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Administrative Review Council - Admin Review |
The Administrative Review Council determined that on the occasion of its 30th anniversary it would provide a historical review of Council reports.
The Council’s report on the scope of judicial review was transmitted to the Government on 3 May 2006 and tabled in the Parliament on 9 May 2006.
The report addresses the constitutional and policy considerations relevant to the scope of judicial review and, in particular, notes the essential role of judicial review in maintaining the rule of law and safeguarding individual rights. The report considers when it is appropriate to seek to reduce the scope or practical availability of judicial review, and the Council’s conclusions are summarised in a succinct framework of indicative principles.
The report begins by outlining the constitutional and legislative basis for judicial review in the Commonwealth administrative law system, the grounds for seeking judicial review and the rationale for providing judicial review. The public law values that underlie judicial review are the rule of law, safeguarding of individual rights, accountability, and consistency and certainty in the administration of legislation.
The report then goes on to consider a number of justifications for limiting the scope of judicial review that were put forward during the Council’s project or have been used in the past to justify reducing the scope of judicial review. Examples are avoiding fragmentation of criminal proceedings, urgent decisions, decisions involving matters of policy, decisions where there is a need for certainty, and where review is sought on the grounds of unreasonableness. The report considers whether and in what circumstances these reasons justify removing or limiting the scope of judicial review.
In general, the Council considers that the rule of law and the provision of remedies for redressing unlawful government action or inaction are paramount values in Australian society and under the Australian Constitution. A strong justification is needed to reduce judicial review in such a way as to allow conduct to proceed without the availability of any kind of remedy. The Council recognises, however, that in some circumstances judicial review may be limited, since in some circumstances the public law values that underlie judicial review can be advanced by other means and at times other important legal and governmental values may conflict with the values underlying judicial review.
The conclusions summarised in the framework of indicative principles provide practical guidance for governments, policy officers and legislative drafters in the consideration of review mechanisms to be incorporated in legislation. The framework is intended to complement another of the Council’s publications, What Decisions are Subject to Merits Review?
The Council notes that this report does not contain any formal recommendations; rather, it presents a framework of indicative principles for practical guidance.
The Council’s report on automated assistance in administrative decision making was transmitted to the Government on 12 November 2004 and tabled in the Parliament on 7 December 2004.
The report was preceded by an issues paper. In addition, a forum was held on 12 November 2003 to further consider the uses of expert systems. The forum was attended by approximately 60 people from a broad range of interest groups, including government, business and community organisations. Although the primary focus of the Council’s issues paper was rules-based systems, in the report the Council broadened its focus to other forms of expert systems used in administrative decision making.
Setting out best-practice guidelines for the use of expert computer systems by government agencies in administrative decision making, the report focused on the sorts of administrative decisions best suited to the use of expert computer systems, the advantages and disadvantages of using expert systems in administrative decision making, best-practice principles for developing and operating expert systems in administrative decision making, and the need for expert systems used in administrative decision making to comply with the administrative law values of lawfulness, fairness, rationality, transparency and efficiency.
The report identified 27 best-practice principles the Council considered would ensure that decision making done with the assistance of expert systems would be consistent with administrative law values.
During 2005–06 the advisory panel the Council proposed was established as the Automated Assistance in Administrative Decision Making Working Group. This Group developed the Automated Assistance in Administrative Decision Making Better Practice Guide in February 2007, to assist Australian government agencies in the successful deployment of automated systems.
The Council’s report on the Council of Australian Tribunals was transmitted to the Government on 29 October 2002 and tabled in the Parliament on 10 December 2002.
On 12 June 2001 the Council had written to the Attorney-General to propose a model for a new association, the Council of Australian Tribunals, or COAT. In progressing the proposal, the Council consulted extensively and convened a meeting of Commonwealth, state and territory tribunal heads on 3 October 2001. The report contains the original constitution of COAT, the Memorandum of Objects of State and Territory Chapters, and the minutes of the inaugural COAT meeting, held on 6 June 2002.
The Council’s proposal was considered at the Australian Institute of Judicial Administration Tribunals Conference in Melbourne on 6 June 2002, and it was decided to expand the organisation to include New Zealand tribunals. The Council as established is thus known as the Council of Australasian Tribunals, or COAT.
The Council’s report on agency decision making was transmitted to the Government on 29 November 2000 and tabled in the Parliament on 28 March 2001.
The Council examined aspects of internal review (merits review within an agency) with a view to offering practical assistance to Commonwealth agencies. Because agencies differ greatly in terms of their size and nature and the number and sorts of decisions they review internally, the report did not recommend a single model; rather, it provided a framework for agencies to design new internal review regimes and review existing practices. There were no recommendations to government.
The report put forward a framework to assist agencies in reviewing existing internal review practices. It provided guidance on matters such as which decisions should be subject to review, the independence of internal review officers, the accessibility of internal review regimes, the process and practice of internal review, and management and support for internal review systems. The standards in the report were formulated on the basis of research and analysis carried out during the project.
The final chapter of the report was a best-practice guide and was also published separately as a short booklet, Internal Review of Agency Decision Making: a best-practice guide.
The Council’s report on review of patents decisions was transmitted to the Government on 16 October 1998 and tabled in the Parliament on 9 February 1999.
The report was preceded by an issues paper. The central question canvassed in the report was the appropriateness of the arrangements for review of decisions by the Commissioner of Patents. Some decisions were reviewable by the Administrative Appeals Tribunal; others by the Federal Court; and some were not the subject of review at all.
This report made recommendations that can be summarised as favouring merits review by the Administrative Appeals Tribunal for most of the decisions of the Patents Commissioner.
The Council’s report on the contracting out of government services was transmitted to the Government on 25 August 1998 and tabled in the Parliament on 2 November 1998.
The report, which was preceded by an issues paper and a discussion paper, noted that when government provided a service directly to the public a recipient of that service who was dissatisfied with some aspect of its delivery might have one or more administrative law remedies available. Among those remedies might have been the right to information under the freedom of information legislation, the right to complain to the Ombudsman, and the right to have a decision reviewed by the Federal Court or a tribunal. When that service was contracted out to the private sector, however, service recipients’ access to administrative law remedies could be lost in the process.
The report considered 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. It discussed the difficulties some recipients of contracted-out services can have in seeking remedies for defects in those services—for example, because the recipient is ill or frail, has language difficulties or has limited mobility.
The Council made recommendations relating to the preparation of contracts and the application of both private and administrative law in situations where services are provided by private contractors.
The report contains a number of recommendations that fall within the portfolio responsibility of three Commonwealth departments: the Department of Finance and Administration, the Department of the Prime Minister and Cabinet, and the Attorney-General’s Department. Further, 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.[1]
The Council understands that the Government is not in a position to settle its response to the recommendations made in Report no. 42 until it has also settled its response to overlapping recommendations made by other bodies and that no time frame for release of a response has been provided.
Amendments to the Ombudsman Act 1976, passed by Parliament in November 2005, enable the Ombudsman to investigate complaints about government contractors providing goods and services to the public on behalf of a government agency. The Act now provides that action taken by Australian government contractors and subcontractors in the exercise of a power or the performance of a function for or on behalf of an agency under a contract with that agency is taken for the purposes of the Ombudsman Act to be action by the agency.
Legislation to create a separate office of the Postal Industry Ombudsman within the Office of the Commonwealth Ombudsman was passed by Parliament on 29 March 2006; the office commenced operations in October 2006. The jurisdiction of the Postal Industry Ombudsman extends to private sector postal operators who register to participate in the scheme.
The Council’s report on appeals from the Administrative Appeals Tribunal to the Federal Court was transmitted to the Government on 29 September 1997 and tabled in the Parliament on 3 December 1997.
The report, which was preceded by a discussion paper, noted that appeals from the Administrative Appeals Tribunal to the Federal Court were limited to appeals on a ‘question of law’, within the meaning of s 44 of the Administrative Appeals Tribunal Act 1975. In its report the Council recommended that the scope of review under s 44 remain unchanged. It also recommended, however, that the Federal Court’s powers be expanded slightly, to give it discretion to receive evidence and to make findings of fact where there had been an error of law—provided the Court’s findings were not inconsistent with those of the Tribunal.
The Administrative Appeals Tribunal Amendment Act 2005 includes items enabling the Federal Court to make findings of fact when hearing appeals from the Tribunal and to receive evidence for this purpose. The Court’s findings must be not inconsistent with the findings of fact made by the Tribunal, other than findings of the Tribunal that were made as the result of an error of law. The Act also confers these powers on the Federal Magistrates Court in matters that have been transferred to it from the Federal Court.
The Council’s report on the Freedom of Information Act was transmitted to the Government in early 1996 and tabled in the Parliament on 24 January 1996.
The report, which was preceded by an issues paper and a discussion paper, was prepared in collaboration with the Australian Law Reform Commission and makes recommendations designed to improve the public’s access to government‑held information. The Council was concerned to ensure the Act was operating to give full effect to the Australian people’s right of access to government‑held information. In particular, recommendations were made to ensure that the Act was interpreted in a way that gives proper effect to its objectives.
The report contained 106 recommendations, including a recommendation to establish a Freedom of Information Commissioner to monitor the administration of the Freedom of Information Act. Other recommendations concern application of the exemption provisions of the Act, clarifying the grounds on which access to a document can reasonably be denied, and providing guidance on how to apply the public interest considerations.
On 14 March 2006 the Commonwealth Ombudsman issued Scrutinising Government: administration of the Freedom of Information Act 1981 in Australian government agencies, the report of an own-motion investigation that had been initiated in the interest of focusing attention on good practice and areas requiring improvement. The Ombudsman found that there was an uneven culture of support for freedom of information among Australian government agencies and that the Freedom of Information Act worked well in facilitating public access to personal information but not so well in providing access to policy-related information. The report referred explicitly to the Administrative Review Council – Australian Law Reform Commission report and supported the recommendation for the establishment of a statutory Freedom of Information Commissioner.
The Council’s report on merits review tribunals was transmitted to the Government on 14 September 1995 and tabled in the Parliament on 28 September 1995.
The report, which was preceded by a discussion paper and a supplementary discussion paper, makes recommendations for improving people’s awareness of their review rights and establishing simple and accessible review tribunal processes, including access to interpretation services. There were 102 recommendations. The first 86 deal with matters of general application to all tribunals, regardless of the structure of the review tribunal system; they cover such matters as the objectives of the merits review system, review tribunal processes, tribunal membership, access, information and awareness, and administration and management.
The last 16 recommendations concern the structure of the review tribunal system and the relationship between its constituent parts. They include a recommendation for the establishment of an integrated review tribunal body—the Administrative Review Tribunal.
The Government introduced the Administrative Review Tribunal Bill on 28 June 2000 and the Administrative Review Tribunal (Consequential and Transitional Provisions) Bill on 12 October 2000. The former 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.
The Senate rejected both Bills on 26 February 2001, and the Government stated that it did not intend to reintroduce the Bills during the life of that Parliament. Instead, the Government committed itself to reforming the individual tribunals in order to achieve legislative and administrative efficiencies.
The Administrative Appeals Tribunal Amendment Act 2005 commenced on 16 May 2005. The Act includes amendments to allow for more efficient conduct of reviews—such as enabling the President of the Tribunal to authorise ordinary members to exercise powers currently conferred only on presidential and/or senior members, removing restrictions contained in the Administrative Appeals Tribunal Act and other legislation on how the Tribunal is to be constituted for the purposes of a particular hearing, and expanding the range of alternative dispute resolution processes available to the Tribunal.
Administrative efficiencies have been achieved through the co-location of the Migration and Refugee Review Tribunals in Sydney and Melbourne. It is noted here that, for the first time, in 2005–06 these Tribunals published a joint annual report.
The Council’s report on government business enterprises and Commonwealth administrative law was transmitted to the Government on 23 February 1995 and tabled in the Parliament on 30 March 1995.
Rather than setting out specific recommendations, the report, which was preceded by a discussion paper, set out general principles to assist the Government in determining how the Commonwealth’s administrative law package should apply to government business enterprises. The report set out:
• criteria for identifying a GBE—for the purpose of applying Commonwealth administrative law statutes to GBEs • the current application of Commonwealth administrative law statutes to GBEs • principles for determining the application of the administrative law package to GBEs.
The Council considered that Commonwealth administrative law statutes should ordinarily apply to bodies that are government controlled, including GBEs. It also considered that, in relation to their commercial activities, undertaken in a market where there is real competition, GBEs should be exempt from the operation of those statutes.
The Council’s case study report was transmitted to the Government on 8 July 1994 and tabled in the Parliament on 20 September 1994.
The report, which was preceded by an issues paper, made 37 recommendations for improving access to review of decisions made by Commonwealth-funded service providers. The various programs and funding arrangements were divided into those that the Commonwealth funds—individuals and direct service provision programs and funded service provider programs—and Commonwealth–state arrangements. The Council recognised that, because of the different funding mechanisms and the different parties involved in the various programs administered by Commonwealth departments, the nature of the appropriate review mechanisms might differ. The Council examined the most suitable form of review for the different types of programs and sought to draw out general review principles.
The Council’s report on environmental decisions and the Administrative Appeals Tribunal was transmitted to the Government on 15 June 1994 and tabled in the Parliament on 20 September 1994.
In the report, which was preceded by a discussion paper, the Council made nine recommendations for reform. They were not as broad in scope as the preliminary views expressed in the discussion paper. Among the reasons for this were the views expressed during the consultation process and the intervening reform of the Administrative Appeals Tribunal’s practices and procedures. That reform had occurred as part of implementation of the outcomes a review of the AAT, which did much to prevent the problems that had previously been encountered in AAT proceedings.
The Council’s recommendations were related to the general nature and structure of AAT review of environmental decisions and were principally targeted at reducing the potential for cost and delay in AAT proceedings.
The Council considered it important that merits review of environmental decisions:
• provide review of all aspects of substantive decisions • be structured so that review is able to be carried out in the most timely and cost-effective manner • not repeat public consultation and not intervene in the primary decision-making process while that process is ongoing.
The proposed reform of the nature of AAT review of environmental decisions had two aspects:
• defining the scope of AAT review of environmental decisions • providing for special AAT powers and procedures for environmental matters, so that the cost and length of AAT review of environmental decisions are minimised.
The Council’s report on rule making by Commonwealth agencies was transmitted to the Government on 26 March 1992 and tabled in the Parliament on 6 May 1992.
The report, which was preceded by an issues paper, provided guidance on what matters were appropriate for inclusion in Acts and those that should be included in delegated legislation. The Council made 31 recommendations concerning procedures that could be applied in respect of instruments that were of a legislative character. The main elements of the recommendations related to:
• better guidance on matters that are appropriate for inclusion in Acts and those that should be included in delegated legislation • improved practices to ensure high-quality drafting for all Commonwealth rules and mandatory consultation with the community before the making of important rules • improved procedures for parliamentary scrutiny and control, applying to all rules, and the sunsetting of rules on a 10-year, rotating basis • the establishment of a legislative instruments register in which all rules should be published, with rules being unenforceable if not published in this way • special adaptations of those general procedures for rules of court and rules made under intergovernmental schemes for nationally uniform regulations.
The Legislative Instruments Act 2003 received Royal Assent on 17 December 2003 and commenced operation on 1 January 2005. The Act represented the fulfilment of the fourth attempt by successive governments to implement the substance of the Council’s report after Bills introduced in 1994, 1996 and 1998. It incorporates most of the main recommendations in the Council’s report, with the creation of an authoritative legislative instruments register—the Federal Register of Legislative Instruments—that is accessible to the public electronically and the sunsetting of most legislative instruments after 10 years.
In accordance with s 59 of the Act, the operation of the Act will be reviewed in early 2008.
The Council’s report on ethnic communities’ access to administrative review was transmitted to the Government on 14 July 1991 and tabled in the Parliament on 6 May 1992.
In the report the Council made recommendations aimed at ensuring that people—particularly people of non–English speaking background—have more effective access to review of decisions made by Commonwealth agencies. The results of a survey conducted for the purposes of the report showed widespread ignorance of the existence of administrative review agencies and a limited understanding of the concept of administrative review and the fact that a person may complain about, or appeal against, a government decision. A subsequent survey showed that the aims of intervention activities carried out in order to educate this sector of the Australian community had been substantially met.
The Council’s report on its review of the Administrative Decisions (Judicial Review) Act and the need for statements of reasons was transmitted to the Government on 14 February 1991 and tabled in the Parliament on 20 June 1991.
The report, which was preceded by a discussion paper, contained 26 recommendations. Consistent with the view that the requirements of justice can be met only by ensuring that in every case where judicial review is available under the Act there is also an entitlement to reasons, the Council recommended that Schedule 2 (which exempts classes of decisions set out in the schedule from the requirement to give reasons) be repealed.
Acknowledging, however, the need to prevent disclosure of information that should not in the public interest be disclosed in statements of reasons for decisions, the Council made recommendations aimed at bolstering the provisions of s 13A of the Act. It also acknowledged that there could be compelling reasons why a class of decisions is not amenable to review under the Act and identified classes of decisions fitting this category. The Council recommended that such classes of decisions be excluded from the scope of the Act as a whole.
The Council’s report on the ambit of the Administrative Decisions (Judicial Review) Act was transmitted to the Government on 17 March 1989 and tabled in the Parliament on 8 June 1989.
The report, which was preceded by a discussion paper, contained 17 recommendations, including recommendations that the ambit of the Act be extended to certain non-statutory decisions made by officers of the Commonwealth, that many decisions referred to in Schedule 1 to the Act (concerning exclusions from the Act) be repealed, and that decisions of magistrates in committal proceedings be included in that schedule.
The Council also recommended that the Federal Court have a discretion to refuse relief or grant an application under the Act if it was satisfied that to do so would be in the interests of justice or if it was satisfied that the decision under review, or conduct engaged in for the making of that decision, was not justiciable.
The Council’s report on decisions made under industry research and development legislation was transmitted to the Government in November 1988 and tabled in the Parliament on 13 December 1988.
The report, which was preceded by a discussion paper, examined discretionary powers of the Industry Research and Development Board under the Industry Research and Development Act 1986 and discretionary powers of the Management and Investment Companies Licensing Board under the Management and Investment Companies Act 1983 and the Income Tax Assessment Act 1936. The Council made 14 recommendations, most of which are directed at particular decisions being made subject to review by the Administrative Appeals Tribunal.
The Council’s report on provision of legal and financial assistance was transmitted to the Government on 2 May 1988 and tabled in the Parliament on 11 October 1988.
In the report the Council made seven recommendations, covering the following areas:
• the operation of s 69 of the Administrative Appeals Tribunal Act as a special-case provider of assistance • notification and advice about legal and financial assistance schemes • the initiation of applications by state or territory legal aid authorities • provision of financial assistance other than legal assistance • revision of guidelines relating to assistance in public-interest and test cases • consistency in eligibility requirements for assistance • consideration of the recommendations.
The Council’s report on the constitution of the Administrative Appeals Tribunal was transmitted to the Government on 10 September 1987 and tabled in the Parliament on 9 December 1987.
The report, which was preceded by an issues paper, dealt with five principal matters and contained recommendations for reform in the following areas:
• the number of members appropriate for constituting the Administrative Appeals Tribunal for particular cases • the appropriate expertise and experience of Tribunal members in determining particular cases • the divisional structure of the Tribunal • rules in legislation other than the Administrative Appeals Tribunal Act 1975 that specify the way the Tribunal is to be constituted to hear cases under that legislation • how the contribution of all members to the work of the Tribunal can be made more effective.
The Council’s stage three report on its review of customs and excise decisions was transmitted to the Government on 6 February 1987 and tabled in the Parliament on 3 June 1987.
The report, which was preceded by a discussion paper, contained eight recommendations:
• that specified duty decisions be subject to review on the merits • that the issue of ministerial certificates to exclude review on the merits be open in specified situations • that specified sections of the anti-dumping legislation be repealed • that a decision by the Minister in respect of an undertaking not be subject to merits review • that specified preliminary decisions be reviewable only on the merits, in the context of the review of the final decision that subsumes them • that facultative, transitional and internal administrative decisions not be subject to merits review • that decisions relating to the imposition, or non-imposition, of securities in respect of duties payable not be subject to merits review • that anti-dumping and countervailing duty decisions recommended for review on the merits be reviewable by the Administrative Appeals Tribunal.
The Council’s report on access to administrative review was transmitted to the Government on 11 September 1986 and tabled in the Parliament on 3 June 1987.
The report, which set out the Council’s views on notification of administrative decisions and rights of review in respect of those decisions, contained five recommendations, the fifth being for a code of practice for administrators in relation to notification of decisions and rights of review. The Council recommended that the code be endorsed by the Government and that it be followed by all government agencies. The code identified the persons who ought to be notified of decisions and of rights of review attaching to those decisions. It also laid down principles concerning:
• the form of notices • the content of notices • the staging of notices in areas where decisions are reviewable on their merits by a person or body before any appeal to the Administrative Appeals Tribunal • the use of plain English in notices.
The Council’s report on review of the Administrative Decisions (Judicial Review) Act was transmitted to the Government on 13 August 1986 and tabled in the Parliament on 25 November 1986.
The report, which was preceded by an issues paper and a discussion paper, constituted the first stage of a major examination of the operation of the Administrative Decisions (Judicial Review) Act 1977. It provided advice in relation to claims that the Act was being abused in some areas. The fundamental question was whether experience of the operation of the Act had demonstrated that, in the course of achieving its primary aims, the Act had left public authorities open to unwarranted litigation.
The Council did not consider that increased use of the legislation generally or under specific legislation or the mere fact of applications for an order of review being refused indicated that the Act was being abused. It found little evidence of the Act being used to delay or frustrate Commonwealth administration or to gain a tactical advantage, rather than to establish a genuine legal right or interest. The Council recommended amendments to the Act by which the Federal Court’s powers could be extended and clarified to enable it to stay or to refuse to grant applications for review in appropriate cases.
The Council’s report on review of migration decisions was transmitted to the Government on 24 December 1985and tabled in the Parliament on 21 August 1986.
The Council considered that there was a need for a system of external review on the merits to be available in respect of many migration decisions. Among the proposals for reform recommended by the Council were the following:
• the structuring of discretionary powers in the migration area, where appropriate, by the embodiment in legislative form of identifiable principles and criteria • the provision of outlines of reasons for decisions by primary decision makers • the establishment of a two-tier system of merits review, comprising immigration adjudicators at the first level and the Administrative Appeals Tribunal at the second level, with review by adjudicators being a prerequisite to Tribunal review in most cases • decisions taken personally by the Minister to be subject to review by the Tribunal, without prior review by adjudicators.
The Council also specified the classes of decisions it considered should be subject to review, in accordance with the proposed two-tier structure of merits review.
The Council’s report on customs and excise decisions and censorship was transmitted to the Government on 5 September 1985 and tabled in the Parliament on 11 May 1986.
The report contained five recommendations, the primary ones being:
• that decisions of the Film and Censorship Board, currently subject to review by the Cinematograph Films Board of Review, continue to be subject to review by that Board • that decisions taken by the Attorney-General under r 40(2) of the Customs (Cinematograph Films) Regulations and under r 4A(2) of the Customs (Prohibited Imports) Regulations be subject to review by the Administrative Appeals Tribunal, subject to a power in the Attorney‑General to issue a certificate that would have the effect of excluding review in particular cases.
The Council’s stage two report on its review of customs and excise decisions was transmitted to the Government on 28 June 1985 and tabled in the Parliament on 13 November 1985.
The report, which was preceded by a discussion paper, put forward the following main recommendations:
• that the right of appeal to a court of competent jurisdiction in disputes as to duty, which existed as an alternative to Administrative Appeals Tribunal review, be abolished • that the jurisdiction of the Minister for Health to review certain decisions of the Secretary of the Department of Health be transferred to the Administrative Appeals Tribunal • that the procedure for payment under protest be abolished and be replaced by a ‘notice of dispute’ procedure • that decisions relating to an application for permission to import or export a prohibited good be subject to review by the Administrative Appeals Tribunal, subject to a power in the Minister to issue a certificate that would have the effect of excluding review in particular cases • that most decisions relating to the taking of securities, the movement of goods and the disposal of goods be subject to review by the Administrative Appeals Tribunal • that most decisions of a law enforcement nature made under the customs legislation not be subject to review by the Tribunal.
The Council’s report on the relationship between the Ombudsman and the Administrative Appeals Tribunal was transmitted to the Government on 2 January 1985 and tabled in the Parliament on 21 May 1985.
The report, which was preceded by a discussion paper, was divided into three parts. The first concerned the legislative interrelationship between the Ombudsman and the Administrative Appeals Tribunal and compared the two bodies’ nature, functions, scope, review procedures and remedies. The second part discussed whether it was desirable for the Ombudsman and the Tribunal to have overlapping jurisdictions. Third, the Council examined options for reform, with a view to improving the relationship between the two bodies.
The Council made four recommendations in the report:
• that s 6(3) of the Ombudsman Act 1976 be amended so as to require the Ombudsman to have regard to specified factors when exercising the discretion under that subsection not to investigate • that provision be made in the respective legislation for mutual referral of cases, with the consent of the complainant or applicant • that, in addition to the process in s 11 of the Ombudsman Act for the principal officer of an agency, on the recommendation of the Ombudsman, to refer a question to the Tribunal for an advisory opinion, there be a power in the Ombudsman to refer a question directly to the Tribunal for such an opinion • that the words ‘conferred by an enactment’ be removed from s 11(1) of the Ombudsman Act, so that action taken pursuant to a prerogative or non-statutory power is not excluded from being the subject of an advisory opinion of the Administrative Appeals Tribunal.
The Council’s report on the structure and form of social security appeals was transmitted to the Government on 12 April 1984 and tabled in the Parliament on 3 October 1984.
In its 1980 report Social Security Appeals the Council had noted that it did not favour a two-tier external review structure for social security appeals. However, in the light of changes to the operation of Social Security Appeals Tribunals and other developments, the Attorney‑General and the Minster for Social Security asked the Council to give further consideration to whether a two-tier external review system would be appropriate.
The Council came to the conclusion that a two-tier review structure was in fact the most appropriate review mechanism for social security appeals and made 20 recommendations for reform. It recommended the improvement of the existing two-tier structure of external review, to consist of a single national tribunal—the Social Security Appeals Tribunal, rather than the existing tribunals—with the Administrative Appeals Tribunal providing review as the second tier.
The most significant improvement recommended in relation to the system of review was that the Social Security Appeals Tribunal be given a legislative foundation and granted determinative powers. This would enhance the Tribunal’s actual and perceived independence, provide greater legitimacy and permanence, and augment the Tribunal’s status and authority. Insofar as a legislative basis might introduce an undesirably formal element into the Tribunal’s operations, this could be dealt with by including an objectives provision in the legislation, to emphasise that the Tribunal was intended to provide an informal, speedy and economical avenue for review of decisions.
Among other important recommendations pertaining to the system of review provided by the Tribunal were that conditions apply to the membership and constitution of the Tribunal, that various provisions be made in relation to the powers of the Tribunal and the conduct of proceedings, and that internal review not be a prerequisite to seeking external review.
Minor changes were recommended to improve the system of review provided by the Administrative Appeals Tribunal. The Council also recommended that a national survey of the needs of social security claimants be conducted. Additionally, it continued to support its earlier recommendations in relation to internal review by review officers.
Two Council members dissented from a majority recommendation that panels of the Social Security Appeals Tribunal contain a public service officer and that Tribunal hearings generally be conducted in private.
The Council’s report on pensions decisions under repatriation legislation was transmitted to the Government on 16 September 1983 and tabled in the Parliament on 16 November 1983.
The report contains 21 recommendations, the primary one being that the repatriation jurisdiction currently vested in the Repatriation Review Tribunal be absorbed into the Administrative Appeals Tribunal’s jurisdiction.
The Council’s report on the Administrative Appeals Tribunal and rights of review under the Migration Act and related legislation was transmitted to the Government on 4 August 1983 and tabled in the Parliament on 15 September 1983.
The report set out two options for reform: to remove the prescription on the Administrative Appeals Tribunal’s constitution or to allow the Tribunal in its Migration Act jurisdiction to be constituted by a presidential member. There was only one recommendation—that the second option be adopted. The Council saw this as an immediate and short-term solution to a pressing problem.
The Council’s report on compensation for Commonwealth government employees was transmitted to the Government on 27 June 1983 and tabled in the Parliament on 3 November 1983.
In its report the Council identified several problems with the operation of the Compensation (Commonwealth Government Employees) Act 1971, one of which was that in proceedings before the Administrative Appeals Tribunal the Commissioner for Employees’ Compensation did not appear as respondent. The Council felt that, in the circumstances, the benefits likely to be derived from the direct involvement of the Commissioner outweighed the disadvantages. The Council recommended that:
• the Act be amended to provide that the Commissioner should determine a claim within 60 days of the lodgment of a claim • the Commissioner be deemed to have made a determination adverse to the claimant if a claim had not been determined on the expiration of the prescribed time limit • the Commissioner be the respondent in proceedings for the review of the Commissioner’s determinations.
The Council further recommended that if the Commissioner were made the respondent then ss 65(6), 65(7) and 65(8) of the Act, which modify the Administrative Appeals Tribunal Act 1975, would be unnecessary and should be repealed.
The Council’s report on taxation decisions by boards of review was transmitted to the Government on 6 June 1983 and tabled in the Parliament on 15 September 1983.
The report was preceded by a discussion paper. The main recommendation was that the existing review jurisdiction of the boards of review be vested in the Administrative Appeals Tribunal. Other recommendations flowed from this main recommendation:
• that the legislative provision permitting a taxpayer to ask the Commissioner of Taxation to refer their objection to a board of review be amended to substitute the Administrative Appeals Tribunal for the board • that provision be made for s 28 of the Administrative Appeals Tribunal Act 1975 not to apply in relation to review by the Tribunal of decisions then reviewable by boards of review • that s 37 of the Administrative Appeals Tribunal Act be amended in relation to taxation decisions, to provide that the Commissioner of Taxation should lodge with the Tribunal the statement and documents mentioned in that section at the time the case was referred to the Tribunal • that the Commissioner be authorised to grant, in the Commissioner’s discretion and on specified grounds, an extension of time for lodgment of objections and requests for reference or appeal • that a refusal by the Commissioner to grant such an extension of time be reviewable by the Tribunal • that provision be made for a taxpayer seeking a review of a decision to be limited to the grounds stated in their objection, unless the Tribunal otherwise orders • that s 41 of the Administrative Appeals Tribunal Act not apply to taxation decisions when the Tribunal is vested with the jurisdiction of boards of review.
The Council’s report on decisions made under the Broadcasting and Television Act was transmitted to the Government on 11 June 1982 and tabled in the Parliament on 27 October 1982.
The report’s main recommendations were as follows:
• that jurisdiction be conferred on the Administrative Appeals Tribunal to review most substantive decisions of the Australian Broadcasting Tribunal and to review a decision of the ABT not to hold a public inquiry or to reach a decision without first holding a public inquiry • that such review be available only if the leave of the AAT President is first obtained • that specified decisions of the Minister be subject to determinative review by the AAT (other specified decisions of the Minister were recommended for recommendatory review by the AAT) • that ss 119(2) and 119(3) of the Australian Broadcasting and Television Act be repealed.
The Council’s report on ss 38 and 39 of the Australian Federal Police Act was transmitted to the Government on 11 February 1982 and tabled on 21 October 1982.
The Council recommended the adoption of Commonwealth Employment (Retirement and Redeployment) Act 1979 provisions for the Australian Federal Police and the reshaping of the Promotions Appeals Board. It also recommended that there be review of decisions made under ss 38 and 39 of the Australian Federal Police Act and that the appropriate body to conduct such a review was the Promotions Appeals Board.
The Council’s report on land use in the Australian Capital Territory was transmitted to the Government on 16 November 1981 and tabled on 21 October 1982.
The report contained 12 recommendations, including:
• that jurisdiction be conferred on the Administrative Appeals Tribunal to perform the review functions then exercised by the Design and Siting Review Committee, the Building Review Committee and the Valuation Review Board and those performed by the Supreme Court of the ACT under s 28(4) of the City Area Leases Ordinance 1936 • that certain decisions under the City Area Leases Ordinance and the Building Ordinance 1972 that were not subject to review be reviewable by the Administrative Appeals Tribunal • that third-party rights of review in respect of certain decisions be available • that decision making with respect to applications under ss 10 and 11A of the City Area Leases Ordinance remain with the Department of Territories but that the statutory role of the National Capital Development Commission be recognised by a statutory requirement of consultation between the Department and the Commission.
The Council’s report on the Commonwealth Employees’ Compensation Tribunal was transmitted to the Government on 8 May 1981 and tabled in the Parliament on 2 June 1981.
The report discussed subjects such as primary decision making by the Commissioner for Employees’ Compensation, the review process, incorporation of the Commonwealth Employees’ Compensation Tribunal in the Administrative Appeals Tribunal and modifications to AAT procedures. Only three recommendations were made:
• that there be a maximum 60-day time limit for the Commissioner for Employees’ Compensation to make a decision • that the Commonwealth Employees’ Compensation Tribunal be incorporated in the Administrative Appeals Tribunal • that the then existing alternative appeal rights to prescribed state courts be abolished.
The Council’s report on Australian Broadcasting Tribunal procedures was transmitted to the Government on 25 February 1981 and tabled in the Parliament on 9 April 1981.
The Council made 34 recommendations in the report, including on the initiation of inquiries by the Australian Broadcasting Tribunal, for a uniform inquiry procedure, for public availability of documents, on procedures for conduct of an inquiry involving hearings, on conferences and preliminary hearings, and on standing.
The Council’s report on the Student Assistance Review Tribunal was transmitted to the Government on 23 January 1981 and tabled in the Parliament on 27 August 1981.
The report contained nine recommendations, covering the following areas:
• appeals and references to the AAT being permitted in certain circumstances • legal representation before the Student Assistance Review Tribunal being possible • access to information • withdrawal of references to the Student Assistance Review Tribunal • ministerial directions • extensions of time • time limits for recommendations and for the forwarding of requests for review by authorised persons.
The Council did not recommend transfer of the Student Assistance Review Tribunal jurisdiction to the Administrative Appeals Tribunal at that stage but recommended changes to improve the Student Assistance Review Tribunal’s procedures.
The Council’s report on the Shipping Registration Bill 1980 was transmitted to the Government on 6 August 1980.
The Council made eight recommendations, concerning whether the appropriate body to hear appeals should be the Administrative Appeals Tribunal or the courts, the appropriate decisions for review, removal of the requirement that internal review be a prerequisite for external review, and deletion of broad exclusions of actions against the Commonwealth and its officials. The Bill was amended following the Council’s recommendations. It was enacted as the Shipping Registration Act 1981.
The Council’s report on the Administrative Decisions (Judicial Review) Amendment Bill was transmitted to the Government on 16 July 1980 and tabled in the Parliament on 20 August 1980.
The Council noted in the report that some exclusions in the Bill appeared to be inconsistent with the bases of the Council’s previous recommendations in Report no. 1 (1978). The 1980 report contained six recommendations, concerning regulations to delete classes of decisions from the schedules to the Administrative Decisions (Judicial Review) Act 1977, the ambit of clause 13A of the Bill, levels of decision making for the proposed s 13A, and the time for giving notice in clause 13A. The Council also recommended that the Act be reviewed after a period of operation and highlighted the need for record keeping by departments in anticipation of this future review of the Act.
The Council’s report on social security appeals was transmitted to the Government on 27 June 1980 and tabled in the Parliament on 2 June 1981.
The report examined the review mechanism existing at the time for decisions relating to social security payments and benefits. This involved review officers and appeals to the Social Security Appeals Tribunal, which had power to make recommendations but not to substitute a decision for that of the primary decision maker. Only in very limited circumstances was appeal to the Administrative Appeals Tribunal available.
The Council concluded that, in principle, every decision that related to the making of a social security payment or assistance should be subject to external review by an independent tribunal with adequate fact-finding powers and procedures and with the authority to determine matters conclusively. It considered that the Social Security Appeals Tribunal was not properly constituted and did not operate satisfactorily and that a major restructuring of the social security appeals process was necessary.
The Council argued that a two-tier structure was not necessary, since the principle of res judicata did not apply to administrative decisions. It recommended that the Tribunal be abolished and replaced by an improved review officer structure within the Department of Social Security. It further recommended that a Social Security Division be established within the Administrative Appeals Tribunal for external review of social security decisions.
The report also contains recommendations concerning primary decision making and internal review of Department of Social Security decisions. The Council provided further advice after publication of the report, supporting the conferral on the Administrative Appeals Tribunal of jurisdiction to review decisions arising under the Social Security Act 1947 that were based on medical grounds.
The Council also argued that a good internal review system before—but not as a prerequisite for—external review was desirable because decisions were often made by officers with limited experience and internal review is fast and cost efficient and reduces the need for external review. It then argued that, since social security had become accepted as part of Australia’s community fabric and the effect of adverse decisions on claimants could be serious, it was important to provide an avenue for external review of decisions. The Administrative Appeals Tribunal was well placed to take on this role, the Council said, since it would assure a high standard of procedural fairness, authority and clarity of decision making, it had a pool of members with broad skills and experience, and it had proved an efficient review process.
The Council’s report on the citizenship review and appeals system was transmitted to the Government on 13 June 1980 and tabled in the Parliament on 29 October 1981.
The report contained recommendations on the first part of the Council’s examination of immigration and citizenship decisions. The Council found that much of the legislation considered did not involve decision‑making powers calling for review rights. It recommended, however, that jurisdiction be vested in the Administrative Appeals Tribunal in respect of decisions under all but expressly excluded sections of the Australian Citizenship Act 1948, decisions under certain regulations of the Australian Citizenship Regulations, and decisions under one section of the Aliens Act 1974. It also considered that the Immigration (Guardianship of Children) Act 1946 should be referred to the Family Law Council or the Law Reform Commission for inquiry.
The Council’s report on entry to the Cocos (Keeling) Islands and Christmas Island was transmitted to the Government on 2 November 1979.
The Council made identical recommendations in respect of the Cocos (Keeling) Islands and Christmas Island. It noted that permanent residents of Australia and Australian citizens were entitled in some situations to seek protection, by an appeal to the Administrative Appeals Tribunal, against orders for their deportation from Australia under the Migration Act 1958. It recommended that, unless further examination showed that the criteria adopted under the Migration Act were inappropriate, for the sake of conformity the same appeal rights should be available to Australian citizens and to foreign nationals who are permanent residents of Australia or its territories.
The Council recommended that jurisdiction be vested in the Administrative Appeals Tribunal in respect of certain decisions under the Immigration Ordinance, that standing be restricted to Australian or external territories’ citizens or permanent residents, and that provision be made for internal review between lodgment of application and hearing.
The Council’s report on the establishment of a Defence Force Ombudsman was transmitted to the Government on 16 July 1979 and tabled in the Parliament on 2 June 1981.
The Council considered whether it was appropriate for a separate Defence Force Ombudsman to be established if its procedures and powers were to be virtually the same as those of the Commonwealth Ombudsman. Because of the small scale of the Defence Force Ombudsman’s operations and the potential problems with overlapping jurisdiction, the Council recommended the incorporation of the proposed jurisdiction in the Commonwealth Ombudsman’s Office—but as a specially identified part of that Office. The Council also recommended that there be a statutory office of Deputy Ombudsman (Defence Force), exercising powers delegated by the Defence Force Ombudsman.
The Council’s report on amendments to the Administrative Appeals Tribunal Act was transmitted to the Government on 26 June 1979. Although the report was not tabled, the Attorney-General stated in the Senate on 15 November 1979 that copies of it were available on request.
Among other things, the report contained recommendations about the following:
• the repeal and non-enactment of provisions specifying presidential tribunals • the constitution of an ACT Division in the Administrative Appeals Tribunal and reorganisation of provisions relating to divisions • removal of the limitation on the Tribunal’s power to grant stays of decisions • obligatory notification of appeal rights • the right to request a copy of the full reasons for decisions • time for furnishing reasons and documents • compulsory holding of preliminary conferences • the power to receive evidence otherwise than in the presence of the parties • the constitution of the Administrative Review Council itself.
The Council’s report on import control and customs by-law decisions was transmitted to the Government on 25 June 1979 and tabled in the Parliament on 20 May 1982.
In the report the Council recommended that jurisdiction be vested in the Administrative Appeals Tribunal to review:
• decisions allocating quotas • decisions refusing to accept an application for by-law entry of goods • refusals of the Minister to refer a by-law question to the Industries Assistance Commission.
The Council report also recommended that jurisdiction be vested in the Industries Assistance Commission to review decisions granting or refusing by-law entry of goods, but with the Commission having power only to recommend a course of action.
The Council considered these recommendations to be the most efficient and suitable way of providing external review, although it acknowledged that implementation of the proposed system would no doubt be affected by an evaluation of certain matters that the Council had not been able to measure.
In its report on repatriation appeals the Council expressed support for a link between the proposed Repatriation Review Tribunal and the Administrative Appeals Tribunal. It also expressed support for many of the then existing proposals for reference of matters from the specialist tribunal to the AAT. Six exceptions were identified, and the Council recommended that the AAT be vested with jurisdiction over two additional matters not covered by the draft proposals. The Council proposed:
• Jurisdiction should be vested in the AAT to review decisions of the Repatriation Review Tribunal—the right of review being available to both veterans and the Repatriation Commission. • There was no need for the AAT to be constituted by a presidential member in all cases. • Legal representation before the AAT should be permitted. • The provisions for appeals to the Federal Court from both tribunals should be materially identical.
Recommendations were also made on the criteria and procedure for referring cases from the Repatriation Review Tribunal to the AAT and for the Repatriation Review Tribunal President to be eligible to sit as an AAT member.
The Council’s report on exclusions under s 19 of the Administrative Decisions (Judicial Review) Act was transmitted to the Government on 13 October 1978 and tabled in the Parliament on 21 May 1980.
In the report the Council identified particular classes of decisions for exclusion from the Act. The Council was guided in its work by a statement of general principles, which had been developed with the understanding that the Act did not introduce a new form of administrative review but simply modified existing judicial review. The Act thus applied widely, and the Council adopted the view that ‘cogent reasons are required to justify excluding a class of decisions from the beneficial operation of the Act’.
Many of the Council’s recommendations were incorporated in the Administrative Decisions (Judicial Review) Amendment Bill 1980.
[1] Report no. 379, October 2000.
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