Administrative Review Council

THIRTY-FIRST ANNUAL REPORT
2006–07

 

© Commonwealth of Australia 2007

This work is copyright. Apart from any use permitted under the Copyright Act 1968, no part may be reproduced by any process without written permission.

ISSN 0155-025X
ISBN 1 921241 29 2

For information about this report, or more generally about the Council’s work, please contact:

The Executive Director
Administrative Review Council
Robert Garran Offices
National Circuit
BARTON  ACT  2600

Telephone: 02 6250 5800
Facsimile: 02 6250 5980
Email: arc.can@ag.gov.au
Internet: www.law.gov.au/arc


 

Contents

Introductory Letter
The Administrative Review Council and Secretariat members, 2007

1 Overview
Promoting the work of the Council
Changes in Council membership

2 The work and performance of the Council
The Council’s 30th anniversary
The Council’s work
An assessment of the Council’s performance

3 Management and accountability
Enabling legislation
The responsible Minister
The annual report
Functions and powers of the Council
Membership of the Council
The Council’s Secretariat
Council expenditure
The Council’s meetings
Consultancy services
Social justice and equity
Equal employment opportunity
Occupational health and safety
Freedom of information
Advertising and market research
Ecologically sustainable development and environmental performance

Appendix A Section 51 of the Administrative Appeals Tribunal Act

Appendix B Reports and guidelines issued by the Administrative Review Council

Appendix C Letters of advice 8

Appendix D Status of the Council’s recommendations

Appendix E The Council’s expenditure, 2006–07



Introductory Letter

 



The Administrative Review Council and Secretariat members, 2007

Back: Sue Vardon AO, Major-General Paul Stevens AO (rtd), Richard Humphry AO (rtd)

Middle: Professor David Weisbrot AM, Robert Cornall AO, Andrew Metcalfe, Dr Melissa Perry QC, Peter Anderson

Front: Ian Carnell, Barbara Belcher, Margaret Harrison-Smith (Executive Director), Jillian Segal AM (President), Justice Garry Downes AM, Professor Robin Creyke, Professor John McMillan

 




1     Overview

The year 2006–07 was productive for the Administrative Review Council: a considerable amount of work was done on two projects, and work began on a further one. The Council also maintained the level of advice it provides on the administrative law aspects of Commonwealth government legislation, policy and initiatives.

The Council all but completed work on a series of best-practice guides for government decision makers. The guides cover five aspects of administrative decision making—lawfulness; natural justice; evidence, facts and findings; reasons; and accountability. The Department of Immigration and Citizenship has contributed significant funds and resources to the project. The Council also made good progress with its project on coercive information‑gathering powers and expects the report to be completed before the end of 2007.

In addition to these projects, the Attorney‑General has forwarded to the Council terms of reference for a new project dealing with administrative review mechanisms in areas of complex and specific business regulation—the Complex Business Review.

Throughout the reporting year the Council continued to provide advice to decision makers, tribunals, government and individuals on the practical application of administrative law values and principles. The Council’s Executive Director provided assistance to the working group responsible for publication of the Better Practice Guide on Automated Assistance in Administrative Decision Making, based on the Council’s earlier report on this topic.

14 September 2006 the Council celebrated the 30th anniversary of its establishment under the Administrative Appeals Tribunal Act 1975 (Cth). To mark this milestone, the Council organised at Parliament House a seminar entitled ‘The Future of Administrative Law and the Challenges that Lie Ahead’. The seminar was a great success, and more than 150 people attended. The celebrations concluded with a dinner at Parliament House, at which the President of the Council, Jillian Segal AM, spoke about the Council’s continuing and important role in the Commonwealth administrative law system.

Promoting the work of the Council

In 2006–07 the Council continued to attach high importance to its statutory role of promoting knowledge about the Commonwealth administrative law system.

Changes in Council membership

The terms of two Council members ended during the reporting period. The Council records its thanks to Richard Humphry AO and Major‑General Paul Stevens AO for their valuable contributions to the Council’s work.

Mr Andrew Metcalfe and Mr Ian Carnell were reappointed as members of the Council in July 2006 and April 2007 respectively.

 



2     The work and performance of the Council

Section 51 of the Administrative Appeals Tribunal Act 1975 sets out the statutory functions of the Administrative Review Council (see Appendix A). The Council is required to review and inquire into the Commonwealth administrative law system and to recommend to the Attorney-General improvements that might be made to the system. This includes assessing the adequacy of procedures used in exercising administrative discretions and reviewing classes of decisions to determine if they should be subject to administrative review. The Council also has an important educative role in relation to administrative decision makers and provides advice on matters concerning Commonwealth merits review tribunals.

The Council’s 30th anniversary

In September 2006 the Council celebrated its 30th anniversary with a seminar, ‘The Future of Administrative Law and the Challenges that Lie Ahead’, at Parliament House in Canberra. The seminar was very well attended: more than 150 guests listened to five diverse perspectives on the subject of administrative law. Sir Anthony Mason AC KBE spoke on the future of administrative law from a judicial perspective; the Secretary of the Attorney-General’s Department, Robert Cornall AO, who is also a member of the Council, brought an administrator’s perspective to the subject; Katie Lahey, Chief Executive of the Business Council of Australia, talked about the challenge of reducing administrative red tape for business; and Peter Kell, CEO of the Australian Consumers’ Association, provided an interesting counter-perspective, speaking about the consumer’s point of view. The final speaker, the Rt Hon. Lord Newton of Braintree OBE DL, Chairman of the UK Council on Tribunals, discussed recent developments in administrative law in the United Kingdom .

The Attorney-General, the Hon. Philip Ruddock MP, also attended the seminar. In his concluding remarks, he congratulated the 90 former and current members of the Council for their important work during the past 30 years and said he had no doubt the Council would continue to make an equally valuable contribution to administrative law in the future.

The Federal Attorney-General, the Hon. Philip Ruddock MP, and the Rt Hon. Lord Newton of Braintree OBE DL at the seminar marking the Council’s 30th anniversary

The Council’s work

The Council carries out its functions under s. 51 of the Administrative Appeals Tribunal Act through a work program that includes the preparation of reports, consultation papers and other publications dealing with aspects of the administrative law system, through advising government about the application of administrative law principles to particular policy developments, and through education and training initiatives.

The reporting year was a productive one for the Council and included, as noted, the 30th anniversary celebration, with a seminar and dinner at Parliament House. The papers presented at the seminar were published in a special anniversary edition of Admin Review, the Council’s administrative law bulletin.

Reports, consultation papers and other publications

The year 2007 marks the 31st year of the Council’s existence. During this time the Council has published 47 reports on many aspects of the Commonwealth’s administrative law and decision-making system (see Appendix B). Publication of the reports has often been preceded by the issuing of one or more consultation papers. Many of the Council’s publications have been the catalyst for important changes to administrative rules and procedures; for example, Rule Making by Commonwealth Agencies (1992) gave rise to the Legislative Instruments Act 2003 (Cth). Invariably, the reports have contributed to debate and discussion in the area of administrative law. The Council places considerable emphasis on engaging with relevant departments and agencies in this regard.

The Council also produces guideline publications for people involved in administrative decision-making processes, at both the primary and the review levels.

In the reporting period the Council all but completed work on a series of best-practice publications for government decision makers and continued its work on the coercive information‑gathering powers of agencies. Work on another report—dealing with the Complex Business Review—has also begun.

In May 2007 the Council published the 30th anniversary issue of Admin Review. The issue contained papers presented at the 30th anniversary seminar in September 2006, as well as several articles, among them ‘Judicial review in Western Australia’, by the Hon. Chief Justice of the Supreme Court of Western Australia, Wayne Martin; ‘Future challenges for the Administrative Review Council’, by the Council’s President, Jillian Segal AM, and Council member Professor Robin Creyke; and ‘The beginnings [of the Council]’, by the Executive‑Director, Margaret Harrison-Smith.

Best-practice guidelines for government decision makers

At the end of the reporting period the Council had substantially completed a series of publications designed to provide to government decision makers practical advice on best practice in administrative decision making. The guides deal with lawfulness; natural justice; evidence, facts and findings; reasons; and accountability. Their purpose is to help primary decision makers understand the legal and administrative framework in which they operate.

The Council is grateful to Andrew Metcalfe, Council member and Secretary of the Department of Immigration and Citizenship, for agreeing to provide funds and personnel from his department for use on the project. The department’s contribution allowed the Council to engage a consultant, Associate Professor Pam O’Connor from Monash University, to help with preparation of the guides.

The guides are designed as a training resource and reference for Commonwealth agencies; they can be supplemented by material to suit the policies, practices and legislative frameworks of specific agencies. By the end of 2006–07 the Department of Immigration and Citizenship was well advanced in supplementing the guides to meet its own decision-making needs. It aims to release a number of these guides as part of the Council’s launch of the generic guides in August 2007. The Office of the Commonwealth Ombudsman is also producing annotated versions of the guides.

The President of the Council spoke at a high-level meeting of agencies the Secretary of the Department of the Prime Minister and Cabinet, Dr Peter Shergold AC, convened on 20 June 2007. At that meeting a number of agencies expressed strong interest in producing annotated versions of the guides. The Australian Public Service Commission said the guides would be used as a resource for cross-service training.

Coercive information‑gathering powers of government agencies

In 2006–07 the Council continued its work on a project dealing with the coercive information‑gathering powers of government agencies. A discussion draft report was circulated to key stakeholders and posted on the Council’s website for public consultation in December 2006. The number of submissions received in response to the discussion draft was very encouraging; the submissions came from government agencies as well as private organisations. Information provided in the submissions has been collated and incorporated in a draft report.

The draft report focuses on coercive powers that require the production of information or documents and the provision of information by way of oral examination without the issuing of a warrant or other external authorisation being necessary. The Council considers it important that these powers be exercised effectively and efficiently, and in a manner consistent with administrative law principles, and that a suitable balance be maintained between agency objectives and the rights of individuals.

The Council intends to finalise work on this project before the end of 2007.

The Complex Business Review

On 9 August 2006 the Attorney-General presented to the Council terms of reference relating to ‘the most efficient and effective administrative accountability mechanisms for decisions in areas of complex and specific business regulation’. The Attorney-General invited the Council to have regard to ‘the circumstances in which administrative review mechanisms should be available’ and ‘the adaptations, if any, that may be desirable to merits review processes to maximise’ their efficiency and effectiveness in areas of complex and specific business regulation. The Attorney-General also invited the Council ‘to consider the potential for the development of a framework of guideline principles for administrative review, including merits review, in areas of complex business regulation’.

Ms Claire Grose was engaged as a consultant to assist in the development of the Council’s response to the terms of reference. Ms Grose has extensive experience of financial and corporate business regulation.

The Council proposes to release an issues or discussion paper on the subject in the first quarter of 2008.

Advice and submissions to government

The Council regularly provides to government departments and agencies advice on a range of administrative law and policy questions and responds to public inquiries into matters that affect the Commonwealth administrative law system. It continues to emphasise this role—and particularly its early involvement in the process—because it considers that better policy outcomes are achievable in this way.

In 2006–07 the Council provided eight formal letters of advice or submissions to Ministers, agencies and parliamentary inquiries. Additionally, on a number of occasions the Council supplied to several government agencies advice of a less formal nature.

The Council’s early involvement in the development of administrative law policy means that both Council and Secretariat members are more likely to be involved in follow-up negotiations.

Appendix C lists the letters of advice provided in 2006–07; their full text is published on the Council’s website <www.law.gov.au/arc>, under the heading ‘Supplement to 2006–07 annual report’.

Education and training

The Council is placing increasing emphasis on its educative role. Illustrative of this is its series of best-practice guides for administrative decision makers. The guides will be a training resource and a reference tool for primary decision makers in Commonwealth agencies.

The Council’s practice of providing free copies of its reports and other publications to educational institutions, libraries, academics and students in Australia and elsewhere continues. The Council sees this as one way of participating in academic debate involving administrative law. Distribution of publications is an important aspect of the Council’s educational role, both within government and in the broader community.

Publications

In May 2007 the Council published the 58th edition of its journal Admin Review. This was a special edition marking the Council’s 30th anniversary.

The website

Since 1995 complete copies or summaries of the Council’s reports and other substantial publications have been published on the Council’s website. The website is a very important window for the Council, also providing details of Council membership, the text of letters of advice provided to government, and submissions presented to parliamentary committees. During the year the Secretariat continued to revise and update the website.

There were 287 348 visits to the Council’s website in 2006–07; this is a very significant increase on 71 818 visits in 2005–06. Visitor numbers peaked between March and the end of June 2007.

Participation in seminars, conferences and other gatherings

As noted, on 14 September 2006 the Council held a seminar, ‘The Future of Administrative Law and Challenges that Lie Ahead’, to mark the occasion of its 30th anniversary.

Margaret Harrison-Smith and Laura Munsie

The Council’s Executive Director, Margaret Harrison-Smith, and Laura Munsie, Attorney-General’s Department Graduate, at the seminar marking the Council’s 30th anniversary

Other initiatives

The Council works to maintain links with others with an interest and involvement in administrative law, both overseas and at the state and territory level. It maintains a close association with the Council of Australasian Tribunals.

Professor Robin Creyke spoke on behalf of the Council at the launch of the Australian Government’s Better Practice Guide on Automated Assistance in Administrative Decision Making. Professor John McMillan also spoke at the launch, in his capacity of Commonwealth Ombudsman.

Four Council members spoke at the Australian Institute of Administrative Law’s National Forum in June 2007. Justice Garry Downes AM, Professor John McMillan and Robert Cornall AO spoke in their respective capacities as President of the Administrative Appeals Tribunal, Commonwealth Ombudsman, and Secretary of the Attorney-General’s Department. Dr Melissa Perry QC spoke about the future directions of administrative law and how the discipline can be made more relevant.

The Council also makes regular contributions to the UK Council on Tribunals’ online publication Adjust, which has a wide readership in the United Kingdom and elsewhere. Additionally, the Council contributes regularly to the Australian Law Reform Commission’s journal Reform.

From time to time the Council allows its material to be included in other administrative law publications. During 2006 it agreed to a request for inclusion of a summary of its Scope of Judicial Review report to feature in the Federal Administrative Law Bulletin.

The Council also seeks to maintain contact with government agencies on matters relevant to its remit.

An assessment of the Council’s performance

As noted, 2006–07 was a productive year for the Council. The following is an assessment of the Council’s performance in the context of its statutory functions under s. 51 of the Administrative Appeals Tribunal Act.

Reports and other Council publications

The impact of the Council’s reports and other publications extends much further than the Commonwealth administrative law system. Information and recommendations presented in these publications are often turned to by other bodies. The following examples are illustrative:

·         During the reporting year the Council’s Executive Director participated in the across-government working group that produced the Better Practice Guide on Automated Assistance in Administrative Decision Making. (‘Automated assistance’ refers to a computer system that automates all or parts of an administrative decision-making process.) The working group was formed as a result of a recommendation the Council made in its 46th report, Automated Assistance in Administrative Decision Making (2004).

The working group’s better practice guide was publicly released at a luncheon seminar organised by the Institute of Public Administration Australia on 23 April 2007. It is available from the Australian Government Information Management Office website <www.agimo.gov.au/publications/2007/february/aaadm>.

The guide builds on the 27 best-practice principles identified in the Council’s 46th report by targeting a particular audience, defining the scope of the topic for that audience, and providing practical guidance on how administrative law values can be embodied in automated systems. Better practice checklist points have also been developed to help managers and project officers during the design and implementation of new automated systems and for ongoing quality assurance. The better practice guide is unique in that it was crafted by representatives of the 24 Australian government agencies that were involved in the project.

·         On 14 March 2006 the Commonwealth Ombudsman issued an own-motion investigation report entitled Scrutinising Government: administration of the Freedom of Information Act 1982 in Australian government agencies. The Ombudsman’s report referred explicitly to the Council’s 1995 report Open Government: a review of the federal Freedom of Information Act 1982, which was co‑authored by the Council and the Australian Law Reform Commission, and supported its recommendation for the establishment of a statutory Freedom of Information Commissioner.

·         In the formal recommendations made in its Rethinking Regulation report, released in January 2006, the Taskforce on Reducing Regulatory Burdens on Business referred to the Council. The taskforce recommended that administrative decisions made by the Australian Prudential Regulation Authority, the Australian Securities and Investments Commission and the Reserve Bank of Australia be subject to administrative review on their merits, in accordance with guidelines put forward by the Council in its 1999 publication What Decisions Should Be Subject to Merits Review? This guideline publication is also regularly quoted by officers of the Attorney-General’s Department when they are providing to other government departments advice on legislation involving administrative decision making.

Appendix D provides a more extensive update on the Government’s response to and implementation of recommendations the Council has made in its reports.

Demand for Council publications

During the reporting period there was a steady stream of requests for the Council’s most recent report, The Scope of Judicial Review (2006). Automated Assistance in Administrative Decision Making (2004) also continues to be keenly sought.

There is continuing demand for the Council’s 2004 curriculum guideline Legal Training for Primary Decision Makers, for the 2001 A Guide to Standards of Conduct for Tribunal Members, and for the revised Practical Guidelines for Preparing Statements of Reasons and the associated Commentary. In addition, there has been steady interest in the Council’s earlier reports, most notably Better Decisions: review of Commonwealth merits review tribunals and What Decisions Should Be Subject to Merits Review?

Even before their publication, there has been keen interest in the Council’s best-practice guides for administrative decision makers. As mentioned, on 20 June 2007 the Secretary of the Department of the Prime Minister and Cabinet convened a meeting for senior departmental and agency officers to discuss the guides and their potential for supplementation, in collaboration with the Council, to the needs of individual organisations. As a result of this meeting, a number of organisations will probably become involved in supplementing the guides.

Advice and submissions to government and the Parliament

Preparing advice and submissions has been a growing area of activity for the Council in recent years. Eight formal advices were provided in 2006–07, their main focus being administrative review mechanisms in a broad range of subject areas.

As noted, during the reporting year the Council continued to emphasise the need for its early involvement in the development of administrative policy. It is firmly of the view that early involvement fosters positive outcomes—from the perspectives of both government and the Council—and leads to improved understanding and implementation of best practice in the application of administrative law.

One consequence of early involvement in the development of policy proposals is the increasing likelihood that advice proffered by the Council will not be able to be published in the annual report because of its proximity to the deliberations of government.

 


3 Management and accountability

Enabling legislation

The Administrative Review Council is established under s. 48 of the Administrative Appeals Tribunal Act 1975.

The responsible Minister

The responsible Minister is the Attorney-General, who may give directions to the Council in relation to the performance of its functions or the exercise of its powers (s. 51A of the Act) and may refer matters to the Council for inquiry and report (s. 51B of the Act). The Council reports to the Attorney-General (s. 51C).

The annual report

The Council is required to furnish an annual report to the Attorney-General for presentation to the Parliament as soon as practicable after 30 June each year. The report is required to be tabled within 15 sitting days of its receipt by the Attorney-General (s. 58 of the Act).

Functions and powers of the Council

The functions and powers of the Administrative Review Council are set out in s. 51 of the Administrative Appeals Tribunal Act—see Appendix A.

Membership of the Council

Membership of the Council comprises a President, three ex officio members and up to 10 appointed members (s. 49 of the Act).[1]

The President

The President of the Council is appointed by the Governor-General (s. 49 of the Act). On 15 September 2005 Jillian Segal AM was appointed President of the Council for three years. Ms Segal’s term of appointment expires on 14 September 2008.

Ex officio members

At the end of the reporting period the three ex officio Council members were:

·         the President of the Administrative Appeals Tribunal, the Hon. Justice Garry Downes AM

·         the Commonwealth Ombudsman, Professor John McMillan

·         the President of the Australian Law Reform Commission, Professor David Weisbrot AM.

Appointed members

Council members are appointed by the Governor-General (s. 49 of the Act). Appointments are for up to three years, and members are eligible for reappointment (s. 52 of the Act). To qualify for appointment to the Council, members must satisfy one or more of the following criteria:

·         extensive experience at a high level in industry, commerce, public administration, industrial relations, the practice of a profession or the service of a government or an authority of government

·         extensive knowledge of administrative law or public administration

·         direct experience and direct knowledge of the needs of people or groups of people significantly affected by government decisions (s. 50 of the Act).

In addition to the President of the Council, at the end of the reporting period there were eight appointed Council members (shown here with their full terms of appointment):

·         Peter Anderson, Director, Workplace Relations, Australian Chamber of Commerce and Industry (11 July 2005 – 10 July 2008)

·         Barbara Belcher, First Assistant Secretary, Government Division, Department of the Prime Minister and Cabinet (17 March 2006 – 16 March 2009)

·         Ian Carnell, Inspector General of Intelligence and Security (11 July 2005 – 22 March 2007 and 26 April 2007 – 25 April 2010)

·         Robert Cornall AO, Secretary, Attorney-General’s Department (7 June 2000 – 6 June 2003, 25 June 2003 – 24 June 2006 and 25 June 2006 – 24 June 2009)

·         Professor Robin Creyke, Professor of Law, Australian National University (8 December 1999 – 7 December 2002, 8 December 2002 – 7 December 2005 and 15 February 2006 – 14 February 2009)

·         Andrew Metcalfe, Secretary, Department of Immigration and Citizenship (17 July 2003 – 16 July 2006 and 17 July 2006 – 16 July 2009)

·         Dr Melissa Perry QC, barrister (13 April 2006 – 12 April 2009)

·         Sue Vardon AO, Chief Executive Officer, Department for Families and Communities, South Australia (20 March 2003 – 19 March 2006 and 13 April 2006 – 12 April 2009)

The Council’s Secretariat

The Council is assisted in its work by a small Secretariat, the members of which are employed in the Attorney-General’s Department under the Public Service Act 1999. Information about the Department’s management and human resources policies and practices—including certified agreements and Australian workplace agreements, training and development strategies and outcomes, occupational health and safety, and productivity gains—can be found in the Department’s annual report.

At 30 June 2007 the following officers made up the Council’s Secretariat:

Council expenditure

The Council is funded from the budget of the Attorney-General’s Department, which publishes its audited financial statements in its annual report. The Council’s own statement of expenditure for 2006–07 is presented here in Appendix E.

For this reporting period the Council’s statement includes a once-off sum of $50 000 received from the Department of Immigration and Citizenship to assist in the development and publication of the Council’s best-practice guides, with expenditure of $31 000 arising from the engagement of a consultant for this purpose.

Excluding this amount (both income and expenditure), the Council was allocated $418 000 during 2006–07, which compares with $368 000 allocated in 2005–06. During the reporting period the Council spent $444 000, of which $405 000 was paid in salaries and allowances and $39 000 in supplier costs; the corresponding expenditures for 2005–06 were $334 000, of which $292 000 was paid in salaries and allowances and $42 000 in supplier costs.

The increase in the total budget allocation for the current reporting period also reflects two factors:                                                                                                      

The technical overspend in the salaries and allowances component of the budget is attributable to the engagement of two temporary officers to fill the following positions on the Council Secretariat:

The Council’s meetings

Much of the Council’s business is conducted at its regular meetings. During 2006–07 Council meetings were held on 14 September 2006, 18 December 2006, 23 March 2007 and 18 May 2007.

Specific Council projects are dealt with at sub-committee level. During the reporting year the following sub-committee meetings were held:

Consultancy services

There were two consultancies during the reporting period. Associate Professor Pamela O’Connell was contracted to the Council to assist with the production of the best-practice guides for decision making, and Ms Claire Grose was retained by the Council to work on the Complex Business Review.

Social justice and equity

Because the Council is primarily a law reform and advisory body, it does not offer programs to the public and does not have a service charter. Nevertheless, in recent years it has released a number of publications that have important implications for social justice and equity:

Equal employment opportunity

In view of the Council’s small Secretariat, many of its personnel and administrative functions are performed by the Attorney-General’s Department. Information about the department’s equal employment opportunity program is provided in the department’s annual report.

Occupational health and safety

The Council’s Secretariat uses the policy and resources of the Attorney-General’s Department in relation to occupational health and safety. Information about the department’s policy is available in its annual report.

Freedom of information

The Council is an agency for the purposes of the Freedom of Information Act 1982. It received no requests for access to documents during the reporting year.

Section 8 of the FOI Act requires that agencies publish specific information. The Council’s statutory functions are set out in Appendix A of this annual report; the other information required by s. 8 follows.

Arrangements for outside participation in the work of the Council

The Council’s issues papers and discussion papers, which precede some of its project reports, are distributed for comment and are generally available on the Council’s website. Final reports are made available to the public after they have been tabled in Parliament. Those papers and reports are also circulated to people and groups who might have a particular interest in the subject matter, as well as to members of parliament, the Law Council of Australia, and all state and territory bar associations and law societies.

The availability of the Council’s issues papers and discussion papers is generally advertised on the Council’s website.

From time to time the Council is also called on to make submissions to public inquiries.

Categories of documents held by the Council

The Council maintains the following categories of documents:

Access to documents

All project reports, together with issues and discussion papers, guidelines documents, and Admin Review, are available on request from the Council’s Secretariat and can be inspected at the Council’s office. When large numbers of a particular publication are requested, a small charge is imposed to cover the cost of publication and distribution. More recent reports are also available on the Council’s website.

From 1985–86 to 2002–03 the Council’s letters of advice were published in its annual reports. Since 2003–04 the letters of advice have been listed in the annual report and published on the Council’s website www.law.gov.au/arc. The letters of advice for 2006–07 are listed here in Appendix C; their full text appears on the website under the heading ‘Supplement to 2006–07 annual report’. Minutes of Council meetings and documents placed before the meetings are held at the Council’s office.

It is the Council’s policy to make available copies of submissions received as part of its consultation processes in all but two circumstances:

All other documents are kept on the files of the Council’s Secretariat. Access to them can be sought under the FOI Act. If it is possible to release such information, it is the Council’s policy to do so.

Facilities for access

As noted, documents can be inspected at the Council’s office. Information about the facilities available to help people gain access to documents can be obtained from the Council’s Executive Director. If necessary, special arrangements can be made to overcome difficulties with physical access.

Freedom of information procedures and initial contact points

The Council’s Executive Director will help people seeking access to information to identify the documents in question.

The Executive Director is the only officer authorised to refuse access to documents. If a request is to be refused on grounds appearing in ss 15(2) or 24(1) of the FOI Act—that is, because of insufficient information or an unreasonable diversion of resources—applicants will be notified and offered an opportunity for consultation.

Information officer

Inquiries concerning access to documents or any other information about the Council can be directed to:

The Executive Director
Administrative Review Council
Robert Garran Offices
National Circuit
BARTON ACT 2600

Telephone: 02 6250 5800
Facsimile: 02 6250 5980
Email: arc.can@ag.gov.au

Advertising and market research

The Council was not involved in any advertising or market research activity during 2006–07.

Ecologically sustainable development and environmental performance

As noted, the Council’s Secretariat is based in the Attorney-General’s Department. Information about the department’s actions and performance in relation to environmental matters is available in the department’s annual report.



Appendix A Section 51 of the Administrative Appeals Tribunal Act

Section 51 of the Administrative Appeals Tribunal Act 1975 describes functions and powers of the Administrative Review Council:

51(1) The functions of the Council are:

(2) The Council may do all things necessary or convenient to be done for or in connection with the performance of its functions.

(3) If the Council holds an inquiry, or gives any advice, referred to in paragraph (1)(ab), the Council must give the Minister a copy of any findings made by the Council in the inquiry or a copy of the advice, as the case may be.



Appendix B  Reports and guidelines issued by the Administrative Review Council

Reports

The following reports have been published by the Administrative Review Council since its inception in 1976. For many of them, publication was preceded by the distribution of discussion or issues papers. The reports are listed here in year order, starting with the most recent. The year of publication is provided in parentheses after the title.

47

The Scope of Judicial Review (2006)

46

Automated Assistance in Administrative Decision Making (2004)

45

A Report on the Council of Australasian Tribunals (2002)

44

Internal Review of Agency Decision Making (2000)

43

Administrative Review of Patents Decisions (1998)

42

The Contracting Out of Government Services (1998)

41

Appeals from the Administrative Appeals Tribunal to the Federal Court (1997)

40

Open Government: a review of the federal Freedom of Information Act 1982 (1995)

39

Better Decisions: review of Commonwealth merits review tribunals (1995)

38

Government Business Enterprises and Commonwealth Administrative Law (1995)

37

Administrative Review and Funding Decisions—a case study of community services programs (1994)

36

Environmental Decisions and the Administrative Appeals Tribunal (1994)

35

Rule Making by Commonwealth Agencies (1992)

34

Access to Administrative Review by Members of Australia ’s Ethnic Communities (1991)

33

Review of the Administrative Decisions (Judicial Review) Act: statements of reasons for decisions (1991)

32

Review of the Administrative Decisions (Judicial Review) Act—the ambit of the Act (1989)

31

Review of Decisions under Industry Research and Development Legislation (1988)

30

Access to Administrative Review: provision of legal and financial assistance in administrative law matters (1988)

29

Constitution of the Administrative Appeals Tribunal (1987)

28

Review of Customs and Excise Decisions: stage three—anti-dumping and countervailing duty decisions (1987)

27

Access to Administrative Review: stage one—notification of decisions and rights of review (1986)

26

Review of the Administrative Decisions (Judicial Review) Act: stage one (1986)

25

Review of Migration Decisions (1985)

24

Review of Customs and Excise Decisions: stage four—censorship (1985)

23

Review of Customs and Excise Decisions: stage two (1985)

22

The Relationship between the Ombudsman and the Administrative Appeals Tribunal (1985)

21

The Structure and Form of Social Security Appeals (1984)

20

Review of Pension Decisions under Repatriation Legislation (1983)

19

Rights of Review under the Migration Act 1958 and Related Legislation: interim report on the constitution of the Administrative Appeals Tribunal (1983)

18

Compensation (Commonwealth Government Employees) Act 1971—amendments (1983)

17

Review of Taxation Decisions by Boards of Review (1983)

16

Review of Decisions under the Broadcasting and Television Act 1942 (1982)

15

Australian Federal Police Act 1979—sections 38 & 39 (1982)

14

Land Use in the ACT (1981)

13

Commonwealth Employees’ Compensation Tribunal (1981)

12

Australian Broadcasting Tribunal Procedures (1981)

11

Student Assistance Review Tribunals (1981)

10

Shipping Registration Bill (1980)

9

Administrative Decisions (Judicial Review) Amendment Bill 1980 (1980)

8

Social Security Appeals (1980)

7

Citizenship Review and Appeals System (1980)

6

Entry to Cocos (Keeling) Islands and Christmas Island (1979)

5

Defence Force Ombudsman (1979)

4

Administrative Appeals Tribunal Act 1975—amendments (1979)

3

Review of Import Control and Customs By‑Law Decisions (1979)

2

Repatriation Appeals (1979)

1

Administrative Decisions (Judicial Review) Act 1977—exclusions under section 19 (1978)

Guidelines

From time to time the Council has also published guidelines for use by agencies, decision makers, tribunals and legislators, as follows:

·         Legal Training for Primary Decision Makers: a curriculum guideline (2004)

·         A Guide to Standards of Conduct for Tribunal Members (2001)

·         Internal Review of Agency Decision Making—a best practice guide (2000)

·         Commentary on the Practical Guidelines for Preparing Statements of Reasons (2000, revised 2002)

·         Practical Guidelines for Preparing Statements of Reasons (2000, revised 2002)

·         What Decisions Should Be Subject to Merits Review? (1999).



Appendix C  Letters of advice

Eight letters of advice issued by the Council in 2006–07 are published on the Council’s website www.law.gov.au/arc, under the heading ‘Supplement to 2006–07 annual report’. Table C.1 lists the letters.

Table C.1         Letters of advice published on the Council’s website

Letter number

Subject matter

1

Mutual Assistance Review

2

Proposed amendments to the Migration Act

3

Review of the discipline regime for patent and trademark attorneys

4

Streamlining prudential regulation

5

Prudential decisions consultation paper

6

Health Insurance (Pathology and Diagnostic Imaging) Bill 2007

7

Submissions to the Department of Human Services on the Access Card

8

Taxation secrecy and disclosure provisions

 



Appendix D  Status of the Council’s recommendations

In addition to letters of advice, the Council provides to government written advice in the form of project reports. Following is a discussion of selected Council project reports. Where applicable, action in relation to those reports in the current reporting year is noted.

Report no. 47—The Scope of Judicial Review

Summary

The Scope of Judicial Review was transmitted to the Government on 3 May 2006 and tabled in the Parliament on 9 May 2006.

The report deals with constitutional and policy considerations relevant to the scope of judicial review and, in particular, notes the essential role of judicial review in maintaining the rule of law and safeguarding individual rights. It considers when it is appropriate to seek to reduce the scope or practical availability of judicial review, and the Council’s conclusions are summarised in a succinct framework of indicative principles.

The report begins by outlining the constitutional and legislative basis for judicial review in the Commonwealth administrative law system, the grounds for seeking judicial review and the rationale for providing judicial review. The public law values that underlie judicial review are the rule of law, safeguarding of individual rights, accountability, consistency, and certainty in the administration of legislation.

Consideration is given to a number of justifications for limiting the scope of judicial review that were put forward during the Council’s project or have in the past been used to justify such action. Examples are avoiding fragmentation of criminal proceeding, urgent decisions, decisions involving matters of policy, decisions where there is a need for certainty, and decisions where review is sought on the ground of unreasonableness. The report examines whether and in what circumstances these reasons justify removing or limiting the scope of judicial review.

In general, the Council considers that the rule of law and the provision of remedies for redressing unlawful government action or inaction are paramount values in Australian society and under the Australian Constitution. A strong justification is needed to reduce judicial review in such a way as to allow conduct to proceed without the availability of any kind of remedy. The Council recognises, however, that sometimes judicial review may be limited, since in some circumstances the public law values that underlie judicial review can be advanced by other means and at times other important legal and governmental values might conflict with the values underlying judicial review.

The conclusions summarised in the framework of indicative principles provide practical guidance to governments, policy officers and legislative drafters in the consideration of review mechanisms to be incorporated in legislation. The framework complements another of the Council’s publications, What Decisions Should Be Subject to Merits Review?

Response

The Scope of Judicial Review does not contain any formal recommendations; rather, it presents a framework of indicative principles for practical guidance.

Report no. 46—Automated Assistance in Administrative Decision Making

Summary

Automated Assistance in Administrative Decision Making was transmitted to the Government on 12 November 2004 and tabled in the Parliament on 7 December 2004.

The report was preceded by an issues paper. In addition, a forum was held on 12 November 2003 to further consider the uses of expert systems. The forum was attended by about 60 people from a broad range of interest groups—including government, business and community organisations. Although the primary focus of the issues paper was rules-based systems, in the report the Council broadened its scope to take in other forms of expert systems used in administrative decision making.

Setting out best-practice guidelines for the use of expert computer systems by government agencies in administrative decision making, the report focuses on the sorts of administrative decisions best suited to the use of expert computer systems, the advantages and disadvantages of using expert systems in administrative decision making, best-practice principles for developing and operating expert systems in administrative decision making, and the need for expert systems in administrative decision making to comply with the administrative law values of lawfulness, fairness, rationality, transparency and efficiency.

The report identifies 27 best-practice principles the Council considers will ensure that decision making done with the assistance of expert systems is consistent with administrative law values.

Response

During 2005–06 the advisory panel the Council proposed in the report was established as the Automated Assistance in Administrative Decision Making Working Group. The group developed the Better Practice Guide on Automated Assistance in Administrative Decision Making in February 2007 to assist Australian government agencies in successfully deploying automated systems.

Report no. 42—The Contracting Out of Government Services

Summary

The Contracting Out of Government Services was transmitted to the Government on 25 August 1998 and tabled in the Parliament on 2 November 1998.

The report, which was preceded by an issues paper and a discussion paper, notes that, when government provides a service directly to the public, a recipient of that service who is dissatisfied with an aspect of its delivery might have available to them one or more administrative law remedies. Among those potential remedies are the right to information under the freedom of information legislation, the right to complain to the Ombudsman, and the right to have a decision reviewed by the Federal Court or a tribunal. When such a service is contracted out to the private sector, however, service recipients’ access to administrative law remedies could be lost.

The report considers how existing systems of governmental, financial and parliamentary accountability could be modified to take account of the increasing use of private contractors to perform activities and provide services on behalf of government. It discusses the difficulties some recipients of contracted-out services can have in seeking remedies for defects in those services—for example, because the recipient is ill or frail, has language difficulties, or has limited mobility.

The Council makes recommendations relating to the preparation of appropriate contracts and the application of both private and administrative law in situations where services are provided by private contractors.

Response

The report contains a number of recommendations that fall within the portfolio responsibility of three Commonwealth departments—the Department of Finance and Administration, the Department of the Prime Minister and Cabinet, and the Attorney-General’s Department. Further, several recommendations relate to matters that have also been the subject of consideration by other bodies—in particular, the Joint Committee of Public Accounts and Audit, including in its report Contract Management in the Australian Public Service.[3]

The Council understands that the Government is not in a position to settle its response to the recommendations made in The Contracting Out of Government Services until it has settled its response to overlapping recommendations made by other bodies and that no time frame for release of a response has been provided.

Amendments to the Ombudsman Act 1976, passed by Parliament in November 2005, enable the Ombudsman to investigate complaints about government contractors providing goods and services to the public on behalf of a government agency. The Act now provides that action taken by Australian government contractors and subcontractors in the exercise of a power or performance of a function for or on behalf of an agency under a contract with that agency is taken for the purposes of the Ombudsman Act to be action by the agency.

Legislation to create a separate office of the Postal Industry Ombudsman within the Office of the Commonwealth Ombudsman was passed by Parliament on 29 March 2006; the office began operations in October 2006. The jurisdiction of the Postal Industry Ombudsman extends to private sector postal operators who register to participate in the scheme.

Report no. 41—Appeals from the Administrative Appeals Tribunal to the Federal Court

Summary

Appeals from the Administrative Appeals Tribunal to the Federal Court was transmitted to the Government on 29 September 1997 and tabled in the Parliament on 3 December 1997.

The report, which was preceded by a discussion paper, notes that appeals from the Administrative Appeals Tribunal to the Federal Court are limited to appeals on a ‘question of law’, within the meaning of s. 44 of the Administrative Appeals Tribunal Act 1975. The Council recommended that the scope of review under s. 44 remain unchanged. It also recommended, however, that the Federal Court’s powers be expanded slightly, to give it discretion to receive evidence and to make findings of fact where there has been an error of law—provided the court’s findings are not inconsistent with those of the tribunal.

Response

The Administrative Appeals Tribunal Amendment Act 2005 includes items enabling the Federal Court to make findings of fact when hearing appeals from the tribunal and to receive evidence for this purpose. The court’s findings must be not inconsistent with the findings of fact made by the tribunal, other than findings of the tribunal that were made as the result of an error of law. The Act also confers these powers on the Federal Magistrates Court in matters that have been transferred to it from the Federal Court.

Report no. 40—Open Government: a review of the federal Freedom of Information Act 1982

Summary

Open Government: a review of the federal Freedom of Information Act 1982 was transmitted to the Government in early 1996 and tabled in the Parliament on 24 January 1996.

The report, which was preceded by an issues paper and a discussion paper, was prepared in collaboration with the Australian Law Reform Commission and makes recommendations designed to improve the public’s access to government‑held information. The Council was concerned to ensure that the Act was operating to give full effect to the Australian people’s right of access to such information. In particular, it made recommendations aimed at ensuring that the Act is interpreted in a way that gives proper effect to its objectives.

The report contains 106 recommendations, including a recommendation to establish a Freedom of Information Commissioner to monitor the administration of the Freedom of Information Act. Other recommendations concern application of the exemption provisions of the Act, clarifying the grounds on which access to a document can reasonably be denied, and providing guidance on how to apply the public interest considerations.

Response

On 14 March 2006 the Commonwealth Ombudsman issued Scrutinising Government: administration of the Freedom of Information Act 1982 in Australian government agencies, the report of an own-motion investigation initiated in the interest of focusing attention on good practice and areas requiring improvement. The Ombudsman found that there was an uneven culture of support for freedom of information among Australian government agencies and that the Freedom of Information Act worked well in facilitating public access to personal information but not so well in providing access to policy-related information. The report referred explicitly to the Administrative Review Council – Australian Law Reform Commission report and supported the recommendation for the establishment of a statutory Freedom of Information Commissioner.

Report no. 39—Better Decisions: review of Commonwealth merits review tribunals

Summary

Better Decisions: review of Commonwealth merits review tribunals was transmitted to the Government on 14 September 1995 and tabled in the Parliament on 28 September 1995.

The report, which was preceded by a discussion paper and a supplementary discussion paper, makes recommendations for improving people’s awareness of their review rights and establishing simple and accessible review tribunal processes, including access to interpretation services. There are 102 recommendations. The first 86 deal with matters of general application to all tribunals, regardless of the structure of the review tribunal system; they cover such things as the objectives of the merits review system, review tribunal processes, tribunal membership, access, information and awareness, and administration and management. The last 16 recommendations concern the structure of the review tribunal system and the relationship between its constituent parts; one of them is a recommendation for the establishment of an integrated review tribunal body—the Administrative Review Tribunal.

Response

The Government introduced the Administrative Review Tribunal Bill on 28 June 2000 and the Administrative Review Tribunal (Consequential and Transitional Provisions) Bill on 12 October 2000. The former Bill provided for an independent multi-divisional merits review tribunal replacing four merits review tribunals—the Administrative Appeals Tribunal, the Social Security Appeals Tribunal, the Migration Review Tribunal and the Refugee Review Tribunal.

The Senate rejected both Bills on 26 February 2001, and the Government stated it did not intend to reintroduce the Bills during the life of that Parliament. Instead, the Government committed itself to reforming the individual tribunals in order to achieve legislative and administrative efficiencies.

The Administrative Appeals Tribunal Amendment Act 2005 commenced on 16 May 2005. The Act includes amendments to allow for more efficient conduct of reviews, such as enabling the president of the tribunal to authorise ordinary members to exercise powers currently conferred only on presidential and/or senior members, removing restrictions contained in the Administrative Appeals Tribunal Act and other legislation on how the tribunal is to be constituted for the purposes of a particular hearing, and expanding the range of alternative dispute resolution processes available to the tribunal.

Administrative efficiencies have been achieved through the co-location of the Migration and Refugee Review Tribunals in Sydney and Melbourne, and it is noted that, for the first time, in 2005–06 these tribunals published a joint annual report.

Report no. 35—Rule Making by Commonwealth Agencies

Summary

Rule Making by Commonwealth Agencies was transmitted to the Government on 26 March 1992 and tabled in the Parliament on 6 May 1992.

The report, which was preceded by an issues paper, provided guidance on what matters are appropriate for inclusion in Acts and those that should be included in delegated legislation. The Council made 31 recommendations concerning procedures that could be applied in respect of instruments that were of a legislative character. The main elements of the Council’s recommendations related to the following:

Response

The Legislative Instruments Act 2003 received Royal Assent on 17 December 2003 and commenced operation on 1 January 2005. The Act represented the fulfilment of the fourth attempt by successive governments to implement the substance of the Council’s report after Bills introduced in 1994, 1996 and 1998. It incorporates most of the main recommendations in the Council’s report, with the creation of an authoritative legislative instruments register—the Federal Register of Legislative Instruments—that is accessible to the public electronically and the sunsetting of most legislative instruments after 10 years.

In accordance with s. 59 of the Act, the operation of the Act will be reviewed in early 2008.



Appendix E The Council’s expenditure, 2006–07

Table E.1 shows the Council’s expenditure for the period 1 July 2006 to 30 June 2007.

Table E.1         Administrative Review Council: expenditure, 2006–07

Item/description

Allocation
($)

Expenditure
($)

1. Salaries and payments in the nature of salarya

385 000

405 000

Sitting fees

 

17 000

2. Supplier expenses

83 000

70 000

Council meetingsb

 

1 400

External conferences and courses (training)

 

1 900

Catering

 

5 500

Printing

 

5 600

Stores and stationery

 

2 200

Travel

 

10 800

Travel allowances

 

5 600

Casual car and taxi hire

 

2 700

Consultancy

 

31 000

Australian Government Solicitor fees

 

1 500

Total

468 000

475 000

a. The technical overspend is attributable to the engagement of two temporary officers to fill the following positions on the Council Secretariat:

b. Excludes travel costs.

Note: Figures incorporate a sum of $50 000 provided to the Council by the Department of Immigration and Citizenship to assist in the development and publication of the Council’s best-practice guides for decision making, including expenditure associated with the engagement of a consultant.



[1]       A higher number of members can be prescribed by regulation.

[2]       See paragraph 4.25 of that report.

[3]       Report no. 379, October 2000.