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Administrative Review Council - Admin Review |
The Council launched its Scope of Judicial Review discussion paper in March 2003. This edition of Admin Review contains a focus article about the paper.
The Council’s Report of the Council of Australasian Tribunals was tabled in the Federal Parliament in October 2002, and its Twenty-Sixth Annual Report 2001–2002 was tabled in November 2002.
Revised versions of the Council’s Practical Guidelines for Preparing Statements of Reasons and the Commentary on the Practical Guidelines for Preparing Statements of Reasons were published in December 2002.
Since the September 2001 issue of Admin Review the Council has provided letters of advice dealing with the following matters:
• proposed amendments to the Civil Aviation Act 1988 • proposed amendments to the Banking Act 1959 • the Health Insurance Amendment (Professional Services Review) Bill 2002 • proposed amendments to the Trade Practices Act 1975 • the Australian Heritage Council Bill 2002.
In 2002 the Council presented submissions in response to the following government initiatives:
• the Senate’s Finance and Public Administration References Committee’s Inquiry into Recruitment and Training in the Australian Public Service • the proposed establishment of an Inspector-General of Taxation • the proposed establishment of a Postal Industry Ombudsman.
The Council launched its discussion paper The Scope of Judicial Review on 13 March 2003. The paper explores a number of aspects of judicial review, including the following:
• the constitutional significance and scope of judicial review • other factors relevant to the scope of judicial review from either the judicial or the government perspective
– justiciability – deference – the nature of certain grounds of judicial review – resource-related considerations – the nature of the decision maker – the nature of the decision – alternative remedies
• ways of legislatively limiting or excluding judicial review.
The Council’s objective is to draw on the comments received in response to the discussion paper and so develop a set of guidelines—for agencies, legislators and commentators—on the appropriate scope of judicial review.
The Council has recently launched its issues paper on automated assistance in administrative decision making. The paper considers the implications of the use of expert systems (and specifically rule-base systems) for primary decision making, the potential ‘de-skilling’ of decision makers, and how decisions made using computer-based systems are reviewed from the administrative standpoint.
The objective of the project is to prepare a final report on the subject, taking into account comments received in response to the issues paper.
The Council has started work on a project examining the coercive investigative powers of government agencies. It intends to carry out a comparative analysis of the coercive investigative powers of a number of Commonwealth agencies that in its opinion provide a representative sample of the powers in use across government.
Consideration of the accountability mechanisms associated with the exercise of coercive investigative powers and the protections available to individuals in respect of whom such powers might be exercised will be an important element of the project.
The Council will consider several matters arising from amendments to the Administrative Appeals Tribunal Act 1975 in connection with the procedural discretions of review tribunals:
• Time limits. This includes both time limits for applications and mandatory time limits for tribunals to complete reviews. Such an examination might identify where time limits currently apply and the circumstances in which those limits might be appropriate. • Standing. In what circumstances might the normal standing rules be amended? • Stay of decisions. Agencies with regulatory and licensing functions often seek to restrict the Administrative Appeal Tribunal’s power to stay such decisions. This aspect of the inquiry might look at the following factors:
– the circumstances in which it might be appropriate to restrict the AAT’s usual discretion – the safeguards that are needed—for example, if the power to stay is not available, whether there should be some scheme to compensate wrongly suspended licensees if a decision is ultimately overturned by the AAT – alternatives—for example, permitting stays but only subject to conditions specified in the particular legislation.
A possible outcome of the project will be recommendations to government on suitable amendments to the procedural discretions provided for in the Act.
The Administrative Review Council assisted with the establishment of the Council of Australasian Tribunals, or COAT, which occurred on 6 June 2002 in Melbourne. COAT is made up of Commonwealth, state, territory and New Zealand tribunals, and its primary purpose is to facilitate liaison and discussion between tribunals. It could also support the development of model procedural rules, standards of behaviour and conduct for members, and increased capacity for training and support for members.
At the June 2002 meeting, representatives from Commonwealth, state, territory and New Zealand tribunals were appointed to an interim executive to oversee the first year of COAT’s operations. In June 2003 an executive was elected to replace the interim executive.
In November 2002 the Council revised its Practical Guidelines for Preparing Statements of Reasons and the Commentary on the Practical Guidelines for Preparing Statements of Reasons. The revision was necessitated by changes in case law and legislative provisions. In particular, the publications now take into account the High Court’s decision in Minister for Immigration and Multicultural Affairs v. Yusuf.[1]
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URL: http://www.austlii.edu.au/au/journals/AdminRw/2003/4.html