Harrison-Smith, Margaret --- "Over and Out: Some Concluding Thoughts" [2010] AdminRw 13; (2010) 59 Admin Review 64

• Over and out: some concluding thoughts
• The work of the Council
• An advisory role
• The changing landscape
• The yardstick of time

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Over and out: some concluding thoughts

Margaret Harrison-Smith

In December 2008 I concluded more than six years as Executive Director of the Administrative Review Council Secretariat.^[1] I can claim the record for the longest serving secretariat head since the Council’s inception some 30 years ago. Not all records are worth claiming, but this is one, I think, that is. My experience with the Council over the years was both stimulating and productive.

The work of the Council

I accepted the position of Executive Director in mid-July 2002, and since then the Council has produced a steady stream of reports and guideline publications. Among the most innovative of these publications, not only in this country but also elsewhere, has been the Council’s 2004 report entitled Automated Assistance in Administrative Decision Making.^[2] The report helped the Department of Immigration and Citizenship respond to recommendations for review and analysis of the department’s information technology systems, as put forward in 2005 in the Palmer report.^[3]

Automated Assistance was also the catalyst for further work by an across‑agency working group headed by the Australian Government Information Management Office, in the Department of Finance and Deregulation, and comprising representatives of 14 Commonwealth departments and agencies. I represented the Council on the working group. What impressed me most about the composition of this group was the involvement—notwithstanding some initial uncertainty on their part—of information technology experts and others involved in the management of agency computer systems. The practical, ‘hands-on’ experience of these people is apparent in the better practice guide resulting from the work of the group.^[4]

The Council’s most recent report, Administrative Accountability in Business Areas subject to Complex and Specific Business Regulation, also moves into new territory, exploring the degree to which administrative law mechanisms and principles should extend to private business regulation by non-government industry bodies and others. The report is a companion, therefore, to two earlier reports, the first relating to government business enterprises^[5] and the second to the contracting out of government services.^[6] Like the most recent report, these earlier reports responded to important evolutionary changes in government administration, both of them exploring difficult and evolving areas not previously the subject of in‑depth consideration. Work in such areas can be, and in my experience undoubtedly is, testing, but it is nonetheless worthwhile.

My period as Executive Director also saw the Council continuing to wholeheartedly embrace the educational role described for it by the Senate Legal and Constitutional Legislation Committee’s Report of the Role and Function of the Administrative Review Council^[7] and formally recognised in subsequent amendments to the Administrative Appeals Tribunal Act 1975 (Cth). Specifically, the committee recommended amendment of the Council’s functions in s 51(1) of the Act ‘to reflect more clearly all the major activities that [the Council] currently performs, in particular to underpin its current focus on improving primary decision making’.^[8]

The success of this focus can be gauged by the response to the five best-practice guides for government decision makers released by the Council in August 2007. Representing a natural progression from the Council’s 2004 curriculum guideline publication Legal Training for Primary Decision Makers^[9] and covering the areas of lawfulness, natural justice, evidence, facts and findings, reasons and accountability, the guides have been hugely successful. The feedback on them I have received has been unwaveringly positive. The Department of Immigration and Citizenship strongly supported the development of the guides, annotating them with materials of particular relevance to it. The department has since employed the guides as an integral part of its post-Palmer reform strategy.

It is, I think, worth noting that one of the most avid customers to date for the guides has been the Australian Public Service Commission. Through the commission’s use and promotion of the guides, the Council has influenced large numbers of people working in the Australian Public Service. As they move between agencies, these people will take with them the skills they have acquired through the guides.

This is all very satisfying to me and, undoubtedly, to all those involved in the guides’ production.

One should not, however, draw the conclusion from this that the Council has shied away from its more traditional areas of interest. In my time the Council produced two publications on judicial review—one a discussion paper^[10] and the other a report.^[11] The report is a companion to the Council’s earlier, and still integral, guideline publication What Decisions Should Be subject to Merits Review?^[12] Like the earlier guideline publication, the report offers valuable assistance for government policy makers and legislative drafters when they are determining rights to seek review of the actions of government decision makers.

The best-practice guides and the Council’s work on merits and judicial review also reflected a growing tendency on the part of the Council not to make direct recommendations to government. In recent times the tendency has instead been to suggest ways in which areas of administrative law might be improved, through, for instance, the application of best-practice principles.

Invariably, these principles have been carefully crafted by the Council with regard to the administrative law values of lawfulness, transparency, rationality, fairness and efficiency. Through this less ‘sharp-edged’ approach, the Council has had considerable success in inculcating in areas of government administration its views and approaches.

The Council’s 2008 report The Coercive Information-gathering Powers of Government Agencies is illustrative. The report contains a set of 20 best-practice principles covering matters such as the drafting of notices, record keeping, authorisation and delegation, training, conflict of interest, notices, examinations and hearings, and privilege. The Commonwealth Ombudsman has noted that this report is being widely turned to by government agencies in the exercise of their information-gathering powers. The report also provides for the Ombudsman a ready-made set of guideline principles to turn to and to recommend to agencies for application in the appropriate use of their powers.

Importantly, the Council does not pluck guidelines out of the air. With the assistance of its Secretariat, it consulted extensively on each piece of work it has produced, seeking to involve all with an interest in the area in question from an early stage. I found this aspect of the Council’s work very satisfying: it allowed me to be an ambassador for good decision making, as well as allowing me to gain an appreciation of the extent of agencies’ knowledge of administrative law and of administrative law principles. Overall, I was impressed by the extent of this knowledge and by the high regard in which many agencies hold the work of the Council.

An advisory role

Another important aspect of the Council’s work is the provision of advice to government. During my period with the Council I drafted numerous letters of advice on a diverse range of administrative law subjects. This is an area in which I would like to see the Council take a greater role. Of course, in the case of proposed legislation there are often time constraints and tight government schedules that militate against the harvesting of comments from a widely dispersed and invariably busy member group. Nonetheless, it can be done.

Time pressures also sometimes discourage departments and agencies from seeking the benefits of the Council’s views and expertise. But the Council can, and does, respond quickly when required. The Council could further refine and promote this capacity throughout government. Obviously, the sooner the Council’s views are sought, the better. Once policy approaches and implementation strategies are established, it is difficult to amend them or to turn them back.

The changing landscape

What changes to the administrative law landscape did I see during my term as Executive Director? One of the most interesting developments for me—one I have already touched on in my reference to the Council’s work on government business enterprises, contracting out and complex and specific business regulation—was the increasingly innovative response of administrative law and related administrative accountability mechanisms to the growing complexity of government administration.

One manifestation of this has been the extension of the Commonwealth Ombudsman’s jurisdiction under the Ombudsman Act 1976 in response to the increasing extent to which government services are provided to the public by non-government entities. As a result of the amendments, a complaint about one of these entities is to be treated as a complaint about the government agency on whose behalf the service is being provided.

Another consequence of this growing complexity has been recognition of the need to supplement the traditional focus of administrative law on the review of individual decisions with strategies directed at achieving a broader level of continued agency accountability and sound administrative practice. The Council’s educative publications are, of course, responsive to this need. Others—notably the Commonwealth Ombudsman—have also responded to the challenge, with an increase in the number of own-motion investigations and the emergence of new, and important, auditing and inspection roles.

Integrity bodies such as the Inspector-General of Taxation have also been established to oversee specialist areas, and the role of the Auditor-General’s office now encompasses an important performance auditing function. The number of industry ombudsmen has also expanded in recent times.

The yardstick of time

One measure of my time with the Council is that, of the members who were there when I formally assumed the Executive Director’s role, only two—Professor Robin Creyke and Robert Cornall AO—remained at the end of my term. Reassuringly, ex officio members Justice Garry Downes AM and Professor David Weisbrot AM were also still there. Among others who came and went during my time are immediate past President Wayne Martin QC, now Chief Justice of Western Australia, and Stephen Gageler SC, now the Commonwealth Solicitor-General.

The quality of the Council’s membership made my experience worthwhile. This is not to say, of course, that things were always ‘smooth sailing’. With such a highly charged group in all its manifestations over the years, it is inevitable that tact and tenacity had to be essential elements, albeit unstated, of the duty statement for the Executive Director. An ability to draw together and to synthesise often disparate and unconnected views was also a vital, and again unstated, element of the position.

Another aspect of the Executive Director position that will continue to be a source of fond memories for me was the staff of the Secretariat. I have concluded that a special bond develops between Secretariat members, perhaps because of our somewhat amorphous position as the bridge between the Council and the Attorney-General’s Department, of which we were a part; perhaps, too, because of the singular nature of the ‘crises’ that we encountered.

As with all small work units, often the odds can seem stacked against you—the meeting papers that need to be circulated in the face of major mechanical failures in the photocopy room; the Council report that comes back from the printer with pages missing, or worse; the Council member stranded at an airport surrounded by swirling mists … Perhaps not so unique, but in a small team having a more acute impact on all. The same goes, though, for the good times: these are savoured by each team member.

It was with some sadness that I left the Council. But I felt that a changing of the guard was due and that it was time for me to try new things. I wish the Council well, and I offer my encouragement and support to those who will take it forward.

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^[1] Before 2000 the head of the Council Secretariat held the title of Director of Research.

^[2] Administrative Review Council 2004, Automated Assistance in Administrative Decision Making, Report no. 46, ARC, Canberra.

^[3] MJ Palmer AO 2005, Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau: report, Commonwealth of Australia, Canberra.

^[4] Australian Government 2009, Automated Assistance in Administrative Decision-making: better practice guide, Australian Government, Canberra.

^[5] Administrative Review Council 1995, Government Business Enterprises and Administrative Law, Report no. 38, ARC, Canberra.

^[6] Administrative Review Council 1998, The Contracting out of Government Services, Report no. 42, ARC, Canberra.

^[7] Senate Legal and Constitutional Legislation Committee 1997, Report of the Role and Functions of the Administrative Review Council, Commonwealth of Australia, Canberra.

^[8] ibid. recommendation 7.

^[9] Administrative Review Council 2004, Legal Training for Primary Decision Makers: a curriculum guideline, ARC, Canberra.

^[10] Administrative Review Council 2003, The Scope of Judicial Review, Discussion paper, ARC, Canberra.

^[11] Administrative Review Council 2006, The Scope of Judicial Review, Report no. 47, ARC, Canberra.

^[12] Administrative Review Council 1999, What Decisions Should Be subject to Merits Review?, ARC, Canberra.