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ADMINISTRATIVE REVIEW COUNCIL

REPORT TO THE ATTORNEY-GENERAL

ACCESS TO ADMINISTRATIVE REVIEW – STAGE ONE NOTIFICATION OF DECISIONS AND RIGHTS OF REVIEW

Report No. 27

Australian Government Publishing Service Canberra 1987 © Commonwealth of Australia 1987

ISSN 0815-3795

ISBN 0 644 05410 7

Typeset in Australia by Creative Typographics Pty Ltd, Hobart Printed in Australia by C.J. Thompson, Commonwealth Government Printer, Canberra

ii ADMINISTRATIVE REVIEW COUNCIL

GPO Box 9955 Canberra, AC.T. 2601

11 September 1986

Dear Attorney-General,

I have pleasure in submitting to you herewith a report by the Administrative Review Council on Access to Administrative Review Stage One: Notification of Decisions and Rights of Review.

Yours sincerely,

E. J.L Tucker Chairman

The Hon. Lionel Bowen, MP Attorney-General Parliament House

Canberra, A.C.T. 2600

iii The Members of the Administrative Review Council at the date of the Council’s adoption of this report were as follows:

Mr E.J.L. Tucker (Chairman) The Hon. Mr Justice J.D. Davies Mr G.K. Kolts, OBE, QC The Hon. Xavier Connor, AO, QC Mr A.J. Ayers, AO Mr P. Brazil Mr J.H.P. Disney Mr P.J. Flood Mr W.E. Impey Mr J.F. Muir The Hon. Mr Justice P.R. Munro Mr A.D. Rose Dr C.A. Saunders

The members of the Committee responsible for over sighting the Access project at the date of the Council’s adoption of this report were as follows:

The Hon. Mr Justice P.R. Munro (Chair) Mr A.J. Ayers, AO The Hon. Mr Justice J.D. Davies Mr J.H.P. Disney Mr G.K. Kolts, OBE, QC

The Council expresses its gratitude to the members of its Secretariat; both past and present, for the assistance given by them in preparing this report. In particular, it wishes to thank its previous Director of Research, Dr John Griffiths, its present Director of Research, Mr Denis O’Brien, former Project Officer, Ms Helen Watchirs and Project Officer, Mr Bill Hughes.

iv CONTENTS Paragraph Page Recommendations 1

Chapter 1: Introduction 5 Origin of report 2 5 Scope of report 7 6 Access program 12 7 Outline of report 13 7

Chapter 2: The need for notification of rights of review 8 Notification of decisions 14 8 Notification of rights of review 17 8 The diversity of government administrative decisions 29 10 Current notification practices 35 11 Existing arrangements for incorporating notification requirements in legislation 48 15 The need for legislation 53 16 Central Act v individual legislation 58 17

Chapter 3: Implementation of the Council’s proposals 17 Endorsement of Code by Government 63 17 Incorporation of notification requirements in legislation 68 17 Non-compliance with requirements by decision makers 75 20 Explanatory leaflets 83 22 Oral communications 88 23 One-stop shop 91 24

Chapter 4: Code of Practice for notification of decisions and rights of review 25 Introduction 93 25 Who should be notified of decisions, and by what method 98 25 What information should be provided 109 27 Staging of notifications 126 30 Language of communication 133 31 Contact officers 139 32 The Code 141 32

Chapter 5: Cost of Council’s proposals 35

Appendix: Legislative requirements to notify of review rights 37

v RECOMMENDATIONS

In certain areas of Commonwealth administration, legislation provides that a person may appeal to the Administrative Appeals Tribunal (AAT) against a decision affecting him. On such an appeal, the AAT reviews the decision on its merits, that is to say, it determines whether, on the material before it, the decision was the correct or preferable decision. In most cases the AAT has power to set aside the decision and to substitute its own decision.

The recommendations set out below are concerned with this system of review of decisions on the merits. The recommendations deal not only with decisions that are immediately reviewable on their merits by the AAT but also with decisions that are reviewable on their merits by a person or body prior to any appeal to the AAT. Both kinds of decisions are referred to in the recommendations as ‘reviewable decisions’. Any review that takes place prior to an appeal to the AAT is referred to in the recommendations as ‘prior review’.

Recommendation 1: Endorsement of the proposed Code of Practice (paras 63-7) The Government should: (a) endorse the Code of Practice for Notification of Decisions and Rights of Review (‘the Code’) set out in recommendation 5; (b) table the Code in the Parliament; and (c) arrange for all government agencies to examine their notification practices to ensure that they are in conformity with the Code.

Recommendation 2: Legislative provisions requiring notification of rights of review (paras 68-74) 2.1. The Administrative Appeals Tribunal Act 1975 should be amended to provide that decision makers are required to give adequate and appropriate written notice of decisions which are subject to review by the Administrative Appeals Tribunal and adequate and appropriate written notice of rights of review by the Administrative Appeals Tribunal in respect of those decisions.

2.2. Legislation providing for prior review of decisions should contain a provision requiring the decision maker to give adequate and appropriate written notice of those decisions and adequate and appropriate written notice of rights of review in respect of those decisions.

2.3. Practices adopted for the purpose of complying with the legislative requirement of ‘adequate and appropriate’ notice referred to in recommendations 2.1 and 2.2 should at least meet the minimum standards of the Code set out in recommendation 5.

Recommendation 3: Discretion to extend time limits (paras 75-82) 3.1. The legislation referred to in recommendations 2.1 and 2.2 requiring the giving of notice of decisions and of rights of review in respect of decisions should provide that a failure to give such notice does not affect the validity of the decision.

3.2 The Administrative Appeals Tribunal Act 1975 should be amended to provide that: (a) a matter to which the Tribunal shall have regard in determining whether or not to extend the time for the making of an application for review is whether or not there has been a failure to give the notice provided for in recommendation 2.1 or a delay in providing the notice; and (b) a failure to give the notice, or a delay in providing the notice, is a matter to which the Tribunal

1 shall have regard under sub-section 29(5) of the AAT Act.

3.3. Other legislation governing time limits for the making of applications for review should be amended to permit extensions of time, in the discretion of the review authority, where a failure to give the notice provided for in recommendation 2.2, or a delay in providing the notice, has occurred.

Recommendation 4: Publicity material (paras 83-87) 4.1. Leaflets or other material produced by government agencies describing programs or schemes administered by them should contain a brief reference to the existence of any rights of review on the merits granted under those programs or schemes and a brief description of the means of exercising those rights.

4.2. Special leaflets or other material devoted specifically to the review system should be produced by government agencies in jurisdictions where there is a high volume of reviewable decisions or where the review system is complex.

4.3. Leaflets or other material should be produced explaining the composition, functions and procedures of review authorities. They should be made available to applicants for review upon lodgment of their applications or as soon as practicable thereafter.

4.4. Innovative methods of educating persons about their rights of review on the merits should be used wherever possible. For example, videotapes, hotlines and other methods might be used in some circumstances.

Recommendation 5: Code of practice for notification of decisions and rights of review (paras 93-141) This Code should be observed by persons making decisions under Commonwealth laws that are subject to review by the Administrative Appeals Tribunal, either immediately or after the completion of prior review procedures (i.e. internal review by a person or body within the decision-making agency and/or external review by a body other than the AAT which is separate from the agency). Such decisions are referred to in this Code as ‘reviewable decisions’. The Code is designed to ensure that persons are advised of reviewable decisions and are aware of their rights to seek review of those decisions on the merits. Government agencies should ensure that decision makers are aware of the contents of this Code and comply with its requirements. As the Code establishes minimum standards of practice, government agencies are encouraged to augment the Code for the purposes of its application within their jurisdictions, provided that any augmentation is not inconsistent with the provisions of the Code.

Persons to be notified of decisions and rights of review 1. A person should be notified in writing of a reviewable decision that: (a) is made on an application by the person; (b) grants or refuses the person a right, entitlement or benefit; (c) varies a right, entitlement or benefit of the person; (d) imposes an obligation, requirement or disability on the person; or (e) makes a valuation or declaration which relates to the person.

2 2. Where notice of a reviewable decision is given to a person, whether pursuant to a legislative requirement or otherwise, the person should, at the same time, be given written notice that he or she may have a right to have the decision reviewed on the merits.

3. Where a reviewable decision is made that is not a decision of a kind referred to in paragraph 1 and: (a) the persons whose interests may be affected by the decision are not all readily identifiable; (b) the number of persons whose interests may be affected by the decision is large; or (c) the cost of individual notification would be substantial. the decision maker should give public notice of the decision and of the rights of review in respect of the decision. This should not preclude individual notice being given in particular instances provided that it is not given earlier than the public notice.

Contents of notices 4. Every notice of rights of review should, in simple and brief terms, inform the person to whom it is given of at least the following information: (a) any statutory right of the person to request reasons for the decision (if reasons complying with that statutory right have not already been given); (b) the name and location of the review authority; (c) whether the review authority is independent of the agency which made the decision and whether that authority has power to vary or overturn the decision; (d) the manner in which applications for review are to be made and any time limits applying to applications; (e) any time limits applying to the review authority in respect of the review of the decision; and (f) any right that the person has to obtain access to documents under the Freedom of Information Act or any other Act or administrative arrangement, and the basic procedures for exercising that right.

5. In addition to the information set out in paragraph 4 above, agencies should consider for inclusion in notices information concerning: (a) the availability of legal, financial and other forms of advice and assistance; (b) whether or not fees are payable in respect of applications for review and whether or not there are provisions permitting costs to be awarded against parties to the proceedings; and (c) procedures of the review authority of which the persons to whom notices are directed should particularly be aware.

Staging of notifications 6. In jurisdictions where prior review is a prerequisite to review by the Administrative Appeals Tribunal: (a) Notices of rights of review should usually be staged according to how far along the review process the person has progressed. (b) Notification of the immediate level of review should be given and brief notification of the subsequent level or levels of review should also be given. (c) Notices should indicate whether or not a particular level of review is a statutory prerequisite to further review.

Plain English 7. Notification of rights of review should be given in plain English.

3 Translations 8. Where a standard form of notice about rights of review is given, it should also incorporate a brief notice in multi-language form which advises of means by which non-English speaking persons may have the notice interpreted in their first language. Where a notice is given to a person who the agency knows has difficulty in reading English, it should, wherever practicable, also incorporate advice in an appropriate language of means by which that person may have the notice interpreted in his or her first language.

Contact officers 9. Where there is a contact officer the notification should give the name and telephone number of that officer as a person who is available to discuss the decision.

4 CHAPTER 1

INTRODUCTION

1. This report sets out the Council’s views on notification of administrative decisions and of rights of review in respect of those decisions. It also proposes a Code of Practice for administrators in relation to notification of decisions and rights of review. Wherever the report refers to review on the merits it is referring to review by the AAT, or review by a person or body where the review process culminates in review by the AAT. Review by the Ombudsman and judicial review are not dealt with.

ORIGIN OF REPORT 2. The impetus for this report stemmed from comments by the Senate Standing Committee for the Scrutiny of Bills on the current drafting procedures relating to notification of rights of appeal in new legislation. In its Fourth Report of 1984 (9 May 1984) the Committee criticised Drafting Instruction No.10 of 1984 issued by the Office of Parliamentary Counsel. That Drafting Instruction indicated that, where an Act conferred a right of appeal to an administrative tribunal against a decision, a provision was not in every case to be included in the Act requiring notification of the existence of the right of appeal to be given to persons affected by the decision.

3. The Committee stated: This Committee has consistently supported the inclusion in legislation of appeal rights against administrative decisions and believes that notification of such rights is a necessary part of any appeals process. In the absence of such notification of persons who are affected by a decision, the value of rights of appeal is significantly diminished.

The Committee believes that this drafting instruction is a retrograde step in the development of the protection of the rights and liberties of individuals against administrative decision making and views it as a most serious occurrence. 4. Following the Committee’s comments, the Attorney-General’s Department sought the Council’s view on the policy of the Department concerning notification of review rights. That policy does not require that provisions for the notification of review rights be included in legislation in every case where there is an ultimate right of review by the AAT. Rather, the policy is that a statutory requirement to notify should be included where appropriate, and a Department giving instructions for the preparation of legislation carries the onus of showing that the-inclusion of such a provision is inappropriate, having regard to the circumstances of the particular legislation. Following the reference of this matter to the Council, it advised the Attorney-General that it did not wish, at that stage, to recommend any change to the Department’s policy but had decided to initiate a project on notification of review rights in order to consider the issue in greater detail. This Report is the result of that consideration. 5. The Council notes that the Senate Standing Committee on Regulations and Ordinances, in its seventy-seventh report, also commented on notification of review rights. In relation to the Co-operative Societies (Amendment) Ordinance 1985 of the ACT the Committee said: The Committee has a continuing concern with legislative provisions which allow administrative decisions subject to appeal to remain force even-though the people affected by the decisions and with a right of appeal are not notified of that right. A failure to notify may be deliberate, negligent or merely inadvertent. In any event, it can seriously prejudice an individual’s rights....

6. The Committee gave notice of its intention to move for disallowance of the Co-operative Societies (Amendment) Ordinance because it considered the provisions relating to notification of review rights were unsatisfactory. However, the motion was subsequently withdrawn following an undertaking by the

5 Minister for Territories to amend the provisions.

SCOPE OF REPORT 7. The Council has considered whether the present study should be confined to notification of rights of review on the merits, which was the subject of the comments by the Senate Standing Committee for the Scrutiny of Bills referred to at paragraph 3 above, or whether notification of rights of judicial review under the Administrative Decisions (Judicial Review) Act 1977 and of review rights under the Ombudsman Act 1976 should also be included. There is a clear distinction between the scope of these latter kinds of review and that of review on the merits in relation to the means by which people may be made aware of their rights to seek review of decisions. Awareness can more readily be promoted (for example, by public information programs) where a review system operates within broad and stable boundaries than where it operates within closely defined boundaries which are subject to frequent change. Judicial review under the AD(JR) Act is available in relation to most decisions of an administrative character made under enactments, and investigation by the Ombudsman may be sought in relation to most classes of Commonwealth government administrative decisions. There has been little change in recent years in the range of decisions covered by the AD(JR) Act and the Ombudsman Act. While there may well be scope for further action to enhance community awareness of these avenues of relief and redress, the Council believes that there is already a reasonably broad awareness of them.

8. The range of decisions which are subject to review on the merits by the AAT is, by comparison, limited and subject to frequent change. A layman, however well informed, cannot be expected to be continuously aware of how far those rights extend at any particular time. As a consequence information programs and similar broad measures to enhance community awareness of the existence of AAT review as a remedy for decisions with which persons affected are dissatisfied will not in themselves assist a person affected by a particular decision to know whether or not it is subject to such review. Hence the questions of whether individual notification is required and, if so, of its form and content are of particular importance in relation to systems of review in which the AAT is involved. With these considerations in mind the Council decided that this report should be confined to matters related to notification of rights of determinative review on the merits by the AAT, either directly or after the completion of one or more prior stages of review. It thus relates to decisions in respect of which:  rights of internal review are conferred (i.e. review within the agency in which the decision was made) and external review (including AAT review) is also available;  rights of review by a first tier tribunal are conferred (i.e. a tribunal that constitutes the first tier of external review in a system where the AAT constitutes the second tier of external review) and  there is a right of review by the AAT without either of the foregoing intermediate processes.

9. The term ‘reviewable decision’ is used in the report to describe compendiously each of these kinds of decision.

10. The report does not deal specifically with the question of notification in relation to decisions that are reviewable on the merits by tribunals or boards that operate outside the AAT system (e.g. the Films Board of Review and the various review tribunals that operate in the health area). However, the Council considers that most of what it says in this Report is applicable in relation to those decisions.

11. A further reason for confining this report to notification of rights of review on the merits by the AAT was the Council’s concern that the study should be kept within manageable dimensions. Certainly, the most pressing needs appear to relate to notification of review rights on the merits by the AAT. However, if the Council does become aware of a need for an examination of notification practices in relation to the AD(JR) Act and Ombudsman review, the question of examining notification practices in those areas will be considered at a later date.

6 ACCESS PROGRAM 12. This project forms Stage One of the Council’s Access to Administrative Review Program. The Access Program originated from the Council’s concern that because of practical impediments to, and difficulties in, attaining review of administrative decisions, some persons were possibly being denied the benefits of that review. Further stages of the Program will examine other practical obstacles to administrative review, and then propose means of reducing those obstacles. The objective is to facilitate efficient, economical and effective access to review.

OUTLINE OF REPORT 13. The report is in four chapters. Chapter 2 considers whether rights of review should be required to be notified and discusses whether any such requirement should have an administrative or a legislative basis. The chapter concludes that there should be a requirement to notify rights of review that is based in legislation. Details relating to standards of notification would, however, not be spelt out in legislation. Rather, there should be a Code of Practice for Notification of Decisions and Rights of Review. Recommendations for implementation of the Council’s proposals are set out in chapter 3. The Code formulated by the Council is set out in chapter 4. Chapter 5 discusses the costs of the scheme recommended by the Council.

7 CHAPTER 2 THE NEED FOR NOTIFICATION OF RIGHTS OF REVIEW

NOTIFICATION OF DECISIONS 14. This report is concerned mainly with notification of rights of review. However, the topic must be considered in conjunction with notification of decisions because, although a decision can be communicated without notification of any right of review of the decision, a right of review cannot meaningfully be communicated to a person who is not aware of the particular decision in respect of which those rights may be exercised.

15. The primary question is, therefore, who should be notified of particular decisions. This matter is discussed in some detail in chapter 4 at paragraphs 98 to 108. It may be noted here, however, that notification of decisions should be required when it is necessary:  to ensure fairness to a person in his relations with government  for the efficient conduct of the business of government  to ensure fairness as between citizens.

16. The form of notification that is given may be influenced by considerations of efficiency, cost and effectiveness.

NOTIFICATION OF RIGHTS OF REVIEW 17. A right of review is of no value to a person who is not aware of it. As rights of review are conferred by legislation, governments should take reasonable steps to ensure that persons who are affected by reviewable decisions are aware of any rights of review they may have in relation to those decisions.

18. The raising of awareness of rights of review has several advantages. First, it benefits the individual because it assists in ensuring that in a particular case the individual is aware of his or her right to seek review of a decision made by a government agency that affects his or her interests. Secondly, it has the advantage of contributing to better decision making by government agencies because of the mindfulness of decision makers that a person whose interests are affected by a decision is likely to be aware of his or her right to seek review of the decision. Thirdly, it ensures that the commitment which the Australian Parliament has made to the principles of administrative review by legislating for the conferral of jurisdiction on various tribunals to conduct review on the merits is sustained and not frustrated.

19. In the field of Commonwealth administration it is already common practice for individual notification of rights of review to be given at the time of the notification of reviewable decisions. Current practices are discussed in detail at paragraphs 35 to 47 below.

20. Because individual notification of rights of review is the most effective method of ensuring that people are aware of their rights at the time they need to know them, and because the practice of individual notification of rights is already well established in a wide range of jurisdictions, the Council has concluded that a system of individual notification of rights associated with the notification of decisions should apply in the Commonwealth.

8 21. The provision of advice as to the availability of review together with notification of reviewable decisions would not add significantly to the burden placed on administrators; it would simply be a matter notified to the person together with notification of the decision concerned. If notification of rights of review is given in all cases whether or not the decision concerned is adverse or favourable to the person concerned, there will be a need for the contents of notifications to be carefully worded to ensure that persons are not encouraged to exercise review rights when they have no grounds for exercising them. This is an administrative matter which may be left to government agencies to address. The Council notes that the Department of Social Security, which already issues notices of rights of review with all decisions, has not in practice experienced serious problems with frivolous or unwarranted review applications.

22. It may be that, in a number of cases, a form of notification along the lines of that referred to in section 40AA of the Export Market Development Grants Act 1974 will be appropriate. That section provides that the statement to be given with notice in writing of the decision concerned is to say that, subject to the AAT Act, a person whose interests are affected by the decision may apply to the AAT for review of the decision if dissatisfied with it.

23. The principle that rights of review, or similar rights, should be notified to persons has been recognised in many jurisdictions. Perhaps the most rigorous practices are those required in the United States under the due process provisions of the US Constitution. These provisions have been interpreted to require formal advice and adjudication processes prior to administrative decisions in respect of a range of constitutionally protected interests in matters as diverse as access to public utility services, protection of good name or entitlement to welfare benefits.

24. On 28 September 1977 the Committee of Ministers of the Council of Europe adopted a resolution entitled ‘Protection of the Individual in Relation to the Acts of Administrative Authority’ (Resolution77) which sets out a number of principles relating to the citizen’s rights to be heard, access to information, assistance and representation, statements of reasons and notification of remedies. Principle V of the Resolution states: Where an administrative act which is given in written form adversely affects the rights, liberties or interests of the person concerned, it indicates the normal remedies against it, as well as the time limits for their utilisation.

25. The Council notes that reports in the United Kingdom and South Australia dealing with issues relating to administrative review have recommended that persons affected by decisions be told of their review rights.

26. The Franks Committee Report (United Kingdom) of 19571 recommended that: Every care should be taken to ensure that the citizen is aware of and fully understands his right to apply to a tribunal.2

In particular, the Committee suggested that decision makers should make reference in official forms and leaflets to the availability of facilities provided by Citizens’ Advice Bureaus.3

1 Report of the Committee on Administrative Tribunals and Enquiries, Cmnd. 218 2 ibid para. 409. 3 ibid para. 67.

9 27. Similarly, the Law Reform Committee of South Australia in its Report Relating to Administrative Appeals (1984) has proposed that a legislative requirement to notify persons of their rights to have administrative decisions reviewed by a tribunal be introduced in South Australia. The Committee stated at pages 24-5: There is a danger that if citizens are given too much encouragement to appeal there may be substantial numbers of unmeritorious appeals lodged. However, the right of aggrieved person to appeal must be made known, or there is not much point in the right existing.

28. Various Australian commentators have also supported the notion of a legislative requirement to notify persons of their review rights.4

THE DIVERSITY OF GOVERNMENT ADMINISTRATIVE DECISIONS 29. At 30 June 1986 the AAT had jurisdiction under some 232 Commonwealth enactments, and an examination of that jurisdiction list reveals a diversity of reviewable decisions. Those decisions fall into three broad categories: (a) decisions which grant, vary or deny a right, entitlement or benefit; (b) decisions which impose, or refuse to impose, an obligation, requirement or disability; and (c) decisions which give a direction or make a valuation or declaration.

30. The first category includes a range of decisions relating to entitlement to benefits or services such as those granted under the Veterans’ Entitlements Act 1986, the Social Security Act 1947, the Student Assistance Act 1973 and the Superannuation Act 1976. Decisions may also relate to entitlements to licences, permits or certificates such as are granted under the Air Navigation Regulations, the Australian Meat and Live-stock Corporation Act 1977, the Dangerous Goods Ordinance 1984 (A.C.T.) and the Radio-communications Act 1983. Decisions relating to other kinds of entitlement include decisions relating to entitlements to bounty under the various Bounty Acts. Other decisions coming within the first category mentioned above relate to such matters as the right of access to documents under the Archives Act 1983 or the Freedom of Information Act 1982, the right to obtain a passport under the Passports Act 1938, and the right of registration as a tax agent under the Income Tax Assessment Act 1936 or as a marriage celebrant under the Marriage Act 1967.

31. Decisions which impose an obligation or requirement include decisions which impose a liability on an officer for a loss of or deficiency in public moneys under the Audit Act 1907, decisions which impose requirements with respect to the exhibition of Australian short films under the Australian Film Commission Act 1975, decisions which prohibit the export of goods with false trade descriptions under the Commerce (Trade Descriptions) Act 1975, decisions which impose a requirement to return copying records under the Copyright Act 1968, and decisions to impose a levy under various primary industry Acts. Decisions to recover overpayments under several Commonwealth Acts are also in this category as are requirements to give security under Acts such as the Bounty (Ships) Act 1980 and several other Bounty Acts.

32. There are also a range of enactments which provide examples of the third category of decisions. Directions may relate to such matters as the carrying on of insurance business, as under the Insurance

4 Kirby. M.D., ‘Community Legal Education: Preventative Legal Aid and Law Reform’ in Boer. B. (ed.), Community Legal Education, Proceedings of the Seminar held in June 1979, Commonwealth Legal Aid Commission, Canberra, 1980, 92 at 100 and 104; Taylor, G.D.S., ‘Access to Administrative Justice’ in Goldring. J. et al (eds), Access to Law. The Second Seminar on Australian Lawyers and Social Change, Australian National University Press, Canberra. 1980, 19 at 27; and Ross, K ‘The workings of the Tribunal’, in Goldring, J. (ed.), The Workings of the Administrative Appeals Tribunal, Canberra Series in Administrative Studies, Seminar Proceedings 4, Canberra College of Advanced Education, 1980, 23 at 25.

10 Amendment Act 1983, or in regard to foreign ships, as under the Navigation Act 1912. Several enactments provide for the review of decisions involving valuations of goods, land, etc, e.g. valuations of goods under the Customs Tariff Act 1982, valuation of land under the Leases (Special Purposes) Ordinance 1925 (A.C.T.) and decisions as to the factory cost of a bountiable air conditioner under the Bounty (Room Air Conditioners) Act 1983. A number of other enactments empower persons to make declarations which are reviewable, such as declarations made under the Biological Control Act 1984 or a declaration relating to the import and export of certain animals under the Wildlife Protection (Regulation of Exports and Imports) Act 1982.

33. Decisions made in the social welfare area will often affect persons who are socio-economically disadvantaged. These persons have particular need to know of their rights. Decisions in other areas may affect the interests of persons or organisations in the business community. In yet other areas, decisions may affect the community at large, eg. where the Minister makes a consumer product safety order under the Consumer Affairs Ordinance 1973 (ACT).

34. Although the basic information needs of persons who have rights of review in the various jurisdictions are essentially the same, the extent of the information that needs to be conveyed may differ from group to group. In general, all prospective appellants need to know such basic information as the existence of the right of review, the name and location of the review authority, how to make an application for review, how to obtain copies of relevant documents and any time limits which apply to an application for review. This suggests that minimum standards for notices of rights of review ought to be able to be set for uniform application in all jurisdictions. It is possible however, that the extent of the information that needs to be conveyed to persons in the business community is less than the extent of information that needs to be conveyed to socio-economically disadvantaged groups. This indicates that, if a scheme were to be introduced which prescribed notification practices over the range of Commonwealth administration, there would be a need for flexibility in the prescription of requirements over and above the minimum standard.

CURRENT NOTIFICATION PRACTICES 35. In order to ascertain what the current situation was concerning notification of review rights, the Council surveyed existing legislative requirements to notify and also administrative practices relevant to notification.

36. Legislative requirements. At 30 June 1986, there were requirements in 107 legislative provisions for decision makers to notify persons of their rights to apply to the AAT for review of the decision in question. The requirements take several different forms.

37. In some instances, there is provision for all decisions to be notified in writing and for the notifications to include statements of rights of review. For instance, sub-section 26(1) of the First Home Owners Act 1983 stipulates that a decision of the Secretary ‘shall be by instrument in writing’. Sub- section 26(2) of the First Home Owners Act requires the decision to ‘be served by post on the applicant... at the address of that person last known to the Secretary’. The Act goes on to require that notices of decisions include statements of review rights.

38. In other cases, there is no requirement that all decisions be notified in writing but there is a requirement that, whenever a decision-maker issues a written decision, it shall be accompanied by a notice of review rights. For example, sub-section 40A(8) of the Electoral and Referendum Act 1984 states: Where an Australian Electoral Officer causes a copy of a decision ... to be given to a person ... the copy shall be accompanied by a written statement to the effect that the person may... make an application to the Administrative Appeals Tribunal for review of the decision.

11 39. There is a further category of cases where notices of decisions are only given in restricted circumstances such as when the decision constitutes a refusal, revocation, forfeiture or deferral. For example, under section 29 of the Dangerous Goods Act 1984 the Chief Inspector is required to give written notice of decisions where he refuses to issue or renew a licence or permit or where he suspends or cancels a licence or permit.

40. The different legislative provisions relating to the notification of review rights fall into twelve basic types. The usual wording and structure of the twelve types of provision are set out in the Appendix. The large majority of the provisions require individual notifications to be given. However, in a small number of circumstances public notification is specified. Some examples of the requirements made by the various provisions are as follows:  individual notification of the decision and of the terms of the section conferring a right of review (e.g. s.48 of the Home Deposit Assistance Act 1982), rather than a notification which itself explains a person’s right or entitlement to apply to the AAT;  individual notification of the decision, the right to apply for review on the merits (and of the right to complain to the Ombudsman), and the procedure for exercising those rights (e.g. s.26 of the Freedom of Information Act 1982);  individual notification of a right to apply for internal review of a decision and of a further right to apply for review by the AAT with both rights being communicated at the time of the primary decision (e.g. s.38A of the Health Insurance Act 1973) or each right being communicated immediately prior to the various stages of the review process (e.g. order 14 of the Meat Inspection (General) Orders);  individual notification by the primary decision maker of the right to apply to the first tier external review tribunal (and for internal review initially, if this is applicable), and then notification by the first tier external review tribunal of the right to apply to the AAT (e.g. ss.34 and 140 of the Veterans’ Entitlements Act 1986); or  public notification of decisions in the Gazette, including the advice that persons whose interests are affected by a decision may make application to the AAT for a review of that decision (e.g. s.52 of the Wildlife Protection (Regulation of Exports and Imports) Act 1982).

41. One government agency advised the Council that as a result of the survey it discovered that across the range of legislation which it administered there were ‘many instances where there was no practice of notification of review rights, despite a legal obligation to do so. Immediate steps were taken by the agency to have the matter rectified.

42. Administrative practices. The Council’s survey included administering a questionnaire on practices concerning notification of decisions and review rights to a sample of 31 government agencies. The Council was assisted by the Australian Bureau of Statistics in finalising the format of the questionnaire. The questionnaire was administered generally via a personal interview between a member of the Council’s Secretariat and an officer of the agency concerned. The respondents were selected to include all agencies whose decisions comprised the bulk of the AAT’s review work, but a number of agencies whose clients had rarely challenged their decisions in the AAT were also chosen to participate. The selection of respondents was also made to ensure a broad range of clients, ranging from socio- economically disadvantaged clients, e.g. social security, to members of the business community, e.g. export market grants. A further criterion used in selecting the respondents was to ensure that a wide cross section of notification practices was included.

43. The survey indicated that some agencies had no notification practices because no reviewable decisions had ever been made. In some of these cases there was a statutory obligation on decision makers to notify persons of their review rights. Most departments and statutory authorities had made reviewable decisions under the Freedom of Information Act 1982, which contains a comprehensive notification requirement. However, even in the application of the uniform legislative requirement under that Act, the

12 survey revealed that notification practices of decision makers varied considerably. Also, notification practices varied both within and between different categories of decisions irrespective of whether notification was given as a result of legislative requirement, administrative guidelines, or merely common practice. The variations in notification practices were in respect of the timing, manner of communication and contents of notifications.

44. Most government agencies attempt to ensure that applicants are advised in writing of decisions affecting them. The Council notes, in particular, that high volume agencies in the survey tend to be at the forefront in ensuring that persons are given individual notification of reviewable decisions. For example, the Department of Social Security generally provides its applicants with either a computer printed individual notification of its decisions or, in special circumstances, an individually prepared advice about the decision. The Department produces standard notices of review rights on the reverse side of computer printed decisions or incorporates standard forms of advice about review rights into individually prepared advices. At 30 June 1986 Social Security was the largest jurisdiction involving AAT review.

45. Responses to the questionnaire showed differences of detail in notification of review rights practices in the following areas:  Staging of notification. The structure of the hierarchy of review bodies involved in appeals varies from one jurisdiction to another. In some jurisdictions appeals against primary decisions lie directly to the AAT, whereas in others one or two intermediate tiers of review exist. As a consequence, there are a variety of practices as to how much applicants are told about the whole appeal process at each stage of review.  Manner of communication of notification. Most notifications of rights are communicated on an individual basis by post to person affected by decision, but in a minority of cases decisions may be notified via telex, in person, or by publication in the Gazette. It is of significance that the widespread current practice in most cases is for notification of rights to be given simultaneously with the individual notification of a reviewable decision. (see paras 35 to 44 above).  Persons who are notified. Some decision makers notify person other than the applicant or client such as legal representatives or social workers acting on behalf of or assisting persons affected by the decision in question. Where ‘reverse-FOI’ procedures exist (ie. the requirement placed on decision makers to consult with persons to whom information relates before releasing such information to third parties requesting access to it under the FOI Act), some decision makers notify review rights not only to person requesting access to the information, but also to person to whom the information relates.  Contents of notification. The contents of the notification vary in the following respects:

- Reasons for decision: In all cases but two of those sampled (Commonwealth employees’ compensation and wildlife protection) reason for the relevant decision are given in some form along with notification of review rights. Notification of the right to obtain reasons for decisions, where reason for the decisions are not given, occurs in one jurisdiction (compensation). There are some jurisdictions where there is a statutory requirement to provide reasons (eg. Under s.40 of the Archives Act 1983).

- Existence and location of review bodies: In most cases decision makers notify persons of the existence and usually the location of review bodies whether internal or external. Only in the veterans’ affairs, social security and student assistance areas are there at present three tiers of review on the merits - internal review, review by an external specialist review tribunal and review by the AAT. In the veterans’ affairs area, in those cases where it has jurisdiction, the specialist review tribunal (the Veterans’ Review Board) notifies persons of their right of review by the AAT. Notification of the existence of the Ombudsman usually only occurs in relation to FOI decisions and often the location of the Ombudsman’s office is not given.

13 - Time Limits The majority of decision makers notify applicants of time limits within which they are required to make applications for review. Some decision makers, usually in the FOI area, notify applicants of the time within which an internal review is required to be completed and the consequences of a review not being finalised by that date, ie. A right to appeal directly to the AAT arises.

- Access to documents: Only a small number of decision makers bring their clients’ attention to rights of access to documents under the FOI Act. In two cases (Commonwealth employees’ compensation and wool industry decisions) decision makers notify individuals of their rights of access to documents under Acts other than the FOI Act where this is thought to be appropriate.

- Foreign languages: Only in two jurisdictions (social security and retirement benefits) are pamphlets notifying persons of their review rights available in languages other than English. The Department of Social Security has produced a number of pamphlets setting out review rights in foreign languages which are available to clients. The Australian Government Retirement Benefits Office sends clients pamphlets on the AAT, a small section of which contains several translations of basic information set out in the main body of the pamphlet. The Department of Housing and Construction and the Department of Immigration and Ethnic Affairs refer to the availability of foreign language interpreters at times other than the time of notifying persons of their review rights. In the first case, clients are informed when the clients apply for a benefit. In the second case, clients are informed when they are being interviewed by the Department.

- Contact officers: The majority of decision makers name a contact officer, and give the officer’s telephone number, in correspondence with clients.

- Miscellaneous: In the veterans’ affairs area clients are notified of external sources of advice and assistance, e.g. Legacy. Some Social Security Appeals Tribunals also include this type of advice in their hearing notices in conformity with procedures set out in the handbook of SSAT Procedures of 1985. Sometimes decision makers notify persons affected by decisions of the procedures involved in review, e.g. hearings etc. In the areas of student assistance, social security and compensation, applicants are notified of the absence of application fees and/or the possibility of having their costs paid for by the Commonwealth. Only in criminal deportation cases are individuals notified of their right to apply for legal aid.

46. With few exceptions the staging of notification of rights of review and the contents and manner of communication of those notices are at the discretion of the agency issuing the notice, and any legislative provisions relating to the notification of rights which do exist are generally drafted in such broad terms as to allow a wide discretion. In some cases, however, legislation does specify certain requirements relating to notices of rights. For example, the Archives Act 1983 requires the notice of rights to contain information concerning the procedure for the exercise of the right of review and the Compensation (Commonwealth Government Employees) Act 1971 requires the notice of rights contain advice about access to certain documents held by the Commissioner for Employees Compensation.

47. It does not seem, however, that differences in practices relating to notification of rights of review are necessarily related to the diversity of decisions involved, although this appears to be a factor in some cases. The differences do not seem to have reference to any guiding principles or philosophy.

EXISTING ARRANGEMENTS FOR INCORPORATING NOTIFICATION REQUIREMENTS IN LEGISLATION

14 48. Current practice in the Office of Parliamentary Counsel, which has the responsibility for drafting Bills, is that a copy of every draft of every Bill is sent to the Justice and Administrative Law Division of the Attorney-General’s Department. The responsibilities of that Division include legal policy responsibilities in relation to the review of administrative discretions. The Department, through that Division, advises government departments on administrative law matters concerning Bills that are being prepared on their instructions.

49. In 1984 the First Parliamentary Counsel issued to his staff an instruction that, whenever a Bill was being drafted that conferred a right of appeal to an administrative tribunal against a decision, the Bill should provide that, if a person was notified of the decision (whether or not he was required to be so notified), he was also to be notified of the right of appeal. As indicated in the introduction to this report, this instruction was reversed pending clarification of the policy of the Attorney-General’s Department on the matter. The present practice is that provision for notification of rights of review is included in a Bill as a matter of course where there is an established practice of including such a provision in Bills of that kind (e.g. in Bounty Bills). However, a provision is not included in any other Bill unless: (a) the Bill is being drafted on the instructions of the Attorney-General’s Department and that Department has requested the inclusion of the provision and has given instructions as to the matters to be dealt with by the provision; or (b) the Attorney-General’s Department has reached agreement with the instructing Department that such a provision should be included and as to the matters to be dealt with by the provision and the instructing Department has requested the inclusion of a provision dealing with those matters.

50. In its Third Annual Report (1979) the Council first raised the issue of the inclusion of a notification requirement in legislation when it said in paragraph 78: The Administrative Appeals Tribunal Act (here referred to as ‘the Act’) does not currently require that persons entitled to apply to the Tribunal for review of a decision are to be informed of that right when a reviewable decision is made. The Council sought the views of departments whose decisions are subject to appeal to the Administrative Appeals Tribunal on the effects of a provision requiring notification. The responses generally indicated that the departments foresaw no difficulties if they were required automatically to notify a person affected of his right of appeal when they communicated a decision to him....

51. The Council again raised the issue in a letter of advice dated 11 February 1982 concerning the Administrative Appeals Tribunal Amendment Bill 1982.

52. On 22 July 1983 the Attorney-General wrote to the Chairman of the Senate Standing Committee on Regulations and Ordinances and referred to the Council’s recommendation. The Attorney-General said: In preparing the amendments it was found for a number of reasons that it was not possible to include a general provision in the Administrative Appeals Tribunal Act…. It was therefore decided to include separate notification provisions in each piece of legislation so that problems could be taken into account.

THE NEED FOR LEGISLATION 53. Requirements for notifying decisions and rights of review could be imposed by legislation or by administrative arrangement. As was mentioned above (para 36), there are already numerous examples of the requirements having been imposed by legislation. Currently, 46% of the jurisdictions involving AAT review provide legislatively for rights of review to be notified.

54. Administrative arrangements alone are an unsatisfactory basis for a requirement to notify rights of review. Such arrangements are not subject to parliamentary scrutiny and can be altered from time to time or discarded without parliamentary oversight. Furthermore, the public would not necessarily be aware of

15 the nature or extent of the arrangements that were in force at any particular time.

55. Legislation, on the other hand, is publicly visible, remains in force until it is amended or repealed and is subject to parliamentary oversight. The Senate Committees (paras 3 and 5) have strongly supported the inclusion of a requirement to notify in legislation.

56. The Council considers that ultimately the question whether or not notification of rights of review should be legislatively based relates to the degree of importance attached to those rights. In the Council’s view, those rights are of considerable importance and should be required to be notified as a matter of law.

57. That is not to say, however, that the legislative provision needs to be extensive. The legislation could simply state in broad terms the requirement to notify rights of review, leaving matters such as the contents of notices given as a result of the legislative requirement to be governed by an administrative code (see paragraphs 63-7 below).

CENTRAL ACT v INDIVIDUAL LEGISLATION 58. Consideration has been given to the question whether the requirement to notify should be placed in one enactment or in each piece of legislation which confers jurisdiction on the AAT. The former approach would have the advantage of enabling the whole field of Commonwealth administration to be covered by one legislative act.

59. As indicated at paragraphs 50 and 51 the Council has expressed its view on two previous occasions that a general requirement to notify should be inserted in the Administrative Appeals Tribunal Act 1975. Provided that the requirement was stated in broad terms so as not to clutter the Act with an extensive provision there do not appear to be any reasons why such a provision could not be implemented, and at paragraphs 68-74 below the Council again recommends the insertion of such a provision in the Act.

60. In putting forward this proposal the Council is aware that there are a number of jurisdictions where multi-tiered systems of review exist, and it would be necessary for the provision in the AAT Act to be complemented by similar legislative provisions in relevant enactments requiring notification in respect of those levels of review which occur before AAT review. There are three jurisdictions - social security, student assistance and veterans affairs - where three-tier systems of review exist, but there are also several jurisdictions where internal review is a prerequisite to review by the AAT.

61. The Council favours a general requirement being inserted in the AAT Act with additional requirements relating to other levels of review being inserted in individual enactments as necessary.

62. Furthermore, the Council considers that a minimum standard should apply to all notifications, whether given pursuant to a legislative requirement or otherwise and it has drawn up what it considers to be an appropriate minimum set of standards. Those standards are set out in chapter 4 in a Code of Practice for Notification of Decisions and Rights of Review.

16 CHAPTER 3 IMPLEMENTATION OF THE COUNCIL’S PROPOSALS

ENDORSEMENT OF CODE BY GOVERNMENT 63. The Council considers that, irrespective of any requirement in legislation for the giving of notice of reviewable decisions and of rights of review in respect of those decisions, a code of practice should be introduced to set minimum standards over the range of Commonwealth administration for notices of decisions and of rights of review. That code should be so formulated as to allow some flexibility in the terms of notices. Flexibility is seen to be desirable having regard to the differing needs of the diverse categories of persons whose interests are affected by administrative decisions made in the Commonwealth. The Council has drawn up such a code and it is set out in chapter 4 under the title of a Code of Practice for Notification of Decisions and Rights of Review.

64. The Code should, in the Council’s view, be approved by the Government in order to ensure its status and authority as a document for regulating notifications of rights of review by government agencies. In view of the interest shown in this matter by members of Parliament, and in particular, by the Senate Standing Committee for Scrutiny of Bills and the Senate Standing Committee on Regulations and Ordinances, the Council also suggests that the Code and a statement of the Government’s approval be tabled in the Parliament.

65. The Council considers that, after approval of the Code, the Government should take steps to ensure that all government agencies are notified that:  it has endorsed the Code; and  they should examine their notification practices to ensure that they are in conformity with the Code.

66. It is the Council’s intention that, following approval of the Code by the Government, the Code would, among other things, provide a point of reference for the Ombudsman regarding complaints from people about notices of decisions and of rights of review given to them or about a lack of notification.

67. The Council intends to monitor the implementation of the Code once it has been approved by the Government. It will advise the Government of any amendments to the Code which seem to it to be necessary in the light of experience gained in its implementation.

Recommendation 1: Endorsement of the proposed Code of Practice The Government should: (a) endorse the Code of Practice for Notification of Decisions and Rights of Review (‘the Code’) set out in recommendation 5; (b) table the Code in the Parliament; and (c) arrange for all government agencies to examine their notification practices to ensure that they are in conformity with the Code.

INCORPORATION OF NOTIFICATION REQUIREMENTS IN LEGISLATION 68. At paragraphs 53-7 above it was indicated that the requirement to notify rights of review should be legislatively based having regard in particular to the importance of those rights. At paragraph 57 above it was said that such a requirement need not be extensive, as the detailed prescription of the standards to apply to the giving of notices under the requirement could be left to administrative arrangements.

69. That is the course recommended in this report. The Code to apply to the giving of notices has

17 already been referred to. Now considered are the legislative requirements which, in the Council’s view, should apply.

70. The view has been expressed at paragraphs 58-62 above that a requirement to notify rights of review in respect of those decisions which are subject to AAT review should be inserted in the AAT Act. The AAT provision should provide that ‘adequate and appropriate’ written notice be given. It is the Council’s intention that ‘adequate and appropriate’ written notice be interpreted as notice which at least meets the minimum standards set out in the Code of Practice for Notification of Decisions and Rights of Review.

71. At present there is a wide range of legislative provisions relating to notification of rights of review. These provisions are contained in 107 Commonwealth enactments. The various types of formula used are discussed at paragraph 40 in chapter 2 and more detail is provided in the Appendix. The reasons for these differences are not readily apparent.

72. In the drafting of the AAT provision it will, in the Council’s view, be necessary to ensure that two of the existing legislative notification provisions are not overridden by the AAT provision. Those two provisions are sub-section 26(1) of the Freedom of Information Act 1982 and sub-section 40(5) of the Archives Act 1983. Both provisions apply in relation to decisions that may be reviewed by the AAT (see sub-section 54(4) of the Freedom of Information Act and sub-section 42(4) of the Archives Act). Both are more extensive than the proposed AAT provision when read with the proposed Code particularly since both, require that a notice to be given to an applicant is to state the findings on material questions of fact, referring to the material on which those findings were based, and to state the reasons for the decision.

73. The proposed AAT provision will only have application in relation to decisions that are immediately reviewable by the AAT. In relation to decisions that are subject to internal review as a legal requirement and decisions which are subject to review by a first-tier tribunal in a system in which the AAT constitutes the second tier of external review (ie, at present decisions under the Social Security Act 1947, the Student Assistance Act 1973 and the Veterans’ Entitlements Act 1986), it will be necessary for the individual enactments concerned to be amended to insert a provision analogous to the proposed AAT provision to apply to those decisions. (This is again subject to qualification in relation to a decision subject to internal review under the Freedom of Information Act or the Archives Act where sub-section 26(1) of the former Act and sub-section 40(5) of the latter Act should continue to apply for the reason stated in paragraph 72 above.)

74. The proposed AAT provision would apply not only to existing legislation but also to all legislation which provides for review of decisions by the AAT and which is enacted after the AAT provision comes into force. It may be necessary in particular cases for such legislation to modify the application of the AAT provision in relation to decisions made under the legislation if special circumstances warranted its modification. However, the Council would expect such cases to be rare.

18 Recommendation 2: Legislative provisions requiring notification of rights of review 2.1 The Administrative Appeals Tribunal Act 1975 should be amended to provide that decision makers are required to give adequate and appropriate written notice of decisions which are subject to review by the Administrative Appeals Tribunal and adequate and appropriate written notice of rights of review by the Administrative Appeals Tribunal in respect of those decisions.

2.2 Legislation providing for prior review of decisions should contain a provision requiring the decision maker to give adequate and appropriate written notice of those decisions and adequate and appropriate written notice of rights of review in respect of those decisions.

2.3 Practices adopted for the purpose of complying with the legislative requirement of ‘adequate and appropriate’ notice referred to in recommendations 2.1 and 2.2 should at least meet the minimum standards of the Code set out in recommendation 5.

NON-COMPLIANCE WITH REQUIREMENTS BY DECISION MAKERS 75. All current legislative requirements for the notification of review rights provide that a failure to comply with the requirement does not invalidate the decision concerned. The question is whether that situation should continue. A related question is whether, where a reviewable decision is required to be notified, a failure to comply with that requirement should have the effect of invalidating the decision. The Council considers that decisions should not be invalidated because of non-compliance by decision makers with notification requirements. To invalidate decisions in such circumstances would cause great disruption, confusion and uncertainty in practical terms for government administration and in some circumstances for other parties as well, without any general justifiable benefit. Also, in some cases, the invalidity of even a partially adverse decision could prejudice a client’s interests (for example, a decision to pay a benefit at less than the maximum rate). In the Council’s opinion the fact that notification is required by legislation, rather than by, say, administrative guidelines, should encourage decision makers to comply with notification requirements.

76. The Council notes that the Senate Standing Committee for the Scrutiny of Bills in its Alert Digest No.11 of 1986 thought that a distinction needed to be drawn between the effect of a failure to notify a reviewable decision and the effect of a failure to notify review’ rights (see comment on Nuclear Non- proliferation (Safeguards) Bill 1986). However, it appears to the Council that to invalidate decisions for either reason would have the undesirable consequences referred to above.

77. If, however, a notification requirement were not complied with, the question arises whether some sanction other than the making of the decision concerned invalid should apply.

78. The Council has considered whether non-compliance with the legislative requirement should result in the normal time-limits for making applications for review being extended. A further option which has been considered is to provide that the time limit for making an application only begins to run when notification is actually and correctly given to the person whose interests are affected by the decision. The Council does not favour either of these options for similar reasons to those given above for not recommending that decisions be invalidated where notification requirements have not been complied with, i.e. the practical consequences of uncertainty in administration. In addition, the Council recognises that automatic extensions of time limits may prejudice the interests of third parties who have relied and acted upon the fact that no application for review of a decision has been taken within the prescribed period of time.

79. Nonetheless, it is important to ensure, as far as possible, that persons whose interests are affected by reviewable decisions are not prejudiced in seeking review by delay in notifying them of their rights of

19 review or by a failure to notify them of those rights. One way of achieving this would be by ensuring that review authorities had a discretion to waive or alter time limits for making applications for review in cases where there has been delay in notifying rights of review or a failure to notify those rights.

80. In the case of applications for review by the AAT, the general rule is that an application must be made within 28 days of the communication of the decision concerned to the applicant (s.29(2), AAT Act). If the decision is not communicated to the applicant, it appears that the application must be lodged within a reasonable time (s.29(4), AAT Act; and see Re Gillett and Minister for Immigration and Ethnic Affairs (1985) 7 ALD 354). Where sub-section 29(2) applies, the Tribunal may, upon application made to it, extend the normal 28 days time limit (s.29(7)). Where an application for review is not lodged within a reasonable time as required by sub-section 29(4), the Tribunal may entertain the application if it is of the opinion that there are special circumstances that justify it in doing so (s.29(6)). If an Act overrides the AAT Act provisions as to time for making applications, the provisions of section 29(7) of the AAT Act do not enable the Tribunal to extend the time limits provided for in that other Act: Re Holstar Agencies and Collector of Customs (1984) 4 ALD 308.

81. The Council considers that, where the provisions of the AAT Act apply, those provisions should specify a failure to notify rights of review or a delay in notifying those rights as a matter to which the Tribunal shall have regard in determining whether or not to extend the time for the making of an application for review or to entertain such an application. The Council intends that such a matter would be only one of perhaps several matters to which the Tribunal might have regard. The Council would not wish a failure to notify rights of review or a delay in the provision of such a notification to provide a person who is already aware of his rights with a technical means of allowing the review process to drag on to the prejudice of finality in government decision making.

82. Fixed time limits for the making of applications for review prescribed by legislation other than the AAT Act should be capable of extension, in the discretion of the Tribunal, where a failure to notify rights of review has occurred or there has been a delay in the provision of such a notification. Where extensions of time are provided for in relation to applications under such legislation, the provisions should be amended in a similar way to that proposed by the Council for the AAT Act.

Recommendation 3: Discretion to extend time limits 3.1 The legislation referred to in recommendations 2.1 and 2.2 requiring the giving of notice of decisions and of rights of review in respect of decisions should provide that a failure to give such notice does not affect the validity of the decision.

3.2 The Administrative Appeals Tribunal Act 1975 should be amended to provide that: (a) a matter to which the Tribunal shall have regard in determining whether or not to extend the time for the making of an application for review is whether or not there has been a failure to give the notice provided for in recommendation 2.1 or a delay in providing the notice; and (b) a failure to give the notice, or a delay in providing the notice, is a matter to which the Tribunal shall have regard under sub-section 29(5) of the AAT Act.

3.3 Other legislation governing time limits for the making of applications for review should be amended to permit extensions of time, in the discretion of the review authority, where a failure to give the notice provided for in recommendation 2.2, or a delay in providing the notice, has occurred.

EXPLANATORY LEAFLETS 83. In addition to a legislative requirement to notify rights of review the Council favours the inclusion of general information about review rights in leaflets and other written material produced by government agencies describing programs or schemes administered by them.

20 84. Special leaflets or other material devoted specifically to the review system should be produced by government agencies in jurisdictions where there is a high volume of reviewable decisions or where the review system is complex. This has occurred in the social security and veterans’ affairs areas.

85. The design of these leaflets should be in accordance with the Simpler Forms Program, and attention should be paid to layout as well as to plain language in order to aid readers’ comprehension of the material. Information in leaflets should be tailored to suit the nature of decisions and also the agency’s clientele. Matters which could be contained in the leaflets include the following:  the possibility of legal aid being granted, addresses for applications and criteria for eligibility;  the possibility of legal assistance being granted under section 69 of the AAT Act, addresses for applications and criteria for eligibility;  other forms of financial assistance which may be available, for example, travel and accommodation costs before the Social Security Appeals Tribunal;  the availability of advice and assistance from organisations such as welfare rights or legal centres, or from representative special interest groups, for example, Legacy, in the veterans’ affairs area;  the presence or absence of fees for applications for review; the possibility of costs being awarded against the Commonwealth, such as in the FOI and compensation areas;  the functions (e.g. independent review) and powers(e.g. to make binding determinations) of review bodies;  the procedures of review bodies, such as whether hearings are conducted and whether the person’s attendance is required or encouraged; the availability of interpreters; and whether legal or other representation is allowed;  the possibility of administrative decisions being further reviewed in the courts; and  the jurisdiction and functions of the Ombudsman (if appropriate).

86. Review authorities should also produce their own leaflets explaining their functions and procedures. The AAT currently produces leaflets entitled ‘our A.A.T. Hearing: What Will It Be Like?’ and the ‘Administrative Appeals Tribunal’. The Social Security Appeals Tribunals in some States also produce leaflets, such as the Queensland SSAT’s ‘Your Appeal Hearing’. Other Social Security Appeals Tribunals and the Veterans’ Review Board produce roneoed sheets setting out such information. These leaflets or written material should be distributed by review tribunals upon lodgment of an application for review or as soon as practicable thereafter.

87. The Council is aware that in some offices of the Department of Social Security and of the Department of Immigration and Ethnic Affairs videotapes are available for viewing by clients of the Department. These videotapes explain departmental procedures and the entitlements of clients under the schemes administered by the Departments. The Council favours the use of these means of explaining rights to clients of government agencies and urges their adoption wherever practicable.

Recommendation 4: Publicity material 4.1 Leaflets or other material produced by government agencies describing programs or schemes administered by them should contain a brief reference to the existence of any rights of review on the merits granted under those programs or schemes and a brief description of the means of exercising those rights. 4.2 Special leaflets or other material devoted specifically to the review system should be produced by government agencies in jurisdictions where there is a high volume of reviewable decisions or where the review system is complex. 4.3 Leaflets or other material should be produced explaining the composition, functions and procedures of review authorities. They should be made available to applicants for review upon lodgment of their applications or as soon as practicable thereafter.

21 4.4 Innovative methods of educating persons about their rights of review on the merits should be used wherever possible. For example, videotapes, hotlines and other methods might be used in some circumstances.

ORAL COMMUNICATIONS 88. Whilst the above recommendations of the Council relate to written notifications of review rights, as mentioned in its 22nd Report The Relationship Between the Ombudsman and the Administrative Appeals Tribunal the Council recognises the importance of the provision of oral advice by decision makers.5 The study commissioned by the Commonwealth Legal Aid Council, Legal Needs of Social Security Claimants,6 concluded that oral advice by the Department of Social Security was more effective than leaflets and letters. Some members of Social Security Appeals Tribunals interviewed in that study were critical of the DSS’s pamphlets as being uninformative, overly official and complicated. The study recommended that leaflets should be ‘striking in design, clear and simple in content and very widely distributed’. The study referred to proposals in other reports for the establishment of a ‘welfare hotline’ so that claimants could readily obtain oral advice over the telephone.7 The Council notes that, on occasion, hotlines have been established by DSS for particular purposes (e.g. assets tests, amnesties). The Council understands that they have been of considerable value.

89. In relation to general information pamphlets in non-English languages, the Report of the Review of Post-arrival Programs and Services for Migrants stated at paragraph 5.6 that: the great bulk of such pamphlets languish in offices and other formalised distribution points rather than actually reaching the people they are designed for.

90. The report criticised the over-reliance by government authorities on printed information and unimaginative techniques for dissemination of information. For example, the report recommended that: The Commonwealth Ombudsman should ensure that multi-lingual information about his role is widely available to migrants and ethnic communities...’8

ONE-STOP SHOP 91. Also foreshadowed in the Council’s 22nd Report was the likelihood that the notification project would consider the feasibility of a ‘one-stop-shop’ assistance agency as sponsored by the Coombs Royal Commission.9 The object of this proposed agency was to provide, as far as possible, a complete service of government assistance agencies in one place, at one visit, and with members of the public having to deal with not more than one or two different officers. The former Commonwealth Ombudsman, Professor J.E. Richardson, AO has also referred to the need for Commonwealth information centres in the following terms: It will be many years before the measures and the machinery of accountability are known and understood throughout Australia unless, of course, something is done by the Commonwealth to provide information from centres set up for the purpose.10

92. The Council has decided that the range of issues and major resource implications of the proposal to establish a one-stop-shop are too extensive to be considered in the notification project, but that the proposal might be considered at a later stage of its Access to Administrative Review Program.

5 A.G.P.S., 1985, para 82. 6 A.G.P.S. Canberra. 1984. Page 57. 7 ibid, page 95 8 ibid, paragraph 5.24 9 Royal Commission on Government Administration, Parliamentary Paper No. 185/1976, 161-3. 10 ‘Community Influences and a Responsible Public Administration’, address given in Brisbane on 27 September 1984.

22 23 CHAPTER 4 CODE OF PRACTICE FOR NOTIFICATION OF DECISIONS AND RIGHTS OF REVIEW

INTRODUCTION 93. In chapter 3 the Council recommended that the Government endorse the Code of Practice for Notification of Decisions and Rights of Review which is set out in this chapter.

94. The legislative requirements to notify decisions and rights of review, referred to at paragraphs 68 to 74, would require notifications to be ‘adequate and appropriate’. The purpose of the Code is to set down what the Council considers to be ‘adequate and appropriate’ written notice.

95. Four basic questions need to be considered:  Who should be notified of decisions?  By what method should they be notified?  What information should be provided?  Where there are two or more levels in the process of review on the merits, should information be provided about them in full in one notification or in instalments in two or more notifications at different stages in the process?

96. These questions are discussed below, after which consideration is given to steps which could enhance the effectiveness of notification by helping to overcome problems in communication or comprehension.

97. For convenience the first two questions are discussed together.

WHO SHOULD BE NOTIFIED OF DECISIONS, AND BY WHAT METHOD 98. In some cases the enactment under which a reviewable decision is made will require notification of the decision to be given to a particular person or particular persons. In these cases the enactment itself provides an answer to the question of who should be notified. The notice that is given in these cases should, in the Council’s opinion, be accompanied by a notice of rights of review. A notice of rights of review should also be given to a person who is in fact given notice of a reviewable decision irrespective of any legislative requirements to notify.

99. Some decisions will require notification, regardless of legislative requirements, for the efficient conduct of government business. Where the number of persons whose interests are affected is small and they are readily identifiable, they will usually be notified individually and in writing, particularly when some action is required by some or all of the persons notified as a consequence of the decisions. In other cases some form of public notification maybe necessary, in a form which is calculated to come to the attention of the persons it is desired to reach.

100. Apart from such cases, it is suggested that notification practices should be governed by two principles: fair and open dealing between the government and persons affected by its decisions; and equity as between persons whose interests are affected.

101. As to the first of these principles, it might appear at first sight that all persons whose interests are affected by administrative decisions should individually receive notice of them. In practice this may not

24 always be possible. Government decisions are of many kinds, giving rise to wide differences in the ways in which they affect personal interests, in the nature and extent of such effects and in the possibility or likelihood of decision makers being aware of all persons whose interests are, or may be, affected. Hence:  Decision makers may not always be aware of all persons whose interests could be affected.  Even if they are aware of all such persons they may not be aware of those whose interests are in fact affected.

102. Furthermore a particular decision may affect one person’s interests in a substantial and vitally important way and another’s only to a minor degree. It would not be appropriate to push the principle of notification to unreasonable limits.

103. As to the second of the two principles referred to above, considerations of equity as between persons whose interests are affected maybe involved. If a decision maker notifies some (those of whom he is aware) but not others, he may give an advantage to the former as against the latter. This could give rise to allegations of unfair or discriminatory treatment. In such cases an appropriate form of public notification may be more appropriate than an attempt to identify persons affected and to notify them individually.

104. While, as already noted at paragraph 29 above, reviewable decisions are of widely different types, most relate directly and primarily to the affairs of one particular person (or group of persons acting together as in a partnership or joint venture). These include decisions arising from applications (for benefits, approvals, etc) as well as decisions arising from other bilateral relationships between particular persons and the government (e.g. taxation assessments, issue of Benefit Classification Certificates in respect of Commonwealth employees, etc). In such cases the interests of other persons are affected, if at all, only indirectly, as a consequence of their relationships with the persons directly affected.

105. There are some practices which the Council considers will generally be consistent with the principles suggested above. They are included in the Code in the form of guidelines which should be followed generally in practice. They are: (1) A person who makes a formal application to a government agency should be advised in writing of the decision made on the application. (2) A person concerning whom a decision is made arising out of a bilateral relationship between that person and the government should be advised in writing of the decision. (3) Where a decision is made that does not fall within practice (1) or (2) above and the decision maker is not aware of the identities of all the persons whose interests may be affected by the decision, public notice of the decision should be given in an appropriate form.

106. Where decisions in a particular jurisdiction are of a kind that necessitates the giving of public notice in respect of them, the decision-making authorities in the jurisdiction concerned should establish and promulgate a standard practice as to the publication or publications in which the notices are to be given (for example, Gazette, specified trade journals or daily newspapers, etc). This is necessary so that persons who may wish to know of particular kinds of decisions may be aware of the publications they will need to keep under surveillance.

107. So far as the form of notices (other than public notices) is concerned, the Council notes that there are some government agencies which make a small number of reviewable decisions each year, while others make a high volume of such decisions. Accordingly, it is desirable that some flexibility should be allowed as to the form of notification. It could have serious administrative implications, for instance, if the Department of Social Security were required to provide all its applicants with individually drafted decisions and notices of review rights. The Council considers that the present procedures of the Department of Social Security, whereby in the majority of cases computer printed notices of decisions are

25 produced on an individual basis with a standard notice of rights printed on the reverse side of the decision, are probably satisfactory in meeting the notification requirements which the Council considers necessary and at the same time are administratively acceptable to the Department. They should be allowed to continue. However, the Council considers that such notices should be kept under review with a view to improvements being made, as necessary, to ensure that clients are informed as clearly as possible of their rights.

108. In the Council’s view the most desirable form of notification is advice which is worded so as clearly to convey the terms of the individual decision plus advice (either individually worded or in a standard form) about the person’s rights of review. This procedure has already been adopted by some government agencies.

WHAT INFORMATION SHOULD BE PROVIDED 109. A balance needs to be struck between ensuring that a person notified of a reviewable decision is adequately informed and causing irritation or confusion or false expectations through the provision of too much detail. With that in mind, the Council is of the view that each notification of rights of review, whether to a person individually or by a public notice, should include a certain minimum of information. That information is now considered.

110. Provision of reasons. The principle that persons are entitled to obtain reasons for decisions is embodied in the AAT Act (s.28) and the Administrative Decisions (Judicial Review) Act (s.13). The principle does not extend so far as to impose an obligation on the decision maker to provide reasons when the decision is conveyed to the person affected. Nor does the common law require the furnishing of reasons for decisions (Public Service Board of New South Wales v Osmond (1986) 63 ALR 559). The effect of section 28 of the AAT Act and section 13 of the AD(JR) Act, however, is that, subject to some statutory qualifications, decision makers are required, upon request to provide a statement of reasons for their decisions.

111. The Council is of the view that, as a matter of sound public administration, decision, makers should provide reasons for their decisions. Furthermore, the Council regards a facility for obtaining reasons as an essential element of an efficient system of review of administrative decisions on the merits (see Administrative Review Council, Third Annual Report, 1979, p. 58). Without having available the reasons for a decision, a person whose interests are affected by the decision may be under a misapprehension of having been badly treated which may lead the person unnecessarily to seek review of the decision. Or, in the absence of a statement of reasons, such a person may not have enough information to assess realistically whether an appeal against the decision is justified and may be unable to formulate grounds of appeal in a relevant manner. At the same time the Council appreciates that if there were a general requirement imposed on decision makers to provide full reasons for a decision at the time when they convey the decision to the person whose interests are affected, a considerable burden would be placed on the administration. Such a requirement would also have resources implications for departments and public authorities and could lead to substantial delays.

112. The Council concludes that, where the person notified of a decision is or may be entitled to a statement of the reasons for the decision pursuant to section 13 of the AD(JR) Act or section 28 of the AAT Act and reasons have not already been given to the person, the notification should include advice of the person’s entitlement to a statement of reasons for the decision.

113. Name and location of review authority. The Council considers it essential that notifications include the name and the postal and actual addresses of relevant review authorities, both internal and external, that are available to conduct review on the merits so that persons are aware of to whom and where they should send applications for review. The Council also views the provision of telephone

26 numbers of review authorities, e.g. the AAT Registry, as a good administrative practice. Some potential applicants would be less daunted by the prospect of making an application if they initially spoke on the telephone about review procedures to staff of the review authority. However, there may be problems in providing this type of opportunity where the legislation requires applications for external review to be forwarded to the primary decision maker as occurs, for example, in the veterans’ affairs and student assistance areas.

114. Powers of review authority. The Council considers that the notification should give some basic information about the powers of the review authority. In particular, the Council sees a need to allay the fears of some potential applicants for review that there is little point in making an application because the review authority is not sufficiently independent from the decision maker who made the decision affecting them. For example, some students who have been affected by adverse primary decisions under the student assistance legislation have said that they were unwilling to appeal to the Student Assistance Review Tribunal because to do so was merely to appeal from Caesar to Caesar. It is especially important to ensure that applicants know whether the review authority is an independent body with powers to make determinations which are binding on the primary decision maker.

115. Requirements for making applications. The current practice of the Department of Immigration and Ethnic Affairs in criminal deportation cases of including application forms for review of decisions in correspondence with clients is favoured by the Council. However, it does not consider that such a practice should be universally required. The Council considers that persons should be notified of any statutory prerequisites to review, such as internal review (see para 131 below), and whether any format of application is prescribed, such as the requirement under section 29 of the AAT Act that all applications must be made in writing and must set out reasons for the application.

116. Time limits. In order to encourage applicants to make applications within time it is essential that decision makers notify them of any relevant time limits. In cases where a decision maker must make a decision within a prescribed period, such as in the FOI area in relation to internal review, this fact should be communicated to any person who is notified of the decision, along with a statement notifying the person of the consequences of the decision maker not meeting that particular time limit.

117. Access to documents. On the same grounds that the Council has argued that persons ought to be informed that they have a statutory right to obtain reasons for decisions (i.e. they are more ready to accept and understand decisions or are in a better position to decide whether to challenge decisions and, if so, to determine the appropriate grounds of challenge), the Council recommends that a notification of rights of review should refer to rights of access to relevant documents under the FOI Act or any other Act or arrangement. It is recognised that this recommendation might appear to be contrary to the Government’s current policy of not publicising the existence of FOI rights. However, the Council sees a distinction between general community education in the FOI area and notification to persons specifically affected by decisions of their review rights and their rights of access to relevant documents. In the latter case issues of justice to the person concerned are involved and the general principles of sound administration (the rationale for setting up FOI) are ensured. In drawing this distinction, the Council does not express any opinion on the steps taken by the Government to reduce publicity given to the FOI Act.

118. The Council has noted that, in responding to the questionnaire on notification practices, some decision makers, particularly in the compensation area, stated that they preferred to encourage clients to seek access to documents under relevant Acts other than the FOI Act because of the simpler administrative processes applicable under such Acts as compared with the FOI Act. The person’s various rights of access to documents should be briefly outlined in the notification. This would not prevent agencies from advising persons in the notification of the quickest or most efficient

27 method of obtaining access to information where administrative processes existed as an alternative to the FOI Act.

119. While the matters referred to in paragraphs 109 to 118 above should be included in all notifications of rights of review, the Council considers that a number of other matters might be included in notifications, having regard to the possible needs of the persons to whom those notifications are provided. As far as possible notices should be tailored to the needs of the persons to whom they are directed.

120. Legal, financial and other aid. Various legal aid schemes operate throughout Australia and these vary from State to State. In some jurisdictions the availability of legal aid can be a significant factor for a person who is deciding whether or not to seek review of a decision. Advice on this matter might be relevant in certain jurisdictions.

121. Financial assistance to meet legal costs may also be available, for instance under section 69 of the AAT Act. The address to which application may be made for financial assistance and the basic eligibility criteria for that assistance should be notified in cases where a reasonable possibility exists of such assistance being granted.

122. Some other agencies are also available to provide advice and assistance to persons whose interests are affected by decisions. For example, assistance is available to certain categories of persons from welfare rights centres and voluntary legal centres, and bodies such as the R.S.L. and Legacy may be available to assist persons in the repatriation field. It may be appropriate to draw attention to the possible availability of advice and assistance from these bodies in certain cases.

123. Where other forms of financial assistance are provided this should also be mentioned, for instance, travel and accommodation costs associated with attendance before the Social Security Appeals Tribunal.

124. Fees and costs. Persons whose interests are affected by reviewable decisions may need to know whether or not there are any fees associated with the exercise of review rights and the circumstances in which those fees are refundable. They should also be advised of provisions relating to payment and recovery of costs.

125. Procedures of the review body. Some review bodies, especially first tier tribunals, have advantages of speed, economy and relatively informal hearing procedures and it is important that persons whose interests are affected by reviewable decisions be aware of this. Other matters of procedure such as whether attendance at hearings is required, the availability of an interpreter service and whether legal or other representation is permitted should also be mentioned as appropriate.

STAGING OF NOTIFICATIONS 126. As indicated in chapter 1, in some jurisdictions the appeals process can involve a number of stages of review. In the first instance, the primary decision may be reviewed within the decision making agency (internal review) and in some cases there may be an intermediate review body (first tier external review) between internal review and review by the AAT.

127. Some existing legislative notification provisions require decision makers to notify persons of all their rights of review (including internal review and AAT review) at the time of the making of the primary decision and to notify rights of review by the AAT after internal reconsideration of the primary decision has taken place. The Council’s Secretariat was informed by some agencies that telling clients of the whole gamut of review procedures at the outset, i.e. when the primary decision is made, would cause some persons to feel confused and discouraged by the complexity of the review process.

28 128. Many AAT jurisdictions have no intermediate stages of review a primary decision is directly reviewable by the AAT. In such cases, there is no problem with regard to staging of notifications. Problems can arise, however, in jurisdictions where there are one or more levels of review below the AAT (whether internal or external).

129. The Council considers that notification should usually be staged according to how far along the review process the person whose interests are affected by the decision in question has progressed. Where internal review is available, whether or not it is a statutory prerequisite to external review on the merits, the right of internal review should be comprehensively notified at the time of the making of the primary decision. The Council considers that, at that time, brief notification should also be given of all subsequent stages of review which are available if internal review is in any way unsuccessful. Notification of the existence of internal review procedures is important because a matter may be disposed of to the client’s satisfaction at this initial informal stage without having to proceed to external review.

130. The Council does not consider that all review processes need be comprehensively notified at the time of primary decision making, as some clients provided with too much information might become confused or discouraged.

131. In cases where internal review is a statutory prerequisite to external review, the fact of this condition precedent should be emphasised in the notification, so that clients do not mistakenly make premature applications for external review. Also, where internal review is not a statutory prerequisite to external review, this should be emphasised in the notification so that such a procedure is not elevated to a de facto precondition to external review thereby inducing clients to delay the exercise of their rights to apply for external review.

132. Where internal review which is a statutory prerequisite to external review results in a decision adverse to the person affected by it, the person’s right to seek review by an external tribunal should be comprehensively notified. The Council favours the present system of notification in the veterans’ affairs area which has a two tiered structure of external review, where the first tier tribunal rather than the primary decision maker notifies persons of their right to seek further review by the second tier tribunal. Where, as in the social security area, a decision of the first tier tribunal is not determinative and a further determination is required to be made by the primary decision maker, it must necessarily be the primary decision maker who again notifies persons of their rights of review in relation to the second tier tribunal.

LANGUAGE OF COMMUNICATION 133. In the Council’s view the success of any proposals to improve the standard of practice for notifications of rights of review will largely depend upon the ability of those notifications to educate people effectively about their rights of review. This draws attention to two matters in particular:  the need for plain English in notifications; and  the use of non-English forms of notification where necessary.

134. Plain English notification. During the Council’s project on notification of review rights, its attention was drawn to the Simpler Forms Program being conducted within the Australian Public Service. The Program is a result of the plain English movement which has already had considerable success in the United Kingdom, the United States and Canada. In the U.K., the Rayner White Paper entitled Administrative Forms in Government11 resulted in a government policy of re-drafting official documents in plain English. In November 1978 the New York legislature passed a plain English Law which requires all consumer agreements to be written in ‘a clear and coherent manner using words with common and

11 1982 Cmnd. 8504

29 every day meanings’. Professor R.D. Eagleson, the leader of the Australian Simpler Forms Program described the plain English movement as ‘..a demand on the part of citizens to know their rights as consumers’.12 He also stated elsewhere that government policies and programs could not be truly equitable unless all members of the community understood them: ...in writing in the style of officialise or legalise we may be obscuring for some their responsibilities and depriving them of their rights and privileges.’13

135. The Simpler Forms Program is very relevant to notification practices of decision makers, both in relation to written communications informing persons of decisions affecting them and their rights of review, and pamphlets setting out general review rights. The Council urges that departments and agencies seek the advice of leaders of this Program in preparing notices.

12 ‘The Case for Plain English’, unpublished paper given at a Seminar on Plain English and Government Communications, Canberra, 14 June 1983 13 ‘The Commonsense of Plain English’ in Current Affairs Bulletin January 1985, page 15.

30 136. Non-English forms of notification. Parallel with the Plain English movement is the movement pressing for government recognition of information needs of non-English speaking migrants in Australia.14 The Council considers that decision makers should have available information, particularly pamphlets, on review rights in languages other than English so that persons affected by decisions may understand their legal rights.

137. The Council considers that notices of rights should, as a general rule, cater for the needs of persons whose first language is a language other than English. Having in mind considerations of practicability and cost, the Council proposes that notices of rights of review contain a brief advice in multi-language form stating the means by which non-English speaking persons may have the notice interpreted in their first language.

138. There may be circumstances where a decision maker is aware that the person involved has difficulty communicating in English and, in the Council’s view, the decision maker should, wherever practicable, take steps to assist the person in having material interpreted in his or her first language in such circumstances.

CONTACT OFFICERS 139. The Council is aware that some government agencies advise persons affected by decisions of the name and telephone number of an officer who is available to discuss the decision with them and to elaborate on the reasons for the decision. Given the high illiteracy rates in some areas of the community, a facility for oral communication is highly desirable and Council considers that, if a contact officer is available, the name and telephone number of that officer should be given. In the view of the Council this approach should continue as an adjunct to the provision of written reasons on request.

140. When referring to a contact officer in the body of a letter, decision makers should indicate the availability of the officer to explain any query the person may have, whether in relation to the decision itself or review rights. As noted at paragraph 88 above, oral advice can often be more effective than written advice, and is particularly helpful where the person affected by a decision is not literate or is not a fluent English speaker. Where the person is not fluent in English, oral advice can be given through interpreter services, such as the Department of Immigration and Ethnic Affairs’ Telephone Interpreter Service. Contact officers who are nominated in notification correspondence would need to be adequately trained in order to provide informative advice to clients.

THE CODE 141. The principles concerning notification of decisions and rights of review which are discussed above (paragraphs 98-140) have been consolidated below in the form of a code.

14 See Report of the Review of Post-Arrival Programs and Services for Migrants, P.P. 164/ 1978; Report to the Commonwealth Department of Immigration and Ethnic Affairs by W.D. Scott and Company, Survey Into the Information Needs of Migrants In Australia, A.G. P.S. 1980; Australian Institute of Multicultural Affairs, Evaluation of Post-Arrival Programs and Services, 1982; N.S.W. Ethnic Affairs Commission, Participation, 1978; and Family and Children’s Services Agency, Handbook: How to Provide Information to Non-English Speakers, N.S.W Government Information Service, 1983.

31 Recommendation 5: Code of practice for notification of decisions and rights of review This Code should be observed by persons making decisions under Commonwealth laws that are subject to review by the Administrative Appeals Tribunal, either immediately or after the completion of prior review procedures (i.e. internal review by a person or body within the decision making agency and/or external review by a body other than the AAT which is separate from the agency). Such decisions are referred to in this Code as ‘reviewable decisions’. The Code is designed to ensure that persons are advised of reviewable decisions and are aware of their rights to seek review of those decisions on the merits. Government agencies should ensure that decision makers are aware of the contents of this Code and comply with its requirements. As the Code establishes minimum standards of practice, government agencies are encouraged to augment the Code for the purposes of its application within their jurisdictions, provided that any augmentation is not inconsistent with the provisions of the Code.

Persons to be notified of decisions and rights of review 1. A person should be notified in writing of a reviewable decision that: (a) is made on an application by the person; (b) grants or refuses the person a right, entitlement or benefit; (c) varies a right, entitlement or benefit of the person; (d) imposes an obligation, requirement or disability on the person; or (e) makes a valuation or declaration which relates to the person.

2. Where notice of a reviewable decision is given to a person, whether pursuant to a legislative requirement or otherwise, the person should, at the same time, be given written notice that he or she may have a right to have the decision reviewed on the merits.

3. Where a reviewable decision is made that is not a decision of a kind referred to in paragraph 1 and: (a) the persons whose interests may be affected by the decision are not all readily identifiable; (b) the number of persons whose interests may be affected by the decision is large; or (c) the cost of individual notification would be substantial, the decision maker should give public notice of the decision and of the rights of review in respect of the decision. This should not preclude individual notice being given in particular instances provided that it is not given earlier than the public notice.

Contents of notices 4. Every notice of rights of review should, in simple and brief terms, inform the person to whom it is given of at least the following information: (a) any statutory right of the person to request reasons for the decision (if reasons complying with that statutory right have not already been given); (b) the name and location of the review authority; (c) whether the review authority is independent of the agency which made the decision and whether that authority has power to vary or overturn the decision; (d) the manner in which applications for review are to be made and any time limits applying to applications; (e) any time limits applying to the review authority in respect of the review of the decision; and (f) any right that the person has to obtain access to documents under the Freedom of Information Act or any other Act or administrative arrangement, and the basic procedures for exercising that right.

5. In addition to the information set out in paragraph 4 above, agencies should consider for inclusion in notices information concerning:

32 (a) the availability of legal, financial and other forms of advice and assistance; (b) whether or not fees are payable in respect of applications for review and whether or not there are provisions permitting costs to be awarded against parties to the proceedings; and (c) procedures of the review authority of which the persons to whom notices are directed should particularly be aware.

Staging of notifications 6. In jurisdictions where prior review is a prerequisite to review by the Administrative Appeals Tribunal: (a) Notices of rights of review should usually be staged according to how far along the review process the person has progressed. (b) Notification of the immediate level of review should be given and brief notification of the subsequent level or levels of review should also be given. (c) Notices should indicate whether or not a particular level of review is a statutory prerequisite to further review.

Plain English 7. Notification of rights of review should be given in plain English.

Translations 8. Where a standard form of notice about rights of review is given, it should also incorporate a brief notice in multi-language form which advises of means by which non-English speaking persons may have the notice interpreted in their first language. Where a notice is given to a person who the agency knows has difficulty in reading English, it should, wherever practicable, also incorporate advice in an appropriate language of means by which that person may have the notice interpreted in his or her first language.

Contact officers 9. Where there is a contact officer the notification should give the name and telephone number of that officer as a person who is available to discuss the decision.

33 CHAPTER 5 COST OF COUNCIL’S PROPOSALS

142. In developing its proposals relating to notification the Council has been conscious of the need to avoid taking decisions in a vacuum without regard to the pressures of current economic realities, and the Council is confident that the cost implications of its proposals will not be significant. A number of factors operate to ensure that costs will not be high:  Notification of decisions and rights of review on an individual basis is already well established in many areas of government administration. In the main, the Council’s proposals are designed to rationalise and systematise this process and to ensure that its performance is effective. No radical restructuring of the existing system is proposed.  In general the Council’s proposals will not impose practices on government agencies which are detailed and costly. The requirements contained in the Council’s recommendations are designed to set minimum standards.

143. The Council’s proposals will not have significant cost implications in the high volume jurisdictions. For instance, the Department of Social Security would not be required to increase expenditure. At present that Department issues an estimated 4.5 million written decisions and notices of rights annually. As indicated elsewhere in. this report the Department issues computer produced decisions which have notices of rights pre-printed on the reverse side. (In addition to notices of rights other notices to beneficiaries of the Department are also contained in the advices.) There would be no additional cost to the Department in implementing the Council’s recommendations as the Department already meets those requirements so far as the distribution of decisions and notices are concerned. The changes required would involve some redrafting of the notice of rights, and this would be done at the next reprint of the forms without additional cost. With minor exceptions, the Department of Social Security’s practices regarding inclusion of advice about the review system in information leaflets also already meet the Council’s requirements.

144. In other high volume jurisdictions, such as Commonwealth employees compensation, the Council’s proposals will also result in a review of the content of the notices rather than an increase in the volume of notices issued and therefore costs will not be increased. In others such as Veterans’ Affairs and Commonwealth Superannuation, however, there will be some increased costs because there are some decisions made where the person affected is not advised of his or her rights of review.

145. There are some jurisdictions where poor notification practices exist, and although none of the high volume jurisdictions comes within this category, there will be cost implications in the jurisdictions involved. It should be emphasised that in the jurisdictions concerned current practices are such that applicants are not given written notice of decisions affecting them or are given notice of decisions but not of their rights to seek review of those decisions.

34 146. There could also be cost implications resulting from some increase in appeals generated by wider notification of rights of review, at least in the short term. On the limited information available it is not possible to make accurate predictions, but in the Council’s view any such costs are likely to be absorbed by existing resources. In the long term the costs should not be significant.

147. If government agencies follow the Council’s recommendations closely so far as the contents of notices are concerned there may even be some savings in some areas. The Council is convinced that if people are openly and clearly informed of their rights and of the bases of decisions affecting them they will be less likely to appeal than where they are not fully and clearly advised of decisions and rights.

35 APPENDIX LEGISLATIVE REQUIREMENTS TO NOTIFY OF REVIEW RIGHTS

Note; Legislation introduced after 30 June 1986 is not included in this Table.

Legislation Source of Notification Type of Provision Notification Air Navigation (Aircraft Noise) Regulations sub-reg. 13(2) A Air Navigation (Charges) Act 1952 sub-s. 5K(1) I Air Navigation (Charges) Regulations sub-reg. 6(6) A Air Pollution Ordinance 1984 (ACT) s.45 D Archives Act 1983 sub-s.40(5) B Australian Citizenship Act 1948 s.52B A Australian Citizenship Regulations sub-reg. 10(3) A Australian Meat and Live-stock Corporation Act 1977 sub-s.16U(1) A Australian National Railways Commission Act 1983 sub-s.76(4) A Bookmakers Ordinance 1985 (ACT) sub-s.51(2) A Bounty (Agricultural Tractors) Act 1966 s.18B A Bounty (Agricultural Tractors and Equipment) Act 1985 sub-s.36(1) A Bounty (Berry Fruits) Act 1982 s.24 A Bounty (Commercial Motor Vehicles) Act 1978 sub-s.22A(1) A Bounty (Computers) Act 1984 s.33 A Bounty (Electric Motors) Act 1984 s.35 A Bounty (High Alloy Steel Products) Act 1983 s.24 A Bounty (Injection-Moulding Equipment) Act 1979 s.22A A Bounty (Metal Working Machines and Robots) Act 1985 s.41 A Bounty (Room Air Conditioners) Act 1983 s.22 A Bounty (Ships) Act 1980 s.20A A Bounty (Steel Mill Products) Act 1983 s.25 A Bounty (Tractor Cabs) Act 1983 s.21 A Bounty (Two-stroke Engines) Act 1983 s.22 A Business Franchise (Tobacco and Petroleum Products) Ordinance 1984 (ACT) s.38 D Canned Fruits Levy Act 1979 s.12A, Canned Fruits Levy Collection Act 1979 A Canned Fruits Levy Collection Act 1979 s.12A A Chiropractors Registration Ordinance 1983 (ACT) s.57 D City Area Leases Ordinance 1936 (ACT) sub-ss.11A(9E) and 188(5) C and D Commonwealth Electoral Act 1918 sub-ss.141(8) and (9) E and K

36 Legislation Source of Notification Type of Provision Notification Compensation (Commonwealth Government Employees) Act 1971 para. 61(1)(c) F Consumer Affairs Ordinance 1973 (ACT) s.15J J Co-operative Societies Ordinance 1939 (ACT) s.808 D Cotton Research Act 1982 sub-s.29(2) A Credit Ordinance 1985 (ACT) sub-s.262(3) A Customs Act 1901 s.273K A Customs Regulations reg. 138B A Customs (Cinematograph Films) Regulations sub-reg. 34(3) A Customs Tariff Act 1982 s.273K, Customs Act 1901 A Customs Tariff (Coal Export Duty) Act 1975 s.273K, Customs Act 1901 Dairy Industry Stabilisation Act 1977 sub-ss.24A(3) and (4) A Dangerous Goods Ordinance 1984 (ACT) para. 29(1)(i) D Defence Force Regulations sub-reg. 71(3) A Dentists Registration Ordinance 1931 (ACT) sub-s.39(2) K Electoral and Referendum Regulations sub-reg. 40A(8) K Electricity Ordinance 1971 (ACT) s.32 ZE D Excise Regulations reg. 248 A Export Inspection (Charge Collection) Act 1985 sub-s.16(7) I Export Market Development Grants Act 1974 s.40AA I First Home Owners Act 1983 s.28 I Fisheries Act 1952 sub-ss.125(7) and (8) A and E Freedom of Information Act 1982 sub-s.26(1) B Great Barrier Reef Marine Park Regulations reg. 22A I Health Authority Ordinance 1985 (ACT) sub-s.49(3) K Health Insurance Act 1973 s.38A I Home Deposit Assistance Act 1982 s.48 C Honey Levy Collection Act 1962 sub-s.12A(2) A Immigration (Guardianship of Children) Act 1946 s.11B I Insurance Act 1973 s.138A A and E Insurance (Agents & Brokers) Act 1984 s.43 A Interstate Road Transport Act 1985 sub-s.51(7) E Land Valuation Ordinance 1936 (ACT) sub-s.7(8) C Legal Aid Ordinance 1971 (ACT) sub-s.60(4) D Life Insurance Act 1945 s.138A I Liquefied Petroleum Gas (Grants) Act 1980 s.15A A Liquid Fuel Emergency Act 1984 sub-ss.44(7) and (8) I Live-stock Slaughter (Export Inspection Charge) Collection Act 1984 s.10B I Live-stock Slaughter Levy Collection Act 1964 sub-s.15A(2) A Management & Investment Companies Act 1983 s.48 K Meat Chicken Levy Collection Act 1969 sub-s.10A(2) A Meat Export Charge Collection Act 1984 s.126 E & I Meat Orders orders 42.8 A Meat Inspection (General) Orders order 14 L

37 Legislation Source of Notification Type of Provision Notification Meat Inspection (New South Wales) Orders order 157 A Meat Inspection (Australian Capital Territory) Orders order 89 A Medical Practitioners Registration Ordinance 1930 (ACT) sub-s.39D(2) D Mental Health Ordinance 1983 (ACT) sub-s.68(2) F Motor Traffic Ordinance 1936 (ACT) sub-ss.150B(6) and 150C(3) D National Health Act 1953 sub-ss.105A(C)(1AA), 105AC(1B), 105AC(1A) and (1B) I National Health Regulations sub-ss.105AC(1AA) and 105AC(1B(a) of National Health Act 1953 I National Occupational Health and Safety Commission Act 1985 sub-s.63(8) A Navigation Act 1912 sub-s.424A(2) and (4), 424B(2) and (4) A Navigation (Orders) Regulations sub-reg. 3A(8) A Nursing Homes Assistance Act 1974 s.11B I Passports Act 1938 s.11B A and E Passport Regulations sub-s15(1) A Petroleum (Submerged Lands) Act 1967 sub-ss.152(8) and (9) A and E Pharmacy Ordinance 1931 (ACT) sub-s.53(2) D Plumbers, Drainers and Gasfitters Board, Ordinance 1982 (ACT) para. 33(1)(b) D Poultry Industry Levy Collection Act 1965 s.11A A Prescribed Goods (General) Orders order 118 A Protection of Moveable Cultural Heritage Act 1986 sub-s.48(2) I Quarantine (Animals) Regulations sub-reg. 86G(2)(b) F Radiation Ordinance 1983 (ACT) s.73 D and G Radiocommunications Act 1983 s.87 I Registration of Deaths Abroad Act 1984 sub-s.27(2) A Sales Tax Assessment Act (No. 1) 1930 sub-s.44B(6) A Seaman’s War Pensions and Allowances Act 1940 sub-ss.34(2) and 140(1) of Veterans’ Entitlements Act 1986 H Sex Discrimination Act 1984 s.46 A Shipping Registration Act 1981 sub-s.78(3) A Statute Law (Miscellaneous Amendments) (Patents) Regulations sub-reg. 4(2) K

38 Legislation Source of Notification Type of Provision Notification

Therapeutic Goods Act 1966 sub-s.29A(2) A Veterinary Surgeons Registration Ordinance 1965 (ACT) sub-s.28A(2) D Unit Titles Ordinance 1970 (ACT) sub-s.16(6) D Veterans’ Entitlements Act 1986 sub-ss.34(2), 62(2) and 140(1) H Water Pollution Ordinance 1984 (ACT) sub-s.41(2) D Wildlife Protection (Regulation of Exports and Imports) Act 1982 sub-s.52(2) and (3) G

39 Key to Appendix

Type ‘A’ Notification: ‘A notice shall include a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, (an) application may be made to the Administrative Appeals Tribunal for review of the decision to which the notice relates (by or on behalf of a person whose interests are (adversely) affected by the decision) (if he is dissatisfied with the decision)’.

Type ‘B’ Notification: ‘...the decision maker shall cause the applicant to be given notice in writing of the decision and the notice shall - ... give to the applicant appropriate information concerning; (i) his rights with respect to a review of the decision; (ii) his rights to make a complaint to the Ombudsman in relation to the decision; and (iii) the procedure for the exercise of the rights referred to in sub-paragraphs (i) and (ii), including (where applicable) particulars of the manner in which an application for review ... may be made’.

Type ‘C’ Notification: ‘A written notification of a decision ... to the person shall include the terms of section (X)’.

[Section (X) is the provision conferring jurisdiction on the Administrative Appeals Tribunal to review the decision in question.]

Type ‘D’ Notification: ‘A notice ... shall include a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, the [applicant etc] is entitled to apply to the Administrative Appeals Tribunal for a review of the decision to which the notice relates’.

Type ‘E’ Notification: ‘A ... notice shall include a statement to the effect that a person affected by the decision: (a) may, if he is dissatisfied with the decision, seek a reconsideration of the decision, and (b) may, subject to the Administrative Appeals Tribunal Act 1975, if the person is dissatisfied with a decision made ... upon that reconsideration, make application to the Administrative Appeals Tribunal for review of the decision’.

Type ‘F’ Notification: ‘A notice ... shall contain a statement notifying the applicant ... of his right, (subject to the Administrative Appeals Tribunal Act 1975,) to apply to the Administrative Appeals Tribunal for review of the decision to which the notice relates’.

Type ‘G’ Notification: ‘The [decision maker] shall cause to be published in the Gazette a notice containing ... a statement of the effect that subject to the Administrative Appeals Tribunal Act 1975, a person whose interests are adversely affected by the decision is entitled to apply to the Administrative Appeals Tribunal, for a review of the decision’.

40 Type ‘H’ Notification: ‘... the [primary decision maker] shall ... cause to be served ... on the claimant or applicant ... a copy of its decision ... together which particulars of the right of the person on whom it is served to have the decision reviewed by, the [external review tribunal]’.

‘Where the [external review tribunal] reviews a decision of the ... [primary decision maker] it shall ... cause to be served ... on the applicant ... particulars of the person’s right to make application to the Administrative Appeals Tribunal for a review of the decision of the... [primary decision maker] affirmed by that decision of the ... [external review tribunal] or the decision of the ... [external review tribunal] in substitution for the decision of the... [primary decision maker] set aside by the ... [external review tribunal], as the case may be’.

Type ‘I’ Notification: ‘ the notice shall include a statement to the effect that a person affected by the decision - (a) may seek a reconsideration of the decision ...; and (b) may, subject to the Administrative Appeals Tribunal Act 1975, if dissatisfied with a decision make upon reconsideration affirming or varying the reviewable decision, make application to the Administrative Appeals Tribunal for review of the reviewable decision.

Where ... a decision [is made upon reconsideration] affirming or varying a reviewable decision, the notice ... shall include a statement to the effect that a person affected by the decision as so affirmed or varied may, subject to the Administrative Appeals Tribunal Act 1975, make application to the Administrative Appeals Tribunal for review of the reviewable decision’.

Type ‘J’ Notification: ‘A notice under this section [published in the Gazette and a newspaper] shall include a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, a person whose interests are adversely affected by the decision to which the notice relates may apply to the Administrative Appeals Tribunal for a review of the decision’.

Type ‘K’ Notification: ‘a written notice of the decision given to the person shall include a statement to the effect that a person (whose interests are affected by the decision) may, subject to the Administrative Appeals Tribunal Act 1975, (if he is dissatisfied with the decision) make an application to the Administrative Appeals Tribunal for review of the decision’.

Type ‘L’ Notification: ‘ a notice shall contain a statement to the effect that application may be made for ... [internal] review of the notice by or on behalf of the person or persons whose interests are affected by the notice.

Where ... a decision [is made] to confirm or vary a notice ... the [decision maker] shall give to the person or persons whose ‘interests are affected by the decision, notice in writing which shall include a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Tribunal for review of the decision to which the notice relates by or on behalf of the person or persons whose interests are affected by the decision.

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