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Administrative Review Council - Admin Review |
Margaret Harrison-Smith[*]
I am pleased to have the opportunity to contribute to this special 30th anniversary issue of Admin Review. In doing so, I like to think I am representing in some part the dozen or so former directors and over 70 other officers who in the past 30 years have constituted the Administrative Review Council Secretariat and contributed to the work of the Council. As I am sure many former Secretariat officers would agree, to work with the Council is a singular and fulfilling experience that provides a unique perspective on the workings of government.
Celebration of the Council’s 30th anniversary would not be complete without some consideration of the Council’s beginnings. These lie, as is noted elsewhere in this special issue, with the Administrative Review Committee, established by the Gorton Government in 1968. Chaired by the Hon. Mr Justice John Kerr CMG, the Committee is often referred to as the Kerr Committee. (It is very pleasing to have as a contributor to this special issue another member of the Committee, Sir Anthony Mason, who was at that time a judge of the Supreme Court of New South Wales.)
The Government provided the Committee with the following terms of reference:
• to consider what jurisdiction (if any) to review administrative decisions made under Commonwealth law should be exercised by the proposed Commonwealth Superior Court, by some other Federal Court or by some other Court exercising federal jurisdiction[1]
• to consider the procedures whereby review is to be obtained
• to consider the desirability of introducing legislation along the lines of the United Kingdom Tribunal and Inquiries Act 1958
• to report to the Government the conclusions of the Committee.[2]
The inspiration for the Administrative Review Council came from the Committee’s study of the United Kingdom’s Tribunals and Inquiries Act. That Act established a Council on Tribunals for the following purpose:
To keep under review and to report on the constitution and working of certain scheduled tribunals; to consider and report on such particular matters as may be referred to the Council under the Act with respect to tribunals other than courts whether or not specified in the schedule; and to consider and report on such matters as may be referred or as the Council may determine to be of special importance, with respect to administrative procedures involving or which may involve the holding by or on behalf of a Minister of a statutory inquiry.
The Kerr Committee recommended the introduction of a permanent Administrative Review Council with functions similar to those of the UK Council. In view of its proposal to establish a general administrative review tribunal, the Committee also recommended other important permanent functions for the Australian Council, relating to the decisions that should be subject to administrative review, either in a specialist tribunal or in the proposed general review tribunal.[3]
The Committee recommended the establishment of the Council as the first step in implementing its proposed reforms.[4]
The legislative birth of the Administrative Review Council was not as smooth as the workings of the Kerr Committee, although ultimately it was impressively bipartisan.
On 6 March 1975 the then Attorney-General, the Hon. Keppel Enderby MP, introduced the Administrative Appeals Tribunal Bill 1975 (Cth) into the House of Representatives. The Bill did not, however, establish the Administrative Review Council. Rather, in his second reading speech the Attorney-General announced that he hoped to ‘consult with other departments on the basis of the detailed recommendations in the Bland Committee report, to determine what matters should be the subject of appeals to the Tribunal’.[5]
Debate on the Bill was deferred, to resume on 14 May 1975. At that time, a relatively new member of Parliament, John Howard MP, who had delivered his first speech some seven months before, proposed a number of amendments to the Bill on behalf of the Opposition. Among these was an amendment to establish the Administrative Review Council. Introduced by Mr Howard on 22 May 1975, the amendment called specifically for the creation of a council consisting of ‘The President, the Ombudsman, the Chairman of the Australian Law Reform Commission, a senior administrative official and a Parliamentary draftsman’.[6]
During committee debate on the Bill, Robert Ellicott MP supported Mr Howard’s proposal for the creation of the Council, arguing also for a ‘small number of research staff to service [the Council]’.[7] As Solicitor-General, Mr Ellicott had been a member of the Administrative Review Committee. He later became Commonwealth Attorney-General.
Attorney-General Enderby accepted the need for the Council but questioned whether the proposed amendment would permit appointment to the Council of suitably qualified academics.[8] The Government accordingly proposed a further amendment to the Bill to enable the admission of academic members.
The Bill received Royal Assent on 28 August 1975, and the Act commenced on 1 July 1976. The Council had its first meeting on 15 December 1976. The passage of time is reflected in the fact that the Council will have its 225th meeting later this year.
As noted by the Council’s President, Jillian Segal, and Professor Robin Creyke, in their contribution to this anniversary issue, in 1997 there was a Senate inquiry into the continuing utility of the Administrative Review Council.[9] The only significant legislative amendments to the functions envisaged for the Council by the Kerr Committee and implemented in 1975 by the Parliament followed on from that inquiry. Consistent with the findings of the inquiry, the changes were expansive rather than limiting of the Council’s powers.
The amendments were included in the Administrative Appeals Tribunal Act 1975 (Cth) by the Law and Justice Legislation Amendment Act 1999 (Cth). They confirmed the Council’s role of keeping administrative law under review. They also clarified the Council’s role of inquiring into and consulting on the adequacy of the procedures used by primary decision makers, as well as tribunals and other bodies engaged in the review of administrative decisions.
As noted elsewhere in this issue, in recent years the Council has used the gamut of its powers to provide expert advice on many aspects of Australia’s administrative system.
To conclude, I return to the beginnings, to the influence of the UK Council on Tribunals on the establishment—if not the shape and constitution—of the Administrative Review Council. As Lord Newton suggests in his contribution to this issue, there are longstanding historical links between the two Councils.
History has come full circle. In May 2000 the British Government commissioned an independent review of the tribunals system, chaired by Sir Andrew Leggatt, to consider ‘the administrative justice system as a whole’. The report, Tribunals for Users, was submitted to the Lord Chancellor in March 2001.
The Leggatt report made a number of recommendations, most of them directed at improving the services tribunal users receive. As Lord Newton notes in his contribution, Sir Andrew Leggatt saw the UK Council as central to British administrative law, recommending that it be given a higher profile and a broader remit. His report expressed the hope that, in the longer term, the Council:
like the Administrative Review Council in Australia … should be made responsible for upholding the system of administrative justice and keeping it under review, for monitoring developments in administrative law, and for making recommendations to the Lord Chancellor about improvements that might be made to the system.[10]
The UK Department for Constitutional Affairs subsequently consulted widely on the report, in July 2004 releasing a White Paper entitled Transforming Public Services: complaints, redress and tribunals. The Department agreed with the view expressed in the Leggatt report concerning the Council on Tribunals.[11] Provisions to reconstitute the Council on Tribunals as the Administrative Justice and Tribunals Council are included in clause 44 of the Tribunals, Courts and Enforcement Bill 2006. The Council on Tribunals will be abolished under clause 45 of the Bill.[12]
This historical analysis confirms that the Administrative Review Council was established to provide strong and independent advice to government on the Australian administrative system. The perception of the Council reflected in the excerpt from the Leggatt report that I include above suggests that, so far, the Council has been doing so successfully.
I am confident that future officers of the Council’s Secretariat will continue to be rewarded with the breadth of experience and the fulfilment enjoyed by their predecessors during the last 30 years.
[*] Margaret Harrison-Smith is Executive Director of the Administrative Review Council. She thanks Attorney-General’s Department Graduate Robert Gascoigne for his assistance in the preparation of this article.
[1] As amended by the Attorney-General in 1970.
[2] Administrative Review Committee 1971, Report, Parliamentary Paper no. 44, Commonwealth of Australia, Canberra, p 1.
[3] Kerr Committee report, pp 81, 83.
[4] ibid., p 103.
[5] Commonwealth Parliamentary Debates (House), 6 March 1975, p 1188. The final report of the Committee on Administrative Discretions, named the Bland Committee after its chairperson, Sir Henry Bland. The report contained a thorough analysis of the existing framework for administrative review. Among other things, it identified the discretionary powers that should be subject to tribunal review. (Bland, Sir Henry 1973, Report of the Committee on Administrative Discretions, Parl. Paper 316/1973, Australian Government Publishing Service, Canberra.)
[6] ibid., 22 May 1975, p 2743.
[7] ibid.
[8] ibid., p 2744.
[9] Senate Legal and Constitutional Legislation Committee 1997, Report on the Role and Function of the Administrative Review Council, SLCLC, Canberra.
[10] Leggatt, Sir A 2001, Tribunals for Users: one system, one service—report of the Review of Tribunals, <http://www.tribunals-review.org.uk/leggatthtm/leg-00.htm>, para 178.
[11] Department for Constitutional Affairs 2004, Transforming Public Services: complaints, redress and tribunals, White Paper, Cm 6243, HMSO, London, para 11.5.
[12] At the time of writing, the Bill had been passed by the House of Lords and was before the House of Commons.
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URL: http://www.austlii.edu.au/au/journals/AdminRw/2007/10.html