Administrative Review Council

ADMINISTRATIVE

REVIEW COUNCIL

REPORT TO THE

ATTORNEY-GENERAL

THE RELATIONSHIP BETWEEN THE

OMBUDSMAN AND THE

ADMINISTRATIVE APPEALS TRIBUNAL

Report No. 22

Australian Government Publishing Service

Canberra 1985

ISSN 0815-3795

ISBN 0 644 04140 4

Printed by Canberra Publishing & Printing Co., Fyshwick, A.C.T.

ADMINISTRATIVE REVIEW COUNCIL

G.P.O. Box 9955

CANBERRA, 2600

Telephone: 47 5100

2 January 1985

Dear Attorney-General,

I have pleasure in submitting to you herewith a report by the Administrative Review Council on the Relationship between the Ombudsman and the Administrative Appeals Tribunal.

Yours sincerely,

E.J.L. Tucker

Chairman

The Hon. Lionel Bowen, M.P.

Attorney-General

Parliament House

Canberra, A.C.T. 2600

Paragraph Page

LIST OF RECOMMENDATIONS 1

INTRODUCTION 1 3

Background 1 3

Issues 3 3

Discussion Paper 4 4

Outline 5 4

CHAPTER 1: THE OMBUDSMAN AND THE ADMINISTRATIVE

APPEALS TRIBUNAL COMPARED 5

Recommendations of Kerr and Bland Committees 7 5

Scope and Nature of Review 8 5

Ombudsman 8 5

Administrative Appeals Tribunal 13 7

Review Procedures 16 8

Ombudsman 16 8

Administrative Appeals Tribunal 21 10

Available Remedies 30 13

Ombudsman 30 13

Administrative Appeals Tribunal 35 15

Legislative Provisions Relating to the Relationship Between

the Ombudsman and the AAT 37 16

Discretion of the Ombudsman not to Investigate 38 16

Advisory Opinions of the AAT 40 17

The Ombudsman as General Counsel 41 17

Certification of Delay by the Ombudsman 42 18

Summary of Distinctions Between Ombudsman and AAT Review 43 18

CHAPTER 2: ISSUES RELATING TO THE JURISDICTIONS OF

THE OMBUDSMAN AND THE AAT 20

Concurrent or Exclusive Jurisdictions? 45 20

Availability of Review by One Body to Preclude

Conferral of Jurisdiction on the Other Body? 50 21

The More Appropriate Review Forum 53 22

Ombudsman 54 22

Administrative Appeals Tribunal 55 23

Decisions not Appropriate for AAT Review 56 24

CHAPTER 3: OPTIONS FOR REFORM AND RECOMMENDATIONS 26

Overlapping Jurisdictions 60 26

Discretion of the Ombudsman not to Investigate 61 26

Reciprocal Referral of Cases 67 28

Legislative Provisions Relating to the Relationship

Between the Ombudsman and the AAT 72 31

Advisory Opinions of the AAT 73 31

Ombudsman as General Counsel 76 32

Amalgamation of the Ombudsman and the AAT 78 33

Ombudsman-AAT Liaison 79 34

Public Education 80 34

APPENDIX: Submissions on Discussion Paper 36

LIST OF RECOMMENDATIONS

RECOMMENDATION 1 (paras 61-66)

Sub-section 6(3) of the Ombudsman Act 1976 should be amended so as to require the Ombudsman when exercising his discretion under that sub-section to have regard to the following factors, but without limiting the generality of the matters to which he may have regard:

· the personal circumstances of the complainant - such as their age, health, education, language and residence - which would affect his or her ability to initiate, prepare and present his or her case in the alternative review forum;

· the costs to be borne by the complainant in pursuing the alternative avenue of redress, the complainant’s financial means to meet such costs, and whether the costs are disproportionate to the matter in issue;

· the complainant’s prospect of success before the alternative review body;

· the nature of relief desired by the complainant and the capability of the alternative review body to provide adequate or appropriate relief;

· the method of review most appropriate in all the circumstances and facts of the case;

· whether the action complained of is the same action causing the alleged maladministration, and whether either or both are in fact reviewable by the alternative review body; and

· the current resources and priorities of the Ombudsman’s office.

RECOMMENDATION 2 (paras 67-69)

The Ombudsman Act 1976 should be amended to:

(1) Confer a discretion on the Ombudsman at any stage after the receipt of a complaint to refer a complainant to the AAT, in respect of the whole or part of a complaint, where:

(a) the whole of the complaint or the relevant part of the complaint is or may be within the jurisdiction of the AAT;

(b) in the Ombudsman’s opinion it would be appropriate to refer the complainant having regard to the following factors, but without limiting the generality of the matters to which the Ombudsman may have regard:

(i) the suitability of AAT review procedures and available remedies in relation to the issues, facts and circumstances of the case;

(ii) the personal circumstances of the complainant, including their financial means, age, health, education, language and residence; and

(iii) the time limits normally applying under section 29 of the AAT Act; and

(2) Empower the Ombudsman to issue a certificate of referral to a complainant to be appended to an application to the AAT. The certificate should set out the actual date within which an application should be made to the AAT. The time limit for making such an application should be twenty-eight days from the date on which the Ombudsman makes the referral.

(3) Authorise the Ombudsman to assist (with the complainant’s consent) a complainant who has been referred to the AAT in preparing an Application for Review of Decision
(Form 1 of Schedule 1 to the AAT Regulations).

(4) Empower the Ombudsman to supply any information to the AAT that the Ombudsman deems appropriate.

RECOMMENDATION 3 (paras 70-71)

The Administrative Appeals Tribunal Act 1975 should be amended to confer a discretion on the Tribunal at any stage of proceedings to remit a matter, whether or not within its jurisdiction, ‘to the Ombudsman, where:

(a) the matter is or may be within the jurisdiction of the Ombudsman;

(b) in the Tribunal’s opinion it would be appropriate to remit the matter having regard to the following factors, but without limiting the generality of the matters to which the Tribunal may have regard:

(i) the suitability of Ombudsman review procedures and available relief in relation to the issues, facts and circumstances of the case; and

(ii) the personal circumstances of the applicant, including their financial means, age, health, education, language and residence; and

RECOMMENDATION 4 (paras 73-75)

(1) Section 11 of the Ombudsman Act 1976 should be amended to:

(a) empower the Ombudsman to seek an advisory opinion from that AAT; and

(b) omit the words ‘conferred by an enactment’ from sub-section 11(1).

(2) Section 28 of the Complaints (Australian Federal Police) Act 1981 should similarly be amended.

INTRODUCTION

Background

1. The functions of the Administrative Review Council are set out in section 51 of the Administrative Appeals Tribunal Act 1975. They include the power to make recommendations to the Attorney-General on matters of administrative law and practice, and review of administrative decisions. The undertaking of this Report is in accordance with the functions set out in paragraphs 51(1)(d) and (g) of the Act. These functions are to make recommendations concerning the improvement of procedures:

· used by tribunals or other bodies engaged in the review of administrative decisions; and

· for the exercise of administrative discretions, in order to ensure that those discretions are exercised in a just and equitable manner.

2. The impetus for this Report originated from comments of the Ombudsman that the Council should assess the need for new or additional avenues of review in the light of the functions performed by the Ombudsman’s office. In his Fifth Annual Report[1], the Ombudsman recorded the likely impact on the operations of his office of extensions to the jurisdiction of the Administrative Appeals Tribunal (‘AAT’). He referred first to the case where the AAT absorbs the jurisdiction of an existing appellate body, the actions of which the Ombudsman was empowered to investigate, e.g. the AAT’s absorption of the Repatriation Review Tribunal’s jurisdiction by the Repatriation Legislation Amendment Act 1984. In this situation, the Ombudsman’s jurisdiction in relation to such an appellate body ceases. Secondly, he stated that the vesting of all new jurisdictions in the AAT has the effect of creating a further avenue of review, which is relevant to the Ombudsman’s discretion under sub-section 6(2) and (3) of the Ombudsman Act not to investigate in cases of overlapping jurisdictions. The Ombudsman further commented:

...I think that insufficient appreciation of the respective roles and capacities of the Ombudsman and appellate tribunals has sometimes led to the mistaken belief that review by the latter is preferable whenever it can be arranged.

With these comments in mind, the Council adopted this project in December 1982.

Issues

3. This Report addresses the following issues concerning the relationship between the Ombudsman and the AAT:

(a) General Principle - whether overlapping of the jurisdictions of the two bodies is desirable in principle and is operating satisfactorily in practice, having particular regard to the Ombudsman’s discretion not to investigate in cases of overlapping jurisdictions;

(b) Reviewability - whether the availability of Ombudsman review should preclude the conferring of jurisdiction on the AAT to review the exercise of a discretion, and conversely, whether the conferral of jurisdiction .on the AAT should lead to withdrawal of the Ombudsman’s jurisdiction;

(c) Remittal - where both bodies have jurisdiction, whether there are circumstances in which one body would be the more appropriate to undertake review, and whether mechanisms should be established to provide for cross-referral of cases where an aggrieved individual has initially sought redress from the less appropriate review body;

(d) Relationship-whether there is a need to reform existing legislative provisions which affect the relationship between the two bodies, e.g. the seeking of advisory opinions from the AAT during the course of an Ombudsman investigation;

(e) Liaison - whether there is a need for greater liaison between the two bodies to ensure that each is fully aware of the scope, functions, procedures of and remedies available from the other, so that:

· a system of reciprocal referral of cases can operate effectively;

· inconsistent end results are not reached separately by each body;

· officers of each body are aware of the roles and current trends in the. operation of the other body, and also the legislative provisions relating to the relationship between both bodies; and

· aggrieved individuals approaching either body are adequately informed of the comprehensive system of administrative review of which each body forms an interlocking part.

Discussion Paper

4. A Discussion Paper was prepared by the Secretariat in consultation with a committee of the Council, and was distributed in November 1983 amongst interested persons and organisations. A list of persons and organisations who made submissions appears in the Appendix. Other persons and organisations acknowledged receipt of the Discussion Paper but did not wish to make any substantive observations on it.

Outline

5. This Report is hereafter divided into three parts. Chapter 1 describes the legislative inter-relationship between the Ombudsman and the AAT, and compares their nature, functions, scope, review procedures and remedies. The distinctions between Ombudsman and AAT review are summarised at the conclusion of Chapter 1. Chapter 2 discusses the issue of whether it is desirable for the Ombudsman and the AAT to have overlapping jurisdictions, and the related question of whether the availability of Ombudsman review should preclude the conferring of jurisdiction on the AAT, and vice versa. Circumstances are listed at the conclusion of Chapter 2 where it is considered that, on the basis of their distinct forms of review, one body would be a more appropriate review body than the other. Chapter 3 looks at options for reform with a view to improving the relationship between the two review bodies.

CHAPTER 1: THE OMBUDSMAN AND THE ADMINISTRATIVE APPEALS TRIBUNAL COMPARED

6. The primary function of the Ombudsman is independently to investigate complaints from individuals relating to defective administration by departments and authorities. The Ombudsman’s role is to make recommendations in order to improve administrative processes and to provide justice for aggrieved individuals. The Ombudsman operates in a relatively informal and confidential manner, and in a private setting. In contrast, the AAT’s function is to adjudicate, in an adversarial context, on the merits of a specific decision made by an administrator. As a review body external to the administration, the AAT’s role is to provide justice to aggrieved individuals and guidance for primary decision makers by making determinations as to what is the ‘correct or preferable’ decision in a particular case. The AAT operates in a relatively formal and public manner, with the applicant being entitled to a hearing and generally to have access to material on which the AAT may rely.

Recommendations of Kerr and Bland Committees

7. The Ombudsman, as established by the Ombudsman Act 1976, and the AAT, as established by the Administrative Appeals Tribunal Act 1975, were set up largely in accordance with the recommendations contained in the Reports of the Commonwealth Administrative Review Committee (the ‘Kerr Committee’[2])’, and the Committee on Administrative Discretions (the ‘Bland Committee’[3]).’ Together with judicial review under the Administrative Decisions (Judicial Review) Act 1977, these bodies comprise the principal mechanisms of administrative review. It was envisaged by the Bland Committee that the Ombudsman would have a broad charter to investigate matters of administration in order to ascertain whether there had been defective administration, while the general administrative review tribunal would review administrative decisions on the merits, which was described as involving reconsideration with a power to substitute a decision for the original decision. The broad investigative charter of the Ombudsman was explicitly distinguished from AAT-type review in the Explanatory Memorandum to the Ombudsman Bill 1976:

Thus the function of the Ombudsman is quite different to that of an appeal tribunal . . . these bodies are empowered to hear appeals from decisions and where they think fit, to overrule these decisions and substitute their own. They are limited to considering decisions, and are not ordinarily concerned with other administrative actions. They are, moreover, confined to specified classes of matters, whereas the Ombudsman has power to investigate the whole field of administrative activity of government.

Scope and Nature of Review

OMBUDSMAN

8. The role of the Ombudsman as described by the Council below is based on the interpretation of his role by the current Ombudsman, Professor J.E. Richardson. It may be that a different person holding the office of Commonwealth Ombudsman would place another interpretation on his or her role. The Ombudsman has a general jurisdiction under the Ombudsman Act 1976 to review defective administration, subject to specified exemptions, such as decisions of Ministers (but advice to a Minister is not excluded (sub-ss.5(2) and 5(3A)). The AAT is not subject to review by the Ombudsman because of the following exclusion from the definition of ‘prescribed authority’ in sub-section 3(1):