ADMINISTRATIVE REVIEW COUNCIL
TWENTY-SIXTH ANNUAL REPORT 2001 - 2002 Contacting the Administrative Review Council
For information about this report, or more generally about the Council’s work, please contact:
The Executive Director Administrative Review Council Robert Garran Offices National Circuit BARTON ACT 2600
Telephone: (02) 6250 5800 Facsimile: (02) 6250 5980 e-mail: [email protected] Internet: law.gov.au/arc
The offices of the Administrative Review Council are located in the Robert Garran Offices, National Circuit, Barton ACT.
© Commonwealth of Australia 2002
ISBN 0 642 21070 5
This work is copyright. Apart from any use permitted under the Copyright Act 1968 no part may be reproduced by any process without written permission.
ii ADMINISTRATIVE REVIEW COUNCIL
29 October 2002
The Hon Daryl Williams AM QC MP Attorney-General Parliament House CANBERRA ACT 2600
Dear Attorney-General
In accordance with section 58 of the Administrative Appeals Tribunal Act 1975, I am pleased to present you with this report on the operation of the Administrative Review Council for the year 2001-2002.
Yours sincerely
Wayne Martin QC President
Wayne Martin QC Justice Garry Downes AM Ron McLeod AM Professor David Weisbrot Bill Blick PSM Christine Charles Robert Cornall Professor Robin Creyke Stephen Gageler SC Patricia Ridley
Robert Garran Offices, National Circuit, Barton ACT 2600 Telephone: (02) 6250 5800 Facsimile: (02) 6250 5980 e-mail: [email protected] Internet: law.gov.au/arc
iii
Photograph of the Council at 28 June 2002. Those photographed are:
Standing: Stephen Gageler SC, Ron McLeod AM, Bill Blick PSM, Justice Garry Downes AM.
Seated: Professor Robin Creyke, Wayne Martin QC, Kelly Williams (Acting Executive Director).
Not included: Christine Charles, Robert Cornall, Patricia Ridley, Professor David Weisbrot.
Photograph by Norman Plant
iv A Tribute to Bettie McNee
It is with great sadness that the Council reports the death on 11 March 2002 of its President, Bettie McNee. Bettie was a valued colleague and friend to Administrative Review Council members and Secretariat staff who worked with her.
At the time of her appointment as President of the Council in 1999, Bettie was Group Secretary and General Counsel of Westpac Banking Corporation. She enjoyed an impressive professional reputation including as a partner of Freehill Hollingdale and Page, where she was managing partner of its Federal Government practice in Canberra and national co-ordination partner of the national firm with responsibility for the implementation of national and international policies. Through a number of positions on government and private sector boards and advisory bodies, she also made a significant contribution to the community.
As President, Bettie provided excellent leadership to the Council and its Secretariat, displaying considerable dignity and courage as she continued to promote the interests of the Council despite her illness. In opening proceedings on the 25th anniversary of the Council's establishment on 6 December 2001, her last public act as Council President, she was able to mark her place as part of the strong tradition of Council Presidents.
At its 201st meeting on 28 June 2002, the Council recorded its regret at Bettie’s death, and its appreciation for her wide-reaching contribution, as President, to the work of the Council.
v Contents
CHAPTER 1...... 1
OVERVIEW...... 1
Introduction...... 1
Work of the Council...... 1
Changes in Council Membership ...... 3
CHAPTER 2...... 5
WORK AND PERFORMANCE OF COUNCIL...... 5
Introduction...... 5
An assessment of the work of the Council during 2001 - 2002...... 6
Reports ...... 6
Advice and submissions to Government and Parliament ...... 8
Educational and training activities ...... 9
Other work of the Council ...... 14
Current Projects...... 14
CHAPTER 3...... 17
MANAGEMENT AND ACCOUNTABILITY...... 17
Enabling legislation ...... 17
Responsible Minister ...... 17
Annual Report...... 17
Functions and powers of the Council...... 17
Membership...... 17
Current members of the Council's Secretariat ...... 19
Council Expenditure...... 20
The Council's meeting dates...... 21
Consultancy services ...... 22
vi Social justice and equity issues ...... 22
Equal employment opportunity program...... 23
Occupational health and safety issues...... 23
Freedom of information...... 23
Advertising and market research...... 26
Ecologically sustainable development and environmental performance ...... 26
APPENDIX 1 - SECTION 51, ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975...... 27
APPENDIX 2 - LETTERS OF ADVICE ...... 29
APPENDIX 3 - PUBLICATIONS OF THE ADMINISTRATIVE REVIEW COUNCIL ... 51
APPENDIX 4 - STATUS OF THE COUNCIL’S RECOMMENDATIONS...... 55
APPENDIX 5 - THE COUNCIL’S EXPENDITURE, 1 JULY 2001 TO 30 JUNE 2002 ...... 63
vii
CHAPTER 1
OVERVIEW
Introduction
The 2001-2002 reporting year was a challenging and successful one for the Council, sadly, overshadowed by the untimely death, on 11 March 2002, of Council President, Bettie McNee.
Work of the Council
It is a mark of her singular determination, commitment and courage, that although gravely ill, Bettie continued to provide significant direction and drive to the work of the Council until very shortly before her death. As a result of this determination, two significant projects in progress at the commencement of the 2001- 2002 reporting year came to fruition during the course of the year.
They were:
S the launch of the Council publication, A Guide to Standards of Conduct for Tribunal Members (the Guide); and S the establishment of a Council of Australasian Tribunals.
The Guide was launched by the Commonwealth Attorney-General, the Hon Daryl Williams AM QC MP, on 3 October 2001.
The Guide was developed by the Council following an extensive consultation process including the release of an Exposure Draft Principles of Conduct for Members of Merits Review Tribunals, and discussion forums with tribunal heads, members, agencies and other stakeholders.
The high level of interest in the Guide, evident during the course of the extensive consultation process preceding its publication, continued following its release, with requests for copies of the publication being received from a wide range of Commonwealth, State and Territory tribunals. In some cases, copies of the Guide have been requested by tribunals for distribution to all members. The Council finds this a most gratifying response to its work in this area.
The Council of Australasian Tribunals (the COAT) was formed in Melbourne on
1 6 June 2002 at a meeting of Commonwealth, State, Territory and New Zealand presiding officers. At that meeting, the COAT Constitution was adopted and office holders were elected to serve on the inaugural COAT.
From the meeting of the Council in March 2001 at which it was decided to further develop earlier proposals for the establishment of a council of tribunals, the Council played a key role in the achievement of this result. Following the establishment at preliminary meeting of presiding officers of tribunals in Sydney on 3 October 2001 of a COAT Steering Group, the Council’s Secretariat provided secretariat support to the Group until the establishment of the COAT on 6 June 2002.
The year was also marked by the celebration, on 6 December 2001, of the Council’s 25th Anniversary.1
To mark the occasion, there was a presentation by Emeritus Professor Dennis Pearce in the House of Representatives Chamber in Old Parliament House. The presentation was preceded by introductory comments from the President of the Council. It was followed by a dinner, hosted by Council Member, Wayne Martin QC. Those attending the dinner included the Attorney-General, the Hon Daryl Williams AM QC MP, former Attorneys-General, Council Presidents, Council Members and staff, as well as people who have had an interest in the work of the Council over the years.
The three activities served to highlight the work of the Council. The Guide and the establishment of the COAT allowed the Council to tap into the interest and enthusiasm of a wide range of stakeholders. The 25th Anniversary celebrations focussed attention on the past work, achievements and future directions of the Council.
The 25th Anniversary celebrations were marked by a range of encouraging remarks about the Council. The following comments conveyed to those attending the anniversary dinner in a message from the Prime Minister, the Hon John Howard MP, are reflective of the sentiments of the occasion:
‘The Council’s establishment in 1975 was a significant element in a series of reforms which have shaped Australia’s administrative law system. As an adviser to Government, the Council has made, and continues to make, a substantial contribution to the development of our system of administrative law.’
1 The Administrative Review Council was established on the commencement of the Administrative Appeals Tribunal Act 1975 and held its first meeting on 15 December 1976.
2 Projects commenced during the previous year were also progressed significantly during the current reporting year. At the end of the reporting year, work on a discussion paper for the scope of judicial review project, and an issues paper for the project relating to the use of automated assistance (or expert systems) in administrative decision-making were well advanced. Both projects have already attracted considerable interest from a range of stakeholders.
During the year, the Council also continued to provide broad support to the Commonwealth system of administrative decision-making and review. Examples of the Council's work in this area include: S letters of advice and submissions in relation to aspects of administrative review, administrative law and public administration (see Appendix 2); and S production of the Council’s administrative law bulletin, Admin Review, which provides information on the current work of the Council and general developments (including tribunal and judicial decisions) affecting the Commonwealth system of administrative review.
Changes in Council Membership
During the year, the Hon Deirdre O’Connor retired as President of the Administrative Appeals Tribunal on 5 March 2002, and her ex officio position on the Council was filled by the acting President of the Tribunal, the Hon Justice Garry Downes AM.
At its June 2002 meeting, the Council thanked Deirdre O’Connor for her contribution to the work of the Council and extended a warm welcome to her successor, Justice Downes.
At the June meeting, the Council also extended its congratulations to Council Member, Robin Creyke, upon her appointment to the position of Professor of Law at the Australian National University.
The Council is pleased also to note the extension of the term of appointment of Council Member Patricia Ridley from November 2001 until November 2003.
Subsequent to the reporting period, Wayne Martin QC has been appointed to the position of President of the Council.
3
CHAPTER 2
WORK AND PERFORMANCE OF COUNCIL
Introduction
The statutory functions of the Administrative Review Council (the Council) are set out in section 51 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). A copy of this provision is at Appendix 1.
When the Council was first established some twenty-five years ago, its primary function was that of identifying those administrative decisions that should be subject to review and to oversee the procedures of review bodies within the administrative review system. Both these functions are reflected in section 51 of the AAT Act. Additionally, over time, the Council has developed a broader function involving oversight of the administrative law system and inquiry into the procedures used by authorities of the Commonwealth and others when overseeing administrative discretions. These functions and the Council’s educational role were formally recognised in 1999 amendments to the AAT Act.2
This legislative expansion of the functions of the Council has been accompanied by an expansion in the challenges confronted by the Council in its overseeing role of the Commonwealth administrative system. As observed by the Hon Justice Michael Kirby AC CMG on the occasion of the Council’s 25th Anniversary celebrations:
‘The work of the Council continues…It should not be thought that the work of the Council is over, or that the best lies in the past…The challenges of the present are different. Privatisation, outsourcing, international obligations, globalisation of administration and the influence of the principles of universal human rights present new and important challenges for administrative law reform in the twenty-first century. The biggest challenges for the Council therefore lie ahead.’3
The Council’s response to changing times has been publicly acknowledged in a speech by the Attorney-General, the Hon Daryl Williams AM QC MP:
2 The amendments stemmed from recommendations of the Senate Legal and Constitutional Legislation Committee, Report on the Role and Functions of the Administrative Review Council, June 1997. 3 Excerpt from address on the occasion of the Council’s 25th Anniversary celebrations, 6 December 2001.
5 ‘Since I have been Attorney-General, the Council has published on a range of issues, including guidelines for preparing statements of reasons, a best practice guide on internal review of agency decision-making, a guide to standards of conduct for tribunal members and a report on the contracting out of government services.
‘The Council has made a valuable contribution to the debate on these and other issues.’4
An assessment of the work of the Council during 2001 - 2002
Both in quantitative and qualitative terms, the 2001 – 2002 reporting year was a productive one for the Council. In assessing the contribution made by the Council during the year, its work may be broadly divided into three main categories:
- report writing; - advice to government on specific issues and general liaison with agencies on matters relating to administrative decision-making and review; and - educational and informational activities through publications and seminars.
Reports
The Council's reports provide a concise statement of administrative law and practice in relation to the subject matter of the report. They are designed to make an important and unique contribution to debate and discussion of administrative law issues, both within government and the wider community.
Reports may be prepared by the Council either at its own instigation or at the request of the Attorney-General (section 51C AAT Act). Reports submitted to the Attorney-General are required to be tabled in the Parliament.
Although no reports were finalised during the reporting year, there were a number of encouraging developments in the implementation of reports of previous reporting years.
Government response to Council reports
The Senate Legal and Constitutional Legislation Committee's 1997 Report on the Role and Function of the Administrative Review Council recommended that the Government give an undertaking to respond to all reports within 12 months of their delivery. That recommendation was not accepted by the Government.
4 Excerpt from speech delivered at the 2002 Australian Institute of Judicial Administration Conference Dinner, Melbourne, 6 June 2002.
6 Such reports can, nevertheless, have an important impact on the development of government policy. It has been noted by the Attorney-General that:
‘The Government always carefully considers the Council’s work, even if it is not as quickly as the Council would prefer.
‘…Just because all the Council’s recommendations are not accepted by the Government does not mean that they are ignored. The Council’s work contributes to the debate within the Government and the broader community on particular issues, whether it is ultimately implemented or not.’5
A complete list of the titles of the Council's reports together with details of other Council publications not of the status of reports is at Appendix 3.
An update on the implementation by Government of recommendations made by the Council in its reports is at Appendix 4.
Wider impact of Council reports
The recommendations made in Council reports can have a broad impact on the administrative system through their consideration and adoption by other bodies. The impact of Council reports can thus be of a longstanding nature.
During the 2001 – 2002 reporting year, recommendations for changes made in the Council’s Review of the Administrative Decisions (Judicial Review) Act, The Ambit of the Act, Report No 32 of 1989, have been tentatively recommended by the Law Reform Commission of Western Australia in its Discussion Paper Judicial Review of Administrative Decisions, Options for Reform (June 2002), for adoption in that State.
The tentative recommendations advanced by the Western Australian Law Reform Commission having regard to Report No 32 include:
S the extension of the operation of proposed judicial review legislation in that State to decisions of an administrative character not made under legislation but which relate to the use of funds authorised or appropriated by the Parliament (Recommendation 1 of the Council Report); S the extension of the Act to decisions of the Governor-General (Recommendation 2 of the Council Report); and S that the Court have a general discretion to refuse relief (Recommendation 15 of the Council Report).
5 Speech by the Hon Daryl Williams AM QC MP on the occasion of the Council’s 25th anniversary celebrations, 6 December 2001.
7 There are also references to a number of Council reports in the Australian Law Reform Commission’s Discussion Paper 65, April 2002, Securing Compliance: Civil and Administrative Penalties in Australian Federal Regulation.6
Other
Additionally, Council reports are widely relied on in tertiary education institutions by both academics and students. This is reflected in the steady stream of requests for copies of Council reports received by the Council Secretariat each year.
Copies of Council reports and other Council publications are also published on the Council’s website (law.gov.au/arc). The website is an important ‘public face’ for the Council, also containing details of Council membership and of letters of advice provided to government during each reporting year.
Prior to the end of the 2001 – 2002 reporting year, the Secretariat was engaged in a revision and updating of the Council’s website to ensure that it accurately reflected the current work and membership of the Council.
Over the reporting year, the Council's website received 5, 381 hits, compared to 5, 827 hits in 2000 – 2001.
Advice and submissions to Government and Parliament
In addition to the preparation of reports, the Council also pursues other opportunities to assist in the development of administrative law policy. Letters of advice, usually directed at specific aspects of the administrative law system or public administration, form an important aspect of the Council’s work.
To the end of June 2002, the Council had produced approximately 250 letters of advice and submissions to Ministers, parliamentary committees and government agencies.
Subject to instances where the public interest may require that publication of a letter should be deferred, for example, where a matter remains under active consideration by the Government, or would disclose considerations of Cabinet, the Council has, since its Tenth Annual Report in 1985 – 1986, published its advices in its annual reports.
In his presentation on the occasion of the Council’s 25th Anniversary celebrations, Emeritus Professor Dennis Pearce noted that the Council’s advices:
6 Better Decisions: Review of Commonwealth Merits Review Tribunals, Report No 39 (1996), The Contracting Out of Government Services – Report to the Attorney-General, Report No 42 (1998), Internal Review of Agency Decision Making, Report No 44 (2000).
8 ‘… provide useful guidance to public administrators and administrative law practitioners on a diversity of issues. They are a very significant collection of wisdom. Any assessment of the value of the ARC cannot ignore this contribution.’7
In his presentation, Professor Pearce also observed that the number of advices provided to Government by the Council had been declining over the last few years, with only four advices being provided during 2000 – 2001.8 This trend seems to have been arrested somewhat during the 2001 – 2002 reporting year, with formal written advice being provided by the Council on seven occasions. An eighth advice was being finalised at the end of the reporting period. It will be published in next year’s report.
As noted by Professor Pearce, it is to the advantage of agencies to approach the Council at an early stage in the legislative process as the Council may raise similar issues to those identified by the Senate Scrutiny of Bills Committee once a Bill is introduced. Towards the end of the 2001 – 2002 reporting year, the Council was actively pursuing ways in which early contact with the Council by agencies might be encouraged.
A consequence of early involvement in the legislative process is the increasing likelihood that the advice will not be able to be published in the annual report because of its proximity to the deliberations of government. Four such advices, relating to draft legislation and coordination comments provided by the Council in response to a Cabinet submission, are not reproduced in the report.
Letters of advice included in the report are at Appendix 2.
Educational and training activities
Publications
The Council provides copies of all of its reports to students, academics, libraries, and educational institutions, both in Australia and overseas, either as a matter of course or on request. The Council considers that this is an important means of encouraging debate and discussion about administrative law, as well as encouraging positive and educated change in public administration.
7 Excerpt from address delivered at Old Parliament House on the occasion of the Council’s 25th anniversary celebrations, 6 December 2001. 8 There was a further advice to the Attorney-General during the 2000 – 2001 reporting year. It was not included in the 2001 2002 Annual Report, however, in view of the fact that the establishment of the COAT was still in progress.
9 All Council publications are educative in a broad sense, in so far as they contain a compendium of the law on issues under consideration. In recent years however, the Council has released a number of significant publications aimed specifically at improving administrative decision-making and review. As noted by Emeritus Professor Pearce in his 25th Anniversary presentation:
‘These are necessary aids to decision-making for government officers. They are also valuable guides to persons affected by government decisions in setting out the standards with which the public can expect government officers to comply.’9
A Guide to Standards of Conduct for Tribunal Members, published by the Council in September 2001 and launched on 3 October 2001, by the Attorney-General is reflective of this trend.
The Guide was developed by the Council following an extensive consultation process including the release of an Exposure Draft, Principles of Conduct for Members of Merits Review Tribunals, and discussion forums with tribunal heads, members, agencies and other stakeholders.
Having regard to the values of lawfulness, fairness, openness and efficiency underpinning the Australian administrative law system, the Guide suggests a number of principles of conduct against which the professional conduct and public respect of administrative tribunals may be measured and maintained. The principles seek to reinforce the importance of respect for the law, respect for others, fairness, independence, integrity and diligence, transparency, accountability and timeliness.
Each principle is supplemented by explanatory comments, focussing particularly on issues that prompted discussion during the consultation process.
The Guide was not developed with any particular tribunal in mind. As well as providing direction on standards of conduct for Commonwealth tribunal members, the Guide can also be of assistance to members of State and Territory tribunals.
The interest from tribunal members apparent in the development of the Guide has continued following its publication. At the end of the 2001 – 2002 reporting year, some 1, 500 copies of the Guide had been distributed to Commonwealth, State and Territory tribunals. In some cases, tribunals requested copies of the Guide for all tribunal members. The Council is also aware that in developing their own codes of practice, tribunals have been using the Guide as a point of reference.
9 Excerpt from address delivered at Old Parliament House on the occasion of the Council’s 25th anniversary celebrations, 6 December 2001.
10 Other publications which continue to play an important educative role, as reflected in the steady stream of requests to the Secretariat for copies, include What Decisions Should be Subject to Merits Review?(1999), Practical Guidelines for Preparing Statements of Reasons (2000) and Internal Review of Agency Decision Making (2000).
The Council's administrative law bulletin, Admin Review, also represents a significant aspect of its wider activities, and reflects the Council's contribution to raising awareness of administrative law issues. During the 2001 – 2002 reporting year, one edition of Admin Review, No 53, was published in September 2001.
Participation in administrative law seminars
The Council’s profile is enhanced through participation of Council members and members of the Secretariat in speaking engagements and in administrative law forums.
During the 2001 – 2002 reporting year, presentations relating directly to the work of the Council given by Council members and Secretariat staff in that capacity included:
Internal Review of Administrative Decisions Presentation at AIAL National Conference, Administrative Law - The Essentials, Canberra, 5 July 2001 Matt Minogue, Executive Officer, Administrative Review Council
Administrative Review in Context Presentation at Environment Australia, Canberra, 20 February 2002 Matt Minogue, Executive Officer, Administrative Review Council
Improving Government Decision-Making Presentation at AIAL seminar, Canberra, 31 May 2002 Christine Charles, Member, Administrative Review Council
Other presentations made by members of Council of relevance in a broader sense to the administrative law system included:
The Legitimate Scope of Judicial Review Presentation at AIAL National Conference, Administrative Law - The Essentials, Canberra, 6 July 2001 Stephen Gageler SC, Member, Administrative Review Council
Departmental Representation in Tribunal Membership - a Viable Option? Presentation at AIAL National Conference, Administrative Law - The Essentials, Canberra, 6 July 2001
11 Professor Robin Creyke (presentation with Professor J McMillan)
Reforming the Federal Civil Justice System – The Australian Experience Presentation to the World Bank Group on Legal Institutions and the Market Economy, Washington DC, 25 July 2001 Professor David Weisbrot, Ex officio Member, Administrative Review Council
Courts, Tribunals and Public Administration – Scepticism Unjustified Presentation at Annual Judges’ Conference, Hobart, 22 September 2001 Professor Robin Creyke
Professional Standards and Ethics Issues Presentation to members of the NSW Mental Health Review Tribunal, Sydney, 30 November 2001 Professor Robin Creyke
The High Court on Constitutional Law: The 2001 Term Presentation at University of New South Wales Centre of Public Law 2002 Constitutional Law Conference, Sydney, 15 February 2002 Stephen Gageler SC, Member, Administrative Review Council
The Impact of Judicial Review on Tribunals - Recent Developments Presentation at Annual AIJA Tribunals’ Conference, Melbourne, 6 June 2002 Professor Robin Creyke
Council of Australasian Tribunals Another important Council project which came to fruition during 2001 – 2002 was the establishment on 6 June 2002 of the Council of Australasian Tribunals (COAT). The establishment of the COAT will offer obvious educational and training benefits for tribunals, particularly small tribunals with limited resources.
Although the role of the Council was essentially that of a facilitator in this process, the establishment of such a body had been recommended by both the Council and the Australian Law Reform Commission (the ALRC) some years previously.
In Better Decisions, the Council proposed a ‘Tribunals Executive’ as part of formal arrangements for promoting and coordinating liaison between review tribunals.10 The ALRC’s Managing Justice report expanded the proposal to a ‘Council on Tribunals’ which would act as a national forum for tribunal leadership to develop policies, secure research and promote matters of common interest.11 The ALRC
10 Better Decisions: Review of Commonwealth Merits Review Tribunals, Report No 39, paragraph 7.48, recommendation 85. 11 Managing Justice: A Review of the Federal Civil Justice System, Report No 89, paragraph 2.230, recommendation 10.
12 recommended that membership should include the heads of Commonwealth and State tribunals involved in administrative review and the President of the Council.
At its meeting on 1-2 March 2001, the Council committed itself to facilitating the creation of such a body. The proposal for a ‘Council of Australian Tribunals’, or COAT was developed by the Council and supported at a meeting of Commonwealth, State and Territory heads on 3 October 2001. With the support from the Council’s Secretariat, the Steering Group of Commonwealth and State tribunal heads established at this meeting further developed the proposal in conjunction with the Council.
The Council proposed that COAT would be an informal body, operating largely by consensus. Membership was to be open to all Commonwealth, State and Territory tribunals and the COAT was to operate nationally, as well as through State and Territory chapters. This would assist the development of networks for the dissemination of information and could provide an opportunity for the participation of smaller tribunals.
On 6 June 2002, the Council’s proposal for the COAT, was accepted at an inaugural meeting of Commonwealth, State, Territory and New Zealand tribunal heads. The proposal was expanded to include New Zealand tribunals and the Council of Australasian Tribunals was established.
As envisaged by the Chair of the COAT Interim Executive, the Hon Justice Murray Kellam, President of the Victorian Civil and Administrative Tribunal, the COAT will achieve practical benefits in the following areas:
- professional development and training;
- sharing of knowledge and experience among tribunals;
- co-ordination and transfer of information by visiting other tribunals; and
- proposals for research (for example, the COAT could co-operate with other research bodies such as the Australian Institute of Judicial Administration, the Administrative Review Council or the National Judicial College).12
The Council’s association with the COAT will continue through the Council’s President who is an ex officio member of the COAT.
It is proposed to publish a short account of the Council’s involvement in the development of the COAT. At the conclusion of the reporting year, work on the report was progressing well.
12 Reflected in an address given by Justice Kellam at the inaugural meeting of the COAT, 6 June 2002.
13 Other work of the Council
The Council’s 25th Anniversary celebrations on 6 December 2002 cannot be readily allocated to any of the above categories. The celebrations provided a valuable opportunity for the Council to review its contribution to the administrative law system over the preceding twenty-five years, and to focus with renewed energy upon its future role.
Twenty-Fifth Anniversary Celebrations
To mark the milestone, the Council organised a presentation in the House of Representatives chamber of Old Parliament House by Emeritus Professor Dennis Pearce, and an anniversary dinner.
In his presentation, Professor Pearce noted the valuable contribution of the Council and the effect of limitations being imposed on the review system. He challenged the Council to strengthen its resolve in the face of the threat of such limitations.
Inaugural ex officio Council members, Sir Gerard Brennan AC KBE CMG, the Hon Justice Michael Kirby AC CMG and Professor Jack Richardson AO, all spoke at the dinner, reflecting on their experiences as members of the Council. Their presentations acknowledged the work of members and staff of the Council in continuously seeking to protect the reputation and integrity of Commonwealth administrative law system. The continued value of the Council as an independent source of advice was also recognised.
Approximately 150 people attended the anniversary celebrations. To mark the occasion, a record of proceedings is to be published by the Council. The publication will be directed, principally, at those who attended the anniversary celebrations.
Current Projects
During the reporting period, the Council was able to make significant progress on several projects. At the close of the 2001 – 2002 reporting year, the Council was working on two major projects. Both reflect a continuing Council trend towards education and guidance. The scope of judicial review project, in particular, will provide a comprehensive guide to a range of aspects of the judicial review of administrative decisions.
Scope of Judicial Review
The Council anticipates that the outcome of the project will be the publication of a set of guidelines for agencies, legislators and commentators exploring policy issues
14 relevant to the appropriate scope, including the desirable minimum scope, of judicial review having regard to constitutional considerations. The Council hopes that its final publication on the scope of judicial review will be a useful complement to its 1999 publication What Decisions Should Be Subject To Merits Review?
During the year, as part of the consultative process preceding development of the proposed guidelines, the Council has continued to focus on the drafting of a discussion paper.
In the discussion paper, the Council will seek to canvass a range of policy and legal factors relevant to the appropriate application of judicial review. Matters to be canvassed in the discussion paper will include:
S the Constitutional significance and shape of judicial review; S other factors relevant to the scope of judicial review from either the judicial or the government perspective, including:
- justiciability; - deference; - the nature of the grounds of judicial review; - resource-related considerations; - the nature of the decision-maker; - the nature of the decision; and - the alternative remedies available.
The discussion paper will also address the means of legislatively limiting or excluding judicial review.
The use of automated assistance in administrative decision-making
The Council is continuing its inquiry into the use of automated assistance (i.e. expert systems) in administrative decision-making. An expert system is a computing system which, when provided with certain basic information and general rules instructing it how to reason and draw conclusions, can then mimic the thought processes of a human expert in a specialised field.13
Rule-base systems are one type of expert system. While the Council is considering the use of expert systems, its focus is on rule-base systems because they are generally the type of expert system used to model legislation. Such systems are used in administrative decision-making in a number of Commonwealth government departments and some State government departments.
13 The Macquarie Dictionary Third Edition, The Macquarie Library Pty Ltd, 1998, p. 743.
15 The Council is preparing an issues paper on the subject. Among other matters, the issues paper will consider the implications of the use of such systems for primary decision-making, particularly the potential de-skilling of decision-makers, and how administrative review is undertaken of decisions made using expert systems.
The Council has conducted a stocktake of the current and proposed use of expert systems in administrative decision-making within Commonwealth agencies. The results of that stocktake will be published in the Issues Paper. The Council has also undertaken consultations with a number of agency heads and their agencies.
It is anticipated that the issues paper will be ready for publication by the end of 2002.
Revision of statements of reasons booklets
In addition to these two larger projects, at the end of the 2001 – 2002 reporting year, the Council had substantially completed a smaller project involving updating the Council’s Practical Guidelines for Preparing Statements of Reasons booklet and the associated Commentary.
The update of the content of these two publications is necessary as a result of the decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1.
It is expected that the revised booklets will be republished during the first half of the 2002 – 2003 reporting year.
The booklets have proved particularly popular with agency decision-makers, and have been reprinted once already.
16 CHAPTER 3
MANAGEMENT AND ACCOUNTABILITY
Enabling legislation
The Administrative Review Council is established under section 48 of the Administrative Appeals Tribunal Act 1975 (the AAT Act).
Responsible Minister
The responsible Minister is the Attorney-General who may give directions to the Council regarding the performance of its functions or the exercise of its powers (section 51A AAT Act), and may refer matters to the Council for inquiry and report (section 51B). The Council reports to the Attorney-General (section 51C).
Annual Report
The Council is required to furnish an annual report to the Attorney-General for presentation to the Parliament as soon as practicable after 30 June each year and the report is to be tabled within 15 sitting days of its receipt by the Attorney- General (section 58 AAT Act).
Functions and powers of the Council
As mentioned in the preceding Chapter, the powers and functions of the Administrative Review Council are set out in section 51 of the AAT Act. A copy of this provision is at Appendix 1.
Membership
Membership of the Council comprises a President, three ex officio members and up to ten appointed members (section 49 AAT Act).14
14 A higher number of members may be prescribed by regulation.
17 The Council's President
The President of the Council is appointed by the Governor-General (section 49 AAT Act).
Bettie McNee was appointed as President of the Council for a period of three years from 25 August 1999 to 24 August 2002. As noted earlier, sadly, Bettie died on 11 March 2002, a little over five months before the end of her term of appointment as Council President. Wayne Martin QC was appointed President of the Council on 22 August 2002.
Ex officio members
There are three ex officio Council members (section 49 AAT Act). At the end of the reporting period, they were: S the Acting President of the Administrative Appeals Tribunal - the Hon Justice Garry Downes AM (from 28 March 2002);15 S the Commonwealth Ombudsman - Ron McLeod AM; and S the President of the Australian Law Reform Commission - Professor David Weisbrot.
Appointed members
Council members are appointed by the Governor-General (section 49 AAT Act). Appointments are for up to three years and members are eligible for reappointment (section 52 AAT Act).
At the close of the year there were seven appointed members of Council.
To qualify for appointment to the Council members must have had:
S extensive experience at a high level in industry, commerce, public administration, industrial relations, the practice of a profession or the service of a government or authority of government;
S extensive knowledge of administrative law or public administration; or
15 Justice Downes succeeds Justice Deirdre O’Connor who retired as President of the Administrative Appeals Tribunal on 5 March 2002. Justice Downes was appointed on an acting basis for 12 months.
18 S direct experience, and direct knowledge, of the needs of people, or groups of people, significantly affected by government decisions (section 50 AAT Act).
Details of appointed members at the end of the 2001 – 2002 reporting year, together with their current terms of appointment, are as follows:
Bill Blick PSM (25/6/2000 - 24/6/2003), Inspector-General of Intelligence and Security
Christine Charles (9/7/2000 - 8/7/2003), Consultant
Robert Cornall (7/6/2000 - 6/6/2003), Secretary, Attorney-General's Department
Professor Robin Creyke (8/12/1999 - 7/12/2002), Professor of Law, Australian National University
Stephen Gageler SC (8/12/1999 - 7/12/2002), Barrister
Wayne Martin QC (9/7/2000 - 8/7/2003), Barrister
Patricia Ridley (12/11/2001 - 11/11/2003), Consultant, Clifton Consulting Services
Management of Human Resources
The Council is assisted in its work by a small Secretariat, the members of which are employed in the Attorney-General's Department under the Public Service Act 1999. Information about that Department's management and human resources policies and practices, including certified agreements and Australian workplace agreements, training and development strategies and outcomes and occupational health and safety and productivity gains can be found in its annual report.
Current members of the Council's Secretariat
At 30 June 2002, members of the Council's Secretariat were as follows:
Kelly Williams Acting Executive Director16 (from 20 May 2002)
16 The occupant of this position was formerly titled ‘Executive Officer’.
19 Margaret Harrison-Smith Acting Principal Legal Officer
Natasha Simmons Legal Officer (from 25 March 2002)
Karen Stark Executive Assistant
Three Secretariat members left during the reporting year:
Sara Pesenti Legal Officer (left 9 October 2001)
Melanie Mitchell Legal Officer (left 7 December 2001)
Matt Minogue Executive Officer (left 17 May 2002)
Operational matters
Council Expenditure
The Requirements for Annual Reports published by the Department of the Prime Minister and Cabinet (11 July 2002) notes that section 57 of the Financial Management and Accountability Act 1997 (the FMA Act) requires a copy of audited financial statements and the Auditor-General's Report to be included in Annual Reports. The Council is neither a department of state, an Executive Agency nor a prescribed agency under the FMA Act, and is funded from the budget of the Attorney-General's Department. Appropriate and audited financial statements for that Department can be found in its annual report. However a statement of the expenditure of the Council during the reporting year is set out in the table in Appendix 5.
The Council Secretariat was allocated $626, 623.00 during the reporting year, compared with $632, 380.00 in 2000-2001. The Council spent $501, 442.00, of which $390, 594.00 was paid in salaries and allowances and $110, 848.00 was paid for
20 supplier expenses (the corresponding amounts in 2000-2001 were $378, 200.00 and $113, 424.00).
The Council's meeting dates
Much of the Council's business is conducted at its regular meetings. During the reporting year, Council meetings were held in Canberra on the following dates:
S 3 August 2002 S 7 December 2001 S 28 June 2002
Additionally, specific Council projects are progressed at sub-committee level. During the reporting year, the following sub-committee meetings were held:
Scope of Judicial Review Sub-committee S 5 July 2001 S 3 August 2001 S 19 October 2001 S 30 November 2001 S 3 April 2002 S 14 June 2002
Members of the sub-committee are: S Stephen Gageler SC (Chair) S Professor Robin Creyke S Wayne Martin QC
Justice Downes AM has observer status on the sub-committee.
Automated assistance sub-committee S 1 February 2002 S 25 March 2002 S 31 May 2002
Members of the sub-committee are: S Christine Charles (Chair) S Professor Robin Creyke S Ron McLeod AM
21 Consultancy services
During the year the Council spent $2, 704 on consultancies. These included consultancies in relation to the 25th Anniversary presentation at Old Parliament House and the Scope of Judicial Review project. Details of consultancies are available on request from:
The Executive Director Administrative Review Council Robert Garran Offices National Circuit BARTON ACT 2600
Telephone: (02) 6250 5800 Facsimile: (02) 6250 5980 E-mail: [email protected]
Social justice and equity issues
As the Council is primarily a law reform and advisory body, it does not offer programs to the public. For the same reason, the Council does not have a Service Charter.
However, the Council has in recent years released the following publications which have significant social justice and equity implications:
S Report No 34, Access to Administrative Review by Members of Australia's Ethnic Communities, which made recommendations to ensure that people, particularly those from non-English speaking backgrounds, have more effective access to review of decisions made by Commonwealth agencies.
S Report No 37, Administrative Review and Funding Decisions (A Case Study of Community Services Programs). This report made recommendations for improving access to review of decisions made by Commonwealth-funded service providers.
S Report No 39, Better Decisions: Review of Commonwealth Merits Review Tribunals, which made recommendations about improving people's awareness of their review rights and establishing simple and accessible review tribunal processes (including access to interpretation services).
22 S Report No 40, Open government: a review of the federal Freedom of Information Act 1982. This report, produced in collaboration with the Australian Law Reform Commission, makes recommendations to improve access by members of the public to government-held information.
S Report No 42, The Contracting Out of Government Services, which, together with the discussion paper that preceded it, addresses the issues that some recipients of contracted out services may have in accessing remedies for defects in those services (for example, because they may be ill or frail, have language difficulties or suffer limited mobility).17
S What Decisions Should Be Subject to Merits Review? published in July 1999, provides guidance for agencies and their advisers on the types of decisions which affect individual rights and liabilities which the Council considers should be subject to merits review.
S Practical Guidelines for Preparing Statements of Reasons, and associated Commentary emphasises that well-prepared statements provide the person affected by a decision with an opportunity to have the decision properly explained. That person can then decide whether to exercise their rights of review or appeal and, if they do, can do so in an informed manner.
Equal employment opportunity program
In view of the Council's small Secretariat staff, many of its personnel and administrative functions are undertaken by the Attorney-General's Department. Further information about the Department’s equal opportunity program can be found in the Department's annual report.
Occupational health and safety issues
The Council's Secretariat uses the policy and resources of the Attorney-General's Department in relation to occupational health and safety matters. More information about the Department's policy can be found in its annual report.
Freedom of information
Overview
The Council is an agency for the purposes of the Freedom of Information Act 1982 (the FOI Act).
17 See paragraph 4.25 of the Report.
23 The Council did not receive any requests for access to documents during the reporting year.
Section 8 of the FOI Act requires the publication of certain information concerning agencies:
S the Council's statutory functions are set out in Appendix 1 of this report; and S the other information required by section 8 is set out below.
Arrangements for outside participation in the work of the Council
The Council's issues papers and discussion papers, which precede some of its project reports, are publicly distributed for comment and are available on the Council's website. Final reports are also published and made available to the public, after they are tabled in the Parliament.
Those papers and reports are also circulated to people and groups who may have a particular interest in the subject matter of the paper or report, as well as to Members of Parliament, the Law Council of Australia and all State and Territory Bar Associations and Law Societies.
The availability of the Council's issues papers and discussion papers is generally advertised in a national newspaper and on the Council's website. From time to time the Council is also called upon to make submissions to public inquiries.
Categories of documents held by the Council
The Council maintains the following categories of documents:
S annual reports, project reports, issues and discussion papers, and copies of the Council's administrative law bulletin, Admin Review; S letters of advice prepared by the Council; S minutes of Council meetings and documents placed before meetings; S research notes and papers compiled by the Council's Secretariat and other persons; S submissions received from interested persons; and S correspondence, and documents relating to internal administration and management.
24 Access to documents
A number of the Council's project reports and annual reports are available for purchase through Australian Government Information Shops.
All project reports, together with issues and discussion papers, and copies of the Council publication Admin Review, are available, on request from the Council's Secretariat, and may be inspected at the Council's office in accordance with the arrangements set out below. Where large numbers of a particular publication are requested, a small charge is imposed to cover the cost of publication. Some reports are also available on the Council's website (law.gov.au/arc).
Since 1985-86 the Council's letters of advice have been published in its annual reports, which are available on request from the Secretariat or which may be inspected at the Council's office.
Minutes of the Council's meetings and documents placed before the meetings are also held at the Council's office.
It is the Council's policy to make publicly available copies of submissions received as part of its consultation processes, unless:
S the person making a submission specifically requests that the confidentiality provisions of the FOI Act should apply to their submission; or
S there are strong reasons for not disclosing the information in a submission (for example, if the submission contains personal information about an individual).
All other documents are kept on the files of the Council's Secretariat. Access to those documents may be sought under the FOI Act. If it is possible to release such information, it is the Council's policy to do so.
Facilities for access
Documents may be inspected at the Council's office in Canberra.
Information about the facilities available to assist people to obtain access to documents may be obtained from the Council's Executive Director. If necessary, special arrangements can be made to overcome any difficulties with physical access.
25 Freedom of information procedures and initial contact points
The Council's Executive Director will assist applicants for access to information to identify the particular documents they seek.
The only officer authorised to refuse access to documents is the Executive Director.
If a request is to be refused on grounds appearing in section 15(2) or section 24(1) of the FOI Act (that is, because of insufficient information or an unreasonable diversion of resources), applicants will be notified and given an opportunity for consultation.
Information officer
Inquiries concerning access to documents, or any other information concerning the Council, may be directed to:
The Executive Director Administrative Review Council Robert Garran Offices National Circuit BARTON ACT 2600
Telephone: (02) 6250 5800 Facsimile: (02) 6250 5980 E-mail: [email protected]
Advertising and market research
The Council did not undertake any advertising or market research activity during the reporting year.
Ecologically sustainable development and environmental performance
The Council's Secretariat is based in the Attorney-General's Department. More information about the Department's actions and performance in relation to environmental matters can be found in its annual report.
26 APPENDIX 1
SECTION 51, ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975
Functions and powers of the Council
51(1) The functions of the Council are:
(aa) to keep the Commonwealth administrative law system under review, monitor developments in administrative law and recommend to the Minister improvements that might be made to the system; and
(ab) to inquire into the adequacy of the procedures used by authorities of the Commonwealth and other persons who exercise administrative discretions or make administrative decisions, and consult with and advise them about those procedures, for the purpose of ensuring that the discretions are exercised, or the decisions are made, in a just and equitable manner; and
(a) to ascertain, and keep under review, the classes of administrative decisions that are not the subject of review by a court, tribunal or other body;
(b) to make recommendations to the Minister as to whether any of those classes of decisions should be the subject of review by a court, tribunal or other body and, if so, as to the appropriate court, tribunal or other body to make that review;
(c) to inquire into the adequacy of the law and practice relating to the review by the courts of administrative decisions and to make recommendations to the Minister as to any improvements that might be made in that law or practice;
(d) to inquire into:
(i) the qualification required for membership of authorities of the Commonwealth, and the qualifications required by other persons, engaged in the review of administrative decisions; and
(ii) the extent of the jurisdiction to review administrative decisions that is conferred on those authorities and other persons; and
27 (iii) the adequacy of the procedures used by those authorities and other persons in the exercise of that jurisdiction;
and to consult with and advise those authorities and other persons about the procedures used by them as mentioned in subparagraph (iii) and recommend to the Minister any improvements that might be made in respect of any of the matters referred to in subparagraphs (i), (ii) and (iii); and
(e) to make recommendations to the Minister as to the manner in which tribunals engaged in the review of administrative decisions should be constituted;
(f) to make recommendations to the Minister as to the desirability of administrative decisions that are the subject of review by tribunals other than the Administrative Appeals Tribunal being made the subject of review by the Administrative Appeals Tribunal; and
(g) to facilitate the training of members of authorities of the Commonwealth and other persons in exercising administrative discretions or making administrative decisions; and
(h) to promote knowledge about the Commonwealth administrative law system; and
(i) to consider, and report to the Minister on, matters referred to the Council by the Minister.
(2) The Council may do all things necessary or convenient to be done for or in connection with the performance of its functions.
(3) If the Council holds an inquiry, or gives any advice, referred to in paragraph (1)(ab), the Council must give the Minister a copy of any findings made by the Council in the inquiry or a copy of the advice, as the case may be.
28 APPENDIX 2 LETTERS OF ADVICE
The Council has published its letters of advice in its annual reports since the 1985 - 1986 reporting year. While its reports are tabled in the Parliament and published for the benefit of the public, it is through inclusion in its annual reports that the Council’s letters can reach the broader community. Both the Council’s reports and its letters of advice are published on the Council’s website.
Letters of advice published in this report appear below. A brief explanation of the background to each letter, together with a short summary of the contents, is included as a preface.
List of letters published in this report
Letter Subject-matter Page
1 Establishment of Council of Australian Tribunals – Letter to 30 Attorney-General
2 Australian Public Service Training – Submission to Senate 44 Committee
3 Other advice 49
29 Letter 1 - Advice to Attorney-General on Proposed Council of Australian Tribunals18
In March 2001, following a meeting with the Attorney-General to discuss its forthcoming work program, the Council committed itself to the development of a Council of Tribunals. Having regard to the support indicated by the Attorney-General for the project, the Council subsequently wrote to him to outline the objectives, structure, membership, funding and support proposed by the Council for a Council of Tribunals.
The letter also canvasses previous work undertaken by both the Council and the Australian Law Reform Commission in this area, and related developments in other Australian contexts and overseas.
12 June 2001
The Hon. Daryl Williams AM QC MP Attorney-General Parliament House CANBERRA ACT 2600
Dear Attorney-General,
A Council of Australian Tribunals
I refer to our recent discussions about the establishment of an Australian Council on Tribunals. The Administrative Review Council considered this issue at its meeting of 20 April, and resolved that a model along the lines outlined below would be effective, relatively simple to establish and provide good prospects for success, in light of its emphasis on engaging the tribunals themselves in the proposed council’s processes.
For convenience, and want of a better term, I have proposed that the title “Council of Australian Tribunals” (or COAT) be adopted, although this would ultimately be a matter for decision by the council’s membership.
1. Summary of the ARC proposal
1.1 In short, the model we propose comprises the following elements :
S the proposed COAT would be based on the Council of Chief Justices. Its objectives would be broadly expressed, to enhance its appeal to a diverse membership of State, Territory and Commonwealth tribunals;
18 In view of the ongoing implementation of the council of tribunals proposal, the letter was not included in the 2000 – 2001 Annual Report.
30 S membership would be open to all Commonwealth, State and Territory tribunals (however described) established under statute with, in part at least, some merit review functions. Apart from readily identifiable candidate tribunals, membership would be determined by “guided” self selection based on key indicia and a clear statement of objectives and functions of the Council, rather than strict eligibility criteria;
S the presiding member of a participating tribunal would be elected/appointed chair for a 1-2 year period, with the opportunity to incorporate a deputy chair and executive committee;
S secretariat functions would be predominantly performed by the registrar of the chairperson’s tribunal for that period, with the possibility for some tasks to be shared with the registries of the deputy chairperson and executive committee members (if established);
S the COAT establish, and operate through, State and Territory chapters as well as nationally; and
S no commitment to funding be sought at this stage, with each tribunal to bear their own costs but the COAT to make the case for funding in light of its experience when established, if necessary.
1.2 The ARC proposes to invite a number of tribunal heads to further discuss the proposal in Canberra on Saturday 7 July 2001. Following that discussion, we will advance the proposal with a view to a meeting of the COAT later this year, although timing will be a matter for the tribunals themselves.
2 Background
2.1 In Better Decisions the ARC proposed a “Tribunals Executive”, as part of formal arrangements for promoting and coordinating greater liaison between review tribunals19. The Tribunals Executive would include at least the principal members of tribunals and possibly registrars.
2.2 The ALRC’s Managing Justice report expanded the proposal to a “Council on Tribunals”, which would be a national forum for tribunal leadership to develop policies, secure research and promote education on matters of common interest20. The ALRC recommended that membership should include the heads of Commonwealth and State tribunals involved in administrative review, and the President of the ARC.
19 Better Decisions: review of Commonwealth Merits Review Tribunals, Report No 39, paragraph 7.48, recommendation 85. 20 Managing Justice : A Review of the Federal Civil Justice System, Report No 89, para 2.230, recommendation 10.
31 2.3 It is timely to revisit the proposal now. Establishing a Council would be one way to realise synergies between the individual tribunals if the Government cannot negotiate amendments to the Administrative Review Tribunal Bill 2000. If the Bill is passed the COAT will be a valuable forum in which the new ART could take a leadership role.
3. Structure of the Council
3.1 The Council of Chief Justices, the Council of Chief Magistrates, the Council of Canadian Administrative Tribunals (CCAT) and the UK Council on Tribunals all provide useful precedents in terms of objectives, functions and models. These Councils are more fully described in Attachment A.
3.2 In brief, the Council of Chief Justices operates on a consensus basis, no votes are taken and meetings are conducted with little formality. The Chief Justice of the High Court is the permanent chair, and the secretariat is provided by the Principal Registrar of the High Court. The Council of Chief Magistrates operates on a similar basis, but the chair is rotated for each meeting, and there is no standing secretariat. Neither council is funded, as each Court bears its own costs of participating. The secretariat costs for the Council of Chief Justices are fully met by the High Court from within its existing budget.
3.3 The CCAT is a corporation with a detailed formal structure, membership categories and procedural rules. The UK Council of Tribunals is a statutory council with specific statutory objectives. It is presently under review.
Comment
3.4 We propose that the COAT should be based on the Council of Chief Justices, rather than the more formal Canadian or UK councils.
3.5 We also consider that the COAT could be operate effectively through a federal structure; comprising the national body, as well as State and Territory chapters. This would not only assist the development of networks for the dissemination of information etc, but could also provide an opportunity for smaller tribunals from jurisdictions with no natural “supreme” tribunal to combine to better participate nationally (eg. by pooling resources to nominate a chairperson). We do not envisage that the federal structure would be overly complex or formal. Rather, the primary activities might be conducted through meetings at the national level, but supported by additional (possibly more regular contact) through relatively loose networks at the more local level.
3.6 This structure would be sufficiently flexible to allow all relevant tribunals to participate to the extent they are able. While it may be possible to group tribunals based on size, resources, jurisdiction etc, it is not considered appropriate to create classes of membership as in the CCAT. Similarly, a formal legislative structure is not appropriate, and would be difficult to achieve, given the federal nature of the proposed membership.
32 4. Objective of the Council
4.1 The objectives will depend on what the Council is intended to do. The options range from simply providing a forum for discussion to being more proactive.
4.2 This has implications for model, funding and the secretariat resources required. Both the ARC and ALRC recommendations contemplate a proactive role, involving the development of policies, management, training and education, codes of conduct, research, data collection and reporting.
Comment
4.3 We propose that the COAT’s objectives should be broadly expressed, to enhance its appeal to a diverse membership of State, Territory and Commonwealth tribunals.
4.4 Further discussions with tribunal heads will help to identify key objectives. When established, the COAT itself could formally adopt the agreed objectives, and proceed to determine its own priorities based on the interests of its members.
4.5 At the very least, the COAT would be a useful way to harness the results of programs for improvement that individual tribunals currently undertake and provide an opportunity for the benefits of such programs to be shared. More positively, if an issue of importance or interest is agreed by the COAT, each presiding officer could task a member in their jurisdiction to progress the matter with others nominated from other jurisdictions. Similarly, technical matters could be progressed by sub-committees of registrars. Examples of practical outcomes the COAT might work towards include : S the development of best practice or model procedural rules based on collective experience of what works; S standards of behaviour and conduct for members; S increased capacity for training and support for members, particularly by smaller tribunals which might not have the resources to undertake such activities alone; S establishing networks for tribunal members to consult and discuss areas of concern or interest and common experiences; S the development of performance standards. This would assist tribunals measuring performance against comparable bodies, which could be more meaningful than raw measures such as cost/time/decision rates etc; and S the development of support systems, including case management and Information Technology.
33 5. Eligibility
5.1 The COAT should include Commonwealth, State and Territory tribunals. Participation would be limited to presiding members, or their delegates. However, the COAT could establish networks of tribunal members and support regular member activities.
5.2 This raises the central issues of what is a tribunal? How would eligibility be determined? Is a definition required, or even possible? For example, some tribunals are primary decision-makers, but should be included. It is also difficult to estimate how many relevant tribunals there might be, let alone identify them. Attachment B is an initial (but not comprehensive) listing of Commonwealth, State and Territory tribunals.
Comment
5.3 To confine the proposal to Commonwealth tribunals would not advance the current position where heads of Commonwealth tribunals meet regularly, and would discount the contribution that key tribunals such as VCAT and the NSW ADT can make. It would also limit opportunities to enhance administrative review nationally, by engaging the smaller tribunals which are likely to benefit from regular involvement with larger tribunals.
5.4 In our discussions in Council and with key tribunal heads, we have taken the view that while a definition would readily capture the key tribunals, it is likely to exclude others. It might also prevent smaller more specialised bodies exercising review functions from participating, when these bodies might stand to benefit the most. A definition would also have to be broad enough to include tribunals exercising purely executive power and the mixed judicial/executive bodies operating in the States and Territories.
5.5 Similarly, while it would be possible to develop categories of membership along the lines of the CCAT, we consider that a de facto ranking would be unwelcome and unnecessary.
5.6 At its most fundamental, we propose that membership be open to all Commonwealth, State and Territory tribunals (however described) established under statute with some (but not necessarily exclusively) merit review functions. However, rather than defining eligible bodies in any detail, we consider that the better option is to rely on “guided” self selection. Key tribunals could be targeted directly. The development of a clear statement of objectives and functions of the COAT, would allow other bodies to determine for themselves if they were a relevant tribunal. While this approach might give rise to concerns that membership could become too broad, the COAT unwieldy and its effectiveness attenuated if it attempts to cover too broad a field. However, we consider these risks would be overcome by the progress of the COAT itself, in that as it pursues its key objectives, marginal bodies are unlikely
34 to continue if the COAT’s objectives are not relevant to their needs. Similarly, it is unlikely that marginal bodies would be able to exert much influence over the direction of the COAT if this was not supported by the body of clearly relevant merits review bodies.
5.7 Indeed, as one of its projects, the COAT itself could work to identify the key indicia of a tribunal.
5.8 Consistently with the ALRC’s recommendations in Managing Justice, we agree that the ARC should be a member of the Council.
6. Funding
6.1 Is funding required, if so, how funded? Options include membership fees or appropriation of funds through Attorney-General’s Departments.
6.2 The Council of Chief Justices is not separately funded; each Court bears its own costs. There is some flexibility, as there is an agreement that the High Court can call for contributions from other courts if needed, but to date no calls have been made. Where specific funding is required for a project (eg commissioning of research etc) that is achieved by agreement that one Court would actually commission the project and would be reimbursed at agreed levels by other courts. We consider that such flexibility would lend itself well to the tribunals’ context.
Comment
6.3 Funding by governments would require agreement at ministerial level (at least through the Standing Committee of Attorney’s-General). However, while your support and that of your State and Territory colleagues will be critical, a predominantly Attorney led process could limit the scope of the COAT, particularly as we expect that a number of relevant tribunals are not within Attorneys’ portfolios. In any event, given that no provision has been made in the 2001/2002 budget, decisions on funding arrangements would be deferred until the 2002/2003 financial year. We are also concerned that funding by appropriation would impose expensive accountability requirements on the COAT. Such arrangements would become more complicated if the COAT were jointly funded by the Commonwealth and the States.
6.4 Funding may not be a crucial issue in light of the experience of the Council of Chief Justices. The main funding requirement will be the provision of secretariat services, which, for the reasons discussed below, we consider can be addressed without a standing secretariat.
6.5 As funding is not an issue that can be resolved early, the better option would be to progress a self-funding model. Each tribunal would be free to negotiate their resources with their respective governments. When established,
35 the COAT would have the capacity to make the case for alternative funding arrangements, if necessary.
7. Chair of the Council
7.1 As noted above, as the High Court is the apex of the judicial system, its Chief Justice is the permanent chair of that Council. However, this does not translate easily to the tribunals’ context. There is no national supreme tribunal and each State tribunal has its own jurisdiction and is not subordinate to the Commonwealth. Equally, while NSW and Victoria have large generalist tribunals which lead merits review in those jurisdictions, the other States and Territories do not.
7.2 This is similar to the position of the Council of Chief Magistrates, where the separate Magistrates Courts are equal. That Council is particularly careful not to be seen to encroach on each Chief Magistrate’s authority in their jurisdiction. The Chair of the Council is rotated for each meeting.
Comment
7.3 Similar considerations to the Magistrates’ Council would apply to tribunals. However, rotating the Chair of the Council for each meeting could work against realising outcomes, which continuity of leadership is more likely to achieve. Our preferred option is for periodic chairing ie. a tribunal head is elected/appointed chair for a 1-2 year period. This would provide continuity while ensuring no one tribunal is perceived as being more important than others are, or indeed is imposed upon unduly.
7.4 In terms of process, at the first meeting of the COAT, the President of the ARC might formally convene the meeting until a chair is appointed as the first item of business.
7.5 In addition, participation by a greater range of member tribunals could be encouraged by providing for a deputy chair and executive committee (comprising the heads of each State and Territory chapter). This would assist the chairperson in carrying out his or her role, while also achieving a balance of Commonwealth, State and Territory office holders.
8. Secretariat
8.1 If the Council is to be a passive information sharing forum, the secretariat function could be discharged by the registry of the COAT chairperson for the time being. If it is to be more proactive and endeavour to achieve practical outcomes (as we consider it should), more formal arrangements may be required. The experience of the Council of Chief Justices was that rotating the secretariat was not effective. The major problems were: S lack of continuity – as each meeting was handled by a different office, experience and corporate memory were low. This meant that registries tended to operate as post offices rather than secretariats per se;
36 S outcomes - related to continuity issues. As different registries might service only one meeting every 6 years , the focus was on hosting the meeting, not taking resolutions forward. This meant that the same issues could be revisited over several years without real progress.
8.2 Another model is for a permanent secretariat within a particular tribunal, supporting a rotating chairperson, along the lines of the SCAG secretariat. The essential issue with this option is identification of a suitable tribunal with the resources to commit to such a role. For reasons discussed below, we do not consider the ARC is in a position to perform such a role.
Comment
8.3 If the proposal for a 1-2 year chair is accepted we propose that the secretariat functions would be predominantly performed by the registrar of the chairperson’s tribunal for that period. This would provide continuity without unduly drawing on the resources of the chairperson and his or her registry, encouraging participation from a broader range of tribunals.
8.4 If the COAT incorporates a deputy chair and an executive committee this would broaden the sources of secretariat support, as those office holders’ registries could contribute (effective liaison and coordination would be critical).
8.5 I should comment on suggestions that the ARC could be the secretariat for the COAT. This proposal was raised in the context of the Managing Justice report. It has not been supported by the ARC in the past and was not recommended by the ALRC. Our concerns with this approach are that : S funding would still be an issue; S if the COAT is to have a strong and continuing role, its priorities and outcomes should be chiefly driven by its tribunal membership and projects are more likely to be taken through to conclusion if they are “owned” by the tribunals themselves; S there would be some question whether such a role was within the scope of the ARC’s statutory functions, given the emphasis on the Commonwealth administrative law system. While participation in a COAT would enable the ARC to perform its statutory functions, deployment of substantial resources to servicing a Commonwealth/State body may not. If necessary this issue can be further explored.
8.6 Notwithstanding our view that the ARC could not provide secretariat services on a permanent basis, it is in a good position to facilitate the development of the proposal up to the establishment of a COAT, and I expect it would continue to support the COAT, particularly in the early, critical, stages.
37 9. Next steps
9.1 We have taken the opportunity to canvass our views with key tribunal heads (Commonwealth and State), who have indicated their in-principle support for the proposed approach.
9.2 We propose to convene a meeting with tribunal heads in Canberra on Saturday 7 July (after the AIAL forum to be held in Canberra on 5 and 6 July). This meeting will be a good opportunity to identify issues for further consideration, preferred options etc.
9.3 Following the July meeting with tribunal heads, we envisage being able to provide you with a final model, based on the initial proposal and tribunals’ feedback. This would form the basis of a first meeting of the COAT before the end of 2001.
9.4 Some public endorsement of the concept of a Council on Tribunals by you at an early stage might be helpful to encourage participation from key players (i.e. by establishing that it is a process directed to an outcome). To this end, you might consider it appropriate to advise your Commonwealth, State and Territory ministerial colleagues of the proposal, with a view to drawing it to the attention of the various tribunals within their portfolios.
The Council would be happy to expand on or clarify any aspect of this advice.
I have asked the Council’s Executive Officer to sign this letter on my behalf.
Yours sincerely,
Bettie McNee President of the Council
38 Attachment A 1. Council of Chief Justices of Australia and New Zealand
The Council of Chief Justices began as an informal meeting of the State Supreme Court Chief Justices. It now includes the Chief Justices of the High Court, State Supreme Courts, the Family Court and Federal Court, and the Chief Justice of the Supreme Court of New Zealand.
General operation
The Council meets twice a year, and is hosted by each Chief Justice in turn. The Chief Justice of the High Court chairs meetings.
The Council is an information-sharing forum, it does not vote and proceeds by consensus. It is careful not to interfere in the jurisdiction of each judge. It is effective, as when a position is reached the Chief Justice’s are able to follow matters through (if within their own power) and they have significant leverage to influence other changes (eg legislative amendment) if required to reach the outcome.
The Council itself does not generally execute matters through the secretariat. If an agreed position is reached, each CJ would task a judge in their jurisdiction to progress the matter with others nominated from other jurisdictions. Similarly, technical matters would be progressed by “sub-committees” of registrars at the initiative of Chief Justices. Examples of practical outcomes include : S the development of common court rules in each jurisdiction. This was particularly successful in relation to the Corporations Law, to overcome the different procedural rules in each jurisdiction; S judicial behavioural standards; and S the development of common IT standards – this will not only assist improvement in each jurisdiction, but should allow a single matter (if appealed) to be handled by each registry as it progresses from the State court system to the High Court.
The Council does not issue annual reports, and there are no public reviews discussing the Council’s role and development.
Secretariat
The Secretariat has been based in the High Court for the last two years, and the Principal Registrar of the High Court acts as Secretary. Prior to that the particular registry of the court hosting the meeting acted as Secretariat for that meeting.
The Principal Registrar of the High Court was strongly of the view that the “rotating” Secretariat did not work. The major problems were:
39 S lack of continuity – as each meeting was handled by a different office, experience and corporate memory were low. This meant that registries tended to be little more than letterboxes; S outcomes - related to continuity issues. As different registries might service only one meeting every 6 years , the focus was on hosting the meeting, not taking the issues/resolutions coming out of the Chief Justices considerations forward. This meant that the same issues could be revisited over several years without real progress.
Funding
The Council is not funded. Each Chief Justice meets their own costs. The secretariat costs are fully met by the High Court from within its existing budget. There is an agreement for contributions to the cost of the Secretariat, but to date no calls for contributions have been made.
2. Council of Chief Magistrates
Chief Magistrates have been meeting informally over the last ten years, usually twice a year. It was decided to formally convene these meetings as a Council of Chief Magistrates recently, and there has been one meeting of the Council.
The Council is an information-sharing forum; it does not seek to bind its members and does not vote. It is based on the Council of Chief Justices.
The main advantage members saw in a Council of Chief Magistrates, apart from information sharing, was the ability to speak with strength as a Council.
Unlike the Council of Chief Justices, the chair rotates for each meeting. There is no standing secretariat, and this function is performed by the registry of the CM hosting the meeting. Mr Ron Cahill, Chief Magistrate of the ACT has performed the “Secretary” function of the Council of Chief Magistrates to date.
3. Council of Canadian Administrative Tribunals
The CCAT is established as a formal corporation. The Council provides a forum and acts as a catalyst for discussion, educational opportunities, policy development and research in order to meet the needs of tribunals, members, and the public involved in the administrative justice system.
40 The CCAT mission statement identifies the following key themes:
1. Enhancing and expanding national contact between tribunals and members. S The Council responds to the needs of tribunals and members by improving communication and regional contact. S The Council continues to act as a national forum through the annual conference.
2. Raising awareness of tribunals, members, governments and the public of the role of administrative justice in Canadian life. S The Council works with organizations and governments in the development and promotion of administrative justice. S The Council works with local chapters to raise awareness of tribunals, members and the public of issues in the field of administrative justice.
3. Representations to government on issues concerning tribunals and members. S The Council acts as an advocate on issues of appointments, tenure, independence and education of members. S The Council is involved in research and policy development on issues having an impact on administrative justice, tribunals, members and the public. S The Council proposes initiatives and makes representations on matters of legislative and policy reforms having an impact on administrative justice, tribunals, members and the public.
4. Supports tribunals and members through the provision of services. S The Council ensures educational opportunities are provided to tribunals and members. S The Council works in partnership with tribunals and members of issues of service to the public and improved service delivery.
The CCAT has formalised meeting procedure as with any corporation, covering matters such as quorum, chair and voting procedures. The corporation’s by laws provide for classes of membership : (a) Category A: Membership is limited to individuals who are members of an administrative board, commission or tribunal in Canada. (b) Category B: Membership is limited to individuals who are staff or legal counsel of an administrative board, commission or tribunal in Canada.
41 (c) Category C: Membership is limited to individuals or lawyers who have an interest in the field of administrative law and tribunals.
4. UK Council on Tribunals
The Council is established under the Tribunals and Inquiries Act 1992 following the recommendations of the 1957 “Franks Report on Administrative Tribunals and Enquiries”. The Council consists of 16 part-time members who include the Chairman and the Parliamentary Commissioner for Administration (the principal "Ombudsman"). The Council is supported by a Secretariat whose staff are seconded from the Lord Chancellor's Department. The Council’s 1999-2000 budget was approximately £650, 000.
The Council’s principal functions under the Act are : S to keep under review the constitution and working of tribunals listed in the Act; S to advise government departments about the procedures which govern the running of tribunals and inquiries (such as planning inquiries); and S the Council must be asked for its advice before rules which concern those procedures are made or changed.
The Council's main way of working is monthly meetings. It also has a regular program of visits to tribunals, which it reports as being “the most effective means by which we can discharge our statutory duty to ‘keep under review the constitution and working’ of the tribunals we supervise. The discharge of our duty in relation to inquiries is effected in the same way.” The Council’s Annual Report notes that 152 visits to tribunals were conducted in 1999-2000. The UK tribunal system is currently under review, and the Review committee’s report is expected in the near future. The Review’s terms of reference include :
“To review the delivery of justice through tribunals … constituted under an Act of Parliament by a Minister of the Crown or for purposes of a Minister's functions; in resolving disputes, whether between citizens and the state, or between other parties, so as to ensure that: S There are fair, timely, proportionate and effective arrangements for handling those disputes, within an effective framework for decision- making which encourages the systematic development of the area of law concerned, and which forms a coherent structure, together with the superior courts, for the delivery of administrative justice; S The … arrangements for supporting those decision-making procedures meet the requirements of the European Convention on Human Rights …; S There are adequate arrangements for improving people's knowledge and understanding of their rights and responsibilities in relation to such
42 disputes, and that tribunals and other bodies function in a way which makes those rights and responsibilities a reality; S The arrangements for the funding and management of tribunals and other bodies by Government departments are efficient, effective and economical; and pay due regard both to judicial independence, and to ministerial responsibility for the administration of public funds; S Performance standards for tribunals are coherent, consistent, and public; and effective measures for monitoring and enforcing those standards are established; and S Tribunals overall constitute a coherent structure for the delivery of administrative justice.”
43 Letter 2 – Australian Public Service Recruitment and Training - Submission to the Senate Finance and Public Administration References Committee
This letter was written by the Council in response to an invitation from the Senate Finance and Public Administration References Committee for comments on its inquiry into Recruitment and Training in the Australian Public Service. In its submission to the Committee, with particular reference to the Council publications Practical Guidelines for Preparing Statements of Reasons and Internal Review of Agency Decision Making, the Council highlights the importance of good primary decision- making. In view of the fact that the quality of decision-making is heavily dependent upon the effectiveness of the training provided by the relevant APS agencies to their staff, the Council encourages the Committee to satisfy itself that sufficient resources are made available by agencies for these purposes and that structured and properly focussed staff development programs are in place.
17 May 2002
Ms Sue Morton Secretary Senate Finance and Public Administration References Committee Parliament House Canberra ACT 2600
Dear Ms Morton,
Australian Public Service Recruitment and Training
Thank you for providing the Administrative Review Council with details of the Finance and Public Administration References Committee’s inquiry into Recruitment and Training in the Australian Public Service (APS). Thank you also for inviting the Council to make a submission to the inquiry.
In responding to this invitation, the Council wishes to highlight the importance of training for APS officers involved in administrative decision-making. At the Commonwealth level, a vast array of primary decision-making responsibilities has been delegated by the Government to officers of the APS. Many other APS officers are involved in the internal review of such decisions. Indeed, at one time or another, most Australians will experience administrative decision- making by an APS officer. Frequently, such decisions will be made on the basis of complicated and changing legislation.
44 Council training role
Pursuant to its statutory functions under section 51 of the Administrative Appeals Tribunal Act 1975 (see attached), the Council has an important role to play in monitoring and improving the quality of Commonwealth administrative Decision-making, including decision-making by APS officers. Over the last few years, in recognition of this role, the Council has placed particular emphasis upon:
S enhancing the accountability of government agencies through improving the quality and processes of primary decision-making; S providing assistance, policy advice and training to people making government decisions; and S monitoring government policies and the work of decision-makers to ensure that their activities and approaches are consistent with the values and principles of administrative law.
This emphasis is reflected in the following recent Council publications (copies attached):
S Practical Guidelines for Preparing Statements of Reasons and Commentary on the Practical Guidelines (October, 2000) – two booklets comprising a set of practical guidelines to assist decisions-makers in the preparation of statements of reasons together with a more detailed commentary on the guidelines; and S Internal Review of Agency Decision-Making (Council Report No 44, March 2001) - offers practical assistance to agencies in the development of procedures for the internal review of administrative decisions. The final chapter of the Report is a best practice guide drawing on the analysis and guidance provided in the report. The chapter has also been published separately as a Best Practice Guide.
Since their release, approximately 1, 500 copies of the Statement of Reasons Guidelines have been distributed to Commonwealth, State and Territory decision-makers, tribunals and courts. Copies of the Internal Review Report have also been circulated to all Commonwealth agencies.
Training needs of APS members identified by the Council
In the course of its work on internal review the Council found inadequacies in the training available for officers involved in internal review, recommending that:
26. Agencies should develop appropriate training strategies for internal review officers. The specific areas of training need will differ on an agency-by-agency basis.
45 27. Agencies that do not already have in place mechanisms to promote contact and discussion among internal review officers should consider doing so.
(see also paras 6.25–6.28 of the Report).
The Report also recommended that where agencies do not have mechanisms for feeding back the results of external review of agency decisions to primary decision-makers, consideration should be given to introducing these (paras 7.52-7.57 and Recommendation 38 of the Report).21
Although to date the Council has not undertaken a comprehensive analysis of the training available for primary administrative decision-makers, the Internal Review Report noted the importance of training for such decision-makers. In particular, the Council recommended that:
31. Agencies should recognise the importance of training for primary decision-makers. One area of potential need identified by this project is training in the skills required for client contact and the explaining of decisions to clients. In agencies where the legislation and policy administered by primary decision-makers is progressively becoming more complex, training strategies should attempt to recognise and address this.
(see also para 7.13 of the Report).
Comments made at para 4.19 of the Report with respect to the need for training for decision-makers working with interpreters are also relevant.
Other areas raising training issues
Presently, the Council is conducting an inquiry into the use of expert systems in administrative decision-making. Expert systems, and particularly rule-base systems (a type of expert system), are used in administrative decision-making in a number of Commonwealth government departments and some State government departments.
Rule-base systems involve the modelling of complex or intricate rules (such as legislation) accompanied by an ‘engine’ that is able to automate the process of investigating those rules by interacting with applicants to extract relevant personal details. Such systems perform two functions, namely:
S they interrogate the user, identifying the next relevant legislative issue (closing off irrelevant paths as they go); and
21 The dissemination at agency level of information pertaining to external review of agency decisions is explored in some detail in a forthcoming study by Robin Creyke and John McMillan entitled ‘Executive Perceptions of Administrative Law – An Empirical Study’.
46 S they infer conclusions, applying the structural logic of the legislation on the basis of information collected from the user.22
The use of such systems can give rise to training issues. While their use can result in increased accuracy, consistency and efficiency in decision-making, officers still need to be able to explain the operation of relevant legislation and policy changes to applicants, particularly where applicants are not entitled to benefits or are no longer entitled to benefits or to the same level of benefits. Arguably also, the use of rule-base systems can diminish the skills of decision- makers and corporate knowledge of alternative, and more complex or rarely used, paths through the legislation may be lost.
As part of its work in this area, the Council is preparing an Issues Paper on the use of expert systems in administrative decision-making. The foregoing are amongst the issues which will be explored in the Paper.
The Council’s work with members of administrative tribunal confirms that training is not only an issue for junior officers. In the course of consultations in connection with its 2001 publication, A Guide to Standards of Conduct for Tribunal Members, a consistent need was expressed for training and support for tribunal members, and for tribunal presiding officers to commit themselves to providing such leadership, training and support (page 75 of the Guide). Given that tribunal members are, by and large, experienced professionals (lawyers, social workers and other professionals), their identification of a need for such training strongly suggests that APS decision-making training should be widely available and ongoing in nature, embracing senior managers as well as more junior officers.
Concluding comment
Every day, a very high volume of administrative decisions is undertaken by large numbers of APS officers, which directly affect the interests and rights of millions of Australians. The Council believes that the quality of decision-making is heavily dependent upon the effectiveness of the training provided by the relevant APS agencies to their staff. The Council would therefore encourage the Committee to satisfy itself that sufficient resources are made available by agencies for these purposes and that structured and properly focussed staff development programs are in place.
Should the Committee have any inquiries in relation to this submission, the contact officer in the first instance is Margaret Harrison-Smith of the Council Secretariat (tel. 62505829)
22 Sutherland P. and Johnson P., The Impact of Technology on Decision-Making and Administrative Review, 1996, p. 9.
47 The Council has authorised its Executive Officer to sign this submission on its behalf.
Yours sincerely,
Matt Minogue Executive Officer
48 3. Other Advice
In addition to the above, the Council also provided advice in relation to the administrative review processes provided for in three draft Bills and coordination comments in relation to merits review in response to one Cabinet Submission. The Council has been requested to maintain the confidentiality of the content of another two letters of advice in view of ongoing government consideration of the issues. The Council expects that it will be able to publish these two letters in its next annual report.
49
APPENDIX 3
PUBLICATIONS OF THE ADMINISTRATIVE REVIEW COUNCIL
1 Administrative Decisions (Judicial Review) Act 1977 – Exclusions under Section 19 – 1978
2 Repatriation Appeals – 1979
3 Review of Import Control and Customs By-Law Decisions – 1979
4 Administrative Appeals Tribunal Act 1975 - Amendments – 1979
5 Defence Force Ombudsman –1979
6 Entry to Cocos (Keeling) Islands and Christmas Island – 1979
7 Citizenship Review and Appeals System – 1980
8 Social Security Appeals – 1980
9 Administrative Decisions (Judicial Review) Amendment Bill 1980 – 1980
10 Shipping Registration Bill, - 1980
11 Student Assistance Review Tribunals – 1981
12 Australian Broadcasting Tribunal Procedures – 1981
13 Commonwealth Employees' Compensation Tribunal – 1981
14 Land Use in the A.C.T. – 1981
15 Australian Federal Police Act 1979: Sections 38 & 39 – 1982
16 Review of Decisions under the Broadcasting and Television Act 1942 – 1982
17 Review of Taxation Decisions by Boards of Review – 1983
18 Compensation (Commonwealth Government Employees) Act 1971 Amendments – 1983
19 Rights of Review under the Migration Act 1958 and Related Legislation: Interim Report on the Constitution of the Administrative Appeals Tribunal – 1983
51 20 Review of Pension Decisions under Repatriation Legislation – 1983
21 The Structure and Form of Social Security Appeals – 1984
22 The Relationship between the Ombudsman and the Administrative Appeals Tribunal – 1985
23 Review of Customs and Excise Decisions: Stage Two – 1985
24 Review of Customs and Excise Decisions: Stage Four: Censorship – 1985
25 Review of Migration Decisions – 1985
26 Review of Administrative Decisions (Judicial Review) Act: Stage One – 1986
27 Access to Administrative Review: Stage One Notification of Decisions and Rights of Review – 1986
28 Review of Customs and Excise Decisions: Stage Three Anti-Dumping and Countervailing Duty Decisions – 1987
29 Constitution of the Administrative Appeals Tribunal – 1987
30 Access to Administrative Review: Provision of Legal and Financial Assistance in Administrative Law Matters – 1988
31 Review of Decisions under Industry Research and Development Legislation – 1988
32 Review of the Administrative Decisions (Judicial Review) Act: The Ambit of the Act – 1989
33 Review of the Administrative Decisions (Judicial Review) Act: Statements of Reasons for Decisions – 1991
34 Access to Administrative Review by Members of Australia's Ethnic Communities – 1991
35 Rule Making by Commonwealth Agencies – 1992
36 Environmental Decisions and the Administrative Appeals Tribunal – 1994
37 Administrative Review and Funding Decisions (A Case Study of Community Services Programs) – 1994
38 Government Business Enterprises and Commonwealth Administrative Law – 1995
52 39 Better Decisions: review of Commonwealth Merits Review Tribunals – 1995
40 Open Government: a review of the federal Freedom of Information Act 1982 - 1995
41 Appeals from the Administrative Appeals Tribunal to the Federal Court – 1997
42 The Contracting Out of Government Services – 1998 43 Administrative Review of Patents Decisions – 1999
G What Decisions should be subject to Merits Review 1999
G Practical Guidelines for Preparing Statements of Reasons – 2000
G Commentary on the Practical Guidelines for Preparing Statements of Reasons – 2000
44 Internal Review of Agency Decision Making – 2000
G Internal Review of Agency Decision Making – A Best Practice Guide – 2000
Exposure Draft Principles of Conduct for Members of Merit Review Tribunals – 2000
G A Guide to Standards of Conduct for Tribunal Members – 2001
1 … = number of Report; Reports may be preceded by release of Issues Papers and Discussion Papers. G = Guidelines for use by agencies, decision-makers, tribunals and legislators.
53
APPENDIX 4
STATUS OF THE COUNCIL’S RECOMMENDATIONS
Introduction
The Council provides written advice to Government in the form of project reports and letters of advice. Each year the Council provides an update of any substantive responses to its work, together with a summary in relation to its reports and letters: S which are less than five years old; and S on which action has not been finalised, but where there has been some action taken during the reporting year of which the Council is aware.
Below is a summary of the Council's last five project reports, together with its Report No 35, Rule Making by Commonwealth Agencies (which remains of particular interest to the public). The Council is not aware of any action in relation to any other reports or letters, being taken during the year, that is not covered in this annual report.
Project reports
Report No 35, Rule Making by Commonwealth Agencies
Summary of the report
The report was transmitted to the Government on 26 March 1992 and was tabled in the Parliament on 6 May 1992.
The Report provides guidance on matters which are appropriate for inclusion in Acts, and on matters which should be included in delegated legislation. It recommends: S improved practices to ensure high quality drafting for all Commonwealth rules and mandatory consultation with the community prior to the making of important rules; S improved procedures for parliamentary scrutiny and control which apply to all rules and the sun-setting of rules on a ten-year, rotating basis; S the establishment of a Legislative Instruments Register in which all rules should be published, with rules being unenforceable if not published in this way; and S special adaptations of those general procedures for rules of court and rules made under inter-governmental schemes for nationally uniform regulations.
55 Response to the report
As indicated by the introduction of legislation embracing the substance of the report, governments have responded favourably to the report over a number of years. Legislative Instruments Bills were introduced into the Parliament in 1994, 1996 and 1998. The last bill lapsed when the Parliament was prorogued for the October 1998 election. No further Bill had been introduced before Parliament was prorogued on 8 October 2001.
Notwithstanding the lack of a legislative response, the Council notes that for some years the Office of Legislative Drafting has administratively maintained a Legislative Instruments Database of scanned images of new Statutory Rules and selected other instruments, together with scans of old Statutory Rules. This administrative database will become part of the Register once appropriate legislation is passed.
In a speech delivered at Council’s 25th Anniversary dinner on 6 December 2001, the Attorney-General, the Hon Daryl Williams AM QC MP, indicated that:
‘I am keen to progress again the Legislative Instruments Bill…
A Legislative Instruments Bill would provide a comprehensive regime to improve standards for the drafting, scrutiny and accessibility of delegated legislation.
It would require appropriate consultation to be undertaken in the formulation of legislative instruments, and allow such instruments to be regularly reviewed.’
Report No 39, Better Decisions: Review of Commonwealth Merits Review Tribunals
Summary of the report
The report was transmitted to the Government on 14 September 1995 and tabled in the Parliament on 28 September 1995.
The report contained 102 recommendations relating to both matters of general application to all tribunals, regardless of the structure of the review tribunal system,23 and specific recommendations for the establishment of an integrated review tribunal body - the Administrative Review Tribunal (the ART).
23 These covered matters such as the objectives of the merits review system; review tribunal processes; tribunal membership; access; information and awareness; and administration and management.
56 Response to the report
The Administrative Decisions Tribunal Bill 2000 (the ART Bill) was introduced on 28 June 2000. The Administrative Review Tribunal (Consequential and Transitional Provisions) Bill 2000 was introduced on 12 October 2000. The ART Bill provided for an independent multi-divisional merits review tribunal replacing four merits review tribunals - the Administrative Appeals Tribunal, the Social Security Appeals Tribunal, the Migration Review Tribunal and the Refugee Review Tribunal. However, the Bills departed from Council's recommendations in several significant respects.24 The legislation was the subject of an inquiry by the Senate Standing Committee on Legal and Constitutional Affairs. The Senate rejected the Bills on 26 February 2001.
The Council understands that the Government is currently considering the future of the legislation in light of its original objectives in proposing the new administrative review tribunal.
Report No 40, Open Government: a review of the Federal Freedom of Information Act 1982
Summary of the report
The report was a collaborative effort between the Council and the Australian Law Reform Commission. It was transmitted to the Government in early 1996 and was tabled in the Parliament on 24 January 1996.
The report contains 106 recommendations including establishing a Freedom of Information Commissioner to monitor the administration of the Freedom of Information Act 1982 (the FOI Act). Other recommendations concern the application of the exemption provisions of the Act. They clarify the grounds on which access to a document can reasonably be denied, and include some guidance on how to apply the public interest considerations.
Response to the report
Apart from amendments to the FOI Act included in the Administrative Review Tribunal (Consequential and Transitional Amendments) Bill 2000 as a result of the proposed establishment of the ART, two minor changes to section 64 of the FOI Act, intended to implement recommendations 85 and 86 of Report No 40, regarding production and non-disclosure of exempt documents, were also to have been made.
24 For example, the ART Bill did not include the Veterans' Review Board and Ministers with portfolio responsibility for key jurisdictions were given influence over the Tribunal’s administration.
57 As these amendments to section 64 are still necessary, the Government is understood to be seeking a suitable alternative Bill to the ART Bill in which to include them.
On 5 September 2000, Senator Andrew Murray of the Australian Democrats, introduced in the Senate the Freedom of Information (Open Government) Bill 2000. The Bill sought to amend the FOI Act to give effect to many of the recommendations of Report No 40, including the establishment of an FOI Commissioner. The Bill was referred to the Senate Legal and Constitutional Legislation Committee which reported in early April 2001. The Senate Committee recommended that the Bill proceed through Parliament with modifications, the main modification being that the FOI Commissioner be included in the Ombudsman’s Office, rather than being established as a separate body. It also recommended the Ombudsman’s Office be properly resourced for the new function.
The Bill lapsed without being debated when the federal election was called in October 2001. No information was available at the end of the reporting period as to Senator Murray’s plans for reintroducing the Bill.
Report No 41, Appeals from the Administrative Appeals Tribunal to the Federal Court
Summary of the report
The report was transmitted to the Government on 29 September 1997 and tabled on 3 December 1997.
Appeals from the Administrative Appeals Tribunal to the Federal Court are currently limited to appeals on a 'question of law', within the meaning of section 44 of the Administrative Appeals Tribunal Act 1975.
In the report, the Council recommends that the scope of review under section 44 should remain unchanged. However, the report also recommends that the Federal Court's powers be expanded slightly, to give it a discretion to receive evidence and to make findings of fact where there has been an error of law - provided the Court's findings are not inconsistent with those of the Tribunal.
Response to the report
The Council notes that this report is being considered by the Government in the context of further development of the Administrative Review Tribunal project.
The Council awaits advice on the Government's position on the recommendation.
58 Report No 42, The Contracting Out of Government Services
Summary of the report
The report was transmitted to the Government on 25 August 1998 and was tabled in the Parliament on 2 November 1998.
When government provides a service directly to the public, a recipient of that service who is dissatisfied with some aspect of its delivery may have one or more administrative law remedies available. Those remedies may include the right to information under freedom of information legislation; the right to complain to the Ombudsman; or, the right to have a decision reviewed by the Federal Court or a tribunal.
When that service is contracted out to the private sector, access to administrative law remedies by service recipients may be lost in the process.
The report considers how existing systems of governmental, financial and parliamentary accountability could be modified to take account of the increasing use of private contractors to perform activities and provide services on behalf of government.
The report contains recommendations relating to the preparation of appropriate contracts, and the application of both private law and administrative law in situations where services are provided by contractors.
Response to the report
The report made a number of recommendations that fall within the portfolio responsibility of several Commonwealth Departments – the Department of Finance and Administration, the Department of Prime Minister and Cabinet and the Attorney-General’s Department.
Several recommendations relate to matters that have also been the subject of consideration by other bodies, in particular, the Joint Committee of Public Accounts and Audit, including in its report Contract Management in the Australian Public Service.25
The Government has indicated that it has not been in a position to settle its response to the recommendations made in Report No 42 until also settling its response to overlapping recommendations made by other bodies. However, it is understood that a draft response to the report is being finalised and will be available in the near future.
25 Report No 379, October 2000.
59 The Council notes that four years have elapsed since the publication of Report No 40. While the Council accepts that time is required to properly consider the issues raised in the report, the Council is concerned to ensure that the value in the report is not lost, and that the increasing use of contracted services by government agencies is managed in a way that provides adequate safeguards to the public as well as appropriate accountability.
Report No 43, Administrative Review of Patents Decisions
Summary of the report
The report was transmitted to the Government on 16 October 1998 and was tabled in the Parliament on 9 February 1999.
The central issue canvassed in the report is the appropriateness of the current arrangements for the review of decisions by the Commissioner of Patents. Some decisions are currently reviewable by the Administrative Appeals Tribunal, others by the Federal Court and there are decisions that are not currently the subject of review at all.
The report makes recommendations that may be summarised as favouring merits review by the Administrative Appeals Tribunal for most of the decisions of the Patents Commissioner.
Response to the report
The Council understands that progress on this matter, delayed due to resource constraints, is expected to resume shortly.
Report No 44, Internal Review of Agency Decision Making
The Report was transmitted to the Government on 29 November 2000 and was tabled in the Parliament on 28 March 2001.
Summary of the report
The Council’s aim in producing this report was to examine issues in relation to internal review (merits review within an agency) with a view to offering practical assistance to Commonwealth agencies in this area. As agencies differ greatly in terms of their size and nature, and in the number and sorts of decisions that they review internally, the Report does not recommend a single model, but provides a framework for agencies to design new internal review regimes and review existing practices.
The final chapter to the report is a best practice guide and was also published separately as a short booklet.
60 Response to the report
The report contains no recommendations to Government.
61
APPENDIX 5
THE COUNCIL’S EXPENDITURE, 1 JULY 2001 TO 30 JUNE 2002
Item/Description Allocation Expenditure
1. Salaries, and payments in the nature of $443, 945.00 $390, 594.00 salary: Membership of professional bodies $250.00 Recruitment costs $3, 856.00 2. Suppliers expenses, including : $182, 678.00 $110, 848.00 Consultancies $2, 704.00 Contractors $2, 119.00 Council meeting costs* $1, 323.00 External conferences and courses (training) $15, 584.00 Library books and subscriptions $21, 455.00 Motor vehicles $13, 449.00 Printing $17, 278.00 Sitting fees $10, 000.00 Stores and stationery $5, 889.00 Travel and related allowances $19, 904.00 Totals $626, 623.00 $501, 442.00
* Does not include travel costs.
63