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Administrative Review Council - Admin Review |
Andrew Metcalfe[*]
Immigration policy has always been at the forefront of administrative justice. In one way or another the immigration portfolio has helped to shape some of the most important innovations in administrative law in Australia. My brief is to discuss the question of whether administrative justice remains ‘alive and kicking’ from an administrator’s point of view. This year, being the 65th anniversary of the establishment of the Department of Immigration and Citizenship, is a fitting time to reflect on these issues. While discussing this largely from an immigration perspective, I also refer to the experiences of the Australian Taxation Office and Centrelink, which, with the Department of Immigration and Citizenship, account for a high proportion of administrative decision making and review in the Commonwealth sector.
The migration program plays a vital role in Australia’s prosperity and in our country’s compliance with international obligations. The Department of Immigration and Citizenship makes decisions that affect human rights and the very foundations of many people’s lives. For this reason DIAC has a legal, moral and economic obligation to be fair and just in all its dealings.
It is often said that Australia is a country of immigrants. Over 44 per cent of the population was born overseas or has at least one parent born overseas. In 2008–09 DIAC did the following:
• processed more than 26 million movements[1] • administered a humanitarian program[2] covering 13 507 individuals • made over 86 000 grants of Australian citizenship at ceremonies • approved over 118 000 people as Australian citizens by descent, conferral and resumption.
In decision making of this importance and scale, administrative justice in immigration is obviously crucial to the bigger picture of an orderly migration program.
In this paper I briefly examine the history of administrative justice in Australia, attempt to define this somewhat amorphous concept, and consider some of the wider benefits gained in the 40 years since the establishment of the Kerr Committee.[3] I also outline the roles of the Australian Human Rights Commission, international law and the Commonwealth Ombudsman for the purpose of discussing their impact on DIAC’s operations. I conclude with a discussion of the importance of organisational culture in achieving administrative justice.
In 1968 a single officer constituted the entirety of the Department of Immigration’s legal clearing-house. On secondment from the Attorney‑General’s Department, Mr Ernst Willheim was ordered to certify the legality of deportation orders before they were sent to the minister’s office. He found that all the documents in his in-tray were unlawful in one way or another and, not unnaturally, he refused to certify them. Mr Willheim remembers the deportation unit’s protest: ‘You don’t seem to understand that it’s your job to initial these. If you don’t … the Minister won’t sign them …’[4]
Administrative justice in the 1960s was uncoordinated, full of anomalies[5], fragmented and confused.[6] Tribunals and review processes were idiosyncratic, and each operated within its own limited mandate. Public servants were sometimes unaware of the legal basis for their decisions, occasionally subordinating the law to internal manuals and government policy.
Also in 1968 Attorney-General Nigel Bowen established an inquiry into Australian administrative law that paved the way for today’s system of administrative justice. The inquiry committee’s chairman, Sir John Kerr, handed down the committee’s report in 1971. The main findings in the report were that ‘access to review was blocked by cost, official secrecy and privative clauses’[7] and that ‘the basic fault of the entire structure’ was that merits review was unavailable.[8] The report recommended many reforms, including a general merits review tribunal, an obligation to disclose relevant documents, and an administrative review council to monitor and recommend improvements to the administrative law system.
Administrators’ responses to the report were not entirely positive. As Sir Anthony Mason recalled, ‘The mandarins were irrevocably opposed to external review because it diminished their power’.[9]
Since the report of the Kerr Committee, bureaucrats’ thinking on administrative justice has evolved. The system that has emerged is, in the words of Justice Deirdre O’Connor, ‘in many ways, an example of world’s best practice’.[10] The Administrative Appeals Tribunal, the Commonwealth Ombudsman, the Administrative Review Council, the Administrative Decisions (Judicial Review) Act 1977, freedom of information legislation and legislatively mandated provision of reasons have irrevocably changed the environment in which administrative decisions are made throughout the Commonwealth.
The nature of administrative law changed in the early 1990s, expanding from its focus on judicially defined principles in the limited classes of cases that came before the courts and tribunals to encapsulate agency-level decision making and internal review processes. According to Associate Professor Pamela O’Connor:
It was recognised that the decisions which are changed on external review by a court, tribunal or Ombudsman are only the tip of the iceberg. For the administrative law system to become an administrative justice system, it needed to demonstrate its contribution to the quality of the vastly greater volume of decisions made at agency level.[11]
The Commissioner of Taxation, Michael D’Ascenzo, makes a similar point. Referring to changes in public sector thinking from the late 1990s to the present day, he stated:
While a focus remains on lawfulness, effectiveness and efficiency, talk is now also of the ethical obligations on the public and private sector as well. The rhetoric is now ‘effectiveness, efficiency and ethicality’. At a structural level, compliance is to be managed through a fourth, integrity branch of government.[12]
In relation to managing compliance, the Commissioner recognises a reliance by departments and agencies on ‘soft law’[13]—a term I am pleased to adopt.
‘Soft law’ means non-legislative materials such as codes and guidelines, which are increasingly being used by government regulatory agencies. Soft law is not binding by force of statute but can be influential in other ways. Its aim is to have some practical effect or impact on the behaviour of administrative decision makers.[14] The Administrative Review Council has previously noted that soft law can, in practice, have a more substantial effect on administrative decision making than the legislation itself.[15] This is particularly the case for the migration portfolio given the number of decisions made and the speed with which they are made.
External oversight offers to an organisation many benefits beyond reaching the correct or preferable decision in individual cases. DIAC has benefited from the openness and accountability provided by its merits review system and the extensive external oversight to which the department is subjected. The Migration Review Tribunal and the Refugee Review Tribunal oblige DIAC decision makers to uphold high standards and provide a crucial safety valve for errors or oversights.
External inquiry can inspire or necessitate effective communication in large organisations. Some years ago in two areas of DIAC each believed the other had reasons for continuing a policy that was, on its face, unjust. It was not until an oversight body’s inquiries about the policy prompted communication between the two areas that the policy was revised.
Feedback from merits review and accountability bodies helps by critiquing and improving the quality of agencies’ decisions. Having decisions overturned is not easy for officials, though, especially when an external body is criticising them publicly. The relationship with individual decision makers must be carefully managed to avoid resentment of the review process.
Undoubtedly, however, review decisions in the migration sector, from both the tribunals and the courts, are of high quality and make a positive contribution to departmental decision-making practices. DIAC has a multi-layered process for establishing which tribunal and court decisions are significant. Decisions are assigned to one of several policy or legal areas for a process (including a risk assessment) referred to as ‘triage’. The resulting advice is then handed to a policy unit further up in the organisation to assess whether the department is required to alter its practices in response.
In the past DIAC has at times adopted too defensive a stance and maintained an overly antagonistic relationship with review bodies. Remembering that the idiosyncrasies of the migration portfolio can lead to review decisions that have sometimes frustrated DIAC officials—indeed, ministers—I believe DIAC has now made considerable progress in opening itself up to review. This is in the context that, rightly, the department is highly accountable for its actions.
The Australian Human Rights Commission has a central role in delivering administrative justice for detainees and has contributed to major improvements in the management of detention centres. For example, the commission’s recommendations have played an important part in improving mental health monitoring and care.
Australia is also a party to optional protocols to several human rights treaties that allow for the hearing of individual complaints by international committees. Although Australia does not always agree with the legal interpretations or findings of these committees, DIAC has always fully cooperated with the examination of the complaints.
International law further influences administration by providing minimum standards to be met (and exceeded) and a process whereby which world’s best practice can be established and emulated. Australia takes its international obligations seriously. Monitoring developments in human rights law is an essential part of DIAC’s work: it forms a basis for many of the department’s decisions and policies.
The Commonwealth Ombudsman originally advertised in 1977 that the office was created to help those “trampled underfoot by officialdom”, “strangled by bureaucratic red tape”, or having their problems “swept under the carpet”.[16]
The Ombudsman has provided invaluable feedback and advice to DIAC, especially since 2005, when the office was given the additional title of Immigration Ombudsman. The Immigration Ombudsman’s investigations of individual cases and systemic matters provide detailed and focused insights into administrative problems in DIAC.
In 2005 and 2006 the Government asked the Ombudsman to investigate the cases of 247 people detained by DIAC ‘and later released [because] they were not, or were no longer, unlawful non‑citizens’.[17] The recommendations arising from the Ombudsman’s reports continue to have a practical and positive influence on DIAC’s practices. Drawn together in a summarising report[18] that DIAC has nicknamed ‘Ten Lessons’, the recommendations included measures for good governance, case management and quality control.
Since 2005 the Ombudsman has investigated all the cases of people held in immigration detention for two or more years. DIAC hopes that with this increased vigilance past mistakes will not be repeated and that it can concentrate on continuing to build better and more robust internal practices.
At time of application to the courts around 73 per cent of applicants for judicial review of migration decisions are self-represented. DIAC has been successful in 94 per cent of defended matters. This very high success rate shows that the system is delivering administrative justice. Efficiency is increasing, too: there has been a reduction of over 3000 in the number of active cases on the courts’ books at any one time.
For two decades the executive and judicial branches of government have maintained a sometimes tense and conservative relationship. Occasionally, judgments are made that seem out of step with policy makers’ views and have major impacts on management of the migration program. Conversely, governments have sought to restrict judicial review—for example, by trying to codify natural justice and creating a restrictive and separate judicial review scheme for most visa‑related decisions.
At times legislative measures such as the privative clause have been quickly read down and their impact softened by the constitutionally entrenched jurisdiction of the High Court. Other measures—most notably the Migration Act’s code of procedure—have been a continuing source of novel interpretation.
Although the administrative justice system provides an important check on administrative action, it also extends our clients’ stay in Australia by up to two years. This incentive can lead some of our clients to remain in the review system even when they do not believe the handling of their case was flawed. Currently 1 per cent (although previously up to 5 per cent) of all new visa‑related applications in the Federal Magistrates Court seek review of a decision already reviewed and upheld by the courts. There is no denying the importance of review in providing fair outcomes, but the reality is that delaying tactics are a factor in the migration portfolio.
A corollary to this is that agencies fear the delays caused by the review process. Unfortunately, this fear can contribute to inertia in administrative reform and can hinder the development of new initiatives. The courts have recognised this problem and have worked hard to resolve it by ensuring efficiency in the review of immigration matters. Some members of the judiciary have sought to resolve the problem by dispensing with full hearings in cases where there is no apparent merit to the litigant’s review application; others have declined to do so.
Some of our clients seem to feel they must take every available step in the review process in order to achieve administrative justice. Because the judicial review process is concerned with the lawfulness of decisions rather than their merits, however, this course of action might not actually resolve the matter at the forefront of applicants’ minds. Educating individuals about the review process might help to remedy this.
It is possible that a review process prescribed in legislation for decision makers to follow can in some cases increase the potential for the system to generate delay rather than administrative justice. In overturning some tribunal decisions, courts have called the outcome ‘rather absurd’ and noted that ‘in fact, no unfairness or prejudice was visited upon any of the appellants’.[19] Although this was overturned on appeal, such decisions can be frustrating for administrators, it does serve as a reminder of the need to adhere to the requirements of procedural fairness.
On the other hand, the courts have rejected some extremely quibbling arguments—for example, that substituting ‘2000’ for ‘2010’ in the postcode of a letter that reached its destination breached the code of procedure. The court noted ‘the clear absence in this case of any practical injustice or even inconvenience to the appellant …’[20] In another case Justice Madgwick declined ‘to allow the triumph of mere technicality over substance …’[21]
As a comparatively young agency, Centrelink has emerged into a well-developed administrative justice system, with some known parameters. On its creation Centrelink inherited an administrative justice approach somewhat different from that applying in DIAC; the Centrelink approach interposes a detailed internal review stage between the original decision and the Social Security Appeals Tribunal (internal review was abolished in immigration in 1999).[22] The incentive to appeal, which is such a factor in the migration sector, is also at play in the social security context, although to a lesser extent.
Centrelink allows for both own-motion and customer-initiated review. The own-motion power is enlivened when the Secretary is satisfied there is sufficient reason to review a decision. When a customer applies for review the case must be reviewed by the Secretary. In practice this means an authorised review officer, who is a ‘senior and experienced [person] in Centrelink who will have had no involvement in [the] case’.[23] A review can affirm, vary or set aside and substitute a new decision.[24] No time limit is imposed, but payments can be backdated only 13 weeks.[25]
Centrelink also expressly affords its clients the option of review by the original decision maker—known as an ‘ODM reconsideration’—which allows ‘… a chance to correct misunderstandings, present new information or evidence, and get an incorrect decision changed quickly’.[26] Following an ODM reconsideration, a customer can still proceed to seek review by an authorised review officer.
In the context of Centrelink’s business, the internal review by an authorised review officer might have reduced the need to go on to other forms of review. In 2007–08 authorised review officers dealt with 55 761 internal reviews; only 11 060 (under 20 per cent) went to the Social Security Appeals Tribunal and 1937 (3.5 per cent) to the Administrative Appeals Tribunal. This is despite
65 per cent of original decisions being upheld at the internal review stage.[27] It appears, therefore, that not only is the scheme correcting 35 per cent of decisions efficiently, but that it could also be reducing the number of unmeritorious claims progressing through the system. Reform, however, continues. Like the rest of the Australian Government, Centrelink strives to balance administrative justice, speedy decision making and efficient use of the public purse.
The Australian Taxation Office has differing review options available, depending on the subject matter to be reviewed and which review options have already been exercised.
As with Centrelink, the ATO has a layer of internal review that provides for review of a decision by a tax officer who did not make the original decision.[28] External review is conducted by the Administrative Appeals Tribunal or the Federal Court.[29]
The Small Taxation Claims Tribunal is part of the Administrative Appeals Tribunal and provides an inexpensive, quick and independent review if the amount of tax in dispute is less than $5000.[30] Judicial review is also available. Clients are helped to meet the costs of litigation in test cases. Additionally, clients can also complain to the Taxation Ombudsman, who can investigate the fairness and reasonableness of ATO actions, decisions and procedures.[31]
The ATO’s highly developed complaints system could be contributing to the decrease in complaints to the Ombudsman about the ATO in this decade.[32]
The ATO’s efforts to achieve administrative justice are further enhanced by the formalisation of its integrity framework. The Commissioner of Taxation has stated, ‘This framework, complemented by our governance and planning processes, makes our integrity visible and measurable, and assists us to deliver on our commitment of being an open and accountable organisation’.[33]
As with other agencies, various external review bodies scrutinise the ATO’s performance.[34]
Relying primarily on review mechanisms to achieve administrative justice does not make for effective decision making. Outcomes based on law and policy are really just the minimum standard for competent decision making. The values of fairness and ethical behaviour are more difficult to instil and promote. They are, however, just as important if an organisation is to make the high-quality, fair and appropriate decisions that we should strive for.
We should not underestimate the role of organisational culture in administrative justice. Developing an internal culture of accountability and openness to review is a crucial aspect of managing a decision-making process and litigation caseload. No benefit ensues if officers see review as an obstacle to be overcome, rather than an essential part of providing administrative justice.
It is well known that the Palmer and Comrie reports in 2005 have led DIAC to work towards a higher standard of internal governance. We have made much progress in promoting a new culture through extensive training programs and by changing our focus, which is more clearly directed at people—the foundation of our business. In the past few years in particular this focus has greatly improved administrative justice for our clients. It is, however, vital to constantly reinforce and revisit good governance.
In 2005 I established a Values and Standards Committee to help ensure that the people with whom DIAC deals are treated fairly, reasonably and lawfully. The committee also helps to ensure that DIAC staff are well supported in their work and that they are aware of their ethical obligations and the departmental and Australian Public Service values. The committee consists of a number of senior departmental staff as well as some external members. The Deputy Ombudsman, the Deputy Public Service Commissioner and two independent members play a major role in ensuring that we are outwardly focused and aiming for very high standards in our values and ethics.
Decision makers and policy formulators need to be aware of good governance principles and turn them into good governance practices. Management must ensure that staff are well informed about their duties under the Public Service Act 1999 and departmental policy, rules of conduct, standards of professionalism, and ethical obligations.
Is administrative justice being pursued within Australian public administration? I submit that it is, not only in comparison with Ernst Willheim’s 1960s but also by modern standards of government accountability. The Australian system has proved effective in ensuring that administrative justice is ultimately achieved, or is achievable, in virtually all cases.
I do not pretend, however, that the system is without problems, either in DIAC or in a wider context. The Comrie and Palmer reports, the Commonwealth Ombudsman and the Australian Human Rights Commission have shown that administrative injustice can still occur, albeit as the exception rather than the rule. DIAC’s ability to confront the difficult questions raised by the shocking treatment of Cornelia Rau and Vivian Alvarez, and the enormous improvement in the department’s practices that resulted, are testimony to the vitality and robustness of modern administrative justice as part of our democracy. In fact, even when considering obviously poor decisions—such as the highly publicised ones made some years ago by the Department of Immigration—it is evident that the administrative justice system is working. Has there ever before been this level of scrutiny of administrative decisions in Australia?
Of course, administrative justice cannot give everyone the decision they want. This does not, however, mean the system has failed, provided that decision making is not only lawful but also fair, just and humane.
Today we have a migration law system that is very different from the system in which a single officer worked and sought reform. Today’s system is more transparent, strong guidance is available for decision makers, and there are many more mechanisms for identifying and remedying problems. Coupling modern migration law with an open approach to decision making, accountability and the rule of law has given us a system that is more administratively just than ever before.
[*] Andrew Metcalfe is the Secretary of the Department of Immigration and Citizenship and a member of the Administrative Review Council. He acknowledges the contribution to this paper of Nadine Deakin and Charles Gascoigne of DIAC’s Legal Policy Section. He also acknowledges the assistance provided by Associate Professor Pamela O’Connor of Monash University.
[1] ‘Movements’ refers to the number of arrivals and departures of Australian residents or overseas visitors, including the crews of vessels, through Australian sea ports and airports.
[2] The humanitarian program provides for migration to Australia of refugees and others in humanitarian need from all parts of the world.
[3] The Kerr Committee comprised the Hon. Mr Justice Kerr, the Hon. Mr Justice Murphy, Mr RJ Ellicot, and Professor Whitmore.
[4] Ernst Willheim 2001, ‘Recollection of an Attorney-General’s Department lawyer,’ Australian Journal of Administrative Law, no. 8, 151, 152.
[5] Administrative Review Council, Overview of the Commonwealth System of Administrative Review, www.ag.gov.au/agd/WWW/archome.nsf/Page/Overview_Overview_of_the_Commonwealth_System_of_Admin_Review, viewed 9 July 2008.
[6] Sir Anthony Mason ‘The Kerr report of 1971: its continuing significance’, Inaugural Whitmore Lecture delivered at the AGM of the Council of Australasian Tribunals, NSW Chapter, 19 September 2007.
[7] ibid.
[8] Commonwealth of Australia 1971, Report of the Commonwealth Administrative Review Committee, Parliamentary Paper no. 144, 237.
[9] Sir Anthony Mason ‘The Kerr report of 1971: its continuing significance’, Inaugural Whitmore Lecture delivered at the AGM of the Council of Australasian Tribunals, NSW Chapter, 19 September 2007, 151.
[10] Justice Deirdre O’Connor, ‘Administrative decision-makers in Australia: search for best practice’ Paper delivered to the 2nd International Conference on Administrative Justice, Quebec, 17–20 June 2001.
[11] Associate Professor Pamela O’Connor, ‘Measuring the quality of administrative justice’, Paper delivered to the Council of Australasian Tribunals, NSW Chapter, Annual Conference, 11 May 2007, 2.
[12] Michael D’Ascenzo 2008, ‘Effectiveness of administrative law in the Australian Public Service’, Speech delivered at the Australian Institute of Administrative Law Forum, 7.
[13] ibid. 8.
[14] Administrative Review Council 2007, ‘Soft law’, Attachment E to paper 22306, Complex Business Regulation Project, ARC, Canberra, 18 May, 1.
[15] ibid.
[16] Commonwealth Ombudsman 2006, Annual Report 2005–2006, Commonwealth Ombudsman, Canberra, 1.
[17] ibid. 3.
[18] Commonwealth Ombudsman 2007, Lessons for Public Administration: investigation of referred immigration cases, Report no. 11, Commonwealth Ombudsman, Canberra.
[19] SZIZO v Minister for Immigration and Citizenship [2008] FCAFC 122, 91.
[20] SZKGF v Minister for Immigration and Citizenship [2008] FCAFC 84, 13.
[21] SZJSP v Minister for Immigration and Citizenship [2007] FCA 1925, 29.
[22] Centrelink’s internal scheme is enacted in Part 4, Division 2, of the Social Security (Administration) Act 1999 (Cth).
[23] ‘Reviews and appeals’, www.centrelink.gov.au/internet/internet.nsf/legal/review_appeal.htm, viewed 28 July 2008.
[24] Social Security (Administration) Act 1999, ss 126(3), §135(1)(b).
[25] ‘Reviews and appeals’, www.centrelink.gov.au/internet/internet.nsf/legal/review_appeal.htm, viewed 28 July 2008.
[26] ibid.
[27] Centrelink 2008, Annual Report 2007–2008, Centrelink, Canberra, 35–6.
[28] ATO 2007, ‘Taxpayer’s Charter—if you’re not satisfied’, Australian Taxation Office, Canberra, January, 3.
[29] ibid. 5.
[30] ibid. 7.
[31] Commonwealth Ombudsman website:
www.ombudsman.gov.au/commonwealth/publish.nsf/AttachmentsByTitle/ special_tax/$FILE/tax.pdf, viewed 28 July 2008.
[32] Commonwealth Ombudsman 2008, Taxation Ombudsman Activities 2007, Commonwealth Ombudsman, Canberra, 20.
[33] Michael D’Ascenzo 2006, Integrity Framework—how we ensure we are an integrity‑based organisation, Foreword, Australian Taxation Office, Canberra, January, 1.
[34] ibid. 16.
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