Administrative Review Council

Twenty-seventh Annual Report
2002–03

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

ISSN 0155-025X
ISBN 0 642 21130 2

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

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

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

Administrative Review Council

28 October 2003

The Hon. Philip Ruddock MP
Attorney-General
Parliament House
CANBERRA ACT 2600

Dear Attorney-General

In accordance with s.58 of the Administrative Appeals Tribunal Act 1975, I am pleased to present to you this report on the operation of the Administrative Review Council for the year 2002–03.

Yours sincerely

Wayne Martin QC
President

Wayne Martin QC Justice Garry Downes AM

Professor John McMillan Professor David Weisbrot

Robert Cornall Professor Robin Creyke

Stephen Gageler SC Patricia Ridley

Melissa Sloss SC Sue Vardon

Andrew Metcalfe

Robert Garran Offices, National Circuit, Barton ACT 2600
Telephone: (02) 6250 5800 Facsimile: (02) 6250 5980 e-mail:
Internet: law.gov.au/arc

The Administrative Review Council, 3 July 2003

Standing: Professor David Weisbrot, Professor John McMillan, Melanie Sloss SC, JusticeGarry Downes AM, Sue Vardon, Robert Cornall, Patricia Ridley

Seated: Professor Robin Creyke, Wayne Martin QC, Christine Charles

Not included: Stephen Gageler SC

Twenty-seventh annual report: 2002–03 61

Contents

1 Overview 1

Promoting the work of the Council 1

Changes in Council membership 2

2 The work and performance of the Council 3

The Council’s work 3

An assessment of the Council’s performance 8

3 Management and accountability 13

Enabling legislation 13

The responsible Minister 13

The annual report 13

Functions and powers of the Council 13

Membership of the Council 13

The Council’s Secretariat 15

Council expenditure 15

The Council’s meeting dates 15

Consultancy services 16

Social justice and equity 16

Equal employment opportunity 17

Occupational health and safety 17

Freedom of information 17

Advertising and market research 19

Ecologically sustainable development and environmental performance 20

Appendix A Section 51 of the Administrative Appeals Tribunal Act 21

Appendix B Reports and guidelines issued by the Administrative Review Council 23

Appendix C Letters of advice 26

Appendix D Status of the Council’s recommendations 55

Appendix E The Council’s expenditure, 2002–03 61

Twenty-seventh annual report: 2002–03 61

1 Overview

The year 2002–03 has been a productive one for the Administrative Review Council, with significant progress on existing projects and work beginning on several new projects. The year has also seen an increase in the level of advice provided by the Council on administrative law aspects of Commonwealth government legislation.

Two of the Council’s research projects reached important milestones during the year with the publication and launch of The Scope of Judicial Review discussion paper and the Automated Assistance in Administrative Decision Making issues paper. These papers concern law and practice in diverse areas of the administrative law system and raise important questions about responding to change in these areas. Both papers—and especially the one on judicial review—have attracted high levels of interest and been well received. The Council expects to produce final reports of its work in both areas during 2003–04.

In addition to its work on these two projects, the Council began work on two new projects. The focus of the first project is Commonwealth government agencies’ use of coercive investigative powers. The Council’s aim is to provide guidance on the use of such powers and encourage greater consistency across government to the extent that that is possible. The second project deals with matters relating to the procedural discretions of review tribunals, including time limits, standing, and the stay of decisions. Here, the aim is to provide guidance to agencies on the circumstances in which modifications to tribunal discretions are appropriate.

The Council has continued to provide advice on the practical application of administrative law values and principles to decision makers, tribunals, government and individuals. The trend of the previous year continued and intensified in 2002–03, with an increase in the number of advices provided and submissions made by the Council on aspects of administrative law and policy.

During the year the Council provided advice on a range of proposals with implications for administrative law and policy. The Council is pleased with its efforts in this regard, particularly where it was able to become involved at an early stage in the process. It has resolved to continue to pursue opportunities for early involvement in the development of administrative law and policy aspects of legislative proposals.

Promoting the work of the Council

During 2002–03 the Council gave particular consideration to ways in which it might best promote its work and its role in the federal administrative law and decision-making system. While recognising that the principal means of achieving this objective is through the quality of its publications, the Council also took steps to improve both access to and awareness of its publications through better publicity techniques. This included presentations by Council members and Secretariat staff at administrative law seminars and conferences, coordinated publicity campaigns at the time of the launch of publications, and submissions to parliamentary committees and other government inquiries concerned with administrative law.

Publication of the Council’s Scope of Judicial Review and Automated Assistance in Administrative Decision Making also afforded the Council the opportunity to reconsider its publicity strategies in the light of new technology. Copies of both papers are available on CD-ROM, as well as in the traditional paper format. In future, all major Council publications will be available in both formats. Copies of all important papers will also continue to be published on the Council’s website <www.law.gov.au/arc>.

In November 2002 the Council met with then Attorney-General, the Hon. Daryl Williams AM QC MP, to discuss the Council’s proposed work plan. The outcome of the discussion is reflected in the work of the Council detailed in this report.

Changes in Council membership

Ron McLeod AM retired as Commonwealth Ombudsman in March 2003, and his exofficio position on the Council was filled by his successor as Ombudsman, Professor John McMillan. Mr McLeod was farewelled at the Council’s February 2003 meeting, when he was thanked for his contribution to the work of the Council.

In March 2003 the Council was pleased to welcome two new members—Melanie Sloss SC, a member of the Victorian Bar, and Sue Vardon, Chief Executive Officer of Centrelink. In June 2003 the Council welcomed the re-appointment of Robert Cornall for a further three-year term while farewelling another member, Bill Blick PSM, Inspector-General of Intelligence and Security, whose term of appointment expired in that month.

Twenty-seventh annual report: 2002–03 61

2 The work and performance of the Council

Section51 of the Administrative Appeals Tribunal Act 1975 sets out the statutory functions of the Administrative Review Council (see AppendixA). The Council is required to review and inquire into the Commonwealth administrative law system and to recommend to the Minister improvements that might be made to the system. This includes assessing the adequacy of procedures used in exercising administrative discretions and reviewing classes of decisions to determine if they should be subject to administrative review. The Council has a particular recommendatory role in relation to Commonwealth merits review tribunals.

The Council’s work

The Council carries out its functions under s.51 of the Administrative Appeals Tribunal Act through a work program that takes in the preparation of reports on longer term research projects dealing with aspects of the administrative law system, through advising government about the application of administrative law principles to particular policy developments, and through educational and training activities.

Reports and consultation papers

The Council has published 45 reports on aspects of the Commonwealth’s administrative law and decision-making system during the 27years of its existence (see AppendixB). In many instances publication of the reports has been preceded by the publication of issues and discussion papers.

In 2002–03 the Council released two important papers—a discussion paper, The Scope of Judicial Review, and an issues paper, Automated Assistance in Administrative Decision Making. Both are substantial publications and have provided valuable opportunities for members of the community to become involved in the Council’s work. The Council has also started work on two new projects, one relating to the coercive investigative powers of Commonwealth agencies and the other relating to the procedural discretions of Commonwealth tribunals.

The scope of judicial review

The Scope of Judicial Review explores a number of aspects of judicial review, among them the following:

· the constitutional aspects of the scope of judicial review

· other factors relevant to the scope of judicial review from either the judicial or the governmental perspective

– justiciability

– deference

– the nature of certain grounds of judicial review

– resource-related considerations

– the nature of the decision maker

– the nature of the decision

– alternative remedies

· ways of legislatively limiting or excluding judicial review.

On the basis of responses to the discussion paper and related consultations, the Council will shortly begin developing a final report of its work on the scope of judicial review.

Automated assistance in administrative decision making

Automated Assistance in Administrative Decision Making deals with the use of computer-based ‘expert systems’ for primary decision making in Commonwealth government agencies and considers the implications for administrative decision makers of the use of this technology. The paper canvasses arguments that the technology has great potential to increase accuracy and reduce the costs of administering government programs; it also discusses suggestions that the technology can offer new and innovative methods of service provision. A number of matters are raised, among them increased accuracy, reduced costs, the potential ‘de-skilling’ of decision makers, and the relationship between the administrative law system and decisions made by computer-based systems.

The paper has attracted considerable interest, including from a number of organisations outside the Council’s usual stakeholder group. As part of its consultation strategy for the project, the Council is planning to hold several public forums during 2003–04. Input from a wide range of interested parties will be encouraged.

The aim of the Council’s final report on this project will be to provide guidance to government on the appropriate use of expert systems in administrative decision making.

Coercive investigative powers of government agencies

The Council has begun work on a project dealing with the coercive investigative powers of government agencies. The project will involve an assessment of the range of such powers conferred by legislation on Commonwealth agencies and will focus on powers exercisable without application to the courts. The primary objective is to determine whether greater consistency in the use of these powers across government is either desirable or achievable. The Council will also consider the accountability mechanisms associated with the exercise of the powers and the protections available to individuals against whom the powers might be exercised.

As a first step, the Council plans to develop a discussion paper outlining the current range of coercive investigative powers conferred on Commonwealth agencies and the considerations associated with establishing a model set of such powers.

Procedural discretions of review tribunals

In its examination of the procedural discretions of Commonwealth review tribunals, the Council’s initial focus is on time limits, standing, and stays of decisions. The aim is to identify and categorise varying practices in these three areas with a view to achieving greater legislative consistency. A possible outcome of the project will be recommendations to government on suitable amendments to the procedural discretions provided to tribunals and the circumstances in which such amendments are appropriate.

Other projects

During 2002–03 the Council also resolved to develop a compendium of key principles of administrative law that need to be taken into account in the training of administrative decision makers. Prompted by the outcomes of the HIH Royal Commission, the Council also proposes to carry out a short study of the various mechanisms provided in legislation for reviewing decisions of the Australian Prudential Regulatory Authority. By the end of the reporting year preliminary work on both these projects had begun.

Advice and submissions to government

The Council regularly provides for government departments and agencies advice on a wide range of administrative law and policy questions and responds to public inquiries into matters that affect the Commonwealth administrative law system.

In 2002–03 the Council placed greater emphasis on this role, and particularly on early involvement in the process, because it considers that better policy outcomes are achievable in this way. During the year the Council provided 12 formal letters of advice or submissions to Ministers, agencies and parliamentary inquiries; this compares with seven in 2001–02. Additionally, on a number of occasions the Council provided advice of a less formal nature to several government agencies.

The Council’s early involvement in the development of administrative law policy has resulted in increased resources being required for this work, as both Council members and Secretariat staff are more likely to be involved in follow-up negotiations. The Council considers that the benefits that accrue—in terms of improvements in the application of administrative law principles to new and often unique areas of government policy—justify the increased resources required.

AppendixC presents letters of advice issued by the Council in 2002–03. Because of their proximity to the deliberations of government, not all such letters are reproduced. The Council hopes to publish these letters in future annual reports.

Also included in AppendixC is a letter of advice from 2001–02 relating to the review of decisions of the Pharmaceutical Benefits Advisory Committee: because issues relating to this advice were still under consideration, it was not possible to publish the letter in last year’s annual report.

Education and training

Publications

From time to time the Council issues guidelines for use by agencies, decision makers, tribunals and legislators; these are listed in AppendixB along with the Council’s reports.