Administrative Review Council
twenty-sixth annual report
2001 - 2002
ii
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:
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:
Internet: law.gov.au/arc
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
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.
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
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
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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:
· the launch of the Council publication, A Guide to Standards of Conduct for Tribunal Members (the Guide); and
· 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
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.’
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:
· letters of advice and submissions in relation to aspects of administrative review, administrative law and public administration (see Appendix 2); and
· 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.
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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:
‘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.
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]