Administrative Review Council
Thirty-fourth Annual Report
2009–10
© Commonwealth of Australia 2010
This work is copyright. Apart from any use permitted under the Copyright Act 1968, no part may be reproduced by any process without written permission.
ISSN 0155-025X
ISBN 978-1-921725-33-3
For information about this report, or more generally about the Council’s work, please contact:
Administrative Review Council
c/o Attorney-General’s Department
3-5 National Circuit
BARTON ACT 2600
Telephone: 02 6141 3130
Facsimile: 02 6141 3248
Email:
Internet: www.law.gov.au/arc
Administrative Review Council
13 September 2010
The Hon Robert McClelland MP
Attorney-General
Parliament House
CANBERRA ACT 2600
Dear Attorney-General
On behalf of the members of the Administrative Review Council and in accordance with section58 of the Administrative Appeals Tribunal Act 1975, I have pleasure in presenting to you the annual report of the Administrative Review Council for the financial year ending 30June 2010.
Yours sincerely
Colin Neave AM
President
Colin Neave AM Justice Garry Downes AM
Professor John McMillan AO Professor Rosalind Croucher
Brigadier Bill Rolfe AO (rtd) Andrew Metcalfe
Roger Wilkins AO Linda Pearson
Dr Melissa Perry QC
3-5 National Circuit, Barton ACT 2600
Telephone: 02 6141 3130 Facsimile: 02 6141 3248 Email:
Internet: law.gov.au/arc
15
Thirty-fourth annual report: 2009–10
The Administrative Review Council, 2009-10
Back: Roger Wilkins AO, Justice Garry Downes AM, ProfessorRosalindCroucher, Professor John McMillan AO
Front: Andrew Metcalfe, Dr Melissa Perry QC, Colin Neave AM (President), Linda Pearson
Below: Ian Carnell, Brigadier Bill Rolfe AO (rtd), Jillian Segal AM, ProfessorRobin Creyke, Emeritus Professor David Weisbrot, RonBrent
Contents
1 Overview 1
2 The work of the Council 3
Consultation 3
Education 4
3 Management and accountability 7
Establishment 7
Statutory functions & powers 7
Membership 8
Meetings 9
Personnel & administrative functions 10
Expenditure 10
Consultancy services & advertising 10
Freedom of information 10
Appendix A Reports and guidelines issued by the Council 12
Appendix B Section 51 of the Administrative Appeals Tribunal Act 15
15
Thirty-fourth annual report: 2009–10
1 Overview
The Administrative Review Council places a high value on its role in promoting knowledge of the administrative law system and providing guidance for those with particular responsibilities within that system. During the 2009-10 year, the Council finalised its work on two publications which advance that purpose.
On 26 August 2009, the Attorney-General launched the Council’s revised Guide to Standards of Conduct for Tribunal Members at the Administrative Appeals Tribunal and ACT Bar Association seminar on ‘The Obligation to Assist: Model Litigants in Administrative Appeals Tribunal Proceedings’. The Council hopes that the new Guide will highlight the standards of conduct for tribunal members in a relevant and useful manner. The Council also collaborated with academics, practitioners, administrators and others involved in administrative law to publish the 59thedition of Admin Review in May 2010. This bulletin aims to raise awareness about developments in administrative law and practice in the 21stcentury.
The Council was also consulted on a range of policies under consideration by the Government that raised administrative law issues. The Council had a particular interest in the Government’s Freedom of Information reforms having co-authored with the Australian Law Reform Commission, the 1995 Report Open Government: a review of the federal Freedom of Information Act 1982.
The 2009-10 reporting year brought an important change to the membership of the Council with the appointment, on 20 May 2010, of Mr Colin Neave AM as the new President of the Council. Mr Neave brings extensive experience in both government and business to the Council and his appointment has been welcomed by Council members.
The Council wishes to express its thanks to former President, Ms Jillian Segal AM, whose term concluded in October 2009, for her valuable contribution to the work of the Council. Under her leadership, the Council produced a number of important reports, including The Scope of Judicial Review (2006), The Coercive Information Gathering Powers of Government Agencies (2008) and Administrative Accountability in Business Areas Subject to Complex Regulation (2008) and provided practical resources for agencies in the form of the Best Practice Guides for Administrative Decision-Making, which were completed in 2007.
During the reporting year the Council also farewelled Mr Ian Carnell, who retired from his role as Inspector-General of Intelligence and Security and EmeritusProfessor DavidWeisbrot AM, who stepped down from his position as President of the Australian Law Reform Commission in November 2009.
Professor JohnMcMillanAO will continue to be a member of the Council in his new role as the first Australian Information Commissioner. When ProfessorMcMillan was appointed Information Commissioner Designate on 26February2010, he took leave from his position as Commonwealth Ombudsman but has continued his involvement in the work of the Council during the year.
The Council looks forward to commencing work on new projects in the next reporting year and will be supported in this work by staff of the AttorneyGeneral’s Department.
2 The work and performance of the Council
Consultation
The Council provides advice on a range of administrative law and policy questions to government departments and agencies and responds to public inquiries into matters that affect the Commonwealth administrative law system. The Council believes that its early involvement in the development of administrative law policy fosters positive outcomes—from the perspectives of both government and the Council—and leads to improved understanding and implementation of best practice in the application of administrative law.
Freedom of Information reforms
In February 2010, the Council made a submission to the Senate Finance and Public Administration Committee’s inquiry into the Freedom of Information Amendment (Reform) Bill 2009 and InformationCommissioner Bill 2009.
Reforms to Freedom of Information laws involve the appointment of an Australian Information Commissioner to provide independent oversight of freedom of information and privacy matters. The Council commented on the role of the Australian Information Commissioner in review of administrative decisions and the impact that adding another layer of review might have on the efficiency of current review processes.
The Council suggested that the review of the Act to be conducted two years after commencement should pay close attention to the efficiency of the review process, including the length of time matters are taking to be resolved and the role played by the Australian Information Commissioner. The workload of agencies in dealing with FOI requests arising from the proposed amendments is another matter that will necessarily arise in the review of the Act.
On 13 May 2010, the Australian Information Commissioner Bill 2010 and the Freedom of Information Amendment (Reform) Bill 2010 passed through the Parliament. The Council was pleased to publish an article by Senator theHonJoeLudwig, The Freedom of Information Act – no longer a substantial disappointment, in the 59th edition of Admin Review.
Other consultation
During 2009-10, the Council was also consulted on the following matters:
· the development of recommendations of the Access to Justice Task Force from the AttorneyGeneral’s Department for its report to Government,
A Strategic Framework for Access to Justice in the Federal Civil Justice System, including recommended improvements to the quality of primary decision making and case management in the Administrative Appeals Tribunal.
· proposed reforms to Norfolk Island’s governance arrangements, which include extending the major elements of the Commonwealth administrative law system to the Norfolk Island Government and Administration including AAT merits review, Freedom of Information Act 1982, Privacy Act 1988, Commonwealth Ombudsman and judicial review of actions
· Dr Allan Hawke’s independent review of the Environment Protection Biodiversity Conservation Act 1999
· Senate Scrutiny of Bills Committee inquiry into its future direction and role
· UK Administrative Justice and Tribunal Council’s draft Principles of Administrative Justice
· Department of Immigration and Citizenship’s proposed simplification of the current visa framework, and
· AttorneyGeneral’s Department consideration of measures to improve the Australian administrative law system, including the development of an Administrative Law Policy Guide to provide direction for Commonwealth officers developing policy and legislation on matters involving administrative law.
Education
Administrative law is concerned with the interaction between government and its citizens. An essential part of the Council’s role is to promote knowledge and contribute to the discussion of administrative law matters, reinforcing the core administrative values of lawfulness, fairness, rationality, openness and efficiency. New themes continue to arise and the Council’s influence is often most effectively achieved through its educative role and constructive engagement with both the public and private sector.
Admin Review
On 20 May 2010, the Council published the 59th edition of its administrative law bulletin, Admin Review. This edition presents current issues with the administrative law system from the perspective of a range of people, among them academics, legal practitioners, administrators and business users. A general theme running through the articles is how administrative law and practice can respond to the challenge of ensuring fair and open government in a constantly evolving legal landscape.
Guide to Standards of Conduct for Tribunal Members
On 26 August 2009, the Council published a revised Guide to Standards of Conduct for Tribunal Members. The revised guide is intended to reflect the current role of tribunals and changing public expectation of tribunal members. It will assist in maintaining the high standards expected of tribunal members with regard to respect for the law, fairness, independence, respect for persons, diligence and efficiency, integrity and accountability and transparency.
Past publications
The Council has published 49 reports, discussing many aspects of the Commonwealth’s administrative law and decision-making system. See AppendixA for a full list of Council publications. Publication of these reports has often been preceded by distribution of one or more consultation papers. The Council’s reports invariably contribute to debate and discussion in the area of administrative law. The Council places considerable emphasis on engaging with relevant departments and agencies in this regard.
The Council also produces guidelines for agencies, decision makers, tribunals and legislators. The impact of the Council’s reports and other publications extends much further than the Commonwealth administrative law system. Information and recommendations presented in these publications are often turned to by other bodies. There is continuing demand for the Council’s earlier reports, most notably Better Decisions: review of Commonwealth Merits Review Tribunals and What Decisions Should Be Subject to Merits Review?
The Council continues to receive a steady stream of requests for its series of Best Practice Guides for Administrative Decision Makers and in this reporting year, has circulated around 260 copies of the guides to interested parties. The guides are available on the Council’s website and the Council encourages the downloading of the guides as a package.
The Council continues its practice of providing free copies of its reports and other publications to educational institutions, libraries, academics and students. It sees this as one way of participating in academic debate associated with administrative law, both within government and in the broader community.
The website
The website is an important window for the Council to provide information about its membership, publications and advice and submissions given to government. The Attorney General’s Department is responsible for updating the website.
There were 130 092 visits to the Council’s website in 2009-10, averaging 356 visits per day.
Relationship with other bodies
The Council works to maintain links with others who have an interest and involvement in administrative law, both overseas and at the State and Territory level. It maintains a close association with the Council of Australasian Tribunals, Australian Law Reform Commission, Administrative Appeals Tribunal and the Commonwealth Ombudsman. The Council from time to time contributes to the Australian Law Reform Commission’s journal, Reform.
3 Management and accountability
Establishment
The Administrative Review Council is an independent statutory body provided for under Part V of the Administrative Appeals Tribunal Act 1975. The Council is established under section 48 of that Act and commenced operation in 1976.
Statutory Functions & Powers
The statutory functions of the Administrative Review Council are set out in section 51 of the Administrative Appeals Tribunal Act at Appendix B.
The Council is required to keep the Commonwealth administrative law system under review and recommend to the AttorneyGeneral improvements that might be made to the system. It is also required to assess the adequacy of procedures used in exercising administrative discretions and review classes of decisions to determine if they should be subject to administrative review. It is in fulfilment of these review and monitoring functions that many of the Council’s reflective reports are focussed; often commenting on developments which have not previously been the subject of formal analysis or guidance.
The Attorney-General may give directions to the Council in relation to the performance of its functions or the exercise of its powers (s.51A of the Act) and may refer matters to the Council for inquiry and report (s.51B of the Act). The Council reports to the Attorney-General on matters which it has inquired into either on its own motion or as a result of reference by the Attorney-General (s.51Cof the Act).
The Council is required to furnish an annual report to the Attorney-General for presentation to the Parliament as soon as practicable after 30 June each year. The report is required to be tabled within 15 sitting days of its receipt by the AttorneyGeneral (s.58 of the Act).
Membership
The Administrative Appeals Tribunal Act provides that the Council must consist of the President of the Administrative Appeals Tribunal, President of the Australian Law Reform Commission, the CommonwealthOmbudsman and up to 11 appointed members.[1] Members of the Council are appointed by the GovernorGeneral on the recommendation of the federal Attorney-General.
The Freedom of Information (Reform) Act 2010 amends section 49 of the Administrative Appeals Tribunal Act 1975 to include the Australian Information Commissioner as an ex officio member of the Council. The Act was passed on 13May 2010 and commences on 1 November 2010.
The President
The President of the Council is appointed by the Governor-General (s.49 of theAct). On 20 May 2010, Colin Neave AM, Chief Ombudsman, Financial Ombudsman Service, was appointed as President of the Council for a three year term.