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Administrative Review Council - Admin Review |
Jillian Segal AM and Professor Robin Creyke[*]
Anniversaries provide opportunities not only for celebration but also for serious reflection.[1] The Administrative Review Council took the occasion of its 30th anniversary to publish this special edition of Admin Review, incorporating articles by those who spoke at the 30th anniversary seminar in September 2006. Each author was asked to reflect on future challenges for the Council. We are grateful that so many eminent people contributed not only to this issue of Admin Review but also to helping the Council refine its focus on future challenges.
The purpose of this introductory article is to provide an overview of the comments of our contributing authors and, where relevant, consider the Council’s initial response to suggested future challenges. Before considering these challenges, however, it is pertinent to note the particular features and strengths of the Administrative Review Council, which was established in 1976—the first such body in Australia.[2] The intention was that the Council would have a central role in the government accountability framework by ensuring, as far as possible, that government decisions that affected people were subject to some form of external supervision or review, by monitoring the law and procedures governing government agencies, regulators and similar decision-making bodies, and by encouraging use of the Commonwealth Administrative Appeals Tribunal, the novel tribunal with government-wide powers that had also been set up following the Kerr Committee report.[3]
These functions, which were set out in statute, reflected the Kerr Committee’s view that the Council’s roles were ‘fundamental to the proposed system of administrative review’.[4] Among these roles were being ‘the advisory body on legislation necessary to facilitate the introduction of the suggested system of administrative law and on the taking of the detailed steps to bring these recommendations, if they commend themselves to the Government, into effect’.[5]
To this end, the Council’s membership includes key players in the administrative law system. The ex officio members are the President of the Administrative Appeals Tribunal, the Commonwealth Ombudsman and the President of the Australian Law Reform Commission. Other members ‘include those with experience at a high level in industry, commerce, public administration and legal practitioners and academics with a substantial background in administrative law’.[6]
Since its establishment the Council has faithfully and effectively performed its allotted tasks. In its 30-year history it has produced 47 reports for the Attorney-General—on matters as diverse as import control and customs by-law decisions (report no. 3, 1979), Australian Broadcasting Tribunal procedures (report no. 12, 1981), land use in the ACT (report no. 14, 1981), the constitution of the Administrative Appeals Tribunal (report no. 29, 1987), access to administrative review by Australia’s ethnic communities (report no. 34, 1991), government business enterprises and administrative law (report no. 38, 1995), and the scope of judicial review (report no. 47, 2006). In addition, the Council makes submissions to parliamentary committees and other bodies, advises government on a range of administrative law matters, and provides input into government legislative proposals that have administrative law implications.
The Council’s strengths lie in the quality and diversity of its membership and its Secretariat. These are demonstrated by the wisdom and utility of its recommendations, its independence from government and the respect paid to its recommendations by government, and the fact that it shoulders a considerable workload despite constrained resources.
This view of the Council’s effectiveness is flatteringly echoed by all contributors to this issue. Sir Anthony Mason, a member of the original Kerr Committee, notes in his contribution to this issue:
My assessment of the ARC is equally favourable. The Council’s performance has conformed closely to the expectations held of it. It has continued to monitor the system as a whole, to identify issues that need to be addressed, to propose consideration of reforms that might be made, and to work in a cooperative way with other institutions of government. The Council’s constant and informed oversight of the system has played a very important role in the success of the system. Its reports have been responsible for a number of improvements. The strength of the ARC lies in its varied membership. It reflects the perspectives of the stakeholders in the system, enabling the ARC to bring to bear a balanced viewpoint. It is of vital importance that the ARC be adequately resourced so that it can continue its good work.[7]
A feature of the statutory remit of the Council is its flexibility. This has enabled the Council to be responsive to the significant changes in the last 30 years in the way government operates. That has been essential. Otherwise, despite the Kerr Committee’s recommendation that the Council be a ‘permanent’ body,[8] as the Council achieved the statutory objectives initially set for it, it might have been seen as having outlived its useful role. Indeed, there was a view prevalent in the 1990s, with the advent of contracting out and the downsizing of government, that administrative law generally was becoming outmoded.[9]
This view—that administrative law was no longer of frontline interest for government—resulted in a 1997 Senate inquiry into the continuing utility of the Administrative Review Council.[10] However, faced with evidence from many organisations that ‘the ARC had been generally effective in performing its functions’[11] and that the Council was ‘generally held in high regard’[12], the Senate Committee rejected suggestions of the Council’s demise, instead recommending that the Council remain as ‘a separate and permanent body’ provided it is ‘making a significant contribution towards an affordable and cost-effective system of administrative decision-making and review’.[13]
Indeed, among the specific recommendations of the Senate Committee were that the functions the Council performed (particularly its focus on improving primary decision making) be spelt out in legislation[14] and that the ‘Government give an undertaking to respond to all Administrative Review Council project reports within twelve months of their delivery’.[15] In summary, the inquiry affirmed the continued importance of the Council and supported an expansion of its terms of reference.
That expansion has occurred. From the initial, relatively narrow focus on the heartland of administrative law—merits review and tribunals, judicial review and courts, ombudsmen and inquiries, rights of access to and protection of privacy—the Council’s interests have shifted. Council reports have since examined administrative law aspects of primary decision making, internal review,[16] preparing statements[17] and standards of conduct for tribunal members,[18] as well as developing benchmarks that should apply to regulatory bodies that manage the government services now supplied by private sector providers.
The Council’s 47 reports have not only considered a diverse range of topics but have also varied in form. Some have provided specific recommendations—for example, a citizenship review and appeals system (report no. 7), the structure and form of social security appeals (report no. 21), review of decisions under industry research and development legislation (report no. 31), the jurisdictional hurdles posed by the Administrative Decisions (Judicial Review) Act 1977 (report no. 32), what decisions of government business enterprises should be subject to administrative law remedies (report no. 38), and what decisions of the Commissioner of Patents should be subject to merits review (report no. 43). Others have sought to set out a framework of principles (for example, for judicial review) to guide government drafters and decision makers. This special issue of Admin Review summarises the topics covered by these reports and the general response of government where relevant.
As Lord Newton of Braintree, Chairman of the UK Council on Tribunals, notes when detailing the many similarities between the Administrative Review Council and the British Council on Tribunals, the combination of independent advice, effective consultation and facilitation, and the ability to develop and articulate general principles on different administrative law topics could amount to the Council on Tribunals being ‘the hub of the wheel of administrative justice’.[19] The same could be said of the Administrative Review Council: specific recommendations of the Council have influenced not only federal administrative law but also state administrative law, as illustrated in Justice Martin’s update on changes to judicial review in Western Australia, as published in this issue of Admin Review.[20] The article by the Council’s Executive Director, Margaret Harrison-Smith, notes the mutual influences the Administrative Review Council and the UK Council on Tribunals have had on each other and that the Council on Tribunals is to be reconstituted as the Administrative Justice and Tribunals Council with a charter similar to that of the Administrative Review Council.[21]
In addition to its role in providing advice and guidance to government, as specified in its statutory remit, the Administrative Review Council also facilitates the training of members of authorities of the Commonwealth and other individuals in exercising administrative discretions or making administrative decisions and promotes knowledge about the Commonwealth administrative law system.[22] In recent years, through a series of guideline reports and other publications, the Council has placed particular emphasis on this educative function. This, perhaps, adds to its role as an advice and resource ‘hub’.
The importance of this work is consistent with the current government focus on improved training in public sector standards. Decision makers are expected to have the skills to operate effectively and to know the principles underlying their powers. This allows them to perform their tasks according to the law, to safeguard their decisions from judicial intrusion, and to make sure their decisions are of the highest possible ethical standard.
In 2004 the Council published Legal Training for Primary Decision Makers: a curriculum guideline to provide a blueprint for training materials for officers across government. There is anecdotal evidence that the guideline is being used by a range of agencies. The Council is also working on a series of practical guides for decision makers, in areas such as lawful decision making, fact finding, statements of reasons,[23] making decisions that are fair, and managing challenges to decisions.
Additionally, the Council has sought to anticipate the needs of the administrative community in harnessing its educative role, as exemplified by publication of The Scope of Judicial Review (report no. 47) in June 2006. This report canvasses some of the legal and policy questions associated with the scope of judicial review, the aim being to provide signposts in what is an undoubtedly a dynamic and complex area. The report is a useful complement to the Council’s 1999 guideline publication What Decisions should be Subject to Merits Review?
In producing such a broad range of publications, the Council has sought to encourage good decision making and appropriate review mechanisms for a broad spectrum of decision makers. As the Attorney-General notes, the ability ‘to produce “easy to read” practical materials as well as publications with in-depth analysis of complex legal issues’ is in no small measure due to the ‘diversity and combined expertise of [the Council’s] members’, including its ex officio members.[24] We are indeed fortunate to have such talented and committed councillors who give readily of their time. As mentioned, to meet the challenges and continue to attract high-calibre members, it will be important to maintain an adequately resourced Secretariat that can continue to produce high-quality work.
Many of the contributors to this 30th anniversary issue have said that the main challenges ahead lie in ensuring that administrative law continues to reflect the fundamental values of our administrative system—lawfulness, fairness, rationality and transparency—as adapted to new and developing contexts.
Some clarity about these new contexts is emerging. The first is the use of technology. The Council’s foresaw the use of expert computer systems by government agencies and anticipated government decision makers’ need for guidance.
The advantage of expert systems for administrative decision making is that they are cost-effective, efficient and accurate. Nevertheless, although they have the potential to improve decision making, they can do so effectively only if the database that maps the steps taken by decision makers is programmed to be consistent with administrative law rules and principles. In addition, although the decision-making process can be mapped by a database, where judgment or discretion is required individual officers must be involved. This need to find the balance between an automated process and individual judgment was the focus of the Council’s project dealing with expert systems.
The project culminated in Automated Assistance in Administrative Decision Making, published in November 2004.[25] Until publication of that report the questions raised by the use of expert systems in such a context had not been considered in Australia or elsewhere. Nor was guidance available on the role of expert systems in administrative decision making and the administrative law and practical pitfalls to be avoided.
The report contains 27 best-practice principles directed at ensuring that decisions made with the assistance of an automated system are consistent with the administrative law values identified by the Council—lawfulness, fairness, rationality, openness and efficiency. The principles deal with factors such as the design, maintenance and continuing use of expert systems. Importantly, the Council’s report makes a distinction between administrative decisions for which the decision maker is required to exercise discretion and those for which no discretion is exercisable once the facts are established. In either case, decisions made by or with the assistance of expert systems remain subject to the same administrative law rules and principles that safeguard the quality of administrative decisions made in the absence of expert systems.
In addition to the 27 principles, the report recommended the creation of an independent advisory body to provide advice to government on the operation of expert systems in administrative decision making. The Automated Assistance in Administrative Decision Making Advisory Working Group was formed in November 2005.
The Group has 16 members, drawn from Australian government agencies that have experience of or an interest in the use of automated systems for administrative decision making. The involvement of the Australian Government Information Office in hosting the Advisory Working Group means that the Group has access to a range of information technology forums across government, and its wide membership encourages consistency in the use of expert systems. The Council’s work in this area and the resultant Advisory Working Group are in the vanguard in this field: the Group is the first body to advise on the administrative law aspects of expert systems in this country—probably in the world.
The second changing context foreseen by the Council concerns the impact of globalisation. This question of administrative review working internationally is highlighted by Robert Cornall[26] as a continuing challenge. Again, the Council has prepared itself for working more globally and has already provided advice on a merits review framework in the area of therapeutic goods. Pursuant to a treaty made under the Trans Tasman Mutual Recognition Agreement, Australia and New Zealand have agreed to establish a joint agency to regulate therapeutic goods, with administrative review of the agency’s decisions being performed by a panel made up of members from both countries.
Among other contexts highlighted by contributors to this issue are the changing role of government and, indeed, the public service (Dr Peter Shergold[27] and Robert Cornall[28]), an increase in self-regulation and outsourcing (Peter Kell[29] and Robert Cornall[30]), a strong industry push to reduce the amount of government-imposed regulation (Robert Cornall[31], Dr Peter Shergold[32] and Katie Lahey[33]), and the changing community expectations of the role of government and the protections government provides to its citizens (Robert Cornall[34]).
These themes highlight the need for the Administrative Review Council to be proactive in its focus in order to provide guidance—whether that be specific recommendations or general principles—to enable government, government agencies and public servants to respond appropriately to the new challenges.
The pressure from business to minimise the ‘deadweight of regulation’[35] has prompted governments, both state and territory and federal, to make efforts to reduce the quantum of regulation and improve their own assessment process for new regulation. The Administrative Review Council has already commenced work on a new reference, where it will consider, in the context of decisions in areas of complex business regulation, the most effective and efficient administrative accountability mechanisms. This will involve the Council in reviewing possible adaptations to merits review processes, the expansion or adaptation of other mechanisms for administrative review that might particularly suit complex business regulation, and the possible development of a framework of guideline principles in the area.
The Council is also working on a project dealing with the coercive information-gathering powers of a number of important government agencies and whether a useful set of guidelines can be developed. Such a project reflects the confluence of a number of competing values relating to regulation—regulators and others properly exercising wide administrative discretion and powers; administrative protections being available to individuals and corporates, such as appropriate notice and legal professional privilege; and regulators being as effective and efficient as is reasonably possible.
Dr Shergold’s identification of the personalising or focusing of government programs on specific communities and Peter Kell’s discussion of administrative processes involved in self-regulation raise very interesting questions for the administrative law values of consistency, equality and fairness. Perhaps the interpretation of these values themselves will need to be reviewed through the changing lens of community expectations or, as Robert Cornall puts it, ‘The way the Australian community defines “a fair go” will change over time and administrative review will need to adjust to that change’.[36] The Council has not yet considered its approach to these challenges but, given its history, structure and performance to date, there is every likelihood that Council reports or guidance will follow.
As Justice Brennan, the first President of the Administrative Review Council, noted in his foreword to the Council’s first annual report in relation to the system of administrative review in 1976, at the time of the establishment of the Council and the Administrative Appeals Tribunal:
A monitor of the system is essential and the Council will fulfil that function. It should not be thought that the new system will be static … Nice adjustments will have to be made between the purposive orderliness of the bureaucracy and the expectations of the citizen whose interests are affected.[37]
As the ‘monitor’ of the system of administrative law in this country, balancing the rights of the citizen with the machinery of government, the Administrative Review Council is not only a vital part of the administrative justice system: it also needs to be thinking ahead, to help those in government adapt to change while adhering to the agreed principles of administrative law. The Council looks forward to the task.
[*] On behalf of the members of the Administrative Review Council. Jillian Segal is the current President of the Council; Robin Creyke has been a part-time member of the Council since 1999.
[1] As noted by Dr Peter Shergold, Secretary, Department of the Prime Minister and Cabinet, in his contribution to this issue.
[2] Administrative Appeals Tribunal Act 1975 (Cth) Part V.
[3] ibid. s 51. Commonwealth Administrative Review Committee (Kerr Committee) 1971, Report, Parliamentary Paper 144, Commonwealth of Australia, Canberra.
[4] ibid. recommendation 32.
[5] ibid. recommendations 12–14, 18, 20, 25, 28, 30–32.
[6] Administrative Appeals Tribunal Act 1975 (Cth) s 49.
[7] See p 13.
[8] Kerr Committee report recommendation 28(a).
[9] That was reflected in a 1996 conference ‘Administrative Law: setting the pace or being left behind?’ run by the Australian Institute of Administrative Law, which had sessions entitled ‘Is there a place for administrative law in government business enterprises?’ and ‘Can administrative law come to grips with tendering and contracting by public sector agencies?’
[10] Senate Legal and Constitutional Committee 1997, Report on the Role and Function of the Administrative Review Council, SLCC, Canberra.
[11] ibid. [1.23]
[12] ibid. [1.29]
[13] ibid. recommendation 1.
[14] ibid. recommendation 7.
[15] ibid. recommendation 11.
[16] Administrative Review Council 2000, Internal Review of Agency Decision Making, Report no. 44, ARC, Canberra.
[17] Administrative Review Council 2000, Practical Guidelines for Preparing Statements of Reasons, ARC, Canberra, rev. November 2002.
[18] Administrative Review Council 2001, A Guide to Standards of Conduct for Tribunal Members, ARC, Canberra.
[19] See p 33.
[20] See p 55.
[21] See p 76.
[22] Administrative Appeals Tribunal Act 1975 (Cth) s 51.
[23] The Council has already issued Practical Guidelines for Preparing Statements of Reasons. The guidelines take into account changes in the law relating to the content of statements of reasons consequent on the decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1.
[24] See p 11.
[25] Administrative Review Council 2004, Automated Assistance in Administrative Decision Making, Report no. 46, ARC, Canberra.
[26] See p 27.
[27] See p 20.
[28] See p 27.
[29] See p 39.
[30] See p 27.
[31] See p 27.
[32] See p 20.
[33] See p 49.
[34] See p 27.
[35] See p 20.
[36] See p 27.
[37] Administrative Review Council 1977, Annual Report 1976–77, ARC, Canberra, Foreword.
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