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Mason, Anthony --- "The 30th Anniversary: a Judicial Perspective" [2007] AdminRw 3; (2007) 58 Admin Review 13

The 30th anniversary: a judicial perspective

The Hon. Sir Anthony Mason AC KBE

The title given to my remarks, ‘Perspective of the judiciary’ is, I confess, a false trade description. It is now 11 years since I was an Australian judge, and the Australian judiciary has not authorised me to speak on its behalf. I can speak, however, in my capacity as a non-permanent judge of the Hong Kong Court of Final Appeal, though it will come as a surprise to the organisers of the seminar to learn that they have invited me to speak in that capacity.

An advantage—or is it a disadvantage?—of being an octogenarian is that one’s recollection extends into the distant reaches of the past, a realm unknown to most inhabitants of today’s world. Lawyers are an exception to this generalisation, accustomed, as they are, to respect precedent and tradition and to acquaint themselves with the historical origins of the institutions, principles and doctrines of the law.

So my recollections of the Kerr Committee, whose recommendations constitute the architecture of the modern system of Australian administrative law, and my expectations of its future development, will be of interest at least to administrative lawyers. And, as is always the case with expectations, you need to know whether they have been realised or disappointed.

The Kerr Committee recommendations

The Kerr Committee’s recommendations resulted in four fundamental reforms:

• the introduction of ‘merits’ review of administrative decisions, involving the establishment of the Administrative Appeals Tribunal, this being a distinctive element of Australian administrative law

• the classification of the grounds of judicial review by means of the Administrative Decisions (Judicial Review) Act 1975 (Cth)

• the establishment of the Parliamentary Ombudsman—inelegantly styled ‘the Council for Grievances’ in the report

• the setting up of the Administrative Review Council, whose anniversary we celebrate today, with a continuing monitoring role.

An incidental and very important reform was the introduction of a requirement for a statement of facts and reasons for the making of an administrative decision at the option of the party affected by the decision. The creation of this obligation, denied by the common law at that time,[1] along with the subsequent enactment of the Freedom of Information Act 1982 (Cth), was an advance in arming the citizen with effective remedies in the field of administrative justice.

It must be acknowledged, however, that the Freedom of Information Act, which was not an element in the Kerr Committee agenda, has proved to be a substantial disappointment. All too often, government and government agencies have been able to successfully resist applications for the provision of information. The majority decision of the High Court in McKinnon v Secretary of the Treasury Department[2] confirms the point. The strong emphasis on open government, so evident in Australia in the 1970s through to the early 1990s, has given way to renewed emphasis on confidentiality, an emphasis which has been reinforced in the face of the new threat of terrorism. The notion that public servants will be deterred from communicating freely and directly with Ministers or will not make a written record of such communications for fear that they will become subject to public scrutiny, which was discounted in cases following Conway v Rimmer,[3] seems to be enjoying a political and bureaucratic reincarnation. When I was Commonwealth Solicitor-General no public servant of my acquaintance would have refrained from giving frank and fearless advice because that advice might be subjected to public scrutiny.

It is worth recalling what has been said in the United Kingdom about the claim for privilege based on freedom and candour of communication with, and within, the public service in the context of disclosure in court proceedings. Lord Radcliffe, who had considerable experience in working with government in World War II and later in public inquiries, said, ‘I should myself have supposed Crown servants to be made of sterner stuff’ and went on to criticise the tendency to suppress ‘everything however commonplace that has passed between one civil servant and another’.[4]

And Lord Keith said:

The notion that any competent or conscientious public servant would be inhibited in the candour of his writings by consideration of the off-chance that they might have to be produced in litigation is in my opinion grotesque. To represent that the possibility of it might significantly impair the public service is even more so.[5]

The Ombudsman

Of the major reforms, the Ombudsman has been perhaps the most successful; indeed, more successful than I expected. Ombudsmen have succeeded in dealing expeditiously and effectively with a very large number of complaints at very low cost. The reasons for that success lie in three factors. First, the requirement that the Ombudsman report directly to Parliament makes him directly responsible to Parliament and gives Parliament a specific role in administrative review, a role which conforms to Parliament’s historic function in monitoring the actions of the executive government and its agencies. Second, those who have been appointed to the office have been persons of very considerable ability. Third, the influence of the Ombudsman’s activities on the performance of the public service and of government agencies has been most beneficial. It has resulted in a growing understanding that public power is to be exercised for the benefit of the people, that decisions must take account of the interests of stakeholders in accordance with the requirements of due process, and that they must be adequately explained.

In this respect the Ombudsman’s office has a distinct advantage because it is not cast in the role of an adversary of government. It works with government departments in investigating complaints, although it may ultimately find fault with what a department has done. Ombudsmen have shown that it is possible to maintain good working relations with government departments without compromising independent decision making.

The Administrative Review Council

My assessment of the ARC is equally favourable. The Council’s performance has conformed closely to the expectations held of it. It has continued to monitor the system as a whole, to identify issues that need to be addressed, to propose consideration of reforms that might be made, and to work in a cooperative way with other institutions of government. The Council’s constant and informed oversight of the system has played a very important role in the success of the system. Its reports have been responsible for a number of improvements. The strength of the ARC lies in its varied membership. It reflects the perspectives of the stakeholders in the system, enabling the ARC to bring to bear a balanced viewpoint. It is of vital importance that the ARC be adequately resourced so that it can continue its good work.

The Administrative Appeals Tribunal

The introduction of merits review—that is, the function of determining whether the decision under review was the correct or preferable decision—attracted more resistance that any other element in the Kerr Committee recommendations. We did give consideration to recommending the establishment of a system of administrative courts similar to the French system, only to reject it because we thought it would be too radical in the light of our culture and traditions. Hence the decision to support merits review and the AAT. Although it has a wide-ranging jurisdiction, the AAT co-exists with other specialist tribunals which have been set up for various reasons. The Kerr Committee had hoped that the AAT would supersede other specialist tribunals, but that did not come about.

The AAT has not been free from controversy. In the beginning, it was suggested that the AAT lacked democratic legitimacy, because the decision-making function was left by Parliament to the decision maker. This criticism, which had no substance, seems to have abated. A second criticism, still current in some quarters, is that the AAT is too court-like. This is not surprising as the Tribunal was intended to operate in a court-like manner. This criticism was discussed by the ARC in its 1995 report no. 39, Better Decisions, in which the ARC considered the criticism to be exaggerated. I agree with this view so long as it is clearly understood that the Tribunal is at liberty to adopt such procedures as are best fitted to meet the needs of the case in hand.

Associated with this criticism was the view that the composition of the AAT was too heavily weighted in favour of lawyers. The problem here is that it is a definite advantage for members to have legal qualifications or experience. No doubt non-lawyers can make a valuable contribution to the AAT, but the reputation and standing of the AAT depend to a significant degree on its work being dealt with in a way that meets the lawyer-like expectations held of it by the legal community. That means that it is desirable that Tribunal membership reflects a significant proportion of lawyers, as it does at the present time. Nevertheless this question of Tribunal membership will continue to be an issue in the future.

Another criticism made some years ago was that AAT decisions were inconsistent. Inconsistent decision making generates strong perceptions of injustice and lack of competence. Fortunately, the AAT addressed this problem so that it seems no longer to be a matter of significant concern. It is, however, a matter which requires constant attention.

In proposing the establishment of the AAT to conduct merits review, we had in mind that the AAT would exercise a general jurisdiction with a standard procedure. Such an approach had obvious attractions for practitioners adapting to a new regime. But political and other pressures, sometimes justified, resulted in the establishment or retention of specialist tribunals. Generally speaking, these tribunals are so constituted that they can and should adopt procedures which are appropriate to the cases with which they deal, even to particular cases which come before them. It is, of course, necessary that, subject to any relevant statutory provision, tribunals comply with the requirements of procedural fairness. Here, the courts, in engaging in judicial review, need to be mindful that the requirements of procedural fairness may vary from case to case and that they should not needlessly stultify a tribunal’s power to adopt what is an appropriate procedure for the case before it. The flexibility which is necessary to enable a tribunal to tailor the procedure to the case will not be forthcoming if the court model is followed too closely.

In the controversies which arose over immigration decisions, it was at one time suggested that merits review and AAT review amounted to a wasteful duplication of resources. This controversy arose out of a perception that, under the guise of judicial review, judges were engaging in merits review. This controversy appears to have subsided, with the consequence that it seems to be accepted that both methods of review can co-exist.

Despite criticism of particular decisions, it is generally accepted that the AAT has done well. It is, however, of the utmost importance that the quality of membership be maintained and that the temptation to appoint as members unqualified and inexperienced persons be firmly resisted.

Judicial review

Some years after the introduction of the Administrative Decisions (Judicial Review) Act it could be said that the Act had clarified judicial review by identifying and circumventing the technicalities associated with the prerogative writs. I doubt that such a statement would now be correct. Judicial review has become increasingly complex. This development was probably to be expected in the light of the volume of cases which have come forward. What was not predictable, however, was the increasing emphasis which has been placed on jurisdictional issues in tribunals in recent decisions. In Craig v South Australia[6] the High Court held that all errors of law by a tribunal go to the existence of jurisdiction while many errors of law by a court occur within jurisdiction. This conclusion naturally entails the consequence that tribunals may be subjected to more intensive judicial scrutiny than lower courts. In turn, this intensive judicial scrutiny reinforces the court-like characteristics of tribunals.

The emphasis on jurisdictional error has resulted in the development of a complex jurisprudence which can result in difficulties for tribunals. Bhardwaj[7] is a case in point. There, the Immigration Review Tribunal, through an administrative error, failed to discharge its statutory duty of hearing the appeal because its attention was not drawn to the appellant’s communication that he was ill. Being informed of the communication, the Tribunal set down a new date for hearing and, on that hearing, set aside its earlier dismissal of the appeal and reinstated the appellant’s student visa, which had been cancelled by the [immigration] department. The Tribunal acted properly in setting aside its earlier decision, which was invalid. The High Court suggested that the AAT had not only a power but also a duty to do so. Just how far this principle goes remains to be ascertained. The practical problems are identified in the subsequent Federal Court decision Re Thomas Edwards and Secretary, Department of Health & Ageing.[8]

A comparison between the scope of judicial review available in Australia and in other common law jurisdictions reveals that the scope of judicial review is much more limited in Australia. There are various reasons for the difference. One is the availability of merits review in Australia. Another is the strong influence of the constitutional separation of powers doctrine in Australian jurisprudence, whereas in other jurisdictions the rule of law is the more dominating influence. A third factor is the absence of an entrenched or statute-based bill of rights in Australia. In other jurisdictions the protection of human rights and fundamental freedoms has resulted in an expansion in the scope of review and an intensified standard of review, involving, amongst other things, the concept of proportionality and a greater use of the concept of legitimate expectations.

One criticism which should be made of judicial review in Australia—and it is strong criticism—is the tendency to enact privative clauses. The effect of a privative clause is to deny to a citizen access to the courts for the determination of his substantive rights. Absent entrenched or statute-based fundamental rights, there is no obstacle to the enactment of privative clauses, other than s 75(v) of the Constitution. This meant that legislation was enacted, forcing judicial review of migration decisions into the High Court, thereby investing the Court with a burdensome jurisdiction, ill-suited to its status in the hierarchy of courts. It cannot be emphasised too strongly that judicial review of administrative decisions, with its capacity to attract publicity, brings a focus to the accountability of the elected government and its agencies in relation to the very decision-making processes of government and its agencies which lie at the core of democratic government.

Concluding comments

The Australian constitutional separation of powers is unquestionably an obstacle to principled reform of Australian administrative law. As things stand, courts are not entrusted with merits review, yet courts cannot be denied judicial review pursuant to s 75(v) of the Constitution. So the combination of merits review and judicial review seems inevitable under existing constitutional arrangements. An alternative—not as satisfactory—would be to provide for expanded judicial review along the lines of judicial review in England, but there is no sign of this happening and, in any event, current constitutional thinking may well be resistant to such a development.

The reforms of the 1970s enhanced Australian administrative processes by improving the quality of decision making, ensuring procedural fairness, and instilling a culture of reasoned decision making with an emphasis on the need for justification. However, the cost of the system, to both government and the parties, but especially the parties, is a matter of continuing concern. At the end of the day, though, securing administrative justice is worth the cost.

[1] Public Service Board of NSW v Osmond (1986) 156 CLR 656.

[2] 6 September 2006, 2006HCA45.

[3] (1968) AC910.

[4] Glasgow Corporation v Central Land Board [1955] ScotCS CSIH_5; (1956) SC 1 at 20.

[5] Burmah Oil Co Ltd v Bank of England (1960) AC 1090.

[6] [1995] HCA 58; (1995) 184 CLR 163.

[7] Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597.

[8] (2006) AATA 227, 9 February 2006; see also J McMillan 2006, Administrative Tribunals in Australia—future directions, <> under ‘research/speeches’.

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