty was signed, the Administrative Review Council provided advice to the Therapeutic Goods Administration and the Department of Health and Ageing on the merits review aspects of the agreement.

Justice Kellam appointed head of NADRAC

On 27 November 2003 the Honourable Justice Murray Kellam was appointed head of the National Alternative Dispute Resolution Advisory Council. As well as being a Justice of the Supreme Court of Victoria, Justice Kellam has previously been president of the Victorian Civil and Administrative Tribunal and the Australian Institute of Judicial Administration. He was also the inaugural Chair of the Council of Australasian Tribunals, established in 2002.

Appointment of the Inspector-General of Taxation

Mr David Vos AM was appointed inaugural Inspector-General of Taxation in August 2003. As noted in Admin Review no. 55, the office of Inspector-General was created to review tax administration on a systemic basis and report to government with recommendations for improvement. Mr Vos's previous career includes lengthy periods working in the Australian Taxation Office and as a partner with PriceWaterhouseCoopers.

On 9 February 2004 the Inspector-General publicly released a brief report, Identification of the Main Systemic Tax Administration Issues and Concerns Facing Taxpayers. He has also given indications about reviews that will be accorded priority, including the administrative cost to business of audits and the Tax Office's administration of penalties. Further details can be obtained from the Inspector-General's website <www.igt.gov.au>.

A new Inspector-General of Intelligence and Security

In March 2004 the appointment of Mr Ian Carnell as Inspector-General of Intelligence and Security was announced, following the retirement of Mr Bill Blick PSM. Mr Carnell was previously Deputy Secretary, Criminal Justice and Security, in the Attorney-General's Department. Mr Blick had served as Inspector-General since 1998. He was also a member of the Administrative Review Council from 1997 to 2003.

Appointment of the music industry Ombudsman

In July 2003 Ms Una Lawrence was appointed inaugural Labelling Code of Practice Ombudsman under the Recorded Music Labelling Code of Practice. The Code, developed by the Australian Record Industry Association and the Australian Music Retailers Association, deals with labelling of audio products that contain coarse language and adult themes. The Ombudsman's role will include mediating unresolved complaints, making recommendations for improving industry compliance, and preparation of an annual report on the operation of the Code.

A Postal Industry Ombudsman

On 1 October 2003 the Minister for Communications, Information Technology and the Arts announced that a dedicated office of Postal Industry Ombudsman would be established within the Office of the Commonwealth Ombudsman. Establishment of an entirely separate industry ombudsman scheme was considered unjustified because of the relatively low level of complaints against the postal industry - about 900 annually. Industry operators other than Australia Post can choose to opt into the new arrangements.

State chapters of the Council of Australasian Tribunals

The New South Wales Chapter of COAT held its inaugural conference on 28 May 2004. The Queensland Chapter is conducting seminars on a regular basis. The seminar held in March 2004 took the form of a debate on the topic 'The amalgamation of tribunals is of benefit to the parties, the members and the government'.

Information about the activities of COAT can be obtained through the COAT website <www.coat.gov.au>.

The Military Rehabilitation and Compensation Act

On 27 April 2004 an Act creating a new rehabilitation and compensation scheme for members and former members of the Australian Defence Force received Royal Assent. The scheme, which is due to start on 1 July 2004, will be administered by a new Military Rehabilitation and Compensation Commission, a five-member body drawn from the Repatriation Commission, Defence, and either the Safety Rehabilitation and Compensation Commission or the Department of Employment and Workplace Relations.

Although the Military Rehabilitation and Compensation Act 2004 generally seeks to unify compensation for members of the military - which is currently available under both the Veterans' Entitlement Act 1986 and the Safety, Rehabilitation and Compensation Act 1988 - it provides two alternative routes of review for decisions of delegates of the Military Rehabilitation and Compensation Commission. All MRCC determinations not specifically excluded can be internally reviewed, and determinations relating to rehabilitation made by a service chief can also be reviewed by the MRCC. In addition, determinations can be reviewed by the Veterans' Review Board, although review by the Board is available only where review by the MRCC has not been sought and vice versa. Both review paths allow a subsequent application for review by the Administrative Appeals Tribunal.

The legislation as originally introduced into Parliament confined the jurisdiction of the Veteran's Review Board to review of determinations relating to warlike or non-warlike service. The Senate Foreign Affairs, Defence and Trade Legislation Committee recommended, however, that the legislation be amended to provide the same review rights for all people making claims.[48]

The Migration Amendment (Judicial Review) Bill

On 27 October 2003 the Attorney-General announced a review of migration litigation. The stated purpose was more efficient management of migration cases, the review being in response to concern about the volume of cases, delays in resolution, and the low success rate for applicants. At the time Admin Review went to press the report of the review had not been made public.

The Migration Amendment (Judicial Review) Bill 2004, introduced into the House of Representatives on 25 March 2004, is said to be the first step in implementing the recommendations of the review. It seeks to restore the practical effect of the procedures relating to judicial review of migration decisions that were considered by the High Court in Plaintiff S157/2002 v Commonwealth.[49]

While that decision found ss. 474 and 486A of the Migration Act 1958, which restrict review of 'privative clause decisions', to be constitutional, the High Court held that those sections applied only to actual decisions under the Act, not purported decisions involving jurisdictional error. In his second reading speech on the Bill, the Minister for Citizenship and Multicultural Affairs said this meant that 'a court must undertake a full review of the claims challenged to determine if those restrictions [on review] apply'.[50]

The Bill seeks to overcome this difficulty by inserting a new definition of 'privative clause decision' that includes, for all sections of the Act other than s. 474, a purported decision that would be a privative clause decision under s. 474 had there not been jurisdictional error. This would mean that the time limit imposed by s. 486A on applications to the High Court for constitutional writs would apply to purported decisions, as would the time limits for applications to the Federal Court and Federal Magistrates Court imposed by other sections. The exclusive jurisdiction of these courts under s. 484 of the Act would also be ensured.

Additionally, the Bill would reduce the time limit for applications to the High Court from 35 to 28 days (in line with the lower courts) but at the same time give each court a new discretion to extend the time for applications by up to 56 days in the interests of the administration of justice.

At the time of Admin Review's publication, the Senate had referred the Bill to its Legal and Constitutional Committee for inquiry and report by 15 June 2004.

On 6 May 2004 the Attorney-General announced further measures in response to the migration litigation review:

The Migration Legislation Amendment (Migration Agents Integrity Measures) Act

On 21 April 2004 an Act creating new registration requirements for migration agents and providing sanctions against registered agents responsible for large numbers of vexatious visa applications received Royal Assent. Both of these measures were recommended by a report to government in 2002.[51]

The Migration Legislation Amendment (Migration Agents Integrity Measures) Act 2004 inserts a new Division 3AA into Part 3 of the Migration Act 1958, dealing with disciplinary matters. It gives the Minister discretion to refer an agent with a 'high visa refusal rate' (determined on a statistical basis) to the Migration Agents Registration Authority, or MARA. Before making a referral, the Minister is obliged to invite the agent concerned to make a submission and to consider any submission made.

Once a referral is made, MARA must decide whether to caution the agent, suspend the agent's registration for up to five years, cancel the agent's registration (which prevents registration for five years) or, if satisfied there are special circumstances, not discipline the agent. In making its decision, MARA must take findings of fact made by the Minister to be correct.

If it decides not to discipline the agent, MARA is required notify the Minister. The Minister must then decide whether to refer the matter for disciplinary action a second time. The agent is again given an opportunity to make a submission. Under a second referral, MARA loses the option of deciding not to discipline the agent.

Decisions by the Minister to refer an agent for disciplinary action and disciplinary decisions by MARA are both reviewable by the Administrative Appeals Tribunal. However, referral decisions only become reviewable once a disciplinary decision has been made as a result.

A similar referral scheme will exist for the discipline of former migration agents, but MARA's sole discretion is the length of the bar against registration (up to five years). Both the referral decision and the ban imposed are reviewable by the Administrative Appeals Tribunal.

The new registration requirements relate to the knowledge and qualifications of migration agents and the holding of adequate professional indemnity insurance.

Two sets of amendments to the Australian Security Intelligence Organisation Act

The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003, which commenced on 23 July 2003, amended the Australian Security Intelligence Organisation Act 1979 to empower ASIO to obtain a warrant to question or, in limited circumstances, detain a person who might have information relevant to a terrorism offence. The draft amending legislation was described in Admin Review no. 55, but the amendments changed significantly during their passage through Parliament.

Division 3 of Part III of the Act provides that the Director-General of Security may seek the Attorney-General's consent to request the issue of a warrant in relation to a person. An 'issuing authority' - a federal magistrate or a federal judge - may issue a warrant after the Attorney-General's consent has been obtained.

Before a warrant can be issued, both the issuing authority and the Attorney-General must be satisfied that there are reasonable grounds for believing that issuing the warrant will substantially assist the collection of intelligence that is important in relation to a terrorist offence. The Attorney-General must also be satisfied that relying on other methods of collecting that intelligence would be ineffective. Further, if the warrant is to authorise a person's detention, the Attorney-General must be satisfied of other requirements about the need for the person to be brought into custody immediately.

At all times questioning takes place before a 'prescribed authority'. Depending on the circumstances, a prescribed authority can 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 who has been admitted as a legal practitioner for at least five years.

A warrant allows for questioning in eight-hour blocks, with initial questioning for eight hours. The prescribed authority may extend questioning for two further blocks of eight hours. The prescribed authority may only permit an extension of the questioning period if he or she is satisfied that there are reasonable grounds to believe that continuing the questioning would substantially assist the collection of intelligence and that the questioning is being conducted appropriately. The prescribed authority can revoke this permission at any time.

Two types of warrant can be issued to authorise the questioning of a person. The first only authorises the questioning of a person for up to 24 hours during the term of the warrant (28 days) after the person is first brought before the prescribed authority. The second type of warrant also authorises a person to be questioned for up to 24 hours but while being detained. The subject of either type of warrant must be released immediately after the questioning or detention period expires or after the prescribed authority revokes or does not provide permission for questioning to continue. The Act expressly provides that a person may not be detained for more than 168 hours.

A person under the age of 16 years cannot be the subject of a warrant. Young people between the ages of 16 and 18 may be subject to a warrant only if the Attorney-General is satisfied it is likely the young person will commit, is committing or has committed a terrorism offence. Young people are entitled to have a parent or guardian present at all times when questioned and may contact a lawyer of their choice. They may not be questioned for longer than two hours without a break.

All detained people will be able to contact a lawyer of their choice at any stage of the proceedings, subject to the direction of the prescribed authority on a case being made out by ASIO for the exclusion of a particular lawyer. If this exclusion occurs, the subject may choose another lawyer - although that choice of lawyer can also be challenged by ASIO. In certain circumstances, questioning may begin in the absence of a lawyer, but this does not interfere with a subject's right to have a lawyer of their choice at all times.

The Act contains safeguards to ensure that the powers are exercised appropriately. Offences are included for officials who contravene these safeguards. Failing to comply with a direction of the prescribed authority or failing to afford a person their rights under the Act will be punishable by a maximum of two years' imprisonment.

The subject of a warrant can contact the Inspector-General of Intelligence and Security or the Commonwealth Ombudsman at any time. If the Inspector-General is concerned about an illegal act or an impropriety occurring during questioning, he or she may advise the prescribed authority. The prescribed authority may suspend questioning until the Inspector-General's concerns are allayed.

The Act also provides that the prescribed authority must advise a person of their right to seek a remedy from a federal court in relation to the warrant or the person's treatment under the warrant at least once every 24 hours when questioned.

The ASIO Legislation Amendment Act 2003, which commenced on 18 December 2003, made further amendments to the Act to accommodate practical considerations identified in the context of implementing ASIO's new powers relating to terrorism offences.

The December 2003 amendments extended the maximum time available for questioning the subject of a warrant from 24 to 48 hours in cases where an interpreter is used, in recognition of the additional time involved in using an interpreter. They also reduced the risk of the subject of a warrant fleeing the country to avoid questioning by creating offences punishable by a maximum of five years' imprisonment if the subject of a warrant fails to surrender any passports issued to them or leaves or attempts to leave the country after being notified of the issuing of a warrant.

Strict non-disclosure provisions were also introduced in the December 2003 amendments. While a warrant is in force it is an offence for a person to disclose information that relates to the warrant, the questioning or the detention of a person under the warrant or operational information obtained as a direct or indirect result of the warrant. For two years after the warrant ceases to be in force it is also an offence for a person to disclose such operational information. For the purposes of these provisions, operational information is information indicating, first, information ASIO has or had or, second, a source of information ASIO has or had or, third, an operational capability, method or plan of ASIO. These secrecy obligations apply to primary and all subsequent disclosures of information.

Provision is made for a range of permitted disclosures that are not offences. This includes disclosures authorised under a warrant or by a direction or permission given by the prescribed authority. A disclosure may also be made to a lawyer to bring court proceedings for a remedy relating to the warrant or the treatment of a person under the warrant. A disclosure may be permitted by the Director-General or the Attorney-General or as prescribed by regulations. Additional disclosures are permitted if a young person is questioned or detained.

Passage of other Bills discussed in Admin Review no. 55

The Designs Act 2003 was assented to on 17 December 2003. The Act implements a new designs registration system based on recommendations of the Australian Law Reform Commission and replaces the 1906 Act of the same name.

The Australian Heritage Council Act 2003 was assented to on 28 September 2003 and commenced operation on 1 January 2004. As outlined in Admin Review no. 55, the Australian Heritage Council replaces the Australian Heritage Commission. The Council's main function is to conduct assessments of nominations for heritage listing.

Two new lists - the National Heritage List and the Commonwealth Heritage List - were created by the Environment and Heritage Legislation Amendment Act (No. 1) 2003. The Commonwealth Heritage List consists of sites owned or controlled by the Commonwealth. The heritage values of sites on both lists are legislatively protected. The Australian Heritage Council makes recommendations to the Minister about listing, but the Minister has the final decision. The existing Register of the National Estate, which does not provide legislative protection, will be maintained.

The Australian Human Rights Commission Legislation Bill 2003 is still before Parliament. The Senate Legal and Constitutional Committee made recommendations for amendment of the Bill, including removing the requirement that the Australian Human Rights Commission obtain the Attorney-General's approval before intervening in court proceedings - if the Commission's President is not, and was not immediately before appointment as President, a federal judge. The Committee also recommended that a measure of specialisation for commissioners be retained in the new structure, with responsibility for a particular area or areas (such as sex, race or disability discrimination) to be assigned to each commissioner. It recommended that one of the commissioners be required to have significant experience in the community life of Aboriginal or Torres Strait Islander people.


Personalia

The Administrative Review Council

Since June 2003 Mr Andrew Metcalfe has been appointed as a member of the Council, Mr Robert Cornall has been re-appointed as a member of the Council and the terms of appointment of Mr Bill Blick PSM, Ms Christine Charles and Ms Patricia Ridley have expired.

The Federal Court

The following judicial appointments to the Federal Court have been made since June 2003:

The Federal Magistrates Court

The following appointments to the Federal Magistrates Court have been announced since June 2003:

The Administrative Appeals Tribunal

The Commonwealth Attorney-General announced the following appointments to the Administrative Appeals Tribunal between June 2003 and April 2004:

In October 2003, 17 part-time members of the Tribunal were reappointed for terms of one to four years.


[*]* Senior Lecturer in Law, University of Adelaide.

[1] Australian Law Reform Commission 1996, Beyond the Door-keeper: standing to sue for public remedies, Report no. 78, ALRC, Sydney.

[2] Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17.

[3] Plaintiff S157 of 2002 v The Commonwealth [2003] HCA 2.

[4] Australian Law Reform Commission 1996, Beyond the Door-keeper: standing to sue for public remedies, Report no. 78, ALRC, Sydney; Administrative Review Council 1998, The Contracting Out of Government Services, Report no. 42, ARC, Canberra.

[*]* President of the Administrative Review Council.

[5] For example, Steven Donaghue's excellent Royal Commissions and Permanent Commissions of Inquiry (2001, Butterworths, Sydney).

[6] Bond v Australian Broadcasting Tribunal (No. 2) (1988) 84 ALR 646.

[7] NCSC v News Corporation Ltd (1984) 156 CLR 296 at 324.

[8] As to corporations, see EPA v Caltex Refining Co Pty Ltd (1993) 178 CLR 477.

[9] Esso Australia Resources Ltd v Commissioner of Taxation (1999) 168 ALR 123, overruling Grant v Downs (1976) 135 CLR 674.

[10] Daniels Corporation International Pty Ltd v ACCC [2002] HCA 49.

[11] Brandy v Human Rights Commission (1995) 183 CLR 245.

[12] It is my view that the expression 'right to silence' is something of a misnomer since it is really an expression that covers a bundle of immunities, including immunity from the provision of data or evidence that might be used to incriminate the provider.

[*]* Professor of Law, Australian National University, and member of the Administrative Review Council.

[13] Baker, D, 'The probable impact of legal expert systems on the development of the social security system', Paper submitted to the Law Faculty, Australian National University, in fulfilment of the research component of the honours degree in law, October 2001, p. 6.

[*]* Deputy President, Repatriation Commission, and Deputy Secretary, Department of Veterans' Affairs.

[14] Veterans' Compensation Review Committee 1994, A Fair Go - report on compensation for veterans and war widows, (Professor P Baume, Chair), Australian Government Publishing Service, Canberra.

[15] This Act will repeal the Designs Act 1906, under which the Tribunal currently has jurisdiction. Transitional provisions in the new legislation ensure that any applications or proceedings under the repealed Act can be completed.

[16] Re Rich and Australian Securities and Investments Commission [2003] AATA 1009.

[17] Re Rich and Australian Securities and Investments Commission [2003] AATA 1044.

[18] Re Rich and Australian Securities and Investments Commission [2003] AATA 1339.

[19] [2003] AATA 1123.

[20] Section 109 of the Social Security Administration Act 1999.

[21] [2004] AATA 182.

[22] [2003] HCA 26.

[23] [2003] HCA 71.

[24] [2003] HCA 71 at [43].

[25] [2003] HCA 71 at [58] to [59].

[26] [2003] HCA 71 at [77].

[27] [2003] HCA 35.

[28] [2003] HCA 49.

[29] [2003] HCA 49 at [126].

[30] [2003] HCA 56.

[31] [2003] HCA 56 at [66].

[32] [2003] HCA 72.

[33] [2001] HCA 51.

[34] Gleeson CJ and Gummow and Hayne JJ were the three dissenting judges in Patterson. Heydon J was not a member of the High Court at the time of the Patterson decision.

[35] These judges were all members of the majority in Patterson.

[36] [2003] FCAFC 203.

[37] [2003] FCA 437.

[38] [2003] FCAFC 160.

[39] [2000] FCA 532.

[40] [2003] FCA 1291.

[41] [2003] FCA 1433.

[42] [2003] QDC 151.

[43] [2001] HCA 63.

[44] [2003] QDC 151 at [442] to [447].

[45] CCPR/C/78/D/941/2000.

[46] The Law Commission published two preliminary papers for discussion in 2002 - Striking the Balance and Seeking Solutions.

[47] The Latin title is translated by the Committee as 'Who is to guard the guards themselves?' - a quote from the poet Juvenal (c. 60-130 AD).

[48] Senate Foreign Affairs, Defence and Trade Legislation Committee 2004, Provisions of the Military Rehabilitation and Compensation Bill 2003 and the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Bill 2003, <www.aph.gov.au/Senate/committee/fadt_ctte/reports/index.htm>.

[49] [2003] HCA 2.

[50] House of Representatives 2004, Hansard, 25 March, p. 27 213.

[51] Department of Immigration and Multicultural and Indigenous Affairs 2002, Review of Statutory Self-regulation of the Migration Advice Industry, DIMIA, Canberra.