Administrative Review Council - Admin Review
This edition of Admin Review explores the vitality of administrative law as it has developed in the 21st century. Although well established, administrative law continues to evolve, sometimes in quiet, almost unnoticed small steps and sometimes in leaps and bounds.
Because of its independent statutory remit and collective expertise, the Administrative Review Council is in a unique position not only to chart this evolution but also to comment, through reports, advice and articles, on it so that the changes in administrative law do not remain unnoticed and unconsidered. Indeed, the Kerr Committee, which recommended the Council’s establishment, was of the view that the Council’s role was ‘fundamental to the proposed system of administrative review’. On the occasion of the Council’s 30th anniversary, in 2007, Sir Anthony Mason noted:
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, 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.
The major leaps and bounds in the development of administrative law are well known. In the 1970s what remain the fundamental planks of administrative review were laid down—the Administrative Decisions (Judicial Review) Act 1977, the Administrative Appeals Tribunal, the Administrative Review Council and the Ombudsman. The 1980s saw the establishment of the Human Rights Commission and the Privacy Commissioner and enactment of the first freedom of information legislation. The present decade has seen the development of federal whistleblower laws, reforms to the FOI framework, and important proposed reforms to the Commonwealth Privacy Act 1988 following the Australian Law Reform Commission’s report For Your Information: Australian privacy law and practice. Further initiatives have been foreshadowed in the area of whistleblower laws.
It is therefore fitting that this edition of Admin Review begins with an article by Senator Joe Ludwig, about significant FOI reforms, and reproduces a speech by Mark Dreyfus QC, MP, expanding on the government’s important initiatives in relation to whistleblower laws.
This edition also includes articles by members of the Council, assisted by others with a professional interest in administrative law, looking at current challenges for and aspects of administrative law. Administrative law inevitably evolves over time—after all, the framework of administrative law has now been established for over 30 years—and as questions and problems come to notice they warrant comment and examination in order to assess their implications for the framework of rules, standards and institutions that make up this area of legal discipline.
In their article, Robin Creyke and Matthew Groves examine a number of administrative law developments in Australia and elsewhere, including the convergence of the adjudicative arms of government and proportionate and alternative dispute resolution and information access, which are highly relevant to the Government’s focus on access to justice and its recent announcement and continuing initiatives in this area.
The article by Prof. John McMillan AO and Ian Carnell discusses the common features of independent complaint and review agencies and future challenges raised by the development and emergence of a new sector. This subject is another example of dynamic evolution—the importance to government and citizens of the work of review and monitoring agencies in the current landscape. In this context, the role of the Administrative Review Council itself in monitoring developments in the administrative law system and suggesting improvements can be viewed as relevant to the integrity sector.
In his article, Peter Anderson, Chief Executive of the Australian Chamber of Commerce and Industry, in consultation with a business reference group convened for the purpose, raises a number of concerns business has with administrative law settings. In particular, business is concerned with aspects of ‘soft law’ developments—the guidelines, regulation policy, codes of conduct and other less formal rules that impose constraints and requirements on business and have a tendency to be intrusive. The Council’s report on soft law charts this development and suggests some particular processes, such as consultation with the groups affected and careful drafting, that can help minimise unnecessary constraints while ensuring that administrative law values are embedded in soft law rules. Peter Anderson also comments on the need for training of tribunal members and the consequences complex reasons often have for business.
Andrew Metcalfe’s article focuses on the crucial importance of education and an emphasis on cultural values in the delivery of administrative justice if administrative decisions of the necessary quality are to be achieved by a large government department. In this context, he notes the Council’s five best-practice guides for government decision makers and the Council’s report on the use of computer-assisted systems in administrative decision making as examples of the Council’s work that have been important elements in the improvement process undergone by the Department of Immigration and Citizenship.
The contributions by Steven Lloyd, Donald Mitchell and Mark Robinson (with guidance from Melissa Perry), by Simon Daley and Nick Gouliaditis, and by Dr Matthew Groves deal with a number of topics—statements of reasons, the nature of merits review, the Hardiman principle and standing—that highlight the need to keep administrative law subject to independent commentary and review. The mechanism for giving reasons is illustrative. The rules associated with the giving of reasons could be operating today in an environment quite different from that of 30 years ago; and reasons can extend from a ministerial decision to a very large and complex resource-allocation decision. This evolution of the context of the requirement to give reasons could mean that the requirement itself needs to have greater specificity and to offer more detailed guidance than it did 30 years ago. The examples provided by the authors illustrate the need for continued sensitivity to developments in government by the guardians of administrative law, such as the Council, and the need to ensure that administrative law standards continue to evolve in a way that complements changes in commercial and government practices and principles. The Attorney-General’s current initiative on access to justice is illustrative of a commitment to modernising legal structures, requirements and procedures.
The conclusion is written by Margaret Harrison-Smith, who reflects on her six years as Executive Director of the Council and looks at some of the Council’s work during her term of office, traversing its three key roles—education, advice and innovation. In relation to innovation, she notes that some reports (for example, Government Business Enterprises and Complex Business) ‘respond to important evolutionary changes in government administration’ and explore ‘difficult and evolving areas not previously the subject of in-depth consideration’. Such reports represent useful reminders of developments in administrative law and are testament to the continuing need for expert commentary in this important area.
I will have concluded my term as President of the Council by the time this edition of Admin Review is published, and I thank all authors for their contributions and insights. Administrative law is a particularly vital and dynamic area of law, charting and regulating as it does the relationship between government and its citizens. I trust that the work of the Council will continue to be relevant and valuable to administrative law in Australia.
* Jillian Segal AM, BA, LLM was President of the Administrative Review Council from September 2005 until October 2009.
1 Administrative Appeals Tribunal Act 1975 (Cth) s 51.
 Commonwealth of Australia 1971, Report: Commonwealth Administrative Review Committee (Kerr Committee), Parl. Paper no. 144.
 The Hon. Sir Anthony Mason AC, KBE 2007, ‘The 30th anniversary: a judicial perspective’, Admin Review, no. 58, 13.
 Administrative Appeals Tribunal Act 1975 (Cth).
 ibid. Part V.
 Ombudsman Act 1976 (Cth).
 Human Rights Commission Act 1981 (Cth). The Commission was replaced in 1986 by the Human Rights and Equal Opportunity Commission. It was then renamed the Australian Human Rights Commission in 2008—Australian Human Rights Commission Act 1986 (Cth).
 Privacy Act 1988 (Cth).
 Freedom of Information Act 1982 (Cth).
 Whistleblower provisions were inserted into the Corporations Act 2001 (Cth) in Part 9.4AAA, which came into force on 1 July 2004.
 The Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009 came into force on 7 October 2009. The Freedom of Information Amendment Bill (Reform) Bill 2009 and the Information Commissioner Bill 2009 were introduced into the Commonwealth Parliament on 26 November 2009.
 Australian Law Reform Commission 2008, For Your Information: Australian privacy law and practice, Report no. 108, ALRC, Sydney. The Government’s first-stage response to the report was released on 14 October 2009 and can be found at www.pmc.gov.au/privacy/alrc.cfm.
 Senator the Hon. Joe Ludwig, Cabinet Secretary and Special Minister of State 2010, Government Announces Whistleblower Protection Scheme, Media release, 17 March, on the government response to the report by the House of Representatives Standing Committee on Legal and Constitutional Affairs 2009, Whistleblower Protection: a comprehensive scheme for the Commonwealth public sector—report of the Inquiry into Whistleblowing Protection within the Australian Government Public Sector, HRSCLCA, Canberra, February. Treasury 2009, Improving Protections for Corporate Whistleblowers, Options paper released on 23 October for public comment, at www.treasury.gov.au/contentitem.asp?NavId=037&ContentID=1620.
 Presented at the National Administrative Law Forum, ‘Administrative Law Reform’, Canberra, 6 August 2009.
 The Hon. Robert McClelland MP, Attorney-General, A Strategic Framework for Access to Justice, Media release, 23 September 2009.
 Administrative Review Council 2008, Administrative Accountability in Business Areas Subject to Complex and Specific Business Regulation, Report no. 49, ARC, Canberra.
 Administrative Review Council 2007, Decision Making: lawfulness, Best-practice guide 1, ARC, Canberra; Administrative Review Council 2007, Decision Making: natural justice, Best-practice guide 2, ARC, Canberra; Administrative Review Council 2007, Decision Making: evidence, facts and findings, Best‑practice guide 3, ARC, Canberra; Administrative Review Council 2007, Decision Making: reasons, Best-practice guide 4, ARC, Canberra; Administrative Review Council 2007, Decision Making: accountability, Best-practice guide 5, ARC, Canberra. Over 2300 sets have been distributed.
 Administrative Review Council 2004, Automated Assistance in Administrative Decision Making, Report no. 46, ARC, Canberra.
 Margaret Harrison-Smith left the Council in December 2008 to pursue new directions. The position of Executive Director as at the date of writing, has not been filled. Instead, support for the Council is provided by the Attorney-General’s Department.
 Administrative Review Council 1995, Government Business Enterprises and Commonwealth Administrative Law, Report no. 38, ARC, Canberra.
 Administrative Review Council 2008, Administrative Accountability in Business Areas subject to Complex and Specific Business Regulation, Report no. 49, ARC, Canberra.