AustLII Home | Databases | WorldLII | Search | Feedback

Administrative Review Council - Admin Review

You are here:  AustLII >> Databases >> Administrative Review Council - Admin Review >> 2010 >> [2010] AdminRw 5

Database Search | Name Search | Recent Articles | Noteup | LawCite | Author Info | Download | Help

Creyke, Robin; Groves, Matthew --- "Administrative Law Evolution: An Academic Perspective" [2010] AdminRw 5; (2010) 59 Admin Review 20


Administrative law evolution: an academic perspective

Professor Robin Creyke and Dr Matthew Groves[*]

The central elements of modern Australian administrative law—a statutory code for judicial review, an ombudsman, and a general jurisdiction merits review tribunal—are progressively celebrating their 30th birthdays.[1] Other, newer, elements have also been noting anniversaries: the Freedom of Information Act 1982 (Cth) achieved a quarter of a century in 2007; the Australian Human Rights Commission has been in operation for more than 20 years; the Privacy Commissioner enjoyed its 20th anniversary in 2008; and the whistleblower laws—the ‘new kid on the block’—are approaching their first decade. These are important milestones, and they suggest that administrative law is well established in Australia. This paper reflects briefly on what has happened during the past 30 years and considers where these planks of the administrative law edifice are likely to be in the next two to three decades.

Retrospective

Although they have been slow to follow the Commonwealth model, the states and territories have adopted similar accountability packages. Each state and territory has freedom of information legislation[2]; each has an ombudsman or parliamentary commissioner[3]; all have anti‑discrimination laws[4]; and all except the Northern Territory have whistleblower protection laws.[5] While the national privacy regime protects personal information at all levels of government, each state and territory except Western Australia has introduced privacy laws or guidelines.[6] Only one other jurisdiction, Tasmania, has set up a body akin to the Administrative Review Council to monitor its administrative law system, although New South Wales, Queensland and Victoria have at various times foreshadowed such a development.

As can be expected in a federal system, there are local differences. For example, there is no pattern to state and territories privacy laws[7], and there are moves in some jurisdictions, including the Commonwealth, to introduce dedicated human rights Acts.[8] Amalgamation of merit review tribunals has not occurred everywhere. South Australia and Tasmania have located their administrative review jurisdiction in their court systems.[9] New South Wales has in effect two amalgamated mega-tribunals in the Consumer Trader and Tenancy Tribunal and the Administrative Decisions Tribunal.[10] The Northern Territory has not yet adopted a multi‑purpose tribunal, and Queensland only introduced its Queensland Civil and Administrative Tribunal from the middle of 2009.[11] The Australian Capital Territory’s Administrative and Civil Tribunal began operating in early 2009.[12] At the same time, these state and territory bodies differ from the Commonwealth Administrative Appeals Tribunal in that their jurisdiction often covers civil as well as administrative matters.[13] Victoria, the ACT, Queensland and Tasmania have introduced judicial review legislation, which simplifies the procedure and codifies much of the law of judicial review.[14] Other jurisdictions have streamlined the remedies of judicial review.[15]

These developments reflect a vibrant administrative law system and one that is valued. Indeed, some jurisdictions have made administrative law an element of their political platform. In Victoria, after concerns had been expressed about excessive government secrecy and administrative ineptitude in the late 1990s, the newly elected Bracks Government constitutionally entrenched the judicial review role of the Supreme Court and the independence of the Auditor-General and the Ombudsman.[16] In Tasmania, Premier David Bartlett, in a press release issued on 22 August 2008, and in the face of a ‘succession of scandals [that] had undermined public confidence in government’[17], announced a 10-point plan for ‘strengthening trust in democracy’. The Government responded to the report of the Joint Select Committee of the Tasmanian Parliament by announcing in November 2009 it intends to set up an Integrity Commission for Tasmania with investigative powers.[18] Other foreshadowed moves are a review of the Freedom of Information Act and whistleblower legislation and increased funding for the offices of the Auditor-General, the Ombudsman and the Director of Public Prosecutions.[19]

In summary, therefore, there is in Australia nationally and in the states and territories a robust system of administrative law. That system offers redress when citizens complain that their rights and interests have been thwarted by government. But vindication of individual rights is not the only interest being protected. Administrative justice requires that the courts, tribunals, investigative bodies and ombudsman offices, while administering the values of fairness, rationality, transparency, impartiality and accountability that underpin good administration, also allow for government to operate in an efficient and effective manner. How well the institutions balance these elements is a measure of the effectiveness of administrative justice in Australia.[20]

Prospects?

The following are predictions about likely developments in Australian administrative law; they are based on emerging trends both in Australia and in other common law countries.

Integration

There will be increased convergence of the adjudicative arms of government. Just as tribunals are required to act in a manner summed up in the legislative formula ‘fair, just, economical, informal and quick’[21], so too are courts embracing this approach. The New South Wales Supreme Court, for example, is now required to operate in its civil (including administrative law) jurisdiction in a manner that is ‘just, quick and cheap’.[22] As the Civil Procedure Act 2005 (NSW) states, ‘The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings’.[23] In its Civil Justice Review the Victorian Law Reform Commission was asked to consider ‘the promotion of principles of fairness, timeliness, proportionality, choice, transparency, quality, efficiency and accountability’; it recommended ‘changes which will reduce the cost, complexity and length of civil trials’.[24] Similar reforms have occurred in the federal courts[25] and are being considered in Western Australia[26] and Queensland.[27]

One impetus for these developments was Lord Woolf’s report in the United Kingdom in the second half of the 1990s, which recommended a speedier, more affordable, and more accessible justice system.[28] Underpinning the reforms is the principle that justice should be tailored to the complexity and value of the matters involved—what was later dubbed ‘proportionate justice’.[29] Adoption of this approach not only encourages courts to be more efficient and less costly but also favours mechanisms for review outside the mainstream court system.

The movements towards greater integration are not, however, all in one direction. The Commonwealth Administrative Appeals Tribunal has found that, although it is not a court and does not exercise judicial power, it does operate in a court-like fashion. As a consequence, applicants to the AAT are entitled to rely on client litigation privilege unless there is a clearly expressed abrogation of the privilege in the relevant legislation.[30] The application, in practice, of rules of evidence to tribunals[31], and the applicability of evidential principles such as estoppel to tribunals, are other manifestations of this alignment.

At the same time, the High Court has cautioned against transposing the doctrine of public interest immunity developed in the courts ‘to the wholly different inquisitorial decision-making by’ a tribunal.[32] This warning signals that principles developed in the courts should not be ‘cut and pasted’ but instead should be adopted for tribunals only if there is good reason to do so.

Although there has been a discernible coalescence of court and tribunal practices, differences do remain. In litigation involving the Tasmanian Anti-Discrimination Tribunal[33] the Federal Court confirmed that the tribunal is not a ‘court of a State’ in which the judicial power of the Commonwealth can be invested.[34] The finding also confirmed that the Anti-Discrimination Act 1998 (Tas) invests the tribunal with state judicial power, but that power did not authorise the tribunal to hear a matter involving a Commonwealth agency since that would breach Chapter III of the Commonwealth Constitution. Similarly, in New South Wales, the divisions of the Administrative Decisions Tribunal have been prohibited from considering federal law in a matter since they were not a ‘court’ for Chapter III purposes.[35] This distinction between state and federal judicial power is likely to have significance for tribunals at both the state and the Commonwealth levels because it will continue to define what functions may and may not be invested in tribunals.

At issue in these cases was the separation of powers concept, which prohibits a tribunal exercising the judicial power of the Commonwealth. But, although separation of powers defines judicial and executive power and delineates different territory for each branch of government, that does not mean that courts and tribunals are locked in a contest or that each develops in isolation from the other. Rather, as Gleeson CJ suggested, the development of a strong system of tribunals has complemented the judicial review roles of the courts because it:

… relieves the judicial branch of pressure to expand judicial review beyond its proper constitutional and legal limits. Federal courts can mark out and respect the boundaries of judicial review more easily where there is a satisfactory system of merits review. This has beneficial consequences for the relations between the three branches of government, and relations between the judicial branch and the public.[36]

Reframing the question in these terms confirms that the earlier concern that tribunals might detract from the work of the courts has overstated the position.

Reduced emphasis on adjudication by courts

Despite moves to reduce the cost, length and complexity of hearings in the civil as well as the administrative arenas, there will probably be a diminished emphasis on settlement of disputes by adjudication.[37] The inevitable costs, the forensic hazards of litigation, and the personal toll on complainants inhibit recourse to courts and, to a lesser extent, tribunals. Indeed, even at present it is estimated that some 90 per cent of matters before courts do not go to hearing.[38] Similarly, four out of five matters before the Administrative Appeals Tribunal do not go ahead following the preliminary conferencing or alternative dispute resolution processes.[39]

Tribunals are, however, more likely to be relied on for review than courts. Tribunals’ flexible procedures and their ability to tailor proceedings to the needs of applicants, as well as their emphasis on substantive outcomes rather than technical evidentiary matters, are more attractive to applicants than the more formal judicial processes. Equally attractive is the fact that tribunals are able to provide a cheaper, less formal way of resolving disputes.

At the same time, there will probably be developments aimed at further streamlining and improving the tribunal process. It can be predicted that tribunals will take a more inquisitorial approach to their task. Established to operate in a non-adversarial manner, tribunals have struggled to fulfil this role. This has been in part because they have not been adequately resourced to carry out inquiries, but also in part because the oversight by courts steeped in the adversarial method has depressed tribunal aspirations to be more proactive.[40] The High Court has sent mixed signals on this. In some cases it has countenanced a passive role on the part of a tribunal, with the effect that the tribunal was not obliged to investigate matters that clearly seemed to warrant inquiry[41]; in other cases, however, it has accepted that tribunals should take an investigative approach.[42] The many decisions of lower courts that support an investigative role illustrate the range of circumstances that warrant tribunals adopting a more active part in evidence collection and the exploration of available legal options.[43]

The reduced emphasis on adjudication has led to an increased focus on getting decisions right the first time. This in turn has led to the publication of a range of materials designed to equip primary decision makers to better perform their tasks. There are now best-practice guides that aim to improve public administration[44], curriculum guidelines for administrative law training[45], lessons for good administration[46], definitions of administrative deficiency[47], and aids to handling difficult complainants.[48] These are reinforced by tools such as performance and compliance auditing, which test the quality of the initial decision, and the development of standards such as certificates of assurance and compliance and performance indicators for measuring the quantity and quality of outputs. All this signals an anticipatory, rather than a reactive, approach to improving decision making in public administration, and the initiatives are likely to become more widely adopted.

Proportionate dispute resolution

There will be increasing emphasis on proportionate dispute resolution.[49] This means that the most appropriate and cost-effective solution—be it internal or tribunal review, investigation by the ombudsman or other investigation agency, or a negotiated outcome—will be encouraged instead of resort to adjudicative bodies such as courts. As the UK White Paper Transforming Public Services: complaints, redress and tribunals put it, what people want to achieve ‘will vary considerably from case to case and person to person’. Some ‘are looking … for a legal remedy, like an award of a disability benefit’, while others ‘might really be seeking something else, like an apology or a clear explanation’.[50]

Adherence to proportionate dispute resolution would require courts to decline to hear a matter when another more suitable option is available. This will leave adjudication by courts as the ‘last resort’. Section 10(2)(b)(ii) of the Administrative Decisions (Judicial Review) Act already provides for the Federal Court or the Federal Magistrates Court to decline to hear a matter if a more suitable alternative is available, but the provision has not been much used. If, as the figures suggest, only some 5 to 8 per cent of cases are of precedential value, the adjudicative system is unlikely to suffer from this diversion of disputes to other settlement mechanisms.[51]

Proportionate dispute resolution is a central feature of the Access to Justice (Civil Litigation Reforms) Act 2009 (Cth), which came into effect in January 2010. This Act introduced amendments to make it clear that the ‘overarching purpose’ of the civil practice and procedure provisions of the Federal Court of Australia Act 1976 (Cth) is to achieve a just resolution of disputes according to law, as quickly, inexpensively and efficiently as possible.[52] Although these provisions might be seen as a response to so-called mega-litigation, they are obviously intended to provide an indication to the parties of all cases that the costs of any dispute should be proportionate to the matter in dispute.

Alternative dispute resolution

The focus on proportionate dispute resolution will see alternative dispute resolution increase in popularity. Model litigant principles in the major Australian jurisdictions reinforce this by requiring that alternative methods of solving disputes about government decisions be adopted where possible.[53] These developments are part of a ‘resolution culture’ that seeks to solve matters at the earliest possible stage.[54] The Administrative Appeals Tribunal now offers not only conferencing but also mediation, neutral evaluation, case appraisal and conciliation.[55] In this it is not alone. The ACT Civil and Administrative Tribunal, the New South Wales Administrative Decisions Tribunal, the Victorian Civil and Administrative Tribunal and Western Australia’s State Administrative Tribunal all provide a range of non-adjudicative mechanisms.[56]

Although it has strong government endorsement, especially at the national level[57], alternative dispute resolution is not without its detractors. In an empirical survey of government agencies in 2002 some 40 per cent of participants expressed concern about the drawbacks of alternative dispute resolution. Respondents stated variously that it ‘can hide bad compromises or good compromises about originally bad decisions’, that it detracts from the normative role of courts and tribunals, and that it could deny the opportunity for exposure of error by government agencies, allowing officials to continue to make decisions that might be unlawful.[58] It will be interesting to see how these conflicting views are reconciled in future.

Soft law

There will continue to be growth in ‘soft law’—that is, those instruments (codes, guidelines, manuals, circulars, and so on) that have no legally binding force but are designed to influence official behaviour.[59] Soft law has become the most prevalent form of regulation: in 1997 there were over 30 000 codes, which are but one variety of soft law, in Australia[60]; the number today would be considerably greater. To illustrate the impetus for this form of regulation, in the area of privacy the federal Privacy Commissioner deliberately adopted a policy of providing codes or guidelines rather than relying on adjudication to ‘flesh out’ the Privacy Principles. Another reason, as the Australian Law Reform Commission noted in its privacy inquiry report, is that:

Establishing broad outcomes for the handling of personal information, rather than setting out detailed rules for each particular technology, is also consistent with the ‘light-touch’ approach to privacy regulation that has characterised the Australian system.[61]

This trend reflects the call by government for standards of professionalism and ethicality exceeding the base-level standards of administrative law and for regulation that is more responsive and flexible in relation to the needs of consumers and users of services.[62] The growing support for soft law suggests that business and government are prepared to trade off the certainty and authoritative effect of legal rules for less formal regulation, a development that marks a retreat from legislation in favour of informal rules.[63] The challenges for administrative law are threefold: how to develop standards for drafting of soft law instruments; how to make decisions that rely on soft law rules reviewable; and how to achieve a greater level of consultation with those affected, so that the rules better represent the interests and encourage the cooperation of those they are designed to influence.

Access to justice

A priority of government is improved access to justice. In the administrative law context this is likely to take a number of forms. In the first instance, governments will take steps to ensure, in the words of the federal Attorney‑General, that ‘our justice system is practical, cost efficient and facilitates the timely resolution of disputes’.[64] A manifestation of that practical approach will be the development of a single government portal that grants entry to the range of administrative law bodies. This one‑stop‑shop approach will ensure there is an official who can identify the problem and direct the claimant to the most suitable administrative law agency or body to handle the matter.

Improving access to justice is a central aim of the Access to Justice (Civil Litigation Reforms) Act 2009 (Cth). The Act places federal courts’ case-management powers on a more secure statutory foundation and confers on federal courts a wide range of powers to enable them to identify and resolve matters in dispute at the earliest possible stage. Additionally, the Act makes it clear that lawyers have a responsibility to help their clients achieve these objectives.[65] The obligation to assist has also been imposed on the Commonwealth Administrative Appeals Tribunal.[66]

Information access

Reasons

It has long been recognised that an essential prerequisite for an effective administrative complaints regime is having access to the reasons for an adverse decision. The significance of this right is illustrated by the right’s inclusion in clause 33 of the South African Constitution as a primary element of ‘just administrative action’. Clause 33 states, ‘Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons’. That right is not so well protected in Australia. Those who are entitled to bring actions under the Administrative Decisions (Judicial Review) Act or the Administrative Appeals Tribunal Act do have a right to obtain reasons[67], and a growing number of individual Acts provide that reasons must be given. There is, however, no common law right to reasons, the High Court having declined to take that step in Public Service Board of NSW v Osmond in 1986[68], preferring to leave it to the legislature to define the circumstances in which reasons are required.

That was more than 20 years ago. In the intervening years the reluctance to impose a reasons requirement has been eroded on several fronts. There has been a consistent pattern of individual statutes providing such a right. The courts, too, have taken a benign view of reasons statements by tribunals and primary decision makers, deferring to their expertise and refusing to be overly critical[69] unless a matter omitted was material to or dispositive of the decision.[70] There are also signs of increasing inroads into the ‘no common law right to reasons’ principle. In Campbelltown City Council v Vegan[71], the New South Wales Court of Appeal found that, in the absence of a statutory obligation to provide reasons, when there is a right of appeal and the appeal body is exercising a judicial[72], as opposed to an administrative, function a right to reasons will be implied at common law. The degree to which this will prove to be the ‘Trojan horse’ for circumventing the Osmond ruling remains to be seen. While the reasoning adopted in the Campbelltown case might provide an avenue for obtaining reasons where a right of appeal exists, the desire for reasons will probably be greater in cases where there is no right of appeal. In such instances the only solution might be a direct (and long overdue) reconsideration of the Osmond case.

Just as the right to reasons is essential to an effective ability to challenge administrative decisions, so, too, is the broader right to have access to information held by government. To that end, governments are currently focused on streamlining privacy laws, simplifying freedom of information laws, and redefining whistleblowing laws. In this context we have seen the Commonwealth Government abolish conclusive certificates in federal legislation[73]—a move also proposed for Queensland, Western Australia and Victoria[74]—and a Bill to simplify the exemptions to rights of access.[75] The Commonwealth Government has also introduced a Bill that will create an FOI Commissioner, who will provide specialist oversight of freedom of information.[76] New South Wales has recently taken this step.[77] The creation of a specialist form of supervision for freedom of information recognises that this part of the administrative law framework continues to be of particular concern to both governments and the public.

There will also be separate but related reforms aimed at developing more robust whistleblower laws following the release of reports of the Whistling While They Work project[78] and the inquiry of the House of Representatives Standing Committee on Legal and Constitutional Affairs.[79] In its For Your Information report the Australian Law Reform Commission has posited that in future privacy laws must provide a ‘simple, workable system that provides effective solutions and protections’.[80]

Harmonisation

Harmonisation—brining into accord or agreement—of laws is being pursued.[81] Intergovernmental cooperative schemes with centralised review bodies have been developed[82], and administrative law institutions and avenues for review have been aligned between countries to avoid unnecessary complexity and confusion.[83] The Standing Committee of Attorneys-General (which includes New Zealand) has agreed ‘to actively participate in consultation on the draft treaty on trans-Tasman legal cooperation’[84] and the need for harmonisation of anti‑discrimination laws.[85] Similarly, the Australian Law Reform Commission’s privacy report pointed out that, as a result of the patchwork of laws applying in Australia, the compliance burden imposed on businesses and individuals by privacy regulation underlined ‘the pressing need for simplification and harmonisation of law and practice’.[86]

Other steps

Reforms are needed in a number of other areas. Federally, the differing jurisdictional hurdles for judicial review applications in the Administrative Decisions (Judicial Review) Act and the Judiciary Act often act as a barrier to litigation; the inefficiency of servicing the multiple tribunals that exist at both the Commonwealth and the state and territory levels runs counter to the need for more efficient and effective government; there continues to be a lack of transparency about the appointments processes for many tribunals, leading to a loss of confidence in the tribunals’ output; and there has still not been a legislative attempt to develop a more uniform framework of procedures for tribunals, although the Council of Australasian Tribunals has developed a Practice Manual for Tribunals, the second edition of which was published in 2009.

Conclusion

Administrative justice continues to develop in Australia. This country pioneered many of the bodies and remedies through which administrative justice is effected in common law countries. It is clear, however, that other countries are now leading the way in areas such as tailoring responses to complaints—the proportionate dispute resolution approach—and single‑door entry for approaches to government to vindicate grievances. This is a dynamic area of government. Just as practices and philosophies in government change, so must the administrative law framework through which citizens approach government for vindication of the rights or interests they seek. The next 30 years will certainly be interesting for the well and truly ‘alive and kicking’ administrative law area of Australian jurisprudence.


[*] Professor Robin Creyke is a part-time member of the Administrative Review Council; Dr Matthew Groves is Associate Professor in the Faculty of Law at Monash University.

[1] Administrative Decisions (Judicial Review) Act 1977 (Cth) in 2010; Administrative Appeals Tribunal & Administrative Review Council in 2006; Commonwealth Ombudsman in 2007.

[2] In most jurisdictions the Act is called the Freedom of Information Act. Such statutes were enacted in Victoria in 1982, in New South Wales in 1989, in South Australia and Tasmania in 1991, and in Western Australia in 1992. In 2009 Queensland passed the Right to Information Act 2009 (updating its initial 1992 legislation). The Northern Territory equivalent is the Information Act 2002.

[3] The principal legislation is: Cth: Ombudsman Act 1982; ACT: Ombudsman Act 1989; NT: Ombudsman (Northern Territory) Act 1980; NSW: Ombudsman Act 1974; Qld: Ombudsman Act 2001; SA: Ombudsman Act 1972; Tas: Ombudsman Act 1978; Vic: Ombudsman Act 1973; WA: Parliamentary Commissioner Act 1971.

[4] Privacy Act 1988 (Cth).

[5] Cth: Public Service Act 1999 s 16; ACT: Public Interest Disclosure Act 1994; NSW: Protected Disclosures Act 1994; Qld: Whistleblowers Protection Act 1994; SA: Whistleblowers Protection Act 1993; Tas: Public Interest Disclosures Act 2002; Vic: Whistleblowers Protection Act 2001; WA: Public Interest Disclosures Act 2003.

[6] ACT: Privacy Act 1988 (Cth) (for public sector only); NSW: Privacy and Personal Information Protection Act 1998, Health Records and Information Privacy Act 2002 ; NT: Information Act 2002; Qld: Information Standard 42 – Information Privacy Guidelines, April 2003, Information Privacy Act 2009; SA: Information Privacy Principles Instruction (Cabinet Administrative Instruction, PC012); Tas: Information Privacy Principles – Guidelines for Agencies (1997, reissued, 2000), Health Complaints Act 1995; Vic: Information Privacy Act 2000.

[7] See n 6.

[8] The Human Rights Act 2004 (ACT) and the Human Rights and Responsibilities Act 2006 (Vic). Tasmania is also proposing to introduce such a law. So, too, was Western Australia, but the change of government might inhibit that move. The Commonwealth Government’s response to the report of the National Human Rights Consultation Committee, submitted in September 2009, was responded to on 21 April 2010 through the launch of an Australian Human Rights Framework.

[9] SA: District Court Act 1991 s 7; Tas: Magistrates Court (Administrative Appeals Division) Act 2001.

[10] These are established respectively by the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) and the Administrative Decisions Tribunal Act 1997 (NSW).

[11] Qld: Queensland Civil and Administrative Tribunal Act 2009 (assented to on 26 June 2009).

[12] Australian Capital Territory Civil and Administrative Tribunal Act 2008.

[13] See, for example, the 12 March 2008 announcement of the Queensland Attorney-General, http://statements.cabinet.qld.gov.au/MMS/StatementsDisplaySingle.aspx?id=56995, viewed 27 October 2008, and the Queensland Civil and Administrative Tribunal Act 2009 Pt 1, Div 2.

[14] These are, respectively, ACT: Administrative Decisions (Judicial Review) Act 1989; Qld: Judicial Review Act 1991; Tas: Judicial Review Act 2000; Vic: Administrative Law Act 1978.

[15] For example, NSW: Supreme Court Act 1970 ss 65, 66, 69, 75; Vic: Supreme Court Act 1986 s 3(6); General Rules of Procedure I Civil Proceedings 1996 O 56; Administrative Law Act 1978 ss 3, 4.

[16] Constitution Act 1975 (Vic) s 85, Pt V, Div 3, Pt VA.

[17] Matthew Denholm & Imre Salusinszky (quoting Sir Max Bingham 2008), ‘Kevin Rudd eyes MP ethics watchdog’, The Weekend Australian (Western Australia), 24 May.

[18] The Tasmanian Parliament enacted the Integrity Commission Act 2009 (Tas) and will constitute the Integrity Commission in 2010.

[19] The Tasmanian Premier presented a submission on these matters to a Joint Select Committee of the Tasmanian Parliament that is inquiring into ethical conduct in public life. Details of the Premier’s submission are available at http://premier.tas.gov.au/hot_topics/strengthening_trust_in_democracy, viewed 27 October 2008.

[20] R Creyke & J McMillan 2000, ‘Administrative justice: the concept emerges’, in R Creyke & J McMillan (eds), Administrative Justice—the core and the fringe, 2–3.

[21] For example, Administrative Appeals Tribunal Act 1975 (Cth) s 2A; NSW: Administrative Decisions Tribunal Act 1997 s 73; Vic: Victorian Civil and Administrative Tribunal Act 1998 s 98.

[22] The Hon. JJ Spigelman 2000, Chief Justice of NSW, ‘Opening of Law Term: just, quick and cheap—a standard for civil justice’, Address, 31 January, 5.

[23] Civil Procedure Act 2005 (NSW) s 56(1). The Access to Justice (Civil Litigation Reforms) Amendment Act 2009 (Cth) has a similar intention and uses the terminology of an ‘an overarching purpose’ to describe the procedural provisions that are designed to achieve these objectives.

[24] Victorian Law Reform Commission 2008, Civil Justice Review, VLRC, Melbourne.

[25] Access to Justice (Civil Litigation Reforms) Amendment Act 2009.

[26] Law Reform Commission of Western Australia 2002, 30th Anniversary Reform Implementation Report, LRCWA, Perth; Law Reform Commission of Western Australia 2009, Review of the Civil and Criminal Justice System—10 years on, by Wayne Martin, Chief Justice of Western Australia.

[27] See ‘The Queensland Government’s response to the review of the civil and criminal justice system in Queensland’, 2009, www.justice.qld.gov.au/__data/assets/pdf_file/0003/26292/Queensland-Government-response-to-the-Review-of-the-civil-and-criminal-justice-system-in-Queensland.pdf.

[28] Lord Woolf 1996, Access to Justice: final report, www.dca.gov.uk/civil/final/contents.htm.

[29] ibid. Ch 1; ‘Current challenges in judging’, Speech delivered to the 5th Worldwide Common Law Judiciary Conference, Sydney, 10 April 2003.

[30] Re Farnaby and Military Rehabilitation and Compensation Commission [2007] AATA 1792 distinguishing Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2006] NSWSC 530; (2006) 233 ALR 369; 200 FLR 309.

[31] N Bedford & R Creyke 2006, Inquisitorial Processes in Australian Tribunals, Australian Institute of Judicial Administration, Melbourne, Ch VII.

[32] Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88, 98.

[33] Commonwealth v Wood [2006] FCA 60; (2006) 148 FCR 276; Commonwealth v Tasmanian Discrimination Tribunal [2008] FCAFC 104; (2008) 169 FCR 85.

[34] Commonwealth v Tasmanian Discrimination Tribunal [2008] FCAFC 104; (2008) 169 FCR 85.

[35] Trust Company of Australian Ltd v Skiwing Pty Ltd [2006] NSWCA 185; (2006) 66 NSWLR 77; Attorney-General v 2UE Sydney Pty Ltd [2006] NSWCA 349; (2006) 226 FLR 62.

[36] The Hon. M Gleeson 2006, ‘Outcomes, process and the rule of law’, Speech delivered for the 30th anniversary of the Administrative Appeals Tribunal, Canberra, 2 August.

[37] M Galanter 2006, ‘A world without trials’, Journal of Dispute Resolution, no. 1, 8.

[38] J Wade 2001, ‘Don’t waste my time on negotiation and mediation. This dispute needs a judge’, Conflict Resolution Quarterly, no. 18, 259–69.

[39] Administrative Appeals Tribunal annual reports.

[40] N Bedford & R Creyke 2006, Inquisitorial Processes in Australian Tribunals, Australian Institute of Judicial Administration, Melbourne.

[41] See, for example, Re Minister for Immigration and Multicultural Affairs; Ex parte Applicants S134 [2003] HCA 1; (2003) 211 CLR 441; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 AJLR 992.

[42] Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 30; (2004) 224 CLR 1, 10; Applicant VEAL of 2002 v Minister for Immigration [2005] HCA 72; (2005) 87 ALD 512. The matter was directly explored by the Court in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123.

[43] Northern Territory v Doepel [2003] FCA 1384; (2003) 203 ALR 385; SZJBA v Minister for Immigration [2007] FCA 159; W404/01A of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 255: Hill v Repatriation Commission [2005] FCAFC 23; (2005) 85 ALD 1; Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; (2007) 158 FCR 252.

[44] Best-practice guides: Australian National Audit Office & Administrative Review Council.

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

[46] Commonwealth Ombudsman 2007, Lessons for Public Administration: the Ombudsman Investigation of Referred Immigration Cases (including ten lessons for public administration), Commonwealth Ombudsman, Canberra. NSW Ombudsman 2006, Good Conduct and Administrative Practice, Guidelines.

[47] Commonwealth Ombudsman 2007, Fact Sheet 2—administrative deficiency, Commonwealth Ombudsman, Canberra.

[48] Project of the Parliamentary Ombudsmen 2007, Unreasonable Complainant Conduct: interim practice manual.

[49] UK Secretary of State for Constitutional Affairs 2004, Transforming Public Services: complaints, redress and tribunals, White Paper, CM 6243, HMSO, London.

[50] Ibid. [2.6].

[51] The estimate of precedent cases is based on a pre-hearing settlement rate of between 80 per cent for the AAT, for example, and 90 per cent for courts.

[52] The Access to Justice (Civil Litigation Reforms) Act 2009 (Cth) inserted these objectives in the form of s 37M(2) of the Federal Court of Australia Act 1976 (Cth).

[53] Cth: Model Litigant Policy; NSW Model Litigant Policy; Qld: Model Litigant Principles, Principle 1; Vic: Model Litigant Guidelines.

[54] The Hon. R McClelland MP 2008, Commonwealth Attorney-General, Keynote address to the 11th Annual Australian Institute of Judicial Administration Tribunals Conference, Queensland, 6 June, 9.

[55] Administrative Appeals Tribunal Act 1975 (Cth) ss 3, 34A.

[56] ACT: ACT Civil and Administrative Tribunal Act 2008 ss 31, 33, 35; NSW: Administrative Decisions Tribunal Act 1997 Ch 2, Pt 5, s 74; SA: Tas: Vic: Victorian Civil and Administrative Tribunal Act 1998 Pt 4, Div 5; WA: State Administrative Tribunal Act 2004 ss 52, 54.

[57] The topic has been the focus of the Commonwealth Attorney-General, the Hon. Robert McClelland: launch of the National Alternative Dispute Resolution Advisory Council, Report on alternative dispute resolution in the civil justice system, Parliament House, Canberra, 4 November 2009; keynote address to the 11th Annual Australian Institute of Judicial Administration Tribunals Conference, Surfers Paradise, 6 June 2008; keynote address to the National Forum of the Australian Institute of Administrative Law, Melbourne, 7 August 2008; and address to the 9th National Mediation Conference, Perth, 10 September 2008.

[58] R Creyke & J McMillan 2002, ‘Executive perceptions of administrative law—an empirical study’, Australian Journal of Administrative Law, no. 9, 174.

[59] Commonwealth Interdepartmental Committee on Quasi-regulation 1997,

Grey-letter Law, ix.

[60] ibid. xi.

[61] Australian Law Reform Commission 2008, Media briefing no. 2, ALRC Privacy Inquiry, 11 August, 1.

[62] M D’Ascenzo 2008, ‘Effectiveness of administrative law in the Australian Public Service’, AIAL Forum, no. 57, 59.

[63] R Baldwin & J Houghton 1986, ‘Circular arguments: the status and legitimacy of administrative rules’, Public Law, 239.

[64] The Hon. R McClelland MP 2008, Commonwealth Attorney-General, Keynote address, 11th Annual Australian Institute of Judicial Administration Tribunals Conference, Queensland, 6 June, 2.

[65] The Access to Justice (Civil Litigation Reforms) Act 2009 (Cth) inserted these objectives in the form of s 37M(2) of the Federal Court of Australia Act 1976 (Cth).

[66] Administrative Appeals Tribunal Act 1975 (Cth) s 33(1AA).

[67] Administrative Decisions (Judicial Review) Act 1977 (Cth) s 13; Administrative Appeals Tribunal Act 1975 (Cth) s 28.

[68] 159 CLR 656.

[69] Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; Collector of Customs v Pozzolanic (1993) 43 FCR 280; Minister for Immigration v Yusuf (2001) 206 CLR 323, 331; Guo Wei Rong v Minister for Immigration (1995) 38 ALD 38, 52–3; Minister for Immigration v Rajamanikkam [2002] HCA 32; (2002) 210 CLR 222.

[70] WAEE v Minister for Immigration (2003) 75 ALD 630, 641; Comcare v Mathieson [2004] FCA 212; (2004) 79 ALD 518.

[71] [2006] NSWCA 284; (2006) 67 NSWLR 372.

[72] That is, determining legal rights or obligations.

[73] Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009 (Cth).

[74] These proposals have met with varying success. The Victorian Freedom of Information Amendment Bill 2007, which sought to remove conclusive certificates, was defeated in the Legislative Council. The Western Australian Freedom of Information Bill, which sought to remove conclusive certificates and make other reforms to FOI, lapsed when a state election was called in mid-2008. Queensland’s Right to Information Act 2009 s 49 Sch 4 essentially shifts the balance more in favour of disclosure of information (unless disclosure is found to be against the public interest) and extends FOI to certain government‑owned corporations. The Information Privacy Act 2009 introduces a regime for managing the collection and handling of information by government agencies. It also provides for individuals a right to gain access to and seek the amendment of personal information held by the government and its agencies if that information affects the individual seeking access.

[75] Freedom of Information Amendment (Reform) Bill 2009 (Cth).

[76] Information Commissioner Bill 2009 (Cth).

[77] Government Information (Information Commissioner) Act 2009.

[78] This is a research project involving many government agencies and academics; details are available at www.griffith.edu.au/centre/slrc/whistleblowing/. The first report of the project is AJ Brown (ed.) 2008, Whistle Blowing in the Australian Public Sector. The report was released by the Hon. J Faulkner, Special Minister of State, who reiterated the Government’s commitment to strengthening whistleblowing legislation.

[79] The committee reported in February 2009, and the government response was tabled in parliament on 17 March 2010.

[80] Australian Law Reform Commission media release, Australia Must Rewrite Privacy Laws for the Information Age, 11 August 2008.

[81] Standing Committee of Attorneys-General, Communique, 28 March 2008, 2.6, and 4 November 2009.

[82] For example, the Commonwealth Administrative Appeals Tribunal is the review body for a number of Commonwealth–state cooperative schemes.

[83] For example, New Zealand and Australia have a cooperative arrangement in relation to mutual recognition of professional qualifications, complaints about which are heard in the AAT or the Trans‑Tasman Occupations Tribunal in New Zealand.

[84] Standing Committee of Attorneys-General, Communique, 28 March 2008, 10. In July 2008 Australia and New Zealand signed the Trans-Tasman Treaty on Court Proceedings and Regulatory Enforcement. Legislation to implement the treaty in Australia was passed by the Australian Parliament on 18 March 2010.

[85] Standing Committee of Attorneys-General, Summary of decisions, July 2008, 1.

[86] ALRC Privacy Inquiry, Media release, 11 August 2008, 1.


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/journals/AdminRw/2010/5.html