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Administrative Review Council - Admin Review |
Peter Anderson[*]
Businesses are significant consumers of the system of administrative law. The core administrative values that individuals expect in government decision making are also the values expected by the business community.
For business, regulatory decisions can have far-reaching consequences, affecting interests well beyond those under immediate consideration. In many instances decisions, particularly those of tribunals, can result in the development or redrafting of company practices or policies. Poor decision making can add unnecessary costs, which are unwelcome in a business environment subject to continuing competitive pressures.
As the Taskforce on Reducing Regulatory Burdens on Business recently noted:
Like many other developed countries, Australia has undergone a relatively rapid rise in regulation over the past couple of decades, in response to a succession of social, environmental and economic needs and pressures. In our view, business is justified in protesting at the compliance and other burdens that this regulatory inflation has entailed.[1]
A consequence of this, and of the increased level of administrative decision making that has ensued, is that the million or so businesses in Australia are increasingly consumers and users of administrative law.
The diverse nature of commercial activity, coupled with the extended reach of regulatory decision making, means that the interaction between administrative decision makers and business has extended beyond agencies such as the Australian Securities and Investments Commission, the Australian Competition and Consumer Commission and the Australian Taxation Office. In the area of industrial regulation, for example, there are multiple decision makers, including ministers of the Crown (individually or collectively in ministerial councils), the Australian Human Rights Commission, Fair Work Australia, the Office of the Fair Work Ombudsman and, in some cases, government departments. Certain treaty obligations also give authority to or create lines of accountability for decisions of international bodies such as the International Labour Organization.
The increased focus on environmental matters has also meant that many business activities give rise to questions of environmental sustainability, either directly, through environmental legislation, or indirectly, through planning regulations.
In the face of this increasing level of regulation, it is heartening that the Commonwealth Attorney-General has said:
One of my key objectives is to help underpin Australia’s economic prosperity by ensuring that our domestic legal system is robust, that we reduce unnecessary costs, and remove impediments for those who need access to justice. And I know it is an objective shared by my State and Territory counterparts.[2]
This statement resonates well with the aspirations of business in relation to Australia’s system of administrative law. For business, the notion of justice is as tied up with accessible administrative decision making as it is with efficient judicial processes.
The following are among the important considerations we identified for business users of administrative law.
Elsewhere in this edition of Admin Review reference is made to the growth of ‘soft law’ codes, guidelines, circulars, and so on. As a result of this development business users are required to comply not only with ‘black letter’ law but also with the additional obligations that can be imposed on them by means of soft law materials.
Business believes that consideration should be given to ensuring an appropriate level of accountability for the guidelines and other policy documents that are being turned to increasingly by regulators and non-government entities involved in co- and self-regulation as part of their regulatory functions. The principles for the development and review of such materials, as set out in the Council’s report Administrative Accountability in Business Areas subject to Complex and Specific Regulation[3] are highly pertinent in this regard.
To increase transparency, business believes government and non-government regulators would be usefully encouraged to place on their websites (in a readily accessible place) all internal policy documents that affect decision-making processes.
Administrative review of one sort or another is generally available in established areas of business interaction. Consideration could, however, be given to the establishment of more avenues for internal review of decisions.
Where merits review is available business favours the availability of full de novo merits review. In the absence of such review a number of counterproductive consequences can ensue, including the impetus to provide a ‘greater than needed’ volume of material at the primary decision‑making stage in anticipation of possible review of the decision.
Business users widely accept the role of administrative tribunals in reviewing decisions that affect business. As a general rule, tribunal members exhibit a level of expertise in business areas sufficient to secure the support and confidence of business users.
The accelerating changes in the nature of doing business in a global economy mean that continuing professional development among tribunal members is essential in order that they stay up to date. This is seen as especially important in the case of tribunals where long-term appointments are made or tenure is provided.
Tribunal members’ ability to act independently of past business interests or associations is also central to the establishment of business confidence in the work of tribunals.
In all cases, reasons for decisions should be cogent and relevant to both current law and objectively established facts, including facts drawn from the manner in which business is conducted in an industry context. Consistency in decision making is also important to business users, providing invaluable guidance on required standards and practices.
Decisions that are too technical diminish the precedent value of a decision by reducing the business’s capacity to understand and to apply the decision more broadly. Elsewhere in this edition of Admin Review reference is made to the ‘problematic practice’ of having draft statements of reasons settled by legal advisers. The experience of business users is that this practice can make decisions (and reasons) more complicated, overly legalistic and technical, thereby reducing the precedent value of decisions and limiting the capacity of business users to apply decisions more broadly.
Although business considers that the availability of judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) is an important right, the Act’s grounds of review are generally seen to be too narrow. The ground of ‘unreasonableness’ is particularly difficult to establish. Consideration of overseas trends, such as those in the United Kingdom, would be useful.
There is among business users of the system of administrative law an expectation that administrative decision makers will act efficiently, professionally and sensitively in relation to commercial information and business circumstances.
Decision makers also need to adjust their methodologies in response to the different commercial entities with which they deal. In the case of larger businesses, various chains of command might be in operation for approving particular courses of action. This needs to be taken into account when seeking information and materials relevant to an administrative decision-making process. Account also needs to be taken of the fact that many small and medium-sized businesses might not have sufficient internal resources to respond to administrative authorities ‘at the drop of a hat’ when requests are made for information or attendance at conferences or interviews.
Regulators often have multiple educative, advisory, investigative and prosecutorial roles. In these instances, effective information management strategies are crucial.
Information provided at one time by a business to a regulator seeking information or advice should not generally be transmitted throughout the authority to investigators or prosecutors at a later time for different purposes—certainly not without that possibility having been made clear to business users at the outset.
These situations arise more frequently when regulatory agencies have a ‘one-stop-shop’ function. Particular attention to the application of administrative law values needs to be paid in circumstances where such an approach to administrative structures and decision making is adopted.
Potential conflicts of interest that compromise accountability can also arise when administrative authorities tender out legal services.
Traditionally, the Commonwealth Ombudsman has not represented a significant avenue of redress for businesses aggrieved by poor administrative decision making. The reasons for this are uncertain. A review could usefully be carried out to determine whether greater recourse by business to the Commonwealth Ombudsman would be beneficial.
Consideration could also be given to amending the freedom of information legislation to allow a limited release of information to a claimant or party, instead of the world at large, when a clear case for release has been established and other interests are not prejudiced by selective release.
The federal Compensation for Detriment Caused by Defective Administration Scheme is not widely known among business users. Its relevance (or potential relevance) to business users should be explored.
Access to the Commonwealth system of administrative law remains paramount for business users. Importantly, however, to ensure that this continues to be the case, periodic review of the qualitative aspects of that system from a business perspective is strongly recommended. Continuing vigilance is required, to ensure that administrative law values are maintained in the face of new and expanded areas of business regulation.
[*] Peter Anderson LLB (Hons), GDLP is Chief Executive of the Australian Chamber of Commerce and Industry and was a member of the Administrative Review Council from 2005 to 2008. In the development of this work a reference group was consulted, although the views expressed are those of the author and not necessarily those of the reference group as a whole or its individual members. The work of the reference group is warmly acknowledged. The group comprised Tim Capelin, Partner, Australian Business Lawyers; Richard St John, Professional Issues Committee Chairman, Australian Corporate Lawyers Association; Peter Vitale, Principal Associate, CCI Victoria Legal; Graeme Johnson, Partner, Regulatory & Government Affairs, Freehills; Agata Jarbin, Partner, Government Business Mallesons Stephen Jaques; Richard Calver, National Legal Counsel, Master Builders Australia; and Daniel Mammone, Senior Adviser Legal and Industrial Affairs, Australian Chamber of Commerce and Industry.
[1] Taskforce on Reducing Regulatory Burdens on Business 2006, Rethinking Regulation, Foreword. http://www.regulationtaskforce.gov.au/__data/assets/pdf_file/0007/69721/regulationtaskforce.pdf
[2] Attorney-General, Hon. Robert McClelland MP, Address to the Sydney Institute, 30 July 2008.
[3] Administrative Review Council 2008, Administrative Accountability in Business Areas subject to Complex and Specific Business Regulation, Report no. 49, ARC, Canberra.
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URL: http://www.austlii.edu.au/au/journals/AdminRw/2010/8.html