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Friday, 28 November 1986
Page: 3035

(Question No. 805)

Senator Mason asked the Minister representing the Attorney-General, upon notice, on 12 February 1986:

(1) How many statutory authorities currently exist under the auspices of the Minister's Department.

(2) What are the names of these authorities.

(3) What appeal mechanisms, if any, exist for the general public to lodge a complaint against these authorities.

(4) If it is proved that any member of staff of any of these authorities is guilty of incompetence, what action, if any, could be taken by a member of the public to sue the authority for compensation; if it is not possible to sue the authority, why is that the case.

(5) How many cases concerning these authorities are currently before the Administrative Appeals Tribunal, and what is the delay at present between the listing of a case and its hearing before the Tribunal.

(6) If any statutory authority under the Minister's Department cannot be sued, will the Minister consider amending the relevant legislation to make this possible.

Senator Gareth Evans —The Attorney-General has provided the following answer to the honourable senator's question:

(1) 33

(2) Administrative Appeals Tribunal

Administrative Review Council

Australian Government Solicitor

Australian Institute of Criminology

Australian Institute of Family Studies

Australian Security Intelligence Organisation

Barristers and Solicitors Admission Board of the A.C.T.

(Film) Censorship Board

Cinematograph Films Board of Review

Common Investment Fund Investment Board

Companies Auditors and Liquidation Disciplinary Board (A.C.T.)

Copyright Tribunal

Corporate Affairs Commission (A.C.T.)

Criminology Research Council

Defence Force Discipline Appeal Tribunal

Director of Public Prosecutions

Disciplinary Committee of the Law Society of the A.C.T.

Family Law Council

Federal Police Disciplinary Tribunal

Human Rights Commission

Law Reform Commission

Law Society of the A.C.T.

Legal Aid Commission (A.C.T.)

Legal Aid Committees

Legal Aid Review Committees

National Companies and Securities Commission

Office of Parliamentary Counsel

Official Trustee in Bankruptcy

Parole Board of the A.C.T.

Security Appeals Tribunal


Trade Practices Commission

Trade Practices Tribunal

(3) A wide range of appeal mechanisms exists for this purpose, including-

(a) a complaint to the Attorney-General, a member of Parliament or the authority itself;

(b) an appeal against an administrative decision under the Administrative Decisions (Judicial Review) Act 1977, where that Act applies;

(c) an appeal to the Administrative Appeals Tribunal, where the legislation under which the authority operates confers jurisdiction on the Tribunal;

(d) an appeal to specific tribunals established by the legislation under which an authority operates-e.g. Security Appeals Tribunal, Trade Practices Tribunal, Defence Force Discipline Appeal Tribunal;

(e) a complaint to the Ombudsman under the Ombudsman Act 1976;

(f) a prerogative writ in the High Court or Federal Court.

The appropriate avenue for redress will depend upon the relevant legislation and the nature of the complaint.

(4) Unless an authority is statutorily protected, it is liable for the torts of its servants committed in the course of the their duty. Where employees, acting in the course of their duty are incompetent and, as a consequence, loss is suffered by a member of the public, it will commonly be found that the act or omission which was seen as incompetent was also tortious. For example, incompetent driving would probably be tortious. In the absence of a denial of liability the negligent giving of erroneous advice is tortious where the advice is given by a person having a duty of care to one who suffers foreseeable damage as a result of reasonably relying on that advice. Many other forms of incompetence would also be tortious, but each case would need to be considered on its own facts.

With the exceptions listed below, the authorities listed in the answer to part (2) of this question are not statutorily protected against general liability in tort. The following authorities are statutorily protected against suits relating to acts done in good faith in the performance of their statutory functions:

National Companies and Securities Commission

Companies Auditors and Liquidation Disciplinary Board (ACT)

Disciplinary Committee of the Law Society of the ACT

Sex Discrimination Commissioner (Human Rights Commission)

The nature of the functions performed by the latter agencies is such that a degree of protection is appropriate in the interests of effective operation.

(5) The Administrative Appeals Tribunal currently has 2 cases before it involving statutory authorities within the Portfolio. The respondents are the Australian Institute of Criminology and the Director of Public Prosecutions and each concerns an application under the Freedom of Information Act. The delay between listing and hearing varies according to the nature of the case and it is not possible to give a specific answer on this aspect.

(6) See answer to (4).