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Administrative Review Council Reports 2004-05


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Administrative Review C ouncil TWENTY-NINTH ANNUAL REPORT 2004-05

Administrative Review Council

Twenty-ninth A nnual Report

2004-05

ISSN 0155-025X

ISBN 0 642 21163 9

© Commonwealth of Australia 2005 This work is copyright. Apart from any use as permitted under the Copyright Act 1968, part may be reproduced by any process without prior written permission from the Commonwealth. Requests and inquiries concerning reproduction and rights should be addressed to the Commonwealth Copyright Administration, Attorney General’s Department, Robert Garran Offices, National Circuit, Barton ACT 2600 or posted at http://www.ag.gov.au/cca

For information about this report, or more generally about the Council's work, please contact:

The Executive Director Administrative Review Council Robert Garran Offices National Circuit

BARTON ACT 2600

Telephone: 02 6250 5800 Facsimile: 02 6250 5980 Email: arc.can@ag.gov.au Internet: www.law.gov.au/arc

Administrative Review Council

19 August 2005

Attorney-General Parliament House CANBERRA ACT 2600

Dear Attorney-General

In accordance with s. 58 of the Administrative Appeals Tribunal Act 1975, 1 am pleased to present to you this report on the operation of the Administrative Review Council for the year 2004-05.

Yours sincerely

Wayne Martin QC President

Wayne Martin QC Professor John McMillan Peter Anderson Robert Comall

Stephen Gageler SC Andrew Metcalfe Maj Gen Paul Stevens AO (rtd)

Justice Garry Downes AM Professor David Weisbrot Ian Camell Professor Robin Creyke Richard H um phry AO Melanie Sloss SC Sue Vardon AO

Robert Garran Offices, National Circuit, Barton ACT 2600 Telephone: 02 6250 5800 Facsimile: 02 6250 5980 Email: arc.can@ag.gov.au Internet: law.gov.au/arc

The Administrative Review Council, August 2005

Back: Melanie SIoss SC, Peter Anderson, Stephen Gageler SC, Sue Vardon AO, Ian Carnell, Major-General Paul Stevens AO, Professor David Weisbrot, Richard Humphry AO

Front: Margaret Harrison-Smith (Executive Director), Wayne Martin QC (President), Justice Garry Downes AM, Professor John McMillan, Professor Robin Creyke

Absent: Robert Cornall, Andrew Metcalfe

C ontents

1 Overview..........................................................................................................1

Promoting the work of the Council................................................................1

Changes in Council membership....................................... 2

2 The work and performance of the Council.................................................. 3

The Council's work............................. 3

An assessment of the Council's performance........... ....... 7

3 Management and accountability................................................................ 11

Enabling legislation................ 11

The responsible M inister...............................................................................11

The annual report.................... 11

Functions and powers of the Council.................................. 11

Membership of the Council........................................................................... 11

The Council's Secretariat............................................................................... 13

Council expenditure...................................................................... 13

The Council's meeting dates..........................................................................14

Consultancy services......................................................................................14

Social justice and equity................................................................................. 14

Equal employment opportunity....................................................................15

Occupational health and safety.....................................................................16

Freedom of information................................................................................. 16

Advertising and market research......................... 18

Ecologically sustainable development and environmental performance................ 18

Appendix A Section 51 of the Administrative Appeals Tribunal Act............. 19

Appendix B Reports and guidelines issued by the Administrative Review Council.................................................................................21

Appendix C Letters of advice................................................................................24

Appendix D Status of the Council's recommendations .....................................25

Appendix E The Council's expenditure, 2004-05 30

Twenty-ninth annual report: 2004— 05 1

1 Overview

The year 2004-05 was a productive one for the Administrative Review Council, with the completion of work on one important project, significant progress on two other major projects and work commencing on a further project. The year also saw

the Council maintain the level of advice it provides on administrative law aspects of Commonwealth government legislation.

In December 2004 the Council's work on the development of a report on the use of expert computer systems in government decision making culminated in the tabling in Parliament and the launch in December 2004 of the Council's guideline publication, Automated Assistance in Administrative Decision Making. The Council found the level of Commonwealth and state government agencies' interest in the report most encouraging.

During the reporting year the Council continued to work on two projects—the scope of judicial review and coercive investigative powers. By the end of the year significant progress had been made with the reports on both projects. In addition to this work, the Council embarked on a further project, involving the production of a guideline publication for government decision makers on procedural fairness.

The Council has continued to provide to decision makers, tribunals, government and individuals advice on the practical application of administrative law values and principles. The encouraging amount of advice provided in the preceding two financial years was maintained. In 2004-05 the Council provided advice on a range of proposals with implications for administrative law and policy. In addition to the provision of written advice, on two occasions the President of the Council gave oral evidence before the Senate Legal and Constitutional Legislation Committee.

The letters of advice for 2004-05 are listed in Appendix C; their full text is published on the Council's website , under the heading 'Supplement to 2004-05 annual report'.

Promoting the work of the Council

In 2004-05 the Council continued to give consideration to ways in which it might best promote its work and its role in the federal administrative law and decision­ making system.

While recognising that the principal means of achieving this objective is through the quality of its publications, the Council also took steps to improve access to and awareness of its publications. This included presentations by Council members at administrative law seminars and conferences, a presentation by Council members

Twenty-ninth annual report: 2004-05 2

to Commonwealth departmental secretaries at their annual retreat, coordinated publicity campaigns in connection with the launch of the Council's report Automated Assistance in Administrative Decision Making, and submissions to parliamentary committees and other government inquiries concerned with

administrative law.

On 11 February 2005 the Council met with the Attorney-General, the Hon. Philip Ruddock MP, to discuss the Council's work. The substance of the discussion is reflected in the work of the Council detailed in this report.

Changes in Council membership

There were no changes to Council membership during 2004— 05. Two new Council members—Peter Anderson (Director, Workplace Relations, Australian Chamber of Commerce and Industry) and Ian Carnell (Inspector General of Intelligence and Security)—were appointed to the Council on 11 July 2005. The term of appointment of the current President of the Council, Wayne Martin QC, is due to end on 21 August 2005.

Twenty-ninth annual report: 2004-05 3

2 The work and perform ance of the Council

Section 51 of the Administrative Appeals Tribunal Act 1975 sets out the statutory functions of the Administrative Review Council (see Appendix A). The Council is required to review and inquire into the Commonwealth administrative law system and to recommend to the Minister improvements that might be made to the system. This includes assessing the adequacy of procedures used in exercising administrative discretions and reviewing classes of decisions to determine if they should be subject to administrative review. The Council has a particular recommendatory role in relation to Commonwealth merits review tribunals.

The Council’s work

The Council carries out its functions under s. 51 of the Administrative Appeals Tribunal Act through a work program that takes in the preparation of reports, consultation papers and other publications dealing with aspects of the administrative law system, through advising government about the application of

administrative law principles to particular policy developments, and through educational and training activities.

Reports, consultation papers and other publications

During the 29 years of its existence the Council has published 46 reports on aspects of the Commonwealth's administrative law and decision-making system (see Appendix B). In many instances publication of the reports has been preceded by the publication of one or more consultation papers.

The Council also produces other publications relating, typically, to the education and training of those involved in administrative decision-making processes, at both the primary and the review levels.

During 2004— 05 the Council finalised a report on government agencies' use of expert computer systems in administrative decision making. The report, entitled Automated Assistance in Administrative Decision Making, was launched in Canberra on 8 December 2004 by the Attorney-General, the Hon. Philip Ruddock MP. Two Council members—Professor John McMillan, the Commonwealth Ombudsman, and Robert Cornall, Secretary of the Commonwealth Attorney-General's Department—also spoke at the launch.

During the reporting year the Council continued to work on two projects—the scope of judicial review and coercive investigative powers. By the end of the year significant progress had been made with the reports on both projects. In addition

Twenty-ninth annual report: 2004-05 4

to this work, the Council embarked on a further project, involving the production of a guideline publication for government decision makers on procedural fairness.

Automated assistance in administrative decision making

The Council's objective in developing its report on automated assistance in administrative decision making was to identify a range of best-practice principles that will ensure that decision making done by or with the assistance of expert systems is consistent with the administrative law values of lawfulness, fairness, rationality, openness (or transparency) and efficiency.

The Council makes an important distinction in the report between administrative decisions in respect of which the decision maker is required to exercise discretion and those for which no discretion is exercisable once the facts are established. In the latter case, the Council concludes that full automation of the decision-making process is appropriate. Where discretion is exercisable, however, the Council considers that the process should not be fully automated; in these circumstances, expert systems are best used as decision-making tools.

In the report the Council proposes the establishment of a panel to oversee and provide advice to government on the operation of expert systems in administrative decision making. It envisages that the panel would be advisory in nature, with agencies themselves and external overseeing bodies—such as the Auditor-General and the Commonwealth Ombudsman—remaining responsible for system testing and quality assurance. The Council suggests that membership of the panel consist of representatives of both these bodies, other Commonwealth agencies currently using or proposing to use expert systems in their decision­ making processes, and community organisations.

By the end of the 2004-05 it appeared likely that the advisory panel proposed by the Council would be established in 2005-06.

The scope of judicial review

During 2004-05 the Council made significant progress with its final report on the scope of judicial review.

Judicial review plays a vital role in Australia's system of government. There has, however, been little concerted analysis of its desirable scope or of the circumstances in which limitations on judicial review might be justified.

In its report the Council will examine the powers of Parliament to expand or contract judicial review and some of the mechanisms that have been used to do this. It will also look at some of the arguments that have been advanced to justify restrictions on judicial review.

Twenty-ninth annual report: 2004-05 5

Coercive investigative powers of government agencies

In 2004-05 the Council continued its work on a project dealing with the coercive investigative powers of government agencies; the focus is on agencies' power to require the provision of information through documents and answers to questions. In 2003-04 the Council interviewed a number of regulatory, revenue­ collecting and revenue-spending agencies in connection with the project. It is now using the information gained to develop an exposure draft of its final report.

In the report the Council will identify inconsistencies in the information-gathering powers of government agencies and will provide guidance on the legislative framing and use of these powers. It will also seek to determine whether—and, if so, the extent to which—a model set of information-gathering powers would be feasible or desirable.

The procedural fairness guide

Towards the end of 2004-05 the Council began work on a book designed to provide to government decision makers practical assistance on the rules of procedural fairness that must be complied with when making government decisions.

It is envisaged that the book will follow the format of the Council's 2002 Practical Guidelines for Preparing Statements of Reasons and the associated Commentary, providing for readers an outline of the relevant law and practical examples of how the law should be applied in various situations.

Advice and submissions to government

The Council regularly provides to government departments and agencies advice on a wide range of administrative law and policy questions and responds to public inquiries into matters that affect the Commonwealth administrative law system.

The Council continues to emphasise this role—particularly its early involvement in the process—because it considers that better policy outcomes are achievable in this way. In 2004-05 the Council provided 10 formal letters of advice or submissions to Ministers, agencies and parliamentary inquiries. Additionally, on a

number of occasions the Council provided to several government agencies advice of a less formal nature.

The Council's early involvement in the development of administrative law policy means that both Council and Secretariat members are more likely to be involved in follow-up negotiations.

Appendix C lists the letters of advice issued by the Council in 2004-05. (Because of their proximity to the deliberations of government, not all such letters generated by the Council during the year are listed. The Council hopes to provide

Twenty-ninth annual report: 2004— 05 6

details of these letters in future annual reports.) Also included in the list are five letters of advice from 2003-04, relating to amendments to the Administrative Appeals Tribunal Act: because aspects of this advice were still under consideration, it was not possible to publish these letters in last year's annual report.

Education and training

Publications

From time to time the Council issues best-practice guidelines for use by agencies, decision makers, tribunals and legislators; these are listed in Appendix B along with the Council's reports. The Council's most recent such publication is its report Automated Assistance in Administrative Decision Making.

The Council is in the process of developing the 57th edition of its periodic journal, Admin Review. The journal provides an annual overview of events, complementing other administrative journals but also reflecting the Council's unique perspective as part of the Commonwealth administrative law system.

The Council also provides regular outlines of its current projects for inclusion in the Australian Law Reform Commission publication Reform.

The Council's website

Since 1995 complete copies of Council reports and other substantial Council publications have been published on the Council's website. The website is a very important window for the Council, also providing details of Council membership, letters of advice provided to government, and submissions presented to parliamentary committees.

During the year the Council Secretariat continued to revise and update the website, which was used effectively to advertise the launch of the Automated Assistance in Administrative Decision Making report.

Participation in administrative law seminars, conferences and other gatherings

On 1 July 2004 Wayne Martin QC, Andrew Metcalfe and Professor David Weisbrot made a joint presentation on 'Coercive investigative powers' at the Australian Institute of Administrative Law Conference in Hobart. Presentations of this nature are an important way of raising the profile of the Council and its work.

At the invitation of Dr Peter Shergold, Secretary of the Department of Prime Minister and Cabinet, and Robert Cornall, in his capacity as Secretary of the Attorney-General's Department, Council members Wayne Martin QC, Professor John McMillan, Professor Robin Creyke and Robert Cornall made presentations to the annual retreat of Commonwealth departmental secretaries in Sydney on 24 July 2005. The presentations covered the following topics:

Twenty-ninth annual report: 2004r-05 7

• maintenance of records by government agencies

• the limits of disclosure of personal information by government agencies

• fettering discretion

• review of procurement decisions

• administrative law and outsourced decision making

• natural justice

• self-correction of administrative decisions

• the privacy implications of data sharing between agencies

• the scope and use of executive power.

Other initiatives

The Council works to maintain links with others with an interest and involvement in administrative law, both overseas and at the state and territory level. It played a pivotal role in the establishment of the Council of Australasian Tribunals and maintains a close interest in the COAT, particularly through the President's ex officio membership of the COAT. The Council also notes the re-appointment of ex officio Council member Justice Garry Downes AM to the position of President of the COAT on 10 June 2004.

An assessment of the Council’s performance

As noted, 2004-05 was a productive year for the Council. Following is an assessment of the Council's performance in the context of its statutory functions under s. 51 of the Administrative Appeals Tribunal Act.

Reports

Government responses to Council reports

During the reporting year the Government issued no formal responses to Council reports. Appendix D provides an update on the Government's implementation of recommendations made by the Council.

The wider impact of Council publications and submissions

The impact of Council publications extends much further than the Commonwealth administrative law system. Information and recommendations presented in the Council's reports and other publications are often turned to by other bodies. The following examples are illustrative:

Twenty-ninth annual report: 2004— 05 8

• In recommending the establishment of the Western Australian State Administrative Tribunal in January 2005, the Western Australian Civil and Administrative Taskforce placed considerable reliance on the recommendations made by the Council in its 1995 Better Decisions report, noting that the Taskforce regarded the report 'as generally in line with the principles that have guided it in recommending the development of the SAT' and that '[I]f the recommendations made in ... this Report are accepted, many of the features seen by the ARC to be desirable will be incorporated in the SAT'.

• In its report on the Administrative Appeals Tribunal Amendment Bill 2004, the Senate Legal and Constitutional Legislation Committee m ade a number of references to the Council's 21 February 2005 submission to that inquiry and to the oral evidence presented to the inquiry by Council President Wayne Martin QC on 1 February 2005.

• In its report of May 2005 on the Migration Litigation Reform Bill 2005, the Senate Legal and Constitutional Legislation Committee made a number of references to the Council's 4 April 2005 submission to that inquiry and to the oral evidence presented to the inquiry by Council President Wayne Martin QC on 13 April 2005.

Demand for Council publications

Since its release in December 2004, the Council's Automated Assistance in Administrative Decision Making report has been keenly sought.

There is also continuing demand for the Council's curriculum guideline publication Legal Training for Primary Decision Makers and for the Council's 2001 publication A Guide to Standards of Conduct for Tribunal Members, as well as the revised Practical Guidelines for Preparing Statements of Reasons and the associated Commentary. A further reprint of the 'statements of reasons' booklets was needed early in 2004-05.

In addition, there has been continuing steady interest in the Council's earlier reports, notably Better Decisions: review of Commonwealth merits review tribunals and What Decisions Should Be Subject to Merits Review?

Advice and submissions to government and the Parliament

The number of advices and submissions the Council provided during 2004— 05 was pleasing. Increased attention has been given to this area in the last few years. Ten advices were provided in 2004-05; they covered the broad area of administrative law and policy.

As noted, during the reporting year the Council placed continued emphasis on early involvement in the development of administrative policy. The Council is firmly of the view that early involvement fosters positive outcomes—from the

Twenty-ninth annual report: 2004-05 9

perspectives of both government and the Council—and leads to improved understanding and implementation of best practice in the application of administrative law.

The main focus of the advice provided by the Council during 2004-05 was the Administrative Appeals Tribunal Amendment Bill 2005 and the Migration Litigation Reform Bill 2005.

One consequence of early involvement in the development of policy proposals is the increasing likelihood that advice furnished by the Council will not be able to be published in the annual report because of its proximity to the deliberations of government. Five such advices are not listed here in Appendix C or included on

the Council's website for this reason. Details of five letters not included in last year's annual report, relating to amendments to the Administrative Appeals Tribunal Act 1975, are included in Appendix C and appear on the Council's website.

Education and training

The Council has continued its practice of providing copies of its reports and other publications to educational institutions, libraries, academics and students in Australia and elsewhere as one way of participating in academic debate involving

administrative law.

Distribution of publications is an important aspect of the Council's educational role, both within government and in the broader community. The efforts instigated in 2003-04 to increase access to and knowledge of the Council's work continued in 2004-05. As a result, the launch of the Council's Automated Assistance in Administrative Decision Making report in December 2004 attracted much interest from a wide range of Commonwealth and state government agencies.

The Council's ivebsite

An estimated 41 472 people visited the Council's website in 2004-05; this compares with an estimated 57 654 visits in 2003-04.

■

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3 M anagem ent and accountability

Enabling legislation

The Administrative Review Council is established under s. 48 of the Administrative Appeals Tribunal Act 1975.

The responsible Minister

The responsible Minister is the Attorney-General, who 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). The Council reports to the Attorney-General (s. 51C).

The annual report

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 Attorney- General (s. 58 of the Act).

Functions and powers of the Council

The powers and functions of the Administrative Review Council are set out in s. 51 of the Administrative Appeals Tribunal Act—see Appendix A.

Membership of the Council

Membership of the Council comprises a President, three ex officio members and up to 10 appointed members (s. 49 of the Act).1

The President

The President of the Council is appointed by the Governor-General (s. 49 of the Act). On 22 August 2002 Wayne Martin QC was appointed President of the Council for three years. Mr Martin's term of appointment expires on 21 August 2005.

1

A higher num ber of m em bers can be prescribed by regulation.

Twenty-ninth annual report: 2004r-05 12

Ex officio members

At the end of the reporting period the three ex officio Council members were:

• the President of the Administrative Appeals Tribunal, the Hon. Justice Garry Downes AM

• the Commonwealth Ombudsman, Professor John McMillan

• the President of the Australian Law Reform Commission, Professor David Weisbrot.

Appointed members

Council members are appointed by the Governor-General (s. 49 of the Act). Appointments are for up to three years, and members are eligible for reappointment (s. 52). To qualify for appointment to the Council, members must satisfy one or more of the following criteria:

• extensive experience at a high level in industry, commerce, public administration, industrial relations, the practice of a profession or the service of a government or an authority of government

• extensive knowledge of administrative law or public administration

• direct experience and direct knowledge of the needs of people or groups of people significantly affected by government decisions (s. 50 of the Act).

At the end of the reporting period there were eight appointed Council members (shown here with their full terms of appointment):

• Robert Cornall, Secretary, Attorney-General's Department (7 June 2000 - 6 June 2003 and 25 June 2003 - 24 June 2006)

• Professor Robin Creyke, Professor of Law, Australian National University (8 December 1999 - 7 December 2002 and 8 December 2002 - 7 December 2005)

• Stephen Gageler SC, barrister (8 December 1999 - 7 December 2002 and 8 December 2002 - 7 December 2005)

• Melanie Sloss SC, barrister (20 March 2003 - 19 March 2006)

• Sue Vardon AO, Chief Executive Officer, Centrelink, to December 2004, Chief Executive Officer, Department for Families and Communities, South Australia, from December 2004 (20 March 2003 - 19 March 2006)

• Andrew Metcalfe, Secretary, Department of Immigration and Multicultural and Indigenous Affairs (17 July 2003 - 16 July 2006)

Twenty-ninth annual report: 2004-05 13

• Richard Humphry AO, former Chief Executive Officer, Australian Stock Exchange (24 June 2004 - 23 June 2007)

• Major-General James Paul Stevens AO (rtd), former Repatriation Commissioner (24 June 2004 - 23 June 2007).

Two new members were appointed to the Council on 11 July 2005:

• Peter Anderson, Director, Workplace Relations, Australian Chamber of Commerce and Industry (11 July 2005 - 10 July 2008)

• Ian Carnell, Inspector General of Intelligence and Security (11 July 2005 - 22 March 2007).

The Council’s Secretariat

The Council is assisted in its work by a small Secretariat, the members of which are employed in the Attorney-General's Department under the Public Service Act 1999. Information about the Department's management and human resources policies and practices—including certified agreements and Australian workplace agreements, training and development strategies and outcomes, occupational health and safety, and productivity gains—can be found in the Department's annual report.

At 30 June 2005 the following permanent officers made up the Council's Secretariat:

• Margaret Harrison-Smith—Executive Director

• Trevor Mobbs—Legal Officer

• Jodie Fairall—Executive Assistant.

One permanent Secretariat member—Marion Berry, Senior Legal Officer—left during the reporting period.

Council expenditure

The Council is funded from the budget of the Attorney-General's Department, which publishes its audited financial statements in its annual report. The Council's own statement of expenditure for 2004-05 is presented here in Appendix E.

The Council Secretariat was allocated $334 000 during 2004-05; this compares with $480 046 in 2003-04. During the reporting period the Council spent $357 000, of which $310 000 was paid in salaries and allowances and $47 000 in supplier expenses; the corresponding expenditure amounts for 2003-04 were $403 190 and

Twenty-ninth annual report: 2004r-05 14

$77 530. The reduction in the Council's annual budget saw a further decline in 2004-05 in the size of the Council's Secretariat from 3.5 to 2.5 persons. There is concern at the impact of this reduction on the continuing work of the Council.

The Council’s meeting dates

Much of the Council's business is conducted at its regular meetings. During 2004-05 Council meetings were held on 3 July, 21 November, 6 February and 11 February in Canberra and on 13 May in Sydney.

Specific Council projects are dealt with at sub-committee level. During the reporting year the following sub-committee meetings were held:

• The Scope of Judicial Review Sub-committee met on 23 July 2004 in Sydney, 11 February in Canberra and 13 May in Sydney. The members of the Sub­ committee are Stephen Gageler SC (Chair), Professor Robin Creyke, Melanie Sloss SC, Professor John McMillan and Wayne Martin QC. Justice Downes AM has observer status.

• The Coercive Investigative Powers Sub-committee met by teleconference on 22 June 2005. The members of the Sub-committee are Wayne Martin QC (Chair), Stephen Gageler QC, Andrew Metcalfe, Melanie Sloss SC and Richard Humphry AO.

Consultancy services

The Council contracted Stephen Lloyd, a Sydney barrister, to assist with work on its report on the scope of judicial review.

Social justice and equity

Because the Council is primarily a law reform and advisory body, it does not offer programs to the public. For the same reason, it does not have a service charter. Nevertheless, in recent years the Council has released a number of publications that have significant implications for social justice and equity:

• report no. 46, Automated Assistance in Administrative Decision Making, which sets out best-practice guidelines for the use of expert computer systems by government agencies in administrative decision making

• report no. 34, Access to Administrative Preview by Members of Australia's Ethnic Communities, which makes recommendations aimed at ensuring that people— particularly people of non-English speaking background—have more effective access to review of decisions made by Commonwealth agencies

Twenty-ninth annual report: 2004-05 15

• report no. 37, Administrative Review and Funding Decisions: a case study of community services programs, which makes recommendations for improving access to review of decisions made by Commonwealth-funded service providers

• report no. 39, Better Decisions: review of Commonwealth merits review tribunals, which makes recommendations for improving people's awareness of their review rights and establishing simple and accessible review tribunal processes, including access to interpretation services

• report no. 40, Open Government: a review of the federal Freedom of Information Act 1982, which was prepared in collaboration with the Australian Law Reform Commission and makes recommendations designed to improve the public's access to government-held information

• report no. 42, The Contracting Out of Government Services, which, together with the discussion paper that preceded it, discusses the difficulties some recipients of contracted-out services can have in seeking remedies for defects in those services—for example, because they are ill or frail, have language difficulties, or have limited mobility2

• What Decisions Should Be Subject to Merits Review?, which provides for agencies and their advisers guidance on the types of decisions that affect individual rights and liabilities and that the Council considers should be subject to merits review

• Legal Training for Primary Decision Makers, which is a curriculum guideline designed to focus government agencies' attention on the importance of good primary decision making and the need to understand the legal and administrative framework in which decisions are made

• Practical Guidelines for Preparing Statements of Reasons and the associated Commentary, which emphasise that well-prepared statements afford the person affected by a decision an opportunity to have the decision properly explained. That person can then decide whether to exercise their rights of

review or appeal and, if they do, to do so in an informed manner.

Equal employment opportunity

In view of the Council's small Secretariat, many of its personnel and administrative functions are performed by the Attorney-General's Department. Information about the Department's equal employment opportunity program is provided in the Department's annual report.

2

See paragraph 4.25 of the report.

Twenty-ninth annual report: 2004-05 16

Occupational health and safety

The Council's Secretariat uses the policy and resources of the Attorney-General's Department in relation to occupational health and safety. Information about the Department's policy is available in its annual report.

Freedom of information

The Council is an agency for the purposes of the Freedom of Information Act 1982. It received no requests for access to documents during the reporting year.

Section 8 of the FOI Act requires that agencies publish specific information. The Council's statutory functions are set out in Appendix A of this annual report; the other information required by s. 8 follows.

Arrangements for outside participation in the work of the Council

The Council's issues papers and discussion papers, which precede some of its project reports, are distributed for comment and are generally available on the Council's website. Final reports are made available to the public after they have been tabled in Parliament. Those papers and reports are also circulated to people

and groups who may have a particular interest in the subject matter, as well as to members of parliament, the Law Council of Australia, and all state and territory bar associations and law societies.

The availability of the Council's issues papers and discussion papers is generally advertised in a national newspaper and on the Council's website.

From time to time the Council is also called on to make submissions to public inquiries.

Categories of documents held by the Council

The Council maintains the following categories of documents:

• annual reports, project reports, issues and discussion papers, guidelines documents, and the administrative law bulletin Admin Review

• letters of advice prepared by the Council

• minutes of Council meetings and documents placed before meetings

• research notes and papers compiled by the Council's Secretariat and other people

submissions received from interested parties

Twenty-ninth annual report: 2004— 05 17

• correspondence and documents relating to internal administration and management.

Access to documents

All project reports, together with issues and discussion papers, guidelines documents, and Admin Review, are available on request from the Council's Secretariat and can be inspected at the Council's office. When large numbers of a particular publication are requested, a small charge is imposed to cover the cost of publication. More recent reports are also available on the Council's website.

From 1985-86 to 2002-03 the Council's letters of advice were published in its annual reports. Since 2003-04, however, the letters of advice have been listed in the annual report and published on the Council's website. The letters of advice for 2004-05 are listed here in Appendix C; their full text appears on the Council's website , under the heading 'Supplement to 2004-05

annual report'. Minutes of Council meetings and documents placed before the meetings are held at the Council's office.

It is the Council's policy to make available copies of submissions received as part of its consultation processes in all but the following two circumstances:

• The person making a submission specifically requests that the confidentiality provisions of the FOI Act apply to their submission.

• There are strong reasons for not disclosing the information in a submission— for example, if the submission contains personal information about an individual.

All other documents are kept on the files of the Council's Secretariat. Access to them can be sought under the FOI Act. If it is possible to release such information, it is the Council's policy to do so.

Facilities for access

As noted, documents can be inspected at the Council's office in Canberra. Information about the facilities available to help people gain access to documents can be obtained from the Council's Executive Director, if necessary, special arrangements can be made to overcome difficulties with physical access.

Freedom of information procedures and initial contact points

The Council's Executive Director will help people seeking access to information to identify the documents in question.

The Executive Director is the only officer authorised to refuse access to documents. If a request is to be refused on grounds appearing in ss. 15(2) or 24(1) of the FOI Act—that is, because of insufficient information or an unreasonable

Twenty-ninth annual report: 2004—05 18

diversion of resources—applicants will be notified and offered an opportunity for consultation.

Information officer

Inquiries concerning access to documents or any other information about the Council can be directed to:

The Executive Director Administrative Review Council Robert Garran Offices National Circuit BARTON ACT 2600

Telephone: 02 6250 5800 Facsimile: 02 6250 5980 Email: arc.can@ag.gov.au

Advertising and market research

The Council was not involved in any advertising or market research activity during 2004-05.

Ecologically sustainable development and environmental performance

As noted, the Council's Secretariat is based in the Attorney-General's Department. Information about the Department's actions and performance in relation to environmental matters is available in its annual report.

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Appendix A S ection 51 of the Adm inistrative A ppeals Tribunal Act

Section 51 of the Administrative Appeals Tribunal Act 1975 describes functions and powers of the Administrative Review Council:

51(1) The functions of the Council are:

(aa) to keep the Commonwealth administrative law system under review, monitor developments in administrative law and recommend to the Minister improvements that might be made to the system; and

(ab) to inquire into the adequacy of the procedures used by authorities of the Commonwealth and other persons who exercise administrative discretions or make administrative decisions, and consult with and advise them about those procedures, for the purpose of ensuring that the discretions are exercised, or the decisions are made, in a just and equitable manner; and

(a) to ascertain, and keep under review, the classes of administrative decisions that are not the subject of review by a court, tribunal or other body;

(b) to make recommendations to the Minister as to whether any of those classes of decisions should be the subject of review by a court, tribunal or other body and, if so, as to the appropriate court, tribunal or other body to make that

review;

(c) to inquire into the adequacy of the law and practice relating to the review by the courts of administrative decisions and to make recommendations to the Minister as to any improvements that might be made in that law or practice;

(d) to inquire into:

(i) the qualification required for membership of authorities of the Commonwealth, and the qualifications required by other persons, engaged in the review of administrative decisions; and

(ii) the extent of the jurisdiction to review administrative decisions that is conferred on those authorities and other persons; and

Twenty-ninth annual report: 2004r-05 20

(iii) the adequacy of the procedures used by those authorities and other persons in the exercise of that jurisdiction;

and to consult with and advise those authorities and other persons about the procedures used by them as mentioned in subparagraph (iii) and recommend to the Minister any improvements that might be made in respect of any of the matters referred to in subparagraphs (i), (ii) and (iii); and

(e) to make recommendations to the Minister as to the manner in which tribunals engaged in the review of administrative decisions should be constituted;

(f) to make recommendations to the Minister as to the desirability of administrative decisions that are the subject of review by tribunals other than the Administrative Appeals Tribunal being made the subject of review by the Administrative Appeals Tribunal; and

(g) to facilitate the training of members of authorities of the Commonwealth and other persons in exercising administrative discretions or making administrative decisions; and

(h) to promote knowledge about the Commonwealth administrative law system; and

(i) to consider, and report to the Minister on, matters referred to the Council by the Minister.

(2) The Council may do all things necessary or convenient to be done for or in connection with the performance of its functions.

(3) If the Council holds an inquiry, or gives any advice, referred to in paragraph (l)(ab), the Council must give the Minister a copy of any findings made by the Council in the inquiry or a copy of the advice, as the case may be.

Twenty-ninth annual report: 2004-05 21

Appendix B Reports and g u id elin es issu ed by the A dm inistrative R eview Council

Reports

The following reports have been published by the Administrative Review Council since its inception in 1976. For many of them, publication was preceded by the distribution of discussion or issues papers. The year of a report's publication is provided in parentheses after the title.

1 Administrative Decisions (Judicial Review) Act 1977—exclusions under section 19 (1978)

2 Repatriation Appeals (1979)

3 Review of Import Control and Customs By-Law Decisions (1979)

4 Administrative Appeals Tribunal Act 1975—amendments (1979)

5 Defence Force Ombudsman (1979)

6 Entry to Cocos (Keeling) Islands and Christmas Island (1979)

7 Citizenship Review and Appeals System (1980)

8 Social Security Appeals (1980)

9 Administrative Decisions (Judicial Review) Amendment Bill 1980 (1980)

10 Shipping Registration Bill (1980)

11 Student Assistance Review Tribunals (1981)

12 Australian Broadcasting Tribunal Procedures (1981)

13 Commonwealth Employees' Compensation Tribunal (1981)

14 Land Use in the ACT (1981)

15 Australian Federal Police Act 1979— sections 38 & 39 (1982)

Twenty-ninth annual report: 2004— 05 22

16 Review of Decisions under the Broadcasting and Television Act 1942 (1982)

17 Review of Taxation Decisions by Boards of Review (1983)

18 Compensation (Commonwealth Government Employees) Act 1971— amendments (1983)

19 Rights of Review under the Migration Act 1958 and Related Legislation: interim report on the constitution of the Administrative Appeals Tribunal (1983)

20 Review of Pension Decisions under Repatriation Legislation (1983)

21 The Structure and Form of Social Security Appeals (1984)

22 The Relationship between the Ombudsman and the Administrative Appeals Tribunal (1985)

23 Review of Customs and Excise Decisions: stage two (1985)

24 Review of Customs and Excise Decisions: stage four—censorship (1985)

25 Review of Migration Decisions (1985)

26 Review of the Administrative Decisions (Judicial Review) Act—stage one (1986)

27 Access to Administrative Review: stage one—notification of decisions and rights of review (1986)

28 Review of Customs and Excise Decisions: stage three—anti-dumping and countervailing duty decisions (1987)

29 Constitution of the Administrative Appeals Tribunal (1987)

30 Access to Administrative Review: provision of legal and financial assistance in administrative law matters (1988)

31 Review of Decisions under Industry Research and Development Legislation (1988)

32 Review of the Administrative Decisions (Judicial Review) Act— the ambit of the Act (1989)

33 Review of the Administrative Decisions (Judicial Review) Act: statements of reasons for decisions (1991)

34 Access to Administrative Review by Members of Australia's Ethnic Communities (1991)

35 Rule Making by Commonwealth Agencies (1992)

Twenty-ninth annual report: 2004r-05 23

36 Environmental Decisions and the Administrative Appeals Tribunal (1994)

37 Administrative Review and Funding Decisions— a case study of community services programs (1994)

38 Government Business Enterprises and Commonwealth Administrative Eaw (1995)

39 Better Decisions: review of Commonwealth merits review tribunals (1995)

40 Open Government: a review of the federal Freedom of Information Act 1982 (1995)

41 Appeals from the Administrative Appeals Tribunal to the Federal Court (1997)

42 The Contracting Out of Government Services (1998)

43 Administrative Review of Patents Decisions (1998)

44 Internal Review of Agency Decision Making (2000)

45 A Report on the Council of Australasian Tribunals (2002)

46 Automated Assistance in Administrative Decision Making (2004).

Guidelines

From time to time the Council has also published guidelines for use by agencies, decision makers, tribunals and legislators, as follows:

• What Decisions Should Be Subject to Merits Review? (1999)

• Practical Guidelines for Preparing Statements of Reasons (2000, revised 2002)

• Commentary on the Practical Guidelines for Preparing Statements of Reasons (2000, revised 2002)

• Internal Review of Agency Decision Making—a best practice guide (2000)

• A Guide to Standards of Conduct for Tribunal Members (2001)

• Legal Training for Primary Decision Makers: a curriculum guideline (2004).

Twenty-ninth annual report: 2004-05 24

Appendix C L etters of a d v ice

Five letters of advice issued by the Council in 2004-05 and five letters held over from 2003-04 are published on the Council's website

Table C.1 List of letters of advice published on the Council’s website

Letter number Subject matter

1 Submission to Copyright Law Review Committee on Crown copyright discussion paper

2 Submission to the Senate Legal and Constitutional Legislation Committee inquiry into Administrative Appeals Tribunal Amendment Bill 2005

3 Supplementary letter to the Senate Legal and Constitutional Legislation Committee inquiry into Administrative Appeals Tribunal Amendment Bill 2005

4 Section 23(9)(a) Administrative Appeals Tribunal Amendment Bill 2005

5 Submission to Senate Legal and Constitutional Legislation Committee inquiry into Migration Litigation Reform Bill 2005

6 Reform of Administrative Appeals Tribunal

7 Reform of Administrative Appeals Tribunal

8 Reform of Administrative Appeals Tribunal

9 Administrative Appeals Tribunal Amendment Bill 2004

10 Exposure draft of Administrative Appeals Tribunal Amendment Bill 2004

Five other letters of advice issued by the Council during 2004-05 do not appear on the website in view of their proximity to the deliberations of government. The Council hopes to be able to publish details of these letters in its annual report for 2005-06.

Twenty-ninth annual report: 2004-05 25

Appendix D S ta tu s of th e C ouncil’s recom m en d ation s

The Council provides to government written advice in the form of project reports and letters of advice. Each year it provides an update of any substantive responses to its work, together with a summary in relation to its reports and letters that are less than five years old and on which action has not been finalised but the Council is aware there has been some action taken during the reporting year.

Project reports

Following is a summary of Council reports in relation to which there were some developments during 2004-05. The Council is not aware of any action having been taken during 2004-05 in relation to any other reports or letters not covered in this annual report.

Report no. 35— R u le M a k in g b y C o m m o n w e a lth A g e n c ie s

Summary

Rule Making by Commonwealth Agencies was transmitted to the Government on 26 March 1992 and tabled in the Parliament on 6 May of that year.

The report provides guidance on matters that are appropriate for inclusion in Acts and on matters that should be included in delegated legislation.

Response

The Legislative Instruments Act 2003 received Royal Assent on 17 December 2003 and commenced operation on 1 January 2005. The Act represented the fulfilment of the fourth attempt by successive governments to implement the substance of the report after Bills introduced in 1994, 1996 and 1998.

The Act incorporates most of the major recommendations of the Council's report, with the creation of an authoritative legislative instruments register—the Federal Register of Legislative Instruments—that is accessible to the public electronically and the sunsetting of most legislative instruments after 10 years.

Twenty-ninth annual report: 2004— 05 26

Report no. 39— B e tte r D e c is io n s : re v ie w o f C o m m o n w e a lth m erits re v ie w tribunals

Summary

Better Decisions: review of Commonwealth merits review tribunals was transmitted to the Government on 14 September 1995 and tabled in the Parliament on 28 September of that year.

The report contained 102 recommendations, some relating to matters of general application to all tribunals, regardless of the structure of the review tribunal system3, and others specifically dealing with the establishment of an integrated review tribunal body, the Administrative Review Tribunal.

Response

The Government initially introduced the Administrative Review Tribunal Bill on 28 June 2000 and the Administrative Review Tribunal (Consequential and Transitional Provisions) Bill on 12 October 2000. The former Bill provided for an independent multi-divisional merits review tribunal replacing four merits review tribunals—the Administrative Appeals Tribunal, the Social Security Appeals Tribunal, the Migration Review Tribunal and the Refugee Review Tribunal.

The Senate rejected both Bills on 26 February 2001, and the Government stated that it did not intend to reintroduce the Bills during the life of that Parliament. Instead, the Government committed itself to reforming the individual tribunals in order to achieve legislative and administrative efficiencies.

The Administrative Appeals Tribunal Amendment Act 2005 commenced on 16 May 2005. The Act includes amendments to provide the AAT with greater flexibility in the conduct of reviews, such as enabling the President to authorise ordinary members to exercise powers currently conferred only on presidential and/or senior members.

Report no. 40— O pen G o v e rn m e n t: a re v ie w o f the fe d e ra l Freedom of Information

Act 1982

Summary

Open Government: a review of the federal Freedom of Information Act 1982 was the result of collaboration between the Council and the Australian Law Reform Commission. It was transmitted to the Government in early 1996 and tabled in the Parliament on 24 January of that year.

These covered matters such as the objectives of the merits review system, review tribunal processes, tribunal membership, access, information and awareness, and administration and management.

Twenty-ninth annual report: 2004— 05 27

The report contains 106 recommendations, including a proposal for establishing a Freedom of Information Commissioner to monitor the administration of the Freedom of Information Act. Other recommendations concern application of the exemption provisions of the Act; they clarify the grounds on which access to a document can reasonably be denied and provide some guidance on how to apply the public interest considerations.

Response

Two minor changes to s. 64 of the FOI Act—to implement recommendations 85 and 86 of report no. 40 and relating to production and non-disclosure of exempt documents—have been made by the Administrative Appeals Tribunal Amendment Act 2005.

On 5 September 2000 Senator Andrew Murray of the Australian Democrats introduced in the Senate the Freedom of Information (Open Government) Bill 2000. That Bill sought to amend the FOI Act to give effect to many of the recommendations of report no. 40, including that for the establishment of an FOI Commissioner. The Bill was referred to the Senate Legal and Constitutional Legislation Committee, which reported in early April 2001. The Committee recommended that the Bill proceed through the Parliament with modifications, the main one being that the FOI Commissioner be included in the Ombudsman's Office, rather than being established as a separate body. It also recommended that the Ombudsman's Office be properly resourced for the new function.

The recommendations of the Senate Legal and Constitutional Legislation Committee were incorporated and the Bill was reintroduced into the Senate on 25 June 2003. The Bill did not progress further during 2004— 05.

Report no. 41— A p p e a ls fro m th e A d m in is tra tiv e A p p e a ls T rib u n a l to the F e d e ra l

C o u rt

Summary

Appeals from the Administrative Appeals Tribunal to the Federal Court was transmitted to the Government on 29 September 1997 and tabled in the Parliament on 3 December of that year.

Appeals from the Administrative Appeals Tribunal to the Federal Court are currently limited to appeals on a 'question of law', within the meaning of s. 44 of the Administrative Appeals Tribunal Act 1975. In its report the Council recommended that the scope of review under s. 44 remain unchanged. It also recommended, however, that the Federal Court's powers be expanded slightly, to give it discretion to receive evidence and to make findings of fact where there has been an error of law—provided the Court's findings are not inconsistent with

those of the Tribunal.

Twenty-ninth annual report: 2004-05 28

Response

The Administrative Appeals Tribunal Amendment Act 2005 includes items enabling the Federal Court to make findings of fact when hearing appeals from the Tribunal and to receive evidence for this purpose. The Court's findings must be not inconsistent with the findings of fact made by the Tribunal, other than

findings of the Tribunal that were made as the result of an error of law. The Act also confers these powers on the Federal Magistrates Court in matters that have been transferred to it from the Federal Court.

Report no. 42— The C o n tra c tin g O u t o f G o v e rn m e n t S e rvice s

Summary

The Contracting Out of Government Services was transmitted to the Government on 25 August 1998 and tabled in the Parliament on 2 November of that year.

When government provides a service directly to the public, a recipient of that service who is dissatisfied with some aspect of its delivery may have available to them one or more administrative law remedies. Among the potential remedies are the right to information under freedom of information legislation, the right to complain to the Ombudsman, and the right to have a decision reviewed by the Federal Court or a tribunal. When a government service is contracted out to the private sector, service recipients' access to administrative law remedies may be lost in the process.

The report considers how existing systems of governmental, financial and parliamentary accountability could be modified to take account of the increasing use of private contractors to perform activities and provide services on behalf of government. It contains recommendations relating to the preparation of appropriate contracts and the application of both private law and administrative law in situations where sendees are provided by contractors.

Response

The report contains a number of recommendations that fall within the portfolio responsibility of three Commonwealth departments—the Department of Finance and Administration, the Department of the Prime Minister and Cabinet, and the Attorney-General's Department. Further, several recommendations relate to matters that have also been the subject of consideration by other bodies—in particular, the Joint Committee of Public Accounts and Audit, including in its report Contract Management in the Australian Public Service.'1

The Government has previously stated it is not in a position to settle its response to the recommendations made in report no. 42 until it has also settled its response

4 Report no. 379, October 2000.

Twenty-ninth annual report: 2004r-05 29

to overlapping recommendations made by other bodies. The Council understands that a response is still under consideration by the Government, but no time frame for its release has been provided.

In October 2003 the creation of the office of the Postal Industry Ombudsman within the Office of the Commonwealth Ombudsman was announced; this will enable the investigation of complaints about a private operator in the postal

industry if that operator has opted into the scheme. At 30 June 2005 a Bill, the Postal Industry Ombudsman Bill 2005, was before the Parliament.

Report no. 46— A u to m a te d A s s is ta n c e in A d m in is tra tiv e D e c is io n M a k in g

Automated Assistance in Administrative Decision Making was transmitted to the Government on 12 November 2004 and tabled in the Parliament on 7 December of that year.

The report focuses on the sorts of administrative decisions best suited to the use of expert computer systems, the advantages and disadvantages of using expert systems in administrative decision making, best-practice principles for developing and operating expert systems in administrative decision making, and the need for expert systems in administrative decision making to comply with the administrative law values of lawfulness, fairness, rationality, transparency and efficiency.

The report identifies 27 best-practice principles the Administrative Review Council considers will ensure that decision making done with the assistance of expert systems will be consistent with administrative law values.

Principle 25 proposes the creation of an independent advisory panel to provide advice to government on the operation of expert systems in administrative decision making. It envisages representation on the panel by the Office of the Commonwealth Ombudsman, the Australian National Audit Office, Commonwealth agencies and community organisations.

Response

At the end of 2004-05 it appeared likely that the advisory panel proposed by the Council would be established in 2005-06.

Twenty-ninth annual report: 2004— 05 30

Appendix E The C ouncil’s expenditure, 2 0 0 4 -0 5

Table E.l shows the Council's expenditure for the period 1 July 2004 to 30 June 2005.

Table E.1 Administrative Review Council: expenditure, 2004-05

Item/description

Allocation ($)

Expenditure ($)

1. S a la rie s a n d p a y m e n ts in the n a tu re o f s a la ry 28 3 00 0 310 000

Membership of professional bodies 330

Sitting fees 24 000

2. S u p p lie r e x p e n s e s 51 00 0 47 000

Consultant fees 12 000

Council meetings3 1 000

External conferences and courses (training) 2 800

Printing 12 600

Stores and stationery 1 140

T ravel 13 000

Travel allowances 2 600

Casual car hire 2 000

Total 334 000 357 000

a. Excludes travel costs.