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Administrative discretions - Committee on Administrative Discretions - Reports - 17 October 1973 (Final)


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THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

1973— Parliamentary Paper No. 316

COMMITTEE ON

ADMINISTRATIVE DISCRETIONS

FINAL REPORT October 1973

Presented by Command and

ordered to be printed 25 October 1973

THE GOVERNMENT PRINTER OF AUSTRALIA CANBERRA 1975

Printed at The Dominion Press, North Blackburn, Victoria,

COMMITTEE ON ADMINISTRATIVE DISCRETIONS

Members

Sir Henry Bland, C.B.E. (Chairman) (Formerly Secretary to the Departments of Defence and of Labour and National Service)

Professor H. Whitmore

(Dean of the Faculty of Law, University of N.S.W. and formerly Dean of the Faculty of Law, School of General Studies, Australian National University)

P. H. Bailey, Esq., O.B.E.

(Deputy Secretary, Department of the Prime Minister and Cabinet)

Secretary

Ernst Willheim, Esq.

(Principal Legal Officer, Attorney-General’s Department)

CONTENTS

Introduction . . . paragraphs

Procedure followed after the Interim Report Extension of the Ombudsman’s Jurisdiction . Matters reserved in the Interim Report .

Ministers’ Administrative Discretions . . Processes directed to better decision making Present extent of formal external review of decisions . . . . . .

Discretions in particular fields of administra­ tion . . . . . . .

Social Security and Welfare . . .

Customs and Excise . . . .

Immigration . . . . . .

Need for examination of some legislative pro­ visions . . . . . .

Proposals for review of administrative discre­ tions . . . . . . .

Existing Tribunals . . . . .

Tribunals for the future . . . .

The General Administrative Tribunal . . Chairmen . . . . . .

Members . . . . . .

Panels of Members . . . .

Departmental Officers . . . .

President . . . . . .

Valuation and Compensation Tribunal . . Medical Appeals Tribunal . . . .

Powers and Procedures of the Tribunals . Legislative Framework . . . .

Jurisdiction of the Tribunals . . .

Integration of existing tribunals in the pro­ posed Tribunal Structure . . .

Surveillance of new legislation . . .

The Kerr Committee recommendations for an Administrative Court and an Administrative Review Tribunal . . . . .

Assistance to the citizen in tribunal proceed­ ings ..........................................................

Submissions received . . . . .

Conclusions . . . . . .

Summary of recommendations . . .

Acknowledgments . . . . .

Appendix A: Statutory Authorities recom­ mended for scheduling as subject to the Ombudsman . . . . pages

1-4 5-12 13-26 27

28-37 38-40

41-44

45-95 45-73 74-86 87-95

96-107

108-113 114-121 122-131 132-156

135-139 140-143 144- 147

145- 152 153-156 157-165

166-170 171-173 174-179 180-184

185-190 191-200

201-208

209-220 221

222-228 229 230

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Appendix B: Ordinances relating to the Aus­ tralian Capital Territory . . pages 50

Appendix C : Notes on legislation administered by some d e p a rtm e n ts .................................... 58

Appendix D : Administrative discretions vested by Statutes and Regulations in Ministers, officials and statutory authorities subject to review by the c o u r t s .................................... 89

Appendix E : Administrative discretions vested by Statutes and Regulations in Ministers, officials and statutory authorities, subject to review by other than the courts . . . 93

Appendix F : Provisions dealing with compen­ sation and valuation matters in Statutes and Regulations .................................... 103

Appendix G : Provisions dealing with medical conditions under Statutes and Australian Capital Territory Ordinances . . . 107

Appendix H : Administrative discretions under Statutes and Regulations without any pro­ vision for review for which a review process should be c o n s id e re d .................................... I l l

Appendix I : Administrative discretions vested by Australian Capital Territory Ordinances in Ministers, officials and statutory authori­ ties, subject to review by the courts . . 121

Appendix J : Administrative discretions vested by Australian Capital Territory Ordinances in Ministers, officials and statutory authori­ ties, subject to review by other than the courts ..................................................... 126

Appendix K : Provisions dealing with compen­ sation and valuation matters in Australian Capital Territory Ordinances . . . 129

Appendix L : Administrative discretions under Australian Capital Territory Ordinances without any provision for review for which a review process should be considered . 131

Appendix M : Persons and organisations who made submissions to the Committee . . 135

Senator the Hon. L. K. Murphy, Q.C. Attorney-General, Parliament House, Canberra, A.C.T. 2600

Your predecessor appointed us to examine existing administrative discretions under Commonwealth Statutes and Regulations and to advise as to those in respect of which a review on the merits should be provided. You later enlarged this com­ mission somewhat by indicating that you wished us to report on those adminis­

trative discretions in respect of which we considered there should be some external review and on the character of the review we considered appropriate in each case.

2. On 19 January last, we presented to you, at your request, an Interim Report of our views on the Ombudsman type process of review of administrative discre­ tions and the discretions to which it should apply.

3. We said in our Interim Report (paragraph 132) that we did not see “the institu­ tion of an Ombudsman type process as completely satisfying the need for review of administrative discretions by processes external to the department or instru­

mentality by or on whose behalf they are exercised. Our final Report will be directed to our views on the need for formal tribunals to review some discretion­ ary powers”.

4. This is our final Report. It has to be read in conjunction with our Interim Report because we have seen no point in transcribing into this present document relevant passages from the Interim Report.

Procedure followed since our Interim Report

5. In paragraph 5 of our Interim Report we listed the names of the departments whose legislation and regulations we bad not then examined.

6. Very considerable changes in the structure of the departments and their func­ tions occurred around the time we were writing that Report. These were detailed in an Administrative Arrangements Order notified in the Gazette on 20 December 1972. New departments were created. Others previously existing disappeared. The

names of some were changed.

7. While administrative responsibility for some of the legislation we had examined in 1972 was as a consequence of the Administrative Arrangements Order reposed in different hands, we saw no point in enquiring of the departments to which responsibility was transferred whether there were any changes in the views and

attitudes earlier expressed to us.

8. We have not, since January last, followed precisely the procedure outlined in paragraphs 6 et seq of our Interim Report. Your advice that the Government would proceed with legislation for an Ombudsman led us to concentrate on dis­ cretions that called for more than an Ombudsman type external review.

9. While your predecessor’s commission to us referred to existing administrative discretions, we have examined all the Commonwealth Statutes and Regulations

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up to the end of 1972. We have not shut our eyes to all of the post 1972 legisla­ tion. Several Acts, like the Insurance Act and the Defence Force Retirement and Death Benefits Act, prescribe procedures for the tribunals created by the legislation which reflect developing thinking about such matters and thus, in some degree, anticipate the recommendations we will be making.

10. We have also examined the Ordinances and Regulations thereunder relating to the Australian Capital Territory. We have not examined the New South Wales legislation applicable in the Territory. It is probably safe to say, as a broad generalisation, that the imported State legislation deals with residual basic law of general application; matters of particular application to the affairs of the citizen, in business and commerce, and the impact on him of the modern State are now

dealt with primarily by Ordinances of the Territory.

11. Because of the time factor we have not examined the Ordinances and sub­ ordinate legislation of the remaining Territories of which the chief are the Northern Territory, Norfolk Island, Christmas Island and Cocos (Keeling) Islands. We believe that those concerned with the laws of these Territories will gain enough from consideration of the views we will later express about the Australian Capital Territory Ordinances and Regulations and of the conclusions reached on our Report to be able easily to direct themselves to comparable adjustments to the laws of those Territories. To facilitate this, we attach as Appendix B a separate note on the Ordinances of the Australian Capital Territory.

12. The laws of the Territory of Papua New Guinea have throughout been excluded from our consideration. (Paragraph 4(b) of our Interim Report).

Extension of the Ombudsman’s Jurisdiction

13. Having come to the end of our road, we see no need to qualify the views expressed in our Interim Report on the desirability of introducing an Ombudsman review process in respect of those decisions, recommendations or acts done or omitted relating to a matter of administration referred to in paragraph 63 of that Report (hereafter, for convenience, genetically referred to as decisions) or, sub­ ject to what follows, the conclusions and recommendations set out in that Report. Nor do we have any reservations about the desirability of the Ombudsman’s jurisdiction extending to decisions of the type mentioned in paragraph 63 in or by the departments concerned with affairs in the Territories.

14. Our further reflections only serve to confirm the verbal advice given you by our Chairman some months ago that there should be only one Ombudsman for Australia and its Territories.

15. Only if there is one Australian Ombudsman, with jurisdiction wherever the Australian writ runs, is it to be expected that there will be a common approach. Were it otherwise, separate Ombudsmen could come to different conclusions in respect of their consideration of precisely the same decision in precisely the same circumstances except that one decision affected someone in a State or one Terri­ tory and the other someone in a Territory or another Territory.

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16. The reason is clear. Much of the law of the Territories derives from enact­ ments of the Australian Parliament which are either of general application through­ out Australia and its Territories or of specific application to the Territories. Moreover, the same Australian departments and officials and statutory bodies have precisely the same functions in the Territories as in the rest of Australia.

17. Extension of his jurisdiction to the Territories must add to the load on the Ombudsman. For current purposes, the Territories have to be thought of as States. Those residing in the Territories are subject to a body of law corresponding with that enacted by a State Parliament and, as well, to laws enacted by the Australian

Parliament. But, of course, the numbers so residing are decidedly fewer than in the States— if we may be permitted to put Tasmania to one side in a comparison with the Australian Capital Territory.

18. The problem of load on the Ombudsman will, whatever happens, be met by delegation (paragraph 112 of the Interim Report). Whether the Ombudsman will assign one of his senior staff to deal in the normal run with complaints from residents in, for example, the Australian Capital Territory or with complaints

related to the same general subject matter, whatever their geographical origin, ought, we think, be left to the Ombudsman. We do not deviate from our earlier view that the power to report should be the exclusive responsibility of the Ombudsman.

19. In concluding that there should only be one Ombudsman, we have not over­ looked that there is a Legislative Council in the Northern Territory with law making powers.

20. We understand that the decision has been taken that all departments should be subject, ab initio, to the Ombudsman’s jurisdiction. There remains for consid­ eration which of the statutory authorities should be similarly subject.

21. We gave some attention to this in our Interim Report (paragraphs 80, 81, 99 and 100). Having concluded our examination of all the enactments of the Australian Parliament and subordinate legislation deriving from them and of the Ordinances and Regulations applicable to the Australian Capital Territory, we

recommend that the statutory authorities listed in Appendix A should be scheduled as subject to the Ombudsman. We consider that, in some cases, the Ombudsman’s jurisdiction should be confined to particular aspects of the authorities’ administra­ tion and we have noted these cases in A.ppendix A. In these cases, the schedule

should perhaps refer to the relevant sections.

22. In formulating this list, we have not merely reflected the views expressed in our Interim Report. We have also taken into account that some decisions do not v/arrant or are not of such a character as to lend themselves to review by a formal tribunal.

23. By way of illustration, we refer to the many provisions dealing with the mar­ keting of primary products. The relevant Boards which handle apples and pears, canned fruit, dairy produce, dried fruits, eggs, honey, meat, tobacco, wheat and wine and the Australian Wool Corporation have extremely wide powers within a

framework of orderly marketing, support prices, stabilisation schemes and so on, to

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control exports through a system of licences and permits. These laws mostly, if not always, have been the outcome of a consensus among relevant producers and other interested parties. Elaborate provisions often exist for the election of pro­ ducer and industry members of such authorities.

24. We can see no criteria capable of enumeration that would enable, in the circumstances we have sketched, any tribunal to question sensibly the commercial judgments that have to be made, in markets that are extremely volatile, about the

volume of products to be exported. We might argue that the prima facie high degree of industry support for the marketing schemes and implicitly of the machinery provided confirms this view. Yet, we do not think it proper that deci­ sions of the authorities about the grant to individuals of licences to export or the suspension or cancellation of licences that have been granted should be entirely free from any process of external review. This for the reason that, wherever there are provisions for the grant of licences, for the attaching of conditions to licences and for their suspension and cancellation, there is possible room for discrimination among individuals and there should, we believe, be protection against this.

25. Because the legislation dealing with these marketing authorities is by no means uniform, it is more convenient to elaborate our views on the character of the external review process later. We do this in Appendix C under the heading “Department of Primary Industry” paragraphs 112 to 122.

26. In passing, Appendix A does not include a number of agencies to be found within departments which have been glorified with names like Bureau of this or that. We have regarded these agencies as within the departmental structure and therefore subject to the Ombudsman.

Matters reserved in the interim Report

27. In paragraph 100(e) and (g) of our Interim Report we reserved our position on four matters. We deal with them in turn.

(a) It is for the various employing authorities, including the Public Service Board, to lay down the standards of health and physical fitness that are necessary in the interests of efficiency, having regard to the nature of the duties to be performed. The application of those standards to an individual is a separate matter. The Board, which is responsible for the largest area of employment, accepts that an applicant for employment

should not, on medical grounds, be denied appointment or have his appointment annulled, unless a duly qualified medical practitioner who will normally be an officer of the Department of Health, or on appeal, a Medical Appeals Tribunal such as we will later propose, is of opinion that the applicant’s health and physical fitness do not satisfy the medical

standards laid down. In this connection, the applicant’s sick leave record is relevant. We see no reason why these arrangements should not be equally applicable in the case of other employing authorities.

(b) We have made some observations on pensions questions in Appendix C paragraphs 49 and 205 et seq.

(c) We have no comment to add in respect of furlough, it being our under­ standing that the Government proposes that furlough should be made a right. If any discretionary power remains, it may be desirable to con­ sider an appeal to the General Administrative Tribunal which we will

later propose. The Compensation (Commonwealth Employees) Act is mentioned in Appendix C, paragraph 156. Paragraph 187 below is also relevant.

(d) Having considered the Commonwealth Police Act and Regulations and the Police (Disciplinary Provisions) Ordinance of the Australian Capital Territory, we are disposed at this stage to follow the lead of the United Kingdom and South Australian legislation and exclude our Police Forces

from the jurisdiction of the Ombudsman. Provided that there is proper attention to complaints about police behaviour as it affects the citizen, and that such complaints are brought within its machinery, the avail­ ability of an independent review process in disciplinary questions arising

from such complaints should, we feel, be sufficient. This is something that should be kept under review. Meantime, we note that the disciplin­ ary processes applicable to the Commonwealth and the Australian Capital Territory Police Forces differ. Under the Commonwealth Police

Regulations, where the Police Appeal Board concludes that a member of the Police Force should be dismissed, the Chairman must refer the appeal to the Attorney-General, who may dismiss or impose such other punishment as he considers the circumstances justify (regulations 50

and 51). Under the Ordinance, an appeal lies from the Appeal Board to the Supreme Court of the Australian Capital Territory. We see no reason why these differences should be maintained and would favour an appeal from each of the Appeal Boards to our proposed General

Administrative Tribunal which would have a power of final decision.

Ministers’ administrative discretions

28. Our Terms of Reference obliged us to examine all administrative discretions. So we have throughout been concerned to examine administrative discretions per se—not merely those vested in officials and statutory authorities.

29. Discretions vested in Ministers can often be distinguished as clearly directed to matters of policy. For the rest, some bear the stamp “administrative”, others lie in a grey area. In the broad, Ministerial discretions whose exercise is directed to establishing general norms without differentiation among individuals are more likely to fall in the policy area and those whose exercise involves primarily the

application of general rules or could involve differentiating among individuals are more likely to fall in the administrative area. To illustrate th is: a decision to ban imports or exports relates to policy. Decisions as to which importers or exporters should receive licences or permits to import or export generally lie in the

administrative area.

30. Discretions vested in officials, who are sometimes statutory office holders, and in statutory authorities are more likely to be directed to matters of administration.

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Yet some discretions exercised by officials and authorities may be directed to matters of policy, especially where they are exercised under powers delegated by Ministers.

31. It may be said of some particular discretions that their exercise on some occasions could be characterised as policy and on others as administrative. In our Interim Report (paragraphs 88 et seq) we pointed to the difficulty of “distinguish­ ing decisions which are acts of policy from those decisions which give effect to policy” and expressed the doubt as to “whether any defensible line of demarcation can be drawn between decisions of policy and of administration”.

32. We have, perforce, had to make our own judgment as to which discretions should be regarded as administrative. The judgment has often been subjective but at the same time empirical and related to our experience of administration. Some may find room for quibble as to the correctness of our categorisation. If others having the power to take decisions decide that discretions vested in Minis­ ters other than these we will specify should be subject to review, that is clearly their prerogative. Any such decision would, doubtless, be endorsed by those com­ mitted to the principle of subjecting discretionary powers to review.

33. To be disposed of at once is scope for possible misunderstanding. On the one hand, as has been stated above, our Terms of Reference do not exclude consid­ eration of discretionary powers related to matters of administration exercised by a Minister. On the other hand, in our Interim Report, we were at pains to raise the question whether administrative decisions of Ministers should be examinable by the Ombudsman process. We have proceeded on the basis of your advice to our Chairman that the answer was— No.

34. We have not taken this decision as meaning that, where the Parliament or subordinate legislation has given administrative discretions to a Minister and has not made provision for any review of the exercise of those discretions, we are precluded from raising for consideration whether that state of affairs should continue.

35. In fact, there are already numerous provisions in legislation for review of Ministers’ exercise of administrative discretions. A glance at Appendices D, E, I and J reveals provisions for review of decisions of Ministers by courts and other bodies which have power to substitute their decisions. There are provisions that stipulate that before a Minister makes a decision, he shall seek the views of some specified body. There are provisions that require that, on objection to a Minister’s decision, he must refer the objection to a tribunal which is authorised to make a recommendation to the Minister. The Minister may not be obliged to adopt the recommendation. There are yet other provisions which direct that if there is an objection to the decision of a Minister, he must review his earlier decision. Some­ times a formal process of review is prescribed. Sometimes the Minister delegates the conduct of the review to an official and takes his final decision after consid­ eration of his official’s report.

36. These are all processes of “review”, however short some may fall from the standards for review which some would set. Whatever may be asserted on that

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score, lacking is any consistent pattern of legislative approach. In respect of dis­ cretions exercisable in relation to the same sorts of subject matters, there may be different review bodies or there may not always be provision for review. And, in respect of discretions exercisable in relation to different sorts of subject matters,

the review body may be the same. This lack of any consistent pattern of legisla­ tive approach to the review of administrative discretions vested in Ministers— and the same applies to discretions vested in others—sits side by side with the absence, noted in our Interim Report, of any readily identifiable principle in our

legislation governing who should be the donee of a discretion.

37. So we will later be raising for consideration the desirability of legislative changes which will provide for some rationalisation of the processes already pro­ vided for review of administrative discretions vested in Ministers and others; for the introduction of review processes in some cases where no provision now exists

for review of discretionary powers vested in Ministers and others; and for the vesting in officials or statutory authorities of some discretionary powers now vested in Ministers. In this latter case, their exercise will then, if no formal review processes are suggested, be subject to review by the Ombudsman.

Processes directed to better decision making

38. When we refer to processes of review we do not, having regard to our com­ mission, confine ourselves to the restricted area of review on the merits i.e. a process entitling the reviewing body to substitute its decision for that reviewed. The Ombudsman process which has now received the Government’s endorsement

does not extend that far. There can be other forms of review, taking the form of a power to refer back for reconsideration by the original decision maker, or to recommend to that person the course he should take or the considerations to be taken into account in reviewing an earlier decision. As well, as we pointed out in

our Interim Report (paragraph 23), the courts have jurisdiction enabling some forms of judicial supervisory review; there are provisions for substantive reviews by courts, boards and other tribunals; there are the reviews under parliamentary process; there are the devices of Royal Commissions, Committees of Inquiry and the like; and there are internal arrangements for review.

39. It is not uncommon to find a legislative requirement that the Minister, an official or a statutory body shall present an Annual Report to Parliament. Most are in general terms. Some, like the Petroleum Search Subsidy Act (section 12), require the Report to deal with specified matters. This enables the attention of

Parliament to be focused on the manner in which particular powers have been exercised. We commend this type of approach to those concerned with the draft­ ing of Bills, Ordinances and Regulations. Particularly would it be valuable where the legislation itself lays down no guidelines for the exercise of discretionary

powers and their exercise could have a wide ranging impact on citizens.

40. Not to be overlooked are administrative devices directed to achieving more informed decision making, and the consequence that there will be less dissatisfac­ tion with decisions. In turn, this could be seen to lessen the need for review pro­

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cesses. We believe that one thread of the argument that the rights of the citizen require that administrative discretions should be subject to review is that decision makers can be uninformed and unconcerned about the effect of their decisions on the individual. We suspect that less credence would attach to this if there were a wider awareness of the extent to which departments have established machinery for consultation with, and to secure advice from, qualified and experienced mem­ bers of the community. Perhaps there may be scope for departments to do more to publicise the existence of such machinery. One significant purpose and a clear result of such machinery is to improve the quality of decision making and to lessen the possibility that unwise and uninformed decisions will be taken. The notes on the legislation of some of the departments which appear at Appendix C provide some illustrations of this sort of machinery.

Present extent of formal external review of decisions

41. The frequency with which provisions for formal external reviews are to be found in our legislation was somewhat of a surprise. Appendices D, E, I and J give extensive illustrations, by no means all inclusive, of various forms of external review of decisions in exercise of discretionary powers by Ministers, officials and

statutory authorities relating to matters of administration.

42. A glance at the Appendices highlights the extent to which the High Court of Australia is presently called upon to adjudicate in matters that do not have to be its concern. Much the same goes for the Commonwealth Industrial Court. To be noted also is the extent to which demands are made on the Supreme Courts of the States and Territories and on inferior State and Territory Courts, particularly Courts of Petty Sessions. The ready and geographical availability of these local courts in a continent the size of ours obviously adds to the temptation to resort to them.

43. Had acceptable alternative tribunals been available, it is reasonable to believe that much of the legislation noted in Appendices D and I would not have reposed review functions in the courts. Adoption of the proposals for the constitution of three tribunals which we will later make (paragraphs 130 et seq) would relieve the courts of much of the review process now entrusted to them and would, we think, call for reconsideration of earlier plans to invest in a new Commonwealth Superior Court some substantive review functions now entrusted to the High Court.

44. Appendices D, E, I and J establish that legislators have, over a wide field, been far from unmindful of the importance of providing opportunities to the citizen to challenge decisions in exercise of administrative discretions. Particular tenderness has been displayed where decisions affect the practice of professions, the pursuit of avocations or the conduct of entrepreneurial activities. This is in dramatic contrast with the scant provision for external review of decisions taken

under the social security and welfare, and customs and excise legislation, and the inadequate provisions made in the immigration legislation.

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Social Security and Welfare

45. There would be little dissent from the proposition that no field of legislation more intimately concerns the citizen than the social security and welfare legis­ lation which is to be found in e.g. the Social Service Act, the National Health Act and the Home Savings Grants Act. One would imagine that, if in any area

there were a need for machinery for review of decisions made in exercise of administrative discretions, it would be in respect of decisions made under these Acts.

46. The argument is the more cogent when one examines the nature of the dis­ cretions; notes that, particularly in the case of the Social Services Act, the great bulk of the discretions resides in officials; and contrasts the lack of provision for external review with the elaborate provisions for external review to be found in the Repatriation legislation which, after all, is wholly concerned with welfare pro­

visions for one particular class in the community.

47. This requires elaboration. For the most part, what follows relates to the Social Services Act and the Department of Social Security. Yet most of what we will write has equal application to the Departments of Health and of Housing.

48. Every benefit under the Act is subject to consideration of pre-conditions, some of a highly elaborate nature. Likewise, continuation of a benefit is dependent on stated conditions being satisfied. But not all these pre-conditions or conditions are readily ascertainable facts. They may involve, for example, medical conditions;

determinations of means, income and property values; questions of dependence, desertion, residence in or absence from Australia; and questions whether unem­ ployment is due to voluntary act or misconduct. Not a few of these may raise intricate questions of law. When they do, the Department seeks the advice of the

Attorney-General’s Department.

49. Approvals of the Director-General e.g. of benevolent homes; the opinions he holds about matters that are specified; and the directions he gives, e.g. as to what is to be treated as a payment of annuity, as to property to be disregarded in computing the value of property and as to the employment that shall not be

taken into account in considering entitlements, may affect the grant of entitle­ ments or their quantum. In a multitude of cases, entitlements may also be affected by the Director-General being satisfied on this or that matter that is specified or the determination he makes on specific questions.

50. Often the Act fixes a maximum rate but authorises the Director-General to determine something less depending on the circumstances as he assesses them. Illustrations are to be found in sections 28, 33, 63, 110, 125 and 135D. The date of commencement of benefits may rest with him. In a number of cases, e.g. sec­

tions 46, 75, 131 and 133M, the Director-General has power, not merely for reasons specified in the legislation, but if for any other reason he considers a pension should be cancelled or suspended or the rate of a pension should be reduced or increased, to do just that.

51. The Social Services Act provisions are not unique. For example, under sec­ tion 99A(3)(c) of the Income Tax Assessment Act “the Commissioner shall

9

have regard to such other matters, if any, as he thinks fit”. Section 103A(5) con­ tains a provision that “where a company would not . . . be a public company . . . but the Commissioner is of the opinion that, having regard to . . . any other matters that he thinks relevant, it is reasonable that the company should be treated as a public company . . ., the company shall be deemed to be a public com­ pany . . .”. The same Act contains a gem of discretionary provisions carried to extremes. Section 46(3) says that “the Commissioner may allow a shareholder . . . a further rebate . . . if the Commissioner is satisfied that . . . having regard to

all the circumstances, it would be reasonable to allow the further rebate".

52. Examples of other extremely wide powers are the Director-General’s power to deny an age or invalid pension until the claimant has entered a benevolent home (section 51) and to deny a deserted wife a pension until she has taken such action as he considers reasonable to obtain maintenance from her husband or former husband (section 62).

53. Difficult and subjective questions have to be determined in the exercise of many discretions. Some illustrations follow. The Act says that an age pension shall not be granted unless a person is of good character, or if he is not deserving of a pension, or if one spouse has deserted the other without just cause or has failed to maintain the other without just cause or neglected to maintain any of his child­ ren under 16. The “deserving" pre-condition applies also to invalid pensions. For these pensions, there are questions of permanent incapacity and when and how it occurred and whether there is an enforceable claim for compensation and whether there has been deprivation of property to qualify for a pension. In the case of widows’ pensions the same sorts of considerations arise and there are questions whether the widow has the custody care and control of children or is in necessi­

tous circumstances. A claimant for unemployment benefit must satisfy the Director- General that his unemployment is not due to his being a direct participant in a strike, that he is capable of undertaking and is willing to undertake work which in the opinion of the Director-General is suitable for him to undertake, and that he has taken reasonable steps to obtain such work. Cabinet itself has sometimes given directions which, in effect, determine whether a claimant is “a direct partici­

pant in a strike".

54. In the rehabilitation field, because the facilities available fall short of demand, it is for the Director-General to decide who is admitted to benefit by them. Obviously the availability of facilities has some relation to the funds appropriated by the Parliament.

55. In pointing up the foregoing, we are not questioning the need for such powers. Nor do we imply that Parliament could have taken any other course than to confer the powers and the general administration of the legislation on the Director-General “subject to any direction of the Minister”. This course was ines­ capable because the beneficiaries are to be found scattered over the length and breadth of the continent, many in great need, and all anxious to have their claims and benefits determined and their entitlements paid speedily; and, equally, because of the impracticability of prescribing for the infinite variety of circumstances that

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can apply, or be relevant, to individuals making claims for the variety of benefits for which the legislation provides.

56. The immensity of the administrative task must be emphasised. It directly bears on any contemplation of a form of review of decisions taken under the Act. There were at the close of December 1972, 882,633 recipients of age pensions, 142,840 recipients of invalid pensions, 195,742 recipients of supplementary

assistance under Division 4A of Part III of the Act, 33,037 recipients of wives’ allowances, 98,003 recipients of widows’ pensions and 25,611 recipients of supple­ mentary assistance under Division 3A of Part IV. At the same time, child endow­ ment was being paid in respect of 4,002,387 children, and 49,021 were in receipt

of unemployment benefits, 15,295 of sickness benefits, 3,632 of special benefits and 876 of benefits under the Commonwealth Rehabilitation Service. During 1972, 52,068 funeral benefits, 263,118 maternity allowances and 1,056 sheltered

employment allowances were paid. There were during the year roughly half a million internal reviews of pension entitlements.

57. Necessarily, the administration of the Department of Social Security is char­ acterised by extensive delegation to enable the maximum of ready contact between claimants and officials and to achieve speedy decisions. Yet the contact with those remote from offices of the Department must be tenuous and many claimants and

potential beneficiaries are old, infirm or disabled or under strains of many kinds and doubtless some are not as articulate or literate as might be wished.

58. Inevitably, and because of the very volume of claims, many decisions have to be made by officers of relatively low level. To compensate for this, and as part of its internal policy of ensuring that grievances have full attention, the Department has an elaborate system for referring doubtful cases to higher authority, culminat­

ing in the Director-General. The Social Services Act, in section 15, gives statutory backing to this in that any person aggrieved by a decision of a departmental officer may appeal to the Director-General, and section 14 empowers the Director- General to review any earlier decision of his staff and, as well, of himself. Cor­

responding provisions are to be found in sections 82ZD and 82ZC of the National Health Act.

59. We were impressed by the Departments’ sense of obligation to ensure that potential beneficiaries are fully acquainted with their rights and assisted to secure them. Extensive publicising of benefits and a ready willingness to re-open claims are the rule. Parliamentarians are provided with extensive material which doubt­

less has great value when they are handling electorate enquiries.

60. Aggrieved persons exercise their normal privilege of representations to Mem­ bers of the Parliament and of direct communication with the Ministers. The latter receive some thousands of letters each year about the activities of their depart­ ments. Some, of course, are directed to the alleged inadequacy of the legislation

rather than to complaints about its administration.

61. Consideration of any review process must also take into account some counter­ vailing risks that may attend the introduction of any such process.

11

62. One such risk is that the introduction of any system of formal review might lead to some qualification of the benevolent attitude the department has deliber­ ately adopted to potential beneficiaries, and to some reduction of flexibility in the allowances that officers dealing with claims now make to meet the particular circumstances that individual cases present. Conceivably, the introduction of any

external review process could lead to an excess of caution in the administrative processing of claims, and delays in grant of benefits and payment of entitlements. This could result from the extra effort put into getting and keeping the record straight lest files were called for by a body outside the culture of the department which, in the Public Service, is not to be discounted. So more staff could be re­ quired and doubtless staff of higher level.

63. As well, one must consider the mechanics of any review process. A review tribunal could not get to some claimants and getting them to the tribunal would present problems of some magnitude. Presentation of cases would, in some cases, not be without difficulties. It seems likely, in short, that in many cases, the most that could be hoped for would be a paper review of decisions, i.e. if inordinate delays in dealing with claims were to be avoided.

64. No real comfort is to be had from the experience of the Repatriation legis­ lation. It bends over backwards to proclaim that a hyper-benevolent attitude is to be the keystone of administration. Yet, despite this and despite the elapse of time since the last World War, and the far fewer number of clients of the Repatriation Department, the 25,000 odd appeals in 1971/72 to the ten regular War Pension Entitlement and Assessment Appeals Tribunals provide a dramatic and striking warning.

65. Of major significance, in considering whether any formal external review process should be introduced in the social security and welfare field, is the decision taken by the Government to appoint an Ombudsman. We think he will provide eminently the best vehicle for dealing with the great bulk of grievances. And, because there will be an Ombudsman, we have concluded that, at this stage, we

should advise against direct access to a formal tribunal by persons aggrieved by decisions in exercise of administrative discretions under the social security and welfare legislation.

66. We support this conclusion with the following reasons.

67. First, there are the risks we have mentioned above and the intimidating example of the Repatriation legislation Appeals Tribunals. Second, on the prin­ ciples we have been following, to allow an appeal to the General Administrative Tribunal, which we will later propose and which would otherwise be appropriate for the immediate purposes, would largely deny the Ombudsman any role (para­

graph 99 ( /) ( i) of our Interim Report). It would also oblige the Tribunal to direct itself, to the detriment of other aggrieved persons with problems more appositely the affair of the Tribunal, to matters which we believe would more sensibly and properly be handled by the Ombudsman. Third, we think the informal processes

of the Ombudsman will very satisfactorily deal with the preponderant number of complaints by aggrieved persons. Fourth, we think that only rarely will decisions

12

under discretionary powers raise matters of that character or complexity about which there could be room for serious disputation or which would be appropriate for a formal tribunal. In fact, in some cases, e.g. in respect of the application to individuals of some provisions of the legislation, a final definitive decision could

only come from the courts. Our final reason is to be found in what we will now propose.

68. In the first place, we believe it would be desirable if the departments to which we have referred, and particularly the Department of Social Security, were to establish reasonably autonomous units at headquarters level, and perhaps also at

State levels, whose sole purpose would be to deal with the claims and complaints of aggrieved persons. Such units should, we think, be directly responsible to the Permanent Head, have his authority to investigate all such claims and complaints in a detached and independent fashion, and report directly to the Permanent Head

their conclusions.

69. Next, the Ombudsman whose charter would embrace the decisions of all officials concerned, should be given the specific power to recommend to the Permanent Head that the circumstances of a case before him warrant the depart­ ment or statutory authority remitting a question, to be specified by the Ombuds­

man, to the General Administrative Tribunal or other appropriate tribunal, or where in his opinion a question of law is involved, to the appropriate court. Doubtless the department would take counsel of the Attorney-General’s Depart­ ment as to whether, in fact, a question of law is involved. Perhaps the Statute

constituting the Ombudsman could confer jurisdiction on the appropriate tribunal or court where a question is remitted to it.

70. We also think that the appropriate Acts should be amended to empower the departments and statutory authorities to refer a question related to the exercise of an administrative discretion to the appropriate tribunal and, if it is legally possible, to a court.

71. Apart altogether from the outcome of resolving a problem affecting an aggrieved person, the process proposed would progressively establish authoritative guides to the administration at large.

72. We say, at once, that experience may point to the desirability of giving the General Administrative Tribunal a wider authority in this whole field than we now propose. Yet we would hope that adoption of our proposals will prove to supply the necessary avenues of recourse, with satisfaction to persons aggrieved

and at the same time without prejudicing the smooth and speedy administration of the legislation. This is, of course, of supreme importance to the enormously greater number who are content with their treatment.

73. Not to be overlooked are our observations on the Repatriation legislation in Appendix C, paragraph 139 et seq.

Customs and Excise

74. The Customs, Excise and associated legislation confers enormously wide dis­ cretions. These extend to—

13

(a) determining the value of goods— a pre-condition to the attraction of rates of duty; (b) determining the classification in which goods fall for duty purposes. Under this head, decisions can be made that goods are substitutes for

other goods and that parts and components shall be treated as though they were integral elements of some complete good; (c) making by-laws in relation to goods with the consequence that the rate of duty prescribed by Parliament for those goods is not payable. Here

the purpose is to exempt from duty where the opinion is held that suit­ ably equivalent goods are not manufactured in Australia. It is said that the by-law procedure is the only practicable administrative method of

coping with the main purpose of the customs tariff, i.e. expressed simply, of protecting by duty domestic manufacture where it exists and exempt­ ing from duty where it does not; (d) varying Customs practices in relation to the classification of goods, determination of values etc.

75. The exercise of these and many other discretions may directly affect import­ ers, exporters and manufacturers and indirectly many others. They may bear on entrepreneurial activity or the pursuit of some vocation. They may involve for­ feiture and seizure of property. Yet there is no process for external review of decisions except in relation to the licensing of customs agents and their conduct, and except, in some instances, through normal court processes.

76. Some analogies may be drawn between the customs and excise legislation and the taxation legislation. There are, for example, customs agents and taxation agents, specialising in their respective fields, and the specialist personnel steeped in each field to be found in most large corporations.

77. There are, as well, some distinguishing features. First, there is no review process corresponding with the Taxation Boards of Review. Second, put broadly, taxation legislation describes precisely the taxpayer’s obligation. If he discovers a loophole, he may exploit it until it is plugged by legislative amendment. This may be delayed until the loss of revenue or asserted iniquities assume some propor­ tions. Not even then may amendment be attempted. On the other hand, the assumption with customs legislation is that a complete framework of legislation has been provided to give effect to the rates of duty determined by the Legislature and to guard against all foreseeable attempts by the most astute of the many engaged in the import of goods, perhaps with the support of practices encouraged or condoned by exporting countries, to avoid the payment of duties considered to be applicable to the goods in question. In this background, protection of the revenue and of the tariff system is seen to call for speedy administrative corrective action, under broadly based discretions, to frustrate attempts successfully to avoid the purpose of the tariff. Third, there are the infinite and ever changing variety of goods that continuously face the Customs whose precise definition in legislation, in advance, is quite impossible, and the dynamic of Australian industry that allows of no static status in terms of whether goods are or are not manufac­ tured in Australia.

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78. Many of the discretions in the customs and excise legislation are vested in the Minister. This is partly in the tradition of legislation of the vintage of the first Customs and Excise Acts. Second, it is a reflection of the high political, and sometimes economic, content of the protective tariff and excise duties. That politi­

cal content has both international and domestic elements. Indeed, in not a few instances, Cabinet itself specifically determines the manner in which discretions are to be exercised. Third, the very administration of the customs and excise legislation requires that the Minister delegate extensively his discretionary powers.

For example, some 56 ports are continuously manned for customs purposes and another 31 are manned as need arises.

79. The legislation, as it stands, provides for a number of processes whereby decisions taken under administrative discretions can be questioned. For example:—

(a) section 167 of the Customs Act permits a person aggrieved about the amount or rate of duty payable or liability for duty, to pay duty under protest and bring an action against the Collector, in any Commonwealth or State court of competent jurisdiction, for recovery of the whole or part of the sum paid. In fact, few such actions are taken to the courts; ( b) section 265 of the Customs Act empowers the Minister, in cases of

disputes between an officer and a person about any contravention of the Act, where the person consents, to enquire into and determine the dis­ pute and “to impose, enforce, mitigate, or remit any penalty or forfeiture which he shall determine shall have been incurred”. Part XV in which

this section appears provides for an elaborate procedure for such inquiries. In fact, they are conducted by Collectors, under delegation. Broadly speaking, the section 265 process is used in common smuggling cases. We were told that about 85% of the cases coming under the

section are not defended. The decisions of Collectors on the remainder are reviewed by the appropriate First Assistant Comptroller-General and some go to the Minister for his decision; (c) section 269 says that any matter of difference arising under the Act and

not involving its contravention may, at the request of the parties inter­ ested, be referred to the Minister for decision and “thereupon the Minister may in such manner as he shall think fit inform his mind of the circumstances and finally decide the difference”. We were told that

some 10 cases a week are dealt with by the Minister under this section, the remainder being dealt with by Second Division Officers at Central Office; ( d) provisions analogous to those above are to be found in Parts XII (sec­ tion 154) and XIII (sections 155 and 159) of the Excise Act.

80. We do not regard the present arrangements for questioning decisions as satisfactory. It is our view that the citizen should not always have to go to the courts to establish that an administrative decision is wrong or that forfeiture or seizure of goods is unwarranted. In a number of cases, we think recourse to our

proposed General Administrative Tribunal should be allowed for. It should be less costly and less formidable. While cases for which section 167 of the Customs Act

15

provides may sometimes involve large sums of money, so do cases that go to the Taxation Board of Review. We see no reason why a person aggrieved should not have, as in the taxation legislation, an election to go either to the Tribunal or the appropriate court. If an aggrieved person on paying duty under protest, elected to apply to the Tribunal to determine the duty payable and if the Tribunal fixed an amount:—

(a) less than the duty paid under protest, the Commonwealth would refund the difference; ( b) more than the duty paid under protest, the extra amount would be a debt recoverable by the Commonwealth in a competent court.

81. Despite the questions that might be raised about section 265, including the principle involved in compromise of proceedings for offences, the Department is anxious to retain section 265 for the convenience it affords in dealing with minor breaches of Customs. It may perhaps also have the advantage of avoiding new­ comers to this country being immediately confronted with court proceedings. At least, the person involved can elect to be prosecuted in the normal way by refusing consent to being dealt with under section 265. We believe it important that par­ ticular care is taken by the Department to ensure that persons affected are informed of their rights. Consistent with our general approach, there ought to be an ultimate recourse to the Tribunal in cases where consent is given.

82. The Department attaches importance to the section 269 process but we feel that, if it is to be retained, provision should be made for recourse to the Tribunal. Perhaps there is merit in superimposing recourse to the Tribunal upon the present process. This would provide a filter which would lighten the burden on the Tribunal.

83. The discretionary powers relating to the making of by-laws present some problems. Ideally, the Tariff Board machinery should be employed before a by-law is made. In fact, one of the reasons for the recent appointment of an additional Tariff Board member was to permit the Board’s view to be had on the more important by-law applications. In the practical world, business and com­ merce, sometimes faced with significant investment decisions and sometimes with decisions about imports, cannot be expected to wait in frustration while machinery, however appropriate in the logical sense, grinds on at an unacceptable pace. In

our practical world, the Department receives literally thousands of applications for by-law entry each year.

84. The conclusion we have to come to is that a person aggrieved by a decision in relation to a by-law application should have recourse to the General Adminis­ trative Tribunal but that its power should be recommendatory only. We think it also desirable that the Minister should have power to remove a particular case from the Tribunal to the Tariff Board. We would envisage this power being

exercised where the Minister considered that sensitive questions of protection policy were present. Our proposal that the Tribunal’s powers should be recom­ mendatory only is consistent with the Tariff Board’s own powers.

85. While we have so far directed ourselves to specific provisions of the Customs Act, and implicitly the corresponding provisions of the Excise Act, we feel there

16

should equally be available an external review of many other decisions made under administrative discretions under other legislation administered by the Department of Customs and Excise. We have in Appendices E and H identified the relevant provisions.

86. Other notes on the legislation administered by the Department appear in Appendix C, paragraphs 28 to 34.

Immigration

87. We were pleased to be told by the Department of Immigration that, subject to three provisos, it was not opposed to the concept of external review of adminis­ trative discretions under its legislation.

88. The first proviso was that the review should not be available to a person unless he is an Australian citizen or a resident of Australia admitted as a migrant, as distinct from a person in Australia under temporary permit or here without any entry permit. Those under temporary permit or those without any permit

include students, alien entrepreneurs or employees, entertainers, ships’ deserters and visitors. Yet, said the Department, this should not preclude a citizen or a resident of Australia from seeking review of a decision about the entry or exten­ sion of a temporary stay of a spouse, minor child, fiance(e) or aged parent.

89. The second proviso concerned the character and manner of review of deci­ sions relating to refusal of passports, citizenship and entry and re-entry, where the decision was based on security considerations. Here, the Department felt that

the agreement of the Director-General of Security was required and that proper safeguards should be introduced to protect security (see paragraph 113 et seq of our Interim Report and paragraph 172 below). The third proviso was that any review process should not be entitled to question government policy. This presents

no problem (see paragraph 183 below).

90. Subject to the three provisos mentioned, the Department considered that there was justification for review by a General Administrative Tribunal of deci­ sions under the following sections: —

Migration Act Sections 12 and 13 Section 39(6) Section 48(1)

Aliens Act Section 18

Citizenship Act Sections 12(1) to (3), 15(1), (3), (4), (6 ), 23(2) and

40

Section 21

discretion to order deportation, discretion to keep deportee in custody, discretion to direct a person not to act as immigration agent.

discretion to fine an alien for registration defaults.

discretion to grant or refuse citizenship, discretion to deprive a person of citizenship.

17

Citizenship Regulations Regulation 23(1) —- discretion to direct a person not to act as a

citizenship agent.

Passports Act Sections 7 (1 ), 8(1) and (2) — discretion to issue and cancel a passport and to cancel an endorsement on a passport. — discretion to impound and retain a passport.

— discretion to renew a passport.

— discretion to issue and renew Certificates and Documents of Identity. — discretion to make passports valid for certain countries. — discretion to issue visas—in relation only to

re-entry visas for residents.

91. The Migration Act currently provides in section 14 for a review process in relation to orders by the Minister for deportation on certain stated grounds. The review is by a Commissioner, appointed by the Governor-General, being a person who is or has been a Judge or a barrister or solicitor of five years standing. The Department said it would not be opposed to a formal tribunal being substituted for the Commissioner review process.

92. Our conclusion is that this would be desirable and that the General Adminis­ trative Tribunal would be appropriate. The same Tribunal should, subject to what follows, be the body for review of the discretions referred to in paragraph 90. We feel that the present processes (see paragraph 94) can sufficiently take care of cases under section 39(6) of the Migration Act and that the Ombudsman seems more appropriate for cases under section 18 of the Aliens Act.

93. Section 40 of the Citizenship Act would require qualification.

94. Yet another review process is to be found in sections 38 to 40 of the Migra­ tion Act. It relates to the arrest and detention of prohibited immigrants and deportees. The review is by a person having the qualifications for a Commissioner or by a Magistrate. In fact, a Magistrate is always used. The Department favoured continuation of these arrangements and we see no reason to disagree.

95. At our request, the Department reconsidered the question whether its first proviso referred to above might be qualified in relation to persons admitted under temporary permit who had been in Australia for a lengthy period. It felt unable to change its view. It told us of the problems presented in the U.S.A. and Canada where a review process exists and of its own experience of problems encountered under its administration. We remain unconvinced that a review process would not be desirable in respect of persons admitted under temporary permit who have

been in Australia for a substantial period, say, 10 years. The reviewing authority would, of course, be required to accept any relevant government policy. Equally in our view, cases of persons granted visas overseas and refused an entry permit

Section 9(1) to (4)

Passports Regulations Regulation 7(1)

Regulations 9 and 10

Regulation 11

Regulation 12

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under section 6 of the Migration Act on arrival should be reviewable. For these two classes of cases, we feel the Ombudsman process would be appropriate.

Need for examination of some legislative provisions

96. Our study of the administrative discretions in the legislation we have been discussing and of other legislation leads us to the view that an examination should be made to determine whether, first, any deadwood can be pruned out and, second, the open ended nature of some discretions can be reduced.

97. Under the first head, we draw attention to the present pre-conditions of claimants under social welfare legislation being of good character and deserving of a pension. Under the second, we return to the types of provisions, not by any means confined to social welfare legislation, which fix the maximum entitlement

to a benefit and authorise a Minister or an official to determine just what the quantum of the benefit should be. In other legislation, there are analogous pro­ visions that fix a maximum fee or charge and authorise a Minister or an official to decide on a lesser fee or charge. There are also provisions, e.g. in the Naviga­

tion Act and Regulations, which authorise a Minister or an official to exempt or relieve a person from compliance with a statutory duty.

98. Rarely are there any guidelines as to how the quantum is to be decided or as to the circumstances in which exemption or relief is to be granted. True, there may be a multiplicity of circumstances that require that the actual amount of the benefit to be granted or the remission to be made be left to judgment in the

individual case within the scale of zero to the legislative maximum. And, no doubt, the same is true of cases which justify the grant of exemption or relief. Doubtless, departmental manuals derived from experience provide some guidelines. Inevitably, decisions related to the same set of circumstances will vary with the individual

decision maker. Perhaps an examination of this type of legislation would reveal that, at least sometimes, guidelines or criteria could be prescribed which would limit the area for subjective judgment.

99. The Home Nursing Subsidy Act and the Child Care Act empower the respon­ sible Minister to make grants and provide subsidies to organisations determined by the Minister to be eligible organisations. The grants or subsidies may be for projects the Minister approves and take account of costs and amounts expended,

determined by the Minister. They may extend to equipment and recurrent expenses and to special provisions for designated classes of persons. And terms and condi­ tions may be attached.

100. Then there are the Aged Persons Homes Act, and Aged Persons Hostels Act, the Delivered Meals Subsidy Act, the Handicapped Children (Assistance) Act and the Sheltered Employment (Assistance) Act which vest similar functions in the Director-General of Social Security, though in these cases, the determination

of eligible organisations may not rest in his hands but be a matter for the Governor-General, the Minister or regulations.

101. It is not unusual for the legislation to specify the maximum grant that may be made but the quantum of any grant is frequently left to the discretion of the

19

Minister or the Director-General and doubtless the amount actually granted is conditioned by the funds appropriated by the Parliament from time to time and the extent of the demands upon those funds.

102. The discretions relate to several separate matters: the determination of eligible organisations, the approval of projects and the decision about the grant to be made.

103. The determination of eligible organisations may raise issues of policy, e.g. concern about the numbers of organisations or the number in a given area, the reliability of those concerned, and differences in the facilities and services to be provided. This same sort of problem is presented by section 10 of the Matrimonial Causes Act which places approval and revocation of approval of marriage guidance organisations in the hands of the Attorney-General. Presumably some policy issues may attend decisions whether or not to approve of projects. When it comes to decisions about the quantum of grant, clearly the funds appropriated by the Par­ liament inject considerations of a policy character.

104. Yet it should not always be impossible to provide in relevant legislation guidelines for the exercise of these different types of discretions and we would urge that this be considered.

105. As matters now stand, we incline to the view that discretions of these sorts should not be subjected to review by a tribunal. However, where the decisions are taken by officials the Ombudsman will have a role.

106. As regards discretions vested in Ministers, there is always the political pro­ cess and, because of the welfare context, organisations aggrieved by decisions that deprive them of the financial assistance they feel they merit or that disappoint them as to quantum may be expected to make their dissatisfaction known to the responsible Minister and department and to their parliamentary supporters. So the Minister faces the real prospect of examination through one or other of the parliamentary processes.

107. Cases of the type mentioned above must, of course, be distinguished from those where particular entitlements, which may include grants and subsidies, are available to persons satisfying certain criteria. In these cases, the issue is whether the potential recipients measure up to the criteria and, as has been shown, the decision presently rests with an official. Adoption of our proposals in paragraphs 68 et seq will render such decisions susceptible of review.

Proposals for review of administrative discretions

108. While our commission is to report on those administrative discretions in respect of which we consider there should be some external review and on the character of the review we consider appropriate in each case, we concluded that our task would be incomplete if we did not also offer some views on the appro­ priateness of the arrangements that currently obtain where provisions are made for review of administrative decisions. If we were to propose tribunals to review decisions, not reviewable at present, it seemed obvious that we should also con-

20

sider whether those tribunals should be substituted for courts, tribunals and others presently empowered to review decisions under discretionary powers.

109. Obviously the Government’s decision to legislate for an Ombudsman has enabled and justified a much more selective approach to the nomination of those administrative discretions in respect of which there should be some more formal external review process. Relevant here are the comments in paragraphs 17 to 24

of our Interim Report.

110. Appendices H and L list the provisions relating to administrative discretions, the exercise of which is not presently subject to review, for which there should, in our view, be a review process. In the right hand column of each Appendix, we have indicated our views on the character of the review process.

111. On the assumption that our recommendations for the establishment of new tribunals will be adopted, we have indicated in the far right hand coloumn of Appendices D, E, I and J the arrangements for review that should apply after the tribunals are established in lieu of the arrangements that currently apply.

112. We have also expressed, in the notes on the legislation administered by departments appearing in Appendix C, and in Appendix B dealing with the Ordinances of the Australian Capital Territory, some thoughts on changes that should be made in existing provisions which could have a bearing on the jurisdic­

tion of the new tribunals. The following provide brief particulars:—

(a) Question whether there should be Parole Board type machinery (para­ graph 1, Appendix C).

(b) Requirement of the approval of the Attorney-General to the registration of a Minister of Religion who is not a British subject (paragraph 3, Appendix C).

(c) Enlargement of the Australian Broadcasting Control Board when dealing with programme standards (paragraph 13, Appendix C).

(d) Doubts about the need for the array of elections under Part XV of the Air Navigation Regulations (paragraph 21, Appendix C).

(e) Use of a Chairman from the corpus of Chairmen of the General Adminis­ trative Tribunal for enquiries into air accidents (paragraph 22, Appendix C).

(/) Doubts about regulation 322 of the Air Navigation Regulations (para­ graph 27, Appendix C).

(g) Doubts whether some powers under defence regulations which may be unexceptionable in time of war are needed in time of peace (paragraph 44, Appendix C).

(h) The power of the Director-General of Civil Aviation to suspend or cancel a licence or certificate under the Defence (Special Undertakings) Act is questioned (paragraph 47, Appendix C).

(i) Need for study of regulation 12 of the Control of Defence Areas Regu­ lations (paragraph 48, Appendix C).

21

(/) Question whether appeal should not lie from the Specialist Recognition Appeal Committee and the Dentists Appeal Committee (paragraph 61, Appendix C).

(k) Unsatisfactory features of the Offshore Petroleum legislation (para­ graphs 88 and 89, Appendix C).

(Z) Review of Ministers’ powers under section 38 of the Atomic Energy Act (paragraph 91, Appendix C).

(m) Proposal that the National Literature Board of Review should be the point of reference in relation to sections 29, 43 and 44 of the Post and Telegraph Act (paragraphs 98 and 99, Appendix C).

(n) Arrangements needed to resolve disputations over the protection of telegraph lines (paragraphs 103-105, Appendix C).

(o) Character of the review process in the case of primary industry market­ ing boards (paragraphs 112 to 122, Appendix C).

(p) If the Repatriation Act is to continue to include provisions about service pensions based on the social security pensions legislation, the arrange­ ments for review of decisions should be the same (paragraph 146, Appendix C).

(q) A role for the Ombudsman in relation to proposed lands acquisitions (paragraph 149, Appendix C).

(r) Doubts about the proviso to section 9 of the Lands Acquisition Act (paragraph 150, Appendix C).

(s) Need for reconsideration of the Commonwealth’s practice in paying costs in appeals against decisions of Taxation Boards of Review (para­ graph 164, Appendix C).

(t) Proposal for recourse to the General Administrative Tribunal in cases under Section 12A of the Sales Tax Procedure Act (paragraph 173, Appendix C ).

(u) Deficiencies in provisions for review of decisions under the Navigation Act and the regulations made thereunder (paragraphs 193 and 194, Appendix C).

(v) Use of a Chairman from the corpus of Chairmen of the General Ad­ ministrative Tribunal for enquiries into marine incidents (paragraph 198, Appendix C).

(w) Need for review of discretions vested in Ministers under the Ordinances of the Australian Capital Territory (paragraph 4 (f), Appendix B).

(x) Question whether certain of the Ministers’ powers about leases should be reviewable (paragraph 7, Appendix B ).

(y) Question whether the General Administrative Tribunal should be sub­ stituted for the Supreme Court in section 11A of the City Area Leases Ordinance (paragraph 8, Appendix B).

(z) Question whether the Design and Siting Committee and the Building Review Committee should be retained. If so, appeals should lie to the General Administrative Tribunal (paragraph 9, Appendix B).

22

(aa) Proposed transfer to an official of powers of the Court of Petty Sessions in respect of auctioneers’ licences (paragraph 13, Appendix B).

(bb) Proposed transfer to the Director-General of Health of certain powers of the Minister under various Health Regulations (paragraph 14, Appen­ dix B).

(cc) Proposed transfer to officials of certain powers of the Minister under certain Ordinances (paragraph 14, Appendix B).

(dd) Question of appeal to the General Administrative Tribunal in licensing cases (paragraph 15, Appendix B).

(ee) Proposed jurisdiction in the Australian Capital Territory of the Valua­ tion and Compensation Tribunal (paragraph 18, Appendix B).

(//) Matters in the Australian Capital Territory pointing to the need for a Medical Appeals Tribunal (paragraph 19, Appendix B).

113. Before we develop our thoughts about new tribunals, we might say something of existing tribunals.

Existing Tribunals

114. Tribunals, so described, have long been a feature of Australian administra­ tive law. The Assessment Appeal and War Pensions Entitlement Appeal Tribunals under the Repatriation Act are of long standing. The High Court is described as the Appeal Tribunal under the Patents, Trade Marks and Designs legislation. More recently, there appeared the Copyright Tribunal, the Trade Practices Tri­

bunal and the Commonwealth Employees’ Compensation Tribunal. The 1973 legislation has so far produced the Prices Justification Tribunal, the Insurance Tribunal and the Administrative Review and Invalidity Classification Review Tribunals provided for by the Defence Forces Retirement and Death Benefits Act.

115. Of the other tribunals, perhaps the best known with a long history are the Taxation Boards of Review whose jurisdiction encompasses decisions of the Com­ missioner of Taxation under a broad range of taxation legislation.

116. Numerous tribunals are to be found under Australian Capital Territory Ordinances. For example, there are the many authorities that regulate the affairs of a variety of professions.

117. Put broadly, most of the tribunals have been constituted to provide, through a review process, a check on the exercise of administrative discretions and some­ times on administration generally, but in a particular field. There has been some element of desire to avoid, or at least mitigate, excessive legality and legal forms; to promote a more informal and relaxed procedure; to permit flexibility in finding

the appropriate remedy; and to allow for a simple and less costly outcome. Whether, in practice, this has always resulted may be a matter for some ques­ tioning.

118. The constitution of these tribunals varies from Act to Act and so do the procedures under which they function. This is the case even where different tri­ bunals deal with much the same sorts of problems. It would appear that each

23

department sponsoring legislation has come up with its own solution, perhaps ignorant of the existence of other legislation that might have been copied or adapted or perhaps anxious to introduce some variation on the theme to meet some particular problem, real or imaginary. Whether or not any thought was given to the question whether an existing tribunal might have been used is a matter for conjecture.

119. As matters have stood, no one has seen it as his role to effect any co­ ordination in this area. This, we believe, is something to correct for the future and we will return to it later.

120. Some of the 1973 legislation is, as we have already remarked, noteworthy for more modern provisions about the procedures of newly created tribunals.

121. It would not be suggested that these various tribunals have not, in their respective fields, met a particular need and given much satisfaction to those for whose needs they were designed. In some cases, they were the product of close consultations between departments and interested groups. Yet this is not to say that expectations as to the manner in which the tribunals would function have always been fulfilled nor that the procedures they follow leave nothing to be desired.

Tribunals for the future

122. We see no likelihood of any lessening pressure for other tribunals to review decisions taken in exercise of administrative discretions. If this is so, the major issues ahead may be posed by the following questions:— (a) can the community afford a burgeoning proliferation of tribunals each

with a limited jurisdiction?

( b) would it be desirable to legislate for a framework of tribunals which would be suitable to satisfy the great run of needs, so far as they can be foreseen, and to prescribe one uniform code of procedures to govern access to them and their behaviour?

(c) would it be desirable to integrate existing tribunals within the new framework and irrespective of how far that can be taken, to provide that the one uniform code of procedure should generally apply to tri­ bunals which it is considered should retain their separate identity?

123. We answer, in the negative, the first question. As we see it, to permit a continuing proliferation of tribunals would be wasteful of resources, inimical to the efficient functioning of government and calculated to cause public dissatis­ faction.

124. It needs no emphasising that our resources of personnel suitable for appoint­ ment to tribunals and of the wherewithal to enable them to function effectively—- staff, offices and so on— are finite. As well, our society requires less and less the narrow compartmentation of issues. More and more is evident the inter-relationship of individual issues. Governmental machinery strives with varying degrees of success to attempt some co-ordination of decision making. The Cabinet is the

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pinnacle of co-ordinated decision making. Remembering, as we must, that tri­ bunals reviewing administrative decisions are themselves but an extension of administration, it would be absurd to take a course with them which ran against the mainstream of desirable administrative behaviour.

125. In short, we take the view that the fewer the tribunals there are the more likely will be the most economic use of resources and a better and more even resolution of individual issues because the members of the tribunals will not be narrowly circumscribed in their jurisdictional range.

126. It seems to us that a separate tribunal is not to be justified solely on the grounds that, in some area of administration, the issues thrown up are so complex and the demand for review by a tribunal so great as to keep it fully occupied. This sort of problem could, in our view, be met if the same membership of one

tribunal were assigned to deal with cases in the one area.

127. To pursue this, we would argue that, if the General Administrative Tribunal that we will be recommending had been in existence before the Taxation Board of Review system was inaugurated, that Tribunal might well have been used and the Board of Review system not created.

128. Other areas of administration that occur to us as likely to produce a con­ stant work load for our proposed Tribunal include customs and excise and the whole transport area— sea, land and air.

129. The subject matter of decisions which should be reviewable may itself be significant. Indeed we think it would be. We provide two illustrations. In the valuation and compensation sphere, matters involving valuation and compensation

are, under our legislation, adjudicated upon by a multiplicity of bodies, including courts (see Appendix F ). The Ordinances of the Australian Capital Territory present a near ludicrous array of such bodies operating within that Territory alone (see Appendix K ). The medical area is another. Medical considerations arise in

many Statutes and in many Ordinances (see Appendix G ).

130. To summarise quickly our conclusions: they are that there should be con­ stituted a Valuation and Compensation Tribunal, a Medical Appeals Tribunal and a General Administrative Tribunal. The latter would review all those decisions under administrative discretions in respect of which it was given jurisdiction not

involving issues for which the two other proposed Tribunals would be appropriate.

131. We will return later to the other two questions we posed in paragraph 122.

The General Administrative Tribunal

132. The General Administrative Tribunal would have jurisdiction in respect of the provisions in Appendices D, E, Η, I, J and L and those provisions in Appen­ dices B and C which we have identified as appropriate to the Tribunal.

133. The Tribunal would sit in Divisions and as such be composed either of a Chairman and two members or of the Chairman, solely.

134. We envisage that in the normal run of cases involving, e.g. registration or suspension or cancellation of registration of professional men, tradesmen and

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others and of businesses, the Tribunal would be constituted by a Chairman alone. That, after all, would accord with the present practice under which a Supreme Court dealing with such cases is constituted normally by a single Judge. The Tribunal constituted by a Chairman alone would also deal with the other cases which we identify in our comments in Appendices D, E, Η, I, J and L.

Chairmen

135. To provide the Chairman for each Division there would be a corpus of Chairmen.

136. We believe that Chairmen should be legally qualified but we do not think that the test of eligibility for appointment should be that specified for judges of our federal courts. If the Tribunal is to function, as to a large extent we think it must, as an extension of the administrative decision making process, with adversary procedures having a minor place in proceedings, Chairmen must not be addicted to the adversary process and desirably they need wide experience of administra­ tion or of administrative law. Chairmen must be given the appropriate status—· perhaps the rank, status and precedence of a Judge of the Commonwealth Indus­ trial Court which is the position of presidential members of the Conciliation and Arbitration Commission.

137. Not all Chairmen should necessarily be full-time. We see full-time Chairmen being required in Canberra, Sydney and Melbourne but envisage a part-time Chairman at, say, Townsville, Brisbane, Hobart, Adelaide, Perth and Darwin, until such time as a judgment can be made as to whether work load justifies a full-time resident Chairman. The availability of part-time Chairmen would permit, at less cost, a speedier process in cases which the President, to whom we will refer later, considered did not require assignment to a full-time Chairman.

138. We see the initiative for appointment of Chairmen resting with the Attorney- General. If the Tribunal were concerned solely with the review of decisions in the governmental area, there could be a case for the initiative resting with the Prime Minister. However the Tribunals’ jurisdiction will extend beyond such decisions.

139. We think it would be desirable if there were arrangements which permit a judge of a federal or Territory court to be made available ad hoc to be the Chairman of a Division of the Tribunal in a particular and appropriate case. Such arrangements might well contribute to the better functioning of the judicial supervisory review process of the proposed Commonwealth Superior Court in that some of its members could become better acquainted with the administrative process.

Members

140. Members of the Tribunal would also be full-time and part-time.

141. The appointment of members, whether full-time or part-time, ad hoc or as members of the panels referred to below or departmental officers, should be in the hands of the Attorney-General. Under inter-ministerial arrangements, he should consult with the appropriate Minister about proposed appointments.

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142. Just how many full-time members would be required and the qualifications they should have would depend on assessments of likely work loads in different areas and the decisions taken as to which of the presently existing tribunals should be replaced by, or subsumed or integrated within, the General Administrative

Tribunal (see paragraphs 186 et seq). There would appear to be clear places for some with generalist broad and practical managerial and commercial experience, for others from the accountancy discipline and for others with wide experience in administration.

143. Essentially, the members making up a Division of the Tribunal would be chosen by the President for their knowledge, expertise and experience of and in the subject matter and issues before the Division. They would be selected as experts and would have no representative capacity. The range of expertise called for can

best be satisfied by part-time members.

Panels of part-time members

144. So we see, for example, for customs and excise cases, one member being an ex-departmental officer on the Taxation Board of Review basis (see paragraph 151) and as a source for the other member, a panel of names constituted from names submitted by, e.g. the Associated Chambers of Manufacturers of Australia,

the Associated Chambers of Commerce and the Customs Agents Organizations. For cases involving the professions and other entrepreneurial and employee activi­ ties which will not be handled by the Chairman sitting alone, we see panels of names constituted from names submitted by the professions, the relevant employer

organizations, the A.C.T.U. and the relevant Trades and Labour Councils. From such panels the appropriate person would be selected by the President to be a member of the Division of the Tribunal.

145. We believe that the business of securing persons for panels should be the affair of the appropriate Minister but that the actual appointments to a panel should lie with the Attorney-General, in consultation with the appropriate Minister (paragraph 141).

146. There will be cases where an issue before a Division calls for an ad hoc member, with special knowledge expertise or experience. For example, for cases under the Air Navigation Act and the Navigation Act it may be necessary to have a member with peculiar knowledge and experience in narrow specialties in

the aeronautical, navigational and engineering disciplines.

147. We think that the relevant department or Minister will be best placed to suggest the right man. Nonetheless, we see advantages in the actual appointment being in the hands of the Attorney-General (paragraph 141).

Departmental Officers

148. We find some difficulties with the idea advanced in paragraph 292 of the Report of the Commonwealth Administrative Review Committee (hereafter refer­ red to as the Kerr Committee Report) that of the two lay members “one could be an officer of the Commonwealth department or authority responsible for

27

administering the decision under review” to ensure that “particular knowledge of the area of administration which produced the decision under review would be available to the Tribunal".

149. In the first place, it would be an awkward situation if a junior officer were to be sitting in judgment on his superior—which could often be the case. And, second, we would be concerned about the public reaction to a member of the Tribunal adjudicating upon a decision of his own department. Concern about this was expressed by some of the Permanent Heads.

150. We do not assert that a departmental officer should never be a member of the Tribunal. The sorts of difficulties mentioned above would not be evident if a departmental officer were a member in cases which did not directly involve a departmental decision. In some cases, departments might be the only suitable source for one member of the Tribunal. There might be less offence, in principle, if a departmental officer from a department, other than that involved, were a member on an ad hoc basis.

151. We are, however, attracted to the model of the Taxation Boards of Review. A former officer of the Taxation Office is normally Chairman of such Boards but we were told by the Commissioner of Taxation that the practice has been that no such individual has ever returned to the Office and, thus, having no prospect of promotion within it, cannot be suspected of owing any allegiance to it.

152. The same practice might be applied in relation to other departmental areas where the case load is sufficiently great. The social security and welfare and cus­ toms and excise areas immediately suggest themselves.

President of the Tribunal

153. Heading the Tribunal must be a President.

154. The President would have a key role. It would include an important adminis­ trative component. It would be his responsibility to constitute Divisions assigning Chairmen to individual cases or, subject to work load, to deal with all cases in a particular area or relating to a particular subject matter, and doubtless in associa­

tion with the relevant Chairman, choosing the lay members for a case and arrang­ ing their availability. In short, the selection of the members for a Division would be with the President.

155. The President should be empowered to arrange with the Chairmen of our two other proposed Tribunals to provide members such as accountants either for Divisions of the General Administrative Tribunal or for their Tribunals.

156. in short, the function of the President would be to ensure that each Division of the Tribunal is constituted to deal in the best possible way with the particular problem before it.

Valuation and Compensation Tribunal

157. We have already referred to the multiplicity of bodies that have a role in relation to the range of legislative provisions dealing with the valuation of, and compensation for, property, of all kinds. (See Appendices F and K).

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158. Not always are these provisions associated with the exercise of administrative discretions. But if we were to interest ourselves in the machinery for review in such cases, it made good sense that we should also study other provisions dealing with valuation and compensation matters and the machinery for determining such

matters.

159. We believe that all of the bodies that presently deal with valuation and com­ pensation matters should be replaced by one single Valuation and Compensation Tribunal. Its jurisdiction should extend to the provisions listed in Appendices F and K and those specified as appropriate to the Tribunal in Appendices E, Η, I

and J. It should, for the determination of valuation and compensation matters, have definitive powers and be subject to appeal only on questions of law. Thus, amongst other things, questions of quantum would not be susceptible to a pro­

gression of appeals through the courts, save to the extent that “just terms” of acquisition were involved.

160. We did not come to this conclusion without considering the alternative of the General Administrative Tribunal, per medium of one Division of it, dealing with valuation and compensation matters. Our feeling has been that these matters call for special expertise with the Tribunal having an assured continuity of mem­

bership and acquiring an authority in valuation and compensation matters which might extend beyond its own particular jurisdiction.

161. We do not suggest for a moment that there should be any impingement on the rights of those concerned to make mutually satisfactory agreements or any change in the provisions that currently exist which entitle those concerned to agree mutually to an arbitration process.

162. In normal circumstances, we see this Tribunal as constituted by a Chairman and two members, but there should be provision for expert assessors, where necessary.

163. While the one person should be the continuing Chairman of the Tribunal, we think he should, as well, be one of the corpus of Chairmen of the General Administrative Tribunal. He would thus have a secondary availability as such a Chairman. This could be of particular value in the Australian Capital Territory

situation. There, we see the source of perhaps the bulk of the work that would be handled by the Valuation and Compensation Tribunal. It may be found that he can also, for the general run, manage the Canberra role of a Chairman of the General Administrative Tribunal.

164. The members should be drawn from panels consisting of valuers, builders, townplanners, stockbrokers, bankers and other experts. We see no reason why names should not be sought by the appropriate Minister from the appropriate organisations, but the actual constitution of panels should rest with the Attorney-

General, in consultation with the appropriate Ministers. Selection of members from the panels should be the prerogative of the Chairman. Where he felt that some special expertise was called for, the relevant Minister or department should be best placed to suggest the right man, but the actual appointment should rest

with the Attorney-General.

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165. Until experience is gained of work load we incline to the view that the members should be part-time. The procedures of this Tribunal should be basically those of the General Administrative Tribunal but we would expect that in some cases there would be greater need for the normal adversary procedure.

Medical Appeals Tribunal

166. Repeatedly we found in the legislation provisions associated with the exer­ cise of administrative discretions which make entitlements or obligations depend on medical evidence. Appendix G provides illustrations and also reveals the multi­ plicity of means of providing that evidence. Occasionally provision is made for the obtaining of second opinions.

167. We were progressively led to conclude that there might be merit in consti­ tuting a Medical Appeals Tribunal as a point of reference where there was dissatisfaction with the medical evidence forthcoming under existing provisions. Not unnaturally we looked at other provisions of legislation providing for medical

evidence not directly associated with the exercise of administrative discretions to satisfy ourselves that such a Tribunal might serve a useful purpose in relation to such provisions. Appendix G gives some examples.

168. We think the Chairman of our proposed Tribunal should come from the corpus of Chairmen of the General Administrative Tribunal. It would make sense if the one person chaired all medical appeal cases and also cases in the General Administrative Tribunal involving professional conduct in the medical, dental and nursing professions.

169. Here again we considered the possibility of medical matters being handled by a Division of the General Administrative Tribunal. We weighed against this the likelihood that a separate Tribunal would be better because it would probably have to develop some particular procedures. These could include the conduct of

medical and like examinations by the members of the Tribunal itself, (c.f. Appen­ dix C, paragraph 136).

170. Selection of the members of the Tribunal would not be without its problems because of the range of specialties within the medical and associated disciplines. We think that in this case responsibility for appointment of members whether regular or ad hoc should lie with the Minister for Health. If use is made of the Medical Appeals Tribunal for repatriation cases, the Minister should consult with the Minister for Repatriation.

Powers and Procedures of the Tribunals

171. Having given this whole problem much consideration, we believe that the approach to the composition of the Tribunals we have sketched above is to be preferred to the proposals made in paragraph 293 of the Kerr Committee Report. We believe it desirable that the community should recognise the Tribunals for what they are— not courts but tribunals whose major activities are the review of decisions under administrative discretions, sometimes with mere recommendatory functions, and, themselves, in much of their jurisdiction, an extension of the total

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administrative process, though functioning under the supervisory jurisdiction of the Superior Court and the High Court.

172. While, in the broad, we agree with the proposals in paragraphs 294 et seq of the Kerr Committee Report about the powers and procedures of its proposed tribunal, which are elaborated in Chapter 16 of its Report, and, therefore, with their applicability to our proposed Tribunals, our own views, in a number of

respects, either supplement or qualify those proposals, as will be seen below:—

(a) where recourse lies to a Tribunal, a person entitled to approach the Tribunal should—

(i) if no decision has been given by the initial decision maker within 60 days of his being asked for a decision, be entitled to approach the Tribunal for a decision if he has secured a certificate from the Ombudsman that such an approach is justified. (It is unreal to

imagine that every decision can be given within a common stated period or that the actual decision maker is always to blame for what appears to be dilatoriness. The Ombudsman will be best placed to discover whether departmental action is dilatory, or

whether the failure to issue a decision is justifiable. The Ombuds­ man’s legislation will need to cover this).

(ii) be entitled to ask for and be given reasons for any decision that is adverse to him or falls short of his claim. (Provisions requiring decision makers to provide reasons are by no means uncommon in our legislation and the A.C.T. Ordinances. While, as a general

rule, the decision maker should give his reasons (which need not be lengthy) when the decision is being conveyed to the person concerned, there can be occasions when the person would prefer not to be told and others where the giving of reasons could breach

the Crimes Act and e.g. the Public Service Act or breach security. In these latter cases, the decision maker should be simply required to state that if the person aggrieved proceeds for a review, the reasons will be made available to the Tribunal.

(iii) if he is given reasons for a decision which it is reasonable to expect would be changed if new or additional information in his hands were supplied to the decision maker, be expected to supply that information and only be entitled to have recourse to the Tri­

bunal if he has not within 14 days of that supply been notified that the decision has been changed. (Many provisions of our legis­ lation enable the decision maker, faced with additional informa­ tion, to change his decision. The extension of this concept to our

current proposals would be in the best interest of all concerned and avoid unnecessary overloading of the Tribunals. On a related topic, we see no reason why reference to a Tribunal should be

via the decision maker. In this respect we differ from the formu­ lation of e.g. the Insurance Act 1973 Part VI. See also paragraph 217(c) below.)

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(b) the decision maker should be required to make available to the Tribunal all relevant documents in his possession. Yet there must be proper pro­ tection of confidentiality of material on security or other sensitive grounds. (See sub-paragraph ( g) below.) While the public interest nor­ mally demands open hearings, there can be no disputing that a Tribunal will frequently find itself faced with material whose confidentiality must be preserved if, indeed, it is to be available to enable the right decision to be reached. It seems to us that the appropriate Minister should have power to specify which documents (if any) must, on the grounds men­ tioned above, be regarded as confidential to the Tribunal or the condi­ tions under which the information they contain may be made available

to the applicant or his representative or more widely. The fact that confidential documents cannot be disclosed does not necessarily mean that the Tribunal cannot, without disclosing the source, make use of information in the course of proceedings to test the applicant’s case. It is for consideration whether special provisions should be made for the testing of a Minister’s certificate and, if so, whether the testing should be a matter for the Tribunal or an appropriate court. Not to be

overlooked are the provisions of the Crimes Act and e.g. the Public Service Act which could place officials in jeopardy unless they were properly protected. The issues involved here go far beyond the scope of our Terms of Reference.

(c) the Tribunal should be entitled to decide that the proceedings or any part of the proceedings before it should take place in private.

( d) documentary evidence or records of earlier proceedings should be used to obviate the need for oral evidence covering the same ground and to facilitate speedy hearings.

(e) in relation to paragraph 297(ii) of the Kerr Committee Report, we envisage that, in some cases, the Tribunal’s function would be recom­ mendatory only. (The rationale for this is simply that there can be present in some cases policy elements that require that the Minister should make the ultimate decision.) Moreover, the view in the Report that the Tribunal should have power to substitute its decision on the merits of the case calls for some comment. Much of what we said in paragraphs 108 et seq of our Interim Report about “wrong” decisions is

relevant. A Tribunal to the extent that it is functioning as an extension of the administrative process must not exclude from its mind the totality of considerations that bore on the original decision maker. It must not be constrained by the practices of the courts in relation e.g. to evidence and relevancy. In so many cases, the administrator cannot come to his decision on an individual case in, as it were, a vacuum. He has to take his decision not solely on premises acceptable to a court but in a con­ text of a broad government response to its interpretation of socio­

economic values acceptable to the community. He absorbs this in the culture of his total administrative activity.

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(/) we will express some views later in relation to paragraph 297 (iv) of the Kerr Committee Report.

(g) as to paragraph 299 ibid, (i) our views on the question of a representative of the department or instrumentality being a member of a Tribunal are set out in paragraphs 148 to 152 above.

(ii) we think that, in respect of decisions involving security considera­ tions, a Tribunal must conduct its proceedings and present its conclusions in a fashion that will adequately protect security (c.f. paragraphs 113 to 118 of our Interim Report and paragraph 344

of the Kerr Committee Report).

(iii) we do not agree that a Tribunal should be entitled to express opinions on government policy. It should not be entitled to ques­ tion the policy grounds on which a decision is based or a decision to the extent that it gives effect to policy. It should do no more than identify the government policy on which the decision is based. That can provide the starting point for any rectification or adjust­

ment thought necessary (c.f. paragraphs 105-107 of our Interim R eport).

(h) our own views at paragraphs 148 to 152 above in some respects qualify the views expressed in paragraph 321 of the Kerr Committee Report.

(i) as to paragraph 322, ibid, we favour seven year appointments for full­ time members. Provisions such as those to be found in Division 1 of Part VI of the Insurance Act 1973 seem appropriate.

(/) paragraphs 295(g) and (h) and 334 and other references in the Kerr Committee Report lead us to emphasise that the code of procedure for the Tribunals should clearly spell out that they are not bound to follow adversary procedures. We believe that, in most cases, the investigative

or inquisitorial process would be most apposite. It should have the added consequences of shorter hearings, less need of legal representation and hopefully of better decisions, the more so when the Tribunals are acting as an extension of the administrative process. This is not to say

that, in some cases, the adversary process might not be the best way of testing facts. Difficult though it may be for the legal profession to accommodate itself to the processes we have sketched, the real burden of achieving this will, under our proposals, rest upon the President of

the Tribunal and Chairmen of Divisions. It will fall to them to make or mar the process. (See section 114 of the Defence Force Retirement and Death Benefits Act, 1973.)

(k) since Tribunals will, in much of their jurisdiction, be but an extension of the administrative process, a decision that is sustainable on grounds other than the reasons given for it by the original decision maker should not be upset.

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(/) to minimise costs and to avoid inconvenience, a Tribunal should be authorised to appoint a person to make enquiries and hear and receive evidence in any part of the Commonwealth. The ancillary power to administer oaths and take affidavits should be conferred for use in appropriate circumstances.

( m) provision should also be made to authorise the payment of the fares and reasonable travelling expenses of persons attending before a Tribunal. (See section 121 of the Defence Force Retirement and Death Benefits Act, 1973.)

(n) the lodging of an application for review should not operate to stay administrative action consequent upon the decision sought to be re­ viewed, unless the Tribunal, on special application and after hearing the decision maker, specifically orders.

173. Remembering always that our proposed Tribunals will, in respect of much of their jurisdiction, be but an extension of the administrative process and have a function different from that of a court, we think that, in respect of that sphere of their jurisdiction, it could be useful if there were associated with the General Administrative Tribunal a small group of officers who would, in particular, have access to the Ombudsman and his staff and to departmental officers and records prior to cases being heard. They could be invaluable in capsulising for the Tri­

bunal the departmental culture relevant to a case. Their enquiries could result in issues being narrowed and facilitate the Tribunal’s investigative and inquisitorial role. They might even uncover misunderstandings which might avoid the need for hearings. Their availability could, at the same time, make good any disadvan­ tages that might result from not having an officer from the relevant department as

a member of the Tribunal.

Legislative Framework

174. As we see it, there would be an Act, which for current purposes we might call the Principal Act, which would provide for the constitution of our proposed three Tribunals and matters appertaining to their membership: for the processes and procedures of the Tribunals; costs; protection against defamation; fees for

those attending; disobedience to summons; offences in relation to the Tribunal and so on; and for appeals on, and references on the motion of the Tribunal or the request of a party of, questions of law to, presumably, the proposed Com­ monwealth Superior Court.

175. Presumably the Principal Act would define the powers which a Tribunal would normally have in respect of a matter before it e.g. to affirm or vary the original decision or to substitute its decision for the original decision, or to remit the decision for reconsideration in accordance with directions or to dismiss sum­ marily an application to it (c.f. Kerr Committee Report, paragraph 264). Views which we have expressed elsewhere, e.g. paragraph 172, would be relevant.

176. It would be necessary also to list the sections of each of the Acts and Ordinances and the Regulations thereunder containing discretionary powers in

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respect of which it were decided there should be review by one of the Tribunals. If in the case of any section or regulation, the particular circumstances called for the decision of the Tribunal to be recommendatory only, for members of the Tribunal to have particular qualifications, or for some modification of the normal

processes or procedures, the necessary prescription would be made—in effect, varying the Principal Act for the particular case. It should not be beyond the skill of Parliamentary Counsel to devise a methodology that avoided the cumber­ some and slow moving process of introducing numerous Bills to amend each

separate Act.

177. With, in existence, a Principal Act of the character sketched above, subse­ quent legislation or regulations introducing discretionary powers would be framed so as to specify the sections containing such powers in respect of which there should be a review by one of the Tribunals and any special ancillary prescriptions

of the character referred to in paragraph 176 that had to be attached to the review process. The jurisdiction of the respective Tribunals would thus be enlarged. Enlargement might equally occur as a result of decisions taken on the matters raised in paragraph 112 and of the consideration given to the need for review

of administrative discretions contained in the 1973 legislation which we have not examined and in legislation introduced between now and the commencement of operation of the proposed Principal Act.

178. We believe that not merely does justice require it but the number of appeals to the Tribunals would be less if there were a standard provision that no licence or registration relating to the continued practice of a profession or of employ­ ment or entreprenurial activity should be cancelled without the decision maker

first giving the person concerned the facts and circumstances that in his opinion warrant action, and the opportunity to show cause why cancellation should not occur. There is no reason why the same rule should not generally apply to pro­ posals to vary the conditions attaching to licences and registrations. In some cases

of proposed suspension, the rule should be the same. However, it will not be practicable in cases where suspension must be at short notice e.g. where safety or other special circumstances exist. We have noted that provisions of these sorts are by no means uncommon. One example is regulation 258 of the Air Navigation

Regulations.

179. While we proposed in paragraphs 69 to 71, in the context of the social security and welfare legislation, that the Ombudsman should have power to recom­ mend to a department or statutory authority that a question be remitted to a Tribunal or a court and that a department or authority should have power of its

own motion to remit a question, we consider that these powers should be of general application.

Jurisdiction of the Tribunals

180. The jurisdiction of the proposed General Administrative Tribunal would derive from the following:—

(a) substitution of it for the various courts and other bodies which are presently the reviewing bodies.

35

(b) choice of it, in future, as the review body instead of some court or other body.

( c) conferring on it a review function superimposed on a current review process which we think inadequate.

(d) conferring on it a review function where presently there is no provision for review.

(e) conferring on it a review function at the instance of a department or statutory authority whether following a recommendation by the Ombuds­ man or not. (See paragraphs 69 to 71 and 179).

181. We have identified in the far right hand column of Appendices D, E, Η, I, J and L cases covered by the above sub-paragraphs ( a), (c) and (d) in respect of which the Tribunal should have the function of review, with some explanatory notes. Appendices B and C also draw attention to some provisions in relation to

which the Tribunal should or might have a review function. Where we have thought the review function should be recommendatory only, we have made this evident.

182. In paragraph 99 of our Interim Report we listed a series of matters in rela­ tion to which the Ombudsman should not have jurisdiction. Sub-paragraph ( c ) , of course, no longer obtains except in relation to Papua New Guinea and we have already specifically dealt with the matters mentioned in sub-paragraph ( d) for its bearing on reviews by Tribunals. So far as we are aware, none of the provisions

in respect of which we are proposing that the General Administrative Tribunal should have power to review would involve matters of the other descriptions which, in our Interim Report, we argued should not be within the jurisdiction of the Ombudsman. It is certainly our approach, both as to existing and prospective legislation, that the Tribunal’s powers should not extend to matters of those other descriptions.

183. Perhaps we should repeat that the Tribunals should not be entitled to question the government policy grounds on which a decision is based or a decision to the extent that it gives effect to policy.

184. Appendices F and K list the present valuation and compensation provisions and Appendix G the present medical evidence cases which should be within the respective jurisdictions of the Valuation and Compensation Tribunal and the Medical Appeals Tribunal.

Integration of existing tribunals in the proposed Tribunal Structure

185. For a variety of reasons, we would not suggest that any consideration should be given under this heading to the Tribunals, so described, for which the Copyright, Designs, Patents, Prices Justification, Trade Marks and Trade Practices legislation provides. Or to the bodies involved in the conciliation and arbitration process which have some of the characteristics of tribunals.

186. There remain for consideration the sundry other tribunals to which reference is made in Apppendices B and C. They carry different descriptions. They may be

36

called Boards or Committees or Tribunals or even Courts. The Court of Marine inquiry has its origin rooted in history. Some are the agreed product of consulta­ tions between departments and interested organisations or groups. All of these have a place, major or minor, in our system of administrative law.

187. What we do earnestly propose is that, if our recommendations about the constitution of the three new Tribunals are adopted, there be a throughgoing review of the provisions constituting these existing tribunals. The circumstances leading to their establishment and the provisions about their membership, pro­

cesses and procedures and their functioning and associated matters, including provisions for appeals and references on questions of law should be examined with the following questions in mind in relation to each of the tribunals:—

{a) is there any overriding reason why the tribunal should be maintained with a separate existence and, therefore, not be subsumed in the appro­ priate Tribunal of the three we are proposing?

(b) if there is, is there any reason why— (i) the Chairman of the tribunal should not be drawn from the corpus of Chairmen which we are proposing for the General Administra­ tive Tribunal?

(ii) there should not be applied to and in respect of the tribunal the general code for the governance of our proposed Tribunals which would appear in the Principal Act mentioned in paragraphs 174 and 175 with, if needs be, any vitally needed qualifications.

188. We would also urge that whenever, in future, the establishment of a tribunal is contemplated the same sort of questions should be asked by the sponsoring department.

189. Standardisation of legislation dealing with tribunals would represent no unique undertaking. Over the years, uniformity of provisions dealing with parti­ cular topics has progressively been introduced in our legislation. The financial provisions of legislation constituting statutory authorities are but one example.

190. When once the General Administrative Tribunal is established, there seems no reason why chairmen cannot be drawn from the corpus of Chairmen of the Tribunal, for, for example, Courts of Marine Inquiry and inquiries under the Air

Navigation Act and Regulations. And likewise we should think it practicable for the procedures and processes of existing tribunals to be modified, without awaiting amending legislation, to take account of the standard code which would be set out in our proposed Principal Act.

Surveillance of new legislation

191. There is more to the content of future legislation than is comprehended by the points made in paragraphs 187 et seq. As we see it, whenever provision for an administrative discretion is contemplated, careful thought must be directed— (a) to the question—who is to be the donee of the discretion?

( b) to identifying the sections in respect of which power of review should be vested in a tribunal.

37

(c) to the question— how precisely can the discretion be defined? The greater the detail in which are stated the circumstances in which a decision may be made, the more certain the citizen will be of his rights and obligations and the less demand there will be for processes of review of decisions taken under administrative discretions. Even where some residuum of discretion has to be left, it should not always be impracticable to provide some framework of guidelines.

192. In our Interim Report (paragraph 16) we acknowledged the difficulties of precision of definition in new legislation breaking new ground and introducing novel concepts. We expressed the hope that, as amending legislation is introduced, broadly worded discretions would, wherever possible, be reframed so as to circum­ scribe or eliminate such discretions.

193. Relevant to point (a) of paragraph 191, are, first, the fact that decisions of officials will be within the jurisdiction of the Ombudsman and second, the desir­ ability of establishing, for the future, a more rational distribution of functions between Ministers and officials. It makes nonsense to clutter up Ministers with the duty of making decisions dealing with trivialities and minutiae and with powers which perforce they will delegate. Any necessary ministerial control can be retained through the formula to be found in a number of Acts enabling Ministers to direct officials as to the exercise of powers vested in them.

194. If these adumbrations are to have practical application, it seems to us that the Parliamentary Counsel are well placed to steer departments advancing legis­ lative proposals in the directions we have been discussing.

195. Among Parliamentary Counsel’s present responsibilities in presenting draft Bills to Cabinet is one of certifying whether or not the Bill conforms with Cabi­ net’s decision and if not the reason why. We think that, where draft Bills propose ad hoc tribunals or different provisions from those we have advocated for the suggested Principal Act (paragraphs 174 and 175), someone should be given the responsibility for drawing Cabinet’s specific attention to the matter and making such justification and explanation as is necessary. Because of Parliamentary Coun­ sel’s association with Cabinet’s scrutiny of draft legislation it may be decided that he should carry this added responsibility. We would also hope that, in that event, Parliamentary Counsel would be encouraged to try to persuade departments to avoid open-ended discretions and to draw to Cabinet’s attention any provisions of draft Bills conferring discretions that may be regarded as offending (vide para­ graphs 187 to 189 and 191).

196. Now that the drafting of regulations is no longer the affair of Parliamentary Counsel, the role and responsibility we have suggested might be laid at his door would appropriately, in relation to regulations, be discharged by the draftsmen in the Attorney-General’s Department. In this case, there should be a statement in the Explanatory Brief prepared for the Executive Council. Suitable similar arrange­ ments should be made in relation to the drafting of Ordinances and Regulations thereunder in the Territories.

197. We go further. If our recommendations about the constitution of our pro­ posed Tribunals are adopted, we think there should be constituted a Committee

38

consisting of a Chairman distinguished for his senior administrative experience and his interest in administrative law with as members, the President of the Gen­ eral Administrative Tribunal, the First Parliamentary Counsel, the Ombudsman and one other member, being a person versed in the discipline of administrative

law, with the function of reporting annually to Parliament on the following:— (a) particulars of separate tribunals constituted during the year; ( b) particulars of departures from the uniform code of our proposed Prin­ cipal Act;

(c) cases where presently existing tribunals have been subsumed in one of our proposed Tribunals; ( d) cases where the uniform code has been applied, with or without modi­ fications to the processes, procedures, etc., of presently existing tribunals

that are retained; (e) the progress made in narrowing discretionary powers; (/) provisions which have come to notice where provision for review would have been desirable or which suggest scope for narrowing discretionary

powers; to this the Ombudsman would be well placed to make a special contribution; ( g) provisions made for Annual Reports of the type mentioned in paragraph 39;

(h) provisions requiring publication of reports and recommendations relat­ ing to matters of administration (paragraph 206 below); (z) the general manner in which tribunals have functioned with particular reference to the points made in paragraphs 137, 139, 142-152, 172(a),

( b), (e), (/") and ( k) and 173;

(/') such other matters as the Committee sees fit relating to the current and future operation of the process of review of administrative discretions.

198. This report should not be restricted to legislation of the Parliament. It should extend to Ordinances applicable to the Territories and to all subordinate legis­ lation.

199. It would not be out of place, assuming adoption of our recommendations, if there were to be a general instruction to departments:— (a) that it is Cabinet’s wish that in instructing Parliamentary Counsel in relation to Bills they should take heed of the views expressed in para­

graphs 187 to 196.

( b) after the Principal Act we have suggested is, in fact, enacted, that it is the Government’s wish that submissions to Cabinet proposing the con­ stitution of tribunals should select the appropriate Tribunal from the three we have proposed and use our proposed uniform code unless

there be overriding considerations to the contrary, in which event they should be spelled out and justified.

200. If arrangements on the foregoing lines are endorsed, they should be in substantial aid of the scrutinising role of the Senate Standing Committee on Regu­ lations and Ordinances.

39

The Kerr Committee recommendations for an Administrative Court and an Administrative Review Tribunal

201. We are aware of the Report by the Ellicott Committee— “Review of Pre­ rogative Writ Procedures” with its recommendation that judicial review of adminis­ trative decisions should be vested primarily in a Commonwealth Superior Court. Adoption of that recommendation would dispose of any need for a new Adminis­ trative Court. 202. The only comments we feel entitled to make relate to paragraph 253 of the Kerr Committee Report, with its reference to the judicial review extending to

failures to make decisions and to “the making of or failure to make reports or recommendations to Ministers and other bodies”.

203. Our own proposals in paragraph 172 (a) will go a long way to providing a spur to the making of decisions. The Ombudsman will be the starting point. On the second point, we think that any proposal for any judicial supervisory review of reports and recommendations requires much careful thought and should not overlook the decided differences in practice in the United Kingdom and Australia.

204. Apart from the reports and recommendations which are inseparable from the whole system of administration within and among departments and involving relationships between officials and Ministers and Cabinet, there are numerous provisions in our legislation which specifically require the making of reports and recommendations. As examples, we might draw attention to the Tariff Board Act which authorises the Tariff Board to report and to make recommendations and

to the Broadcasting and Television Act which requires the Minister to seek a report from the Australian Broadcasting Control Board in specified circumstances.

205. if there were to be any judicial supervisory review, it could not extend beyond reports and recommendations which legislation requires to be made as a basis for decision making by a Minister (c.f. paragraphs 95, 96 and 97(b) of our Interim Report). However, without a statutory requirement that a report or recommendation is to be published and allowing of public discussion before a final decision is made by a Minister, it would seem that the scope for judicial

supervisory review would be limited.

206. In our view, if there is to be any judicial supervisory review in this area, it should be limited to reports and recommendations relating to matters of adminis­ tration, required to be made by legislation as a basis for decision making by a Minister. It would, indeed, be desirable if legislation of this type also required pub­ lication of the report or recommendation before the taking of a definitive decision, particularly where the decision on a report or recommendation could have an important impact on citizens. Not merely would publication, in advance of a definitive decision, provide opportunity for further commentary, discussion and criticism, it would also make such reports and recommendations more susceptible to judicial supervisory review.

207. We turn now to the proposals in Chapter 13 of the Kerr Committee Report about an Administrative Review Council.

208. In large measure, what we have done in the course of our inquiries and now propose in this Report encompass the functions the Kerr Committee adumbrated

40

for its proposed Council. In short, we have identified the discretionary powers we think should be subjected to tribunal review and we have proposed: —

( a) an examination of existing provisions about tribunals to determine whether those tribunals should be subsumed in our proposed Tribunals and their processes and procedures, etc., brought into harmony with our proposed uniform code.

( b) that there should be no further proliferation of tribunals unless there be overriding considerations in favour of a separate tribunal.

(c) adherence for the future to our uniform code of processes and proce­ dures, etc., unless overriding considerations demand some ad hoc quali­ fication.

( d) specification in new legislation of the provisions in respect of which there should be review.

(e) a role, suggested for Parliamentary Counsel, in aid of points (b), (c) and ( d).

(/) a Committee to study existing administrative discretions with the object (i.a.) of over-sighting progress with narrowing their scope or eliminating them altogether.

Assistance to the citizen in tribunal proceedings

209. The Kerr Committee in its report took the view that its proposed Adminis­ trative Review Tribunal (which corresponds with our proposed Tribunals) should have power to award costs but that costs should not be awarded against an appli­ cant where the tribunal considered that the application was reasonably justified

(paragraph 297 (iv )). It also saw its proposed General Counsel (who corresponds broadly with our Ombudsman) as having a role of proceeding, on behalf of an aggrieved person, before the Court and Tribunal it contemplated and any other administrative tribunal where, because of the importance of the principle involved

or for any other reason, the General Counsel thought his intervention was war­ ranted (paragraph 315 (ii) ( b) of the Kerr Committee Report and c.f. paragraph 179 above).

210. The Kerr Committee, in the same paragraph 315, went on to propose that the General Counsel might in any matter before its Court or Tribunal or any other administrative tribunal intervene and make submissions and that, as a form of legal aid, he might be empowered to act for the aggrieved person where he thought

the means of the aggrieved person or his prospects of success made this the proper course. While we don’t see the Ombudsman having these roles, the question of legal aid to an aggrieved person still remains.

211. Three issues have to be considered.

212. In the first place, there is the question whether an aggrieved person should have to put down a deposit. This is the case under some of our legislation, e.g. the Taxation legislation and the Air Navigation Regulations. And it is the case with the New Zealand Ombudsman.

41

213. If the purpose of these provisions is to discourage vexatious proceedings, the amount of the deposit is hardly calculated to have that effect. To increase the amount of the deposit could prejudice the most meritorious of persons without

means and not in any way inhibit those with means. Perhaps the unmeritorious are discouraged by their worry about the burden of initiating and pursuing pro­ ceedings and incurring some expenses, whatever the provisions for costs may be, and by the risk that costs may be awarded, where such a power exists.

214. The putting down of a deposit and the power to award costs are clearly intertwined. We feel it better to dispense with deposits and concentrate on the issue of costs.

215. As to costs, we can dispose quickly of one aspect. Where a case goes to a tribunal or to a court because the Ombudsman has recommended that course or a department or statutory authority itself takes a case to a tribunal or a court (paragraph 179), we believe that the aggrieved person or the person involved in

the decision of the department or authority should not have to bear any costs reasonably and properly incurred. Consistent with this view, we have argued that where the Commissioner of Taxation appeals against a decision of a Board of Review, the Commonwealth should bear the costs (Appendix C, paragraph 164).

216. The tenderness, in the matter of costs, of the Commonwealth towards its own employees pursuing employees’ compensation claims has not escaped our attention. In a nutshell, under section 85 of the Compensation (Commonwealth Employees) Act, the Commonwealth has to pay the costs if the tribunal under that Act sets aside the decision of the Commissioner and remits it for re-deter­ mination and the costs of a party not initiating the proceedings if the tribunal affirms the decision. And the tribunal may order the Commonwealth to pay the whole or part of costs where the tribunal’s decision is more favourable to the aggrieved person and where the decision is against or less favourable to the aggrieved person if he has not initiated the proceedings.

217. Our conclusions are:— (a) where we have proposed the substitution of one of our proposed Tri­ bunals for a court to which an appeal already lies by a person aggrieved, there should be no change, at present at least, in the existing prescrip­

tions about costs. In mind, for example, are appeals from decisions of boards concerned with professional conduct and like matters.

(b) there should also be no change in the existing practice about costs in compensation cases where the claimant in future goes to the Valuation and Compensation Tribunal, in place of the action he would have pur­ sued in the courts.

(c) where, in other cases involving the exercise of an administrative discre­ tion, a person aggrieved has recourse to a tribunal, it should not, if it considers that recourse was reasonably justified, award against him any costs of a department or statutory authority and, if the tribunal’s deci­ sion is more favourable to him, his own costs should be borne by the department or statutory authority, unless the tribunal considers the cir­

42

cumstances warrant an order that the aggrieved person’s costs or part of them should be borne by him. Failure to give a decision maker the opportunity to change his decision (paragraph 172(a) (iii)) would be such a circumstance.

( d) where a department or statutory authority has recourse to a tribunal, the person aggrieved should normally not have to bear any costs of the department or authority and only such of his own costs as the tribunal considers reasonable in the circumstances.

218. Finally, there is the question of legal and other expert assistance. It is cer­ tainly our hope that development of appropriate procedures by tribunals will create a situation in which many seeking review of administrative decisions will be content to conduct their own cases. The present disposition to have or expect

legal representation generally before tribunals is undesirable. Nevertheless, there will be cases where because difficult questions are involved, or because the facts are complex, or because of personal factors, the citizen must be represented by a lawyer or by an expert in the field. It would seem that the problem could best

be met by empowering the tribunal to determine that no costs of representation should be allowed, if it considers representation was unnecessary, or that costs should be allowed only for the level of representation it felt was appropriate. This would leave to an aggrieved person the decision whether to engage assistance

but he would have to weigh the possibility that the costs would fall to him. Para­ graph 217 (c) and ( d) should be read subject to this.

219. In addition to costs related to proceedings before tribunals, we feel that adequate and appropriate provisions should be made to recoup costs of fares and travelling expenses and loss of wages.

220. We realise that our proposals for costs of representation meet only a small part of the problem. The citizen often needs informed advice at an earlier stage as to whether he has entitlements, rights or duties and as to the action he needs to take. To some degree, the appointment of an Ombudsman will help. In the

long run, however, more is probably needed. In this regard, we have noted the recent decision to establish an Australian Legal Aid Office and to appoint a Committee to study the larger problems of what should be done in the whole field of legal aid in Australia.

Submissions received

221. In Appendix A to our Interim Report we listed those whom we invited to make submissions. Submissions were, in fact, made by the persons and organisa­ tions listed in Appendix M.

Conclusions

222. Your extension of our original commission has enabled us to present what we believe to be comprehensive arrangements for the external review of decisions or recommendations or acts done or omitted relating to matters of administration in the exercise of powers and functions conferred by Statutes of the Australian

43

Parliament, Ordinances of the Territories (other than Papua New Guinea) and subordinate legislation. Decisions of officials and statutory authorities under the jurisdiction of the Ombudsman will be subject to review by the Ombudsman and, as a result of his recommendation, by a tribunal or a court. Many other adminis­

trative decisions, including some of Ministers, will be subject to review by a tribunal.

223. We have also made proposals directed to securing that legislation enacted this year and in the future will not deprive the citizen of the type of recourse that we have advocated in respect of existing legislation and that existing legislation is studied with the object of identifying more clearly the entitlements, rights and duties of the citizen and, at the same time, obviating the need for his seeking external review.

224. Just as we have urged that, for the future, administrative discretionary powers should not be given to Ministers where that is not essential, so we would urge that care be taken to avoid vesting such powers in the Governor-General.

225. We have not felt inhibited, in making our recommendations, by any of the inescapable constitutional constraints on the distribution of powers though ob­ viously, in some cases, it could have been useful to give tribunals penalty awarding powers.

226. We have been encouraged throughout our enquiries by the unqualified inter­ est of Permanent Heads and their senior officers in the institution of arrangements for the external review of administrative decisions. It is clear that our work has already produced some tangible results e.g. in the form in which some recent legislation dealing with tribunals has been drafted.

227. It is well that we say again that there can be no assumption that the institu­ tion of the arrangements we have advocated will mean that thereafter there will be no person aggrieved by decisions taken under discretionary powers and, just as we said it of the Ombudsman (paragraph 65 of our Interim Report), there is a price for instituting the tribunals we are recommending.

228. What the work load of the Ombudsman and how frequent the recourse to our proposed Tribunals will prove to be cannot be sensibly judged at this stage. It is reasonable to believe that it would be less if continuing and perhaps greater

attention is given to ensuring that the community through appropriate publicity and material is well informed of departmental policies and procedures and the entitlements, rights and duties of citizens; if the scope of discretionary powers is confined within the narrowest possible limits; if claimants are given every possible opportunity to present their claims; and if reasons for decisions are given. In any event, therein lies the greater likelihood that justice will be done in the exercise of administrative discretions.

Summary of recommendations

229. (i) There should be only one Ombudsman for Australia and its Territories other than Papua New Guinea (paragraphs 14 to 19).

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(ii) The Statutory Authorities listed in Appendix A should be scheduled as subject to the Ombudsman (paragraph 21).

(iii) If, when furlough is made a right, there remain any discretionary powers, it may be desirable to consider some appeal process (paragraph 27 ( c ) ).

(iv) The Commonwealth and A.C.T. Police Forces should, at least at this stage, be excluded from the jurisdiction of the Ombudsman. There should be uniformity in the appeals arrangements that are part of the Police disciplinary process (paragraph 27( d) ) .

(v) While provisions requiring Annual Reports to be made to the Parlia­ ment are a useful means of promoting parliamentary review of the exercise of administrative discretions, the focus of parliamentary atten­ tion would be sharper if legislation required the Reports to deal with

specified matters (paragraph 39).

(vi) Having regard to the decision to appoint an Ombudsman, there should, at least until experience is gained of the proposals summarised in the three following sub-paragraphs, be no direct access to a formal tribunal by persons aggrieved by administrative decisions under the social

security and welfare legislation (paragraphs 65 to 67).

(vii) The departments administering social security and welfare legislation, and particularly the Department of Social Security, should establish special units to deal with the claims and complaints of aggrieved per­ sons (paragraph 68).

(viii) The Ombudsman should have power to recommend that the circum­ stances of a case before him warrant the department or statutory authority concerned remitting a question to the appropriate tribunal or court (paragraphs 69 and 179).

(ix) Departments and statutory authorities should be empowered to refer a question related to the exercise of an administrative discretion to the appropriate tribunal or, if legally possible, a court (paragraphs 70 and 179).

(x) The citizen should not always have to go to the courts to establish that an administrative decision is wrong (paragraph 80).

(xi) Section 167 of the Customs Act should be amended to give an aggrieved person an option to go either to the General Administrative Tribunal or the appropriate court (paragraph 80).

(xii) If section 265 of the Customs Act is to be retained, particular care should be taken to ensure that the person concerned is informed of his rights. If consent is given to being dealt with under section 265, there should be an ultimate recourse to the General Administrative Tribunal

(paragraph 81).

(xiii) If the process under section 269 of the Customs Act is to be retained, provision should be made for recourse to the General Administrative Tribunal. If this is superimposed on the present process, the latter might serve as a useful filter (paragraph 82).

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(xiv) A person aggrieved by a decision in relation to a by-law application should have recourse to the General Administrative Tribunal, whose power should be recommendatory. The Minister should have power to remove a particular case from the Tribunal to the Tariff Board (para­ graphs 83 and 84).

(xv) The General Administrative Tribunal should be the body for review of the discretions under Migration legislation particularised in paragraphs 90 and 91 subject to the qualifications mentioned in paragraph 92.

(xvi) An examination of administrative discretions provided in legislation should be made to determine whether any deadwood can be pruned out and the open-ended nature of some discretions reduced. One means of doing this would be through prescribing guidelines for the exercise of discretions (paragraph 96 et seq).

(xvii) There should be a review process in respect of the provisions containing administrative discretions listed in Appendices H and L. The changes in the present review arrangements noted in the far right hand column of Appendices D, E, I and J should be made (paragraphs 110 and

111 ).

(xviii) Consideration should be given to the matters raised in paragraph 112.

(xix) The community cannot afford a burgeoning proliferation of tribunals each with a limited jurisdiction (paragraph 123 to 129).

(xx) There should be constituted—-(a) a Valuation and Compensation Tribunal with jurisdiction extending to the provisions listed in Appendices F and K and those specified as appropriate to the Tribunal in Appendices E, Η, I and J (para­

graphs 130 and 159). (b) a Medical Appeals Tribunal with jurisdiction extending to the provisions listed in Appendix G (paragraphs 130 and 167).

(c) a General Administrative Tribunal with jurisdiction extending to the provisions listed in Appendices D, E, Η, I, J and L as appro­ priate to the Tribunal and those specified in Appendices B and C as appropriate to the Tribunal (paragraphs 130 and 132).

(xxi) The jurisdiction of the respective Tribunals could be enlarged as a result of decisions taken on the matters raised in paragraph 112, by specific provisions in future legislation and as a result of the consideration given to the need for review of administrative discretions contained in the

1973 legislation which we have not examined and in legislation intro­ duced between now and the commencement of the legislation referred to in (xxxvi) below (paragraph 177).

(xxii) The General Administrative Tribunal should sit in Divisions and be composed either of a Chairman and two members or of the Chairman solely (paragraphs 133 and 134).

(xxiii) Chairmen of Divisions should be drawn from a corpus of Chairmen. While Chairmen should be legally qualified, the test of eligibility should

46

not be that specified for judges of our federal courts. The initiative for appointment of Chairmen should rest with the Attorney-General (para­ graphs 135, 136 and 138).

(xxiv) There should be full-time Chairmen in Canberra, Sydney and Melbourne and part-time Chairmen at, say, Townsville, Brisbane, Hobart, Ade­ laide, Perth and Darwin until work load demonstrates the need for a full-time resident Chairman (paragraph 137).

(xxv) Arrangements should be made which permit judges of federal and Ter­ ritory Courts to be Chairmen of Divisions on an ad hoc basis (para­ graph 139).

(xxvi) Members of the Tribunal would be full-time and part-time. Their appointments should be in the hands of the Attorney-General (para­ graphs 140 to 147).

(xxvii) Part-time members should be appointed either on a quasi regular basis to panels of names constituted from names submitted by relevant organi­ sations or on an ad hoc basis (paragraphs 144 to 147).

(xxviii) In general principle, a departmental officer should not be a member of a Division of the Tribunal though, in special circumstances, this may be warranted. To be preferred is the appointment of ex departmental offi­ cers (paragraphs 148 to 152).

(xxix) A President should head the Tribunal. His functions are discussed in paragraphs 154 to 156.

(xxx) The Valuation and Compensation Tribunal should normally be con­ stituted by a Chairman and two members but provision should be made for assessors (paragraph 162). The appointment of members is dis­ cussed in paragraphs 164 and 165.

(xxxi) One of the corpus of Chairmen of the General Administrative Tribunal should be the continuing Chairman of the Valuation and Compensation Tribunal. His secondary availability as Chairman of a Division of the former Tribunal could be of particular value in the A.C.T. situation

(paragraph 163).

(xxxii) The Medical Appeals Tribunal should normally be constituted by a Chairman and two members. The Chairman should come from the cor­ pus of Chairmen of the General Administrative Tribunal. Responsibility for appointment of members should lie with the Minister of Health

(paragraphs 168 to 170).

(xxxiii) The Tribunals should be recognised not as courts but as tribunals whose major activities are the review of decisions under administrative discre­ tions, sometimes with mere recommendatory functions and, themselves, in much of their jurisdiction, an extension of the total administrative

process (paragraph 171).

(xxxiv) The proposals in paragraph 294 et seq of the Kerr Committee Report about the powers and procedures of tribunals should be endorsed subject to the views expressed in paragraph 172.

47

(xxxv) A small staff of officers should be associated with the General Adminis­ trative Tribunal (paragraph 173).

(xxxvi) Legislation should provide for the constitution of the three Tribunals mentioned in (xx); their jurisdiction and powers; matters appertaining to their membership; their processes and procedures; costs; protection against defamation; fees for those attending; disobedience to summons; offences in relation to the Tribunal; and appeals and references on questions of law (paragraphs 174, 175, 180, 182 and 183).

(xxxvii) It will be necessary to identify the sections of each of the Acts and Ordinances and the regulations thereunder containing discretionary powers in respect of which it is decided that there should be review by one of the Tribunals and against each should be set any prescriptions departing from the norm (paragraph 176).

(xxxviii) Subsequent to the legislation mentioned in (xxxvi), legislation and regu­ lations should specify the sections or regulations introducing discretion­ ary powers in respect of which there should be a review and any special ancillary prescriptions (paragraph 177).

(xxxix) There should be a standard provision that no licence or registration affecting the continued practice of a profession, etc., should be cancelled without the person involved being given the opportunity to show cause (paragraph 178).

(xl) The Tribunals should not be entitled to question government policy (paragraph 183).

(xli) If our recommendations about the three Tribunals are adopted, there should be a review of existing tribunals to determine whether they should continue to have a separate existence and, if so, whether their chairmen should not be drawn from the corpus of Chairmen of the General Administrative Tribunal and whether the general code for the governance of our proposed Tribunals should not apply to them. The same questions should be asked whenever tribunals are contemplated in future (paragraphs 187 and 188).

(xlii) Whenever provision for an administrative discretion is contemplated in future, attention should be directed to the considerations enumerated in paragraph 191. Parliamentary Counsel are placed to steer departments advancing legislative proposals to conform with these considerations

(paragraph 194). (xliii) Where Bills propose ad hoc tribunals or departures from standard pro­ visions for the governance of tribunals, Cabinet’s specific attention should be drawn to the matter. Parliamentary Counsel might discharge

this role. A like role should be discharged by those concerned with the drafting of regulations and Ordinances (paragraphs 195 and 196).

(xliv) A Committee should be constituted to report annually to Parliament on the matters listed in paragraph 197.

(xlv) A general instruction should be issued to departments on the matters mentioned in paragraph 199.

48

(xlvi) No special provision for judicial review in respect of failures to make decisions is seen to be necessary (paragraphs 172(a), 202 and 203).

(xlvii) Any judicial supervisory review of reports and recommendations should be limited to such as relate to matters of administration required to be made by legislation as a basis for decision making by a Minister. It would be desirable if legislation of this type required publication of such

reports or recommendations before decisions are taken (paragraphs 203 to 206).

(xlviii) Our enquiries and our proposals appear to dispose of the need for the Administrative Review Council proposed in the Kerr Committee Report (paragraphs 207 and 208).

(xlix) The Ombudsman should have no role of intervention in proceedings before a tribunal or court (paragraphs 209 and 210).

(1) Persons resorting to a tribunal should not have to make any deposit (paragraphs 212 to 214).

(li) Costs in proceedings before a tribunal, including of representation, should be dealt with in the fashion described in paragraphs 215 to 218.

(lii) Adequate and appropriate provisions should be made to recoup fares, travelling expenses and loss of wages (paragraph 219).

(liii) The Committee recently appointed to study legal aid in Australia might be invited to direct itself to questions arising out of our Report (para­ graph 220).

(liv) Just as administrative discretions should not be vested in Ministers unless essential, so care should be taken to avoid vesting such discre­ tions in the Governor-General (paragraph 224).

(lv) Greater efforts should be made to acquaint the community of depart­ mental policies and procedures and the entitlements, rights and duties of citizens (paragraph 228).

Acknowledgments

230. Once again we express our gratitude to our Secretary, Mr Ernst Willheim, a Principal Legal Officer of your Department, to Mrs A. Glover and to Mr Frank Marris also of your Department for their very considerable help.

H. A. BLAND Chairman H. WHITMORE

P. H. BAILEY

Melbourne. 17 October 1973.

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APPENDIX A

Statutory Authorities Recommended for Scheduling as Subject to the Ombudsman

Atomic Energy Commission Australian Broadcasting Control Board— see Appendix C under the heading “Australian Broadcasting Control Board” Australian Institute of Marine Science— see Appendix C under the heading

“Departments of Education and Science”

Australian Tourist Commission

Canberra Retail Market Trust (A.C.T.)

Commonwealth Scholarships Board

Commonwealth Scientific and Industrial Research Organization— see Appendix C under the heading “Departments of Education and Science”

Director of War Service Homes

Defence Force Retirement and Death Benefits Authority Milk Authority (A.C.T.) National Capital Development Commission

Snowy Mountains Hydro-Electric Authority Superannuation Board

The Marketing Authorities named in paragraph 112 of Appendix C subject to the comments made in paragraph 122.

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APPENDIX B

Ordinances Relating to the Australian Capital Territory

1. Appendices I, J, K and L provide in respect of the Ordinances applicable to the Australian Capital Territory and the Regulations thereunder the same sort of information as appears in the corresponding Appendices D, E, F and H relating to the Statutes of the Australian Parliament and the Regulations

thereunder. No separate Appendix is provided in respect of provisions relat­ ing to medical matters: relevant provisions in the Australian Capital Territory Ordinances appear in Appendix G.

2. As perusal of Appendices I and J will show, there already exist many pro­ visions for review of decisions under administrative discretions involving questions related to the pursuit of avocations or conduct of business, the forfeiture and seizure of property, and entitlements to which, throughout our

inquiry, we have paid particular attention.

3. A number of points emerge from examination of the Australian Capital Territory Ordinances: —

(a) the Supreme Court of the Australian Capital Territory has been given extensive jurisdiction by way of review— doubtless simply because no other suitable tribunal was at hand.

( b) responsibility for review of decisions of the same general character has been distributed between the Supreme Court and Courts of Petty Ses­ sions on no consistent pattern, though it is obvious that, in some cases, some judgment has been made about the relative significance of the

initial decision. Yet, it is to be doubted whether, to take a few examples, the electrician or milk vendor whose recourse is the Court of Petty Sessions would happily accept that his cause was of less importance than that of the builder, electrical contractor, milk wholesaler, or professional

man whose resort is to the Supreme Court. Such discrimination cannot be justified.

(c) there is no consistency of approach to the type of review in respect of decisions of the same general character. So, in some cases, there is recourse to review by a court, and in others to the Minister, e.g. in respect of suspension or cancellation of a boiler attendant’s licence.

This is a case of discrimination as between classes of employees.

(d) nor is there a common approach to the question whether there should be a review of decisions of the same general character, e.g. there is no provision in respect of a refusal to grant a boiler attendant’s licence, or of refusal to grant or of the suspension or cancellation of a wireman’s,

plumber’s, drainer’s or hawker’s licence. These are illustrations of even further discrimination as between employees.

(e) a hotchpot of courts, bodies, Ministers and officials has jurisdiction to review decisions relating to rentals, reappraisements, capital sums, value of improvements, value of tenant rights, compensation, building permits,

51

plans and specifications for buildings, change of purpose of leases, and so on.

(/) extremely wide powers and discretions are vested in the Minister under many Ordinances extending to matters of minutiae and triviality. From many of these no provision for review exists. Doubtless in many cases these powers and discretions were provided when Canberra had a small population, occupied a relatively confined area and had none of today’s attributes of the Territory. We would strongly urge that the Ordinances and Regulations be comprehensively reviewed with the object of deter­ mining which of the administrative discretions are of sufficient signi­ ficance as to remain vested in the Minister. If the remainder were vested in officials or statutory authorities, the Ombudsman would have juris­ diction and the need for appeals to Tribunals from decisions because they were vested in the Minister would sometimes disappear.

4. A list of sections conferring discretionary powers on the Minister which had not been delegated when we met with the Department of the Capital Ter­ ritory appears as Schedule A.

5. The Department, in its submission of June 1973 to the Commission of Inquiry into Land Tenures, directed itself in Chapter 26 to the point made in sub-paragraph ( e) above. Its proposals are broadly consistent with our own thinking. The statistics appended to the Department’s evidence do not suggest that either the General Administrative Tribunal or the Valuation and Compensation Tribunal which we are proposing would be overwhelmed with work.

6. Under our proposals, two Tribunals would take the place of a multiplicity of review courts, bodies and individuals and real expertise, which would be derived from knowledge and experience of a broad spectrum of inter-related matters, could be applied in individual cases which comprehended more than the specific narrow issue raised in such cases. With one Tribunal to deal with valuation and compensation cases and the General Administrative Tribunal

the remainder, processes and procedures would be simplified, the review pro­ cess should be less protracted and less costly and given that there was no appeal to any court except on a question of law, definitive outcomes would more quickly result.

7. We raise for special consideration whether the Minister’s powers under the City Area Leases Ordinance, the Leases Ordinance and the Leases (Special Purposes) Ordinance in relation to determination and renewal of leases and failure of the lessee to comply with lease covenants etc., should be subject to review. These powers appear to go beyond the normal lessor/lessee relation­ ship. They can extend to development and planning issues and could involve discretions having more of a policy, than an administrative, aspect. Yet, even

if this be the case, the desirability of review with a recommendatory function only, should be considered.

52

8. It would seem appropriate in the context of our proposals to substitute the General Administrative Tribunal for the Supreme Court in section 11A of the City Area Leases Ordinance.

9. If, despite the constitution of a General Administrative Tribunal, reasons still exist for the retention of the Design and Siting Committee under the Buildings (Design and Siting) Ordinance and the Building Review Committee under the Building Ordinance, appeals should lie to the Genera] Administra­

tive Tribunal. Its membership could be so composed as to provide the neces­ sary infusion of professional expertise where the Tribunal was dealing with cases now handled by these Committees.

10. Having considered the circumstances relating to each case, we have not felt it necessary to suggest formal tribunal review in the following cases:—

refusals to grant professional fisherman’s licences;

suspension or cancellation of gun licences; licensing of stores and registration of premises under the Inflammable Liquids Ordinance and associated matters; licences to sell poisons, etc., under the Poisons and Dangerous Drugs

Ordinance and associated matters; permits in relation to meat slaughtering; certification of Alsatian Dogs; refusal of licences in certain circumstances by the Canberra Retail

Market Trust; zoning of Milk Vendors.

Availability of recourse to the Ombudsman would, we feel, suffice. The Ombudsman would, of course, have power to recommend that the original decision maker should remit a question to the General Administrative Tri­

bunal or a court for review.

11. Because Courts of Petty Sessions have powers over licences as part of the penalties they impose, we have seen advantages in leaving to those courts review of decisions by the Registrar of Motor Vehicles under the Motor Traffic Ordinance. We also see virtue in retaining access to Courts of Petty

Sessions in cases of threatened felling and lopping of trees by the Electricity Authority.

12. We would substitute the Chairman, General Administrative Tribunal for the Magistrate for review of intentions to revoke determinations under the Land Rent and Rates (Deferment) Ordinance.

13. We would favour transferring to an official the powers of a Court of Petty Sessions in respect of auctioneer’s licences under the Auctioneers Ordinance and providing for review by the General Administrative Tribunal.

14. Similarly we would favour transfer to the Director-General of Health of the powers of the Minister under the Bakers Shops, Boarding Houses, Eating Houses, Piggeries and Private Hospitals Health Regulations. By the same

53

token, we favour transfer to an official of the Minister’s powers under the Apiaries Ordinance, the Child Welfare Ordinance, and the Hawkers Ordi­ nance. There should be a review by the Tribunal in all cases.

15. While we are aware of the proposal to vest in a Licensing Board the powers of the Licensing Magistrate under the Liquor Ordinance, we raise for con­ sideration the desirability of an appeal to the General Administrative Tri­ bunal. These days, the licensing of premises and types of licences are largely intertwined with town planning and city development.

16. We would provide an appeal to the Tribunal in the case of refusal of a boiler attendant’s certificate, substitute an appeal to the Minister for the present appeal to the Court of Petty Sessions in respect of an Inspector’s Notice under the Inflammable Liquids Ordinance and allow for review by the Gen­ eral Administrative Tribunal of decisions of the Minister on appeals about Inspector’s notices, requirements and directions under that Ordinance and

the Boiler and Pressure Vessels Regulations, the Inspection of Machinery Regulations and the Scaffolding and Lifts Ordinance.

17. We were told by the Department that it was intended to prohibit mining in the Territory. We have therefore made no comment in respect of the Mining Ordinance, which gives extremely wide discretions to the Minister without the interposition of any body like the Mining Wardens Courts to be found in comparable State legislation.

18. We suggest that the Valuation and Compensation Tribunal should have jurisdiction in relation to the valuation, compensation and like matters listed in Appendix K and where indicated in Appendices I and I. It follows that the Land Commissioner for the Territory, the Land Court of the Australian Capital Territory (which appears not to have been constituted) the Valuation Review Board and the Appeal Board would disappear.

19. We invite attention to Appendix G which includes provisions under Aus­ tralian Capital Territory Ordinances involving matters which point to the need for a Medical Appeals Tribunal.

20. In the far right hand column of Appendices I and J we have noted the cases where we suggest that powers now vested in the Minister should be transfer­ red to officials and where we feel either that an appeal to the General Administrative Tribunal should be substituted for the existing review court or body or an appeal should lie to the Tribunal where no provision for review presently exists.

21. It is to be noted that we envisage that the review powers of the Tribunal will extend, in cases relating to registration and licensing, to all associated ques­ tions i.e. grant, conditions, suspension, removal and revocation.

22. The Ombudsman will have jurisdiction in respect of extensive discretionary powers vested in nominated officials under the Ordinances. Examples fol­ low:—

54

(a) the proper authorities and engineers, inspectors etc. under the Can­ berra Sewerage and Water Supply Regulations;

( b) the Building Controller and Inspectors under the Building Ordinance;

(c) the proper authority under the Canberra and Jervis Bay Electric Supply Regulations;

(d ) authorized officers under the Garbage Regulations;

(e) inspectors under the Boiler and Pressure Vessels Regulations;

(/) inspectors and the Secretary under the Inflammable Liquids Ordinance;

(g) inspectors under the Rural Workers Accommodation Ordinance and Regulations;

(.h) the Chief Inspector and Inspector under the Machinery Ordinance and Regulations;

(i) the Controller and authorized officers under the Prices Regulation Ordi­ nance;

(/') inspectors under the Scaffolding and Lifts Ordinance;

(k ) the Director-General of Health and inspectors under the Meat Regu­ lations;

(/) the Director-General of Health under the Public Health (Boarding Houses) Regulations.

23. Many provisions are to be found in the Ordinances and Regulations authoris­ ing the Minister and officials to remit or vary fees and charges. We have commented on this matter in paragraphs 97 et seq of the main text.

55

Schedule A

Sections of Ordinances Containing Powers which the Minister has not delegated

Adoption of Children Ordinance Sections 11 and 13 Building and Services Ordinance Sections 2, 3A and 3B(2) and (3)

Careless Use of Fire Ordinance Sections 5C (2), 5E, 5H (2) and 14(3)

Cemetries Ordinance Section 18

Child Welfare Ordinance Section 114 Church Lands Leases Ordinance Sections 3 (1 ), 6 and 7 Electrical Interference Ordinance

Section 3(1)

Enemy Raids Precautions Ordinance Section 10(1) and (2)

Hawkers Ordinance Sections 6B(1) and (2) and 25(1) Housing Ordinance Sections 3 (1 ), 4 and 5 Lake Burley Griffin Ordinance

Sections 26(1) and 27(1) Landlord and Tenant Ordinance Section 6(1) and (2) Land Rent and Rates (Deferment) Ordinance

Sections 10(2) and (7 ), 12 and 13 Land Valuation Ordinance Sections 2 and 3 Liquor Ordinance

Sections 20(1) and 32(11) Milk Authority Ordinance Section 29(7) Motor Traffic Ordinance

Sections 7A (4), 29(1), 33(8), 37, 7 3(1), 209(1) and 217 Pool Betting Ordinance Sections 6(2) and (3 ), 10 and 13(1) Prices Regulation Ordinance

Sections 19(1), (2) and (3), 24(1) and 58(4)

56

Printing and Newspapers Ordinance Section 29

Rates Ordinance Sections 10(1) (part) and (2 ), 17, 18(1), 19(1), 28 and 28A Scaffolding and Lifts Ordinance Section 15(4) (b)

Statistics Ordinance Section 17(1)

Theatres and Public Halls Ordinance Sections 4 (2 ), 6(1) and (2 ), 8 (1 ), 10, 11(3) and (4),

12(3), 14, 15, 16(1), (2) and (3 ), 20(1), 23, 2 4 (2 ), 25 and 26(1)

Trading Hours Ordinance Sections 6(1) and 10(2) and (5) Traffic Ordinance Section 16(1)

Water Rates Ordinance Section 29 (part) Water (Restriction of Use) Ordinance Sections 3(1) and 7(1)

Workmen’s Compensation Ordinance Sections 18(2), (3) and (4) and 18C (4)

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APPENDIX C

Notes on Legislation Administered by some Departments

Attorney-General’s Department.

1. We invite attention to the Commonwealth Prisoners Act (section 5) with its power to parole prisoners and the like provisions about licences under the Crimes Act (sections 19A and 20B) and the Removal of Prisoners (Territories) Act (sections 8A and 10A). We see scope for Parole Board type machinery.

2. The Copyright Act provides for a Tribunal and the Patents, Designs and Trade Marks legislation places powers in the hands of the High Court. There seem good reasons for leaving these provisions untouched though there are plans apparently to transfer this jurisdiction to the proposed Commonwealth Superior Court.

3. Under the Marriage Act (section 31) the Registrar may not register a Minister of Religion who is not a British subject, without the approval of the Attorney- General. Unless some issue of policy requires it, we raise the question whether it is necessary to retain this separate provision and the requirement of approval.

In any case, there should be access to the General Administrative Tribunal.

4. At the moment there appears no appeal from a refusal of the Commissioner of Patents to register a Patent Attorney (Part XV of the Patents Act).

5. The Customs (Cinematograph Films) Regulations provides for a process of review culminating in an appeal to the Board of Review.

6. The National Literature Board of Review under the Customs (National Litera­ ture Board of Review) Regulations may have referred to it by the Minister or the Comptroller-General of Customs any imported book for report whether the Cus­ toms (Prohibited Imports) Regulations apply to it. The Board is given access to departmental files and interested persons may make written submissions to it.

Australian Broadcasting Control Board.

7. This Board has been entrusted with responsibilities in a narrow specialist field which, nonetheless, involve matters of great public importance and complex tech­ nical issues. In respect of the most crucial matters, i.e. the issue of television and broadcasting licences, it is the Minister who has the discretion and the Parliament’s interest has been demonstrated.

8. Before the Minister can issue a licence the Board must hold an enquiry in relation to the applications for the licence and make a recommendation. In these circumstances, to subject the Minister’s decision to review would seem a work of supererogation. The Minister has power to suspend or revoke a licence. Except on the grounds specified in section 86(1) of the Broadcasting and Television Act, revocation action is dependent on the Board having recommended this. And where a licence is revoked, the person aggrieved may appeal to the Commonwealth Industrial Court. We feel that the General Administrative Tribunal should be substituted for the Court.

58

9. Licences may be transferred only with the consent of the Minister (section 88) and there are detailed provisions in Divisions 2 and 3 of Part IV dealing with the ownership and control of commercial Broadcasting and TV stations which involve the Minister. We do not propose that these powers should be subject to any

external review.

10. On the other hand, renewal of a licence may be granted if the Board so recommends and, without any enquiry, if it is satisfied the renewal should be granted and the Minister has not directed that an enquiry be held. We think the availability of the Ombudsman process would suffice.

11. Division 4 of Part IV of the Act is directed to technical conditions of licences. The technical complexities can be so intricate and involve so many disciplines that review could hardly be meaningful except by a body having at least the resources available to the Board. Yet there is scope for the Ombudsman in

relation to complaints about maladministration or irregularities in administration.

12. The Minister has certain powers to prohibit broadcasting or televising speci­ fied matter and to require broadcasting and televising of items of national interest (sections 99 and 104). In each case, he must advise Parliament. The parliamen­ tary process should provide the safeguards needed.

13. The Board has extensive discretions in relation to programmes. It has pub­ lished standards. In relation to particular programme incidents, judgments in relation to decisions under section 119 must necessarily be subjective. When issues of any consequence are raised, public interest may be intense. Perhaps any linger­

ing concern about the Board’s powers in relation to programme standards would be relieved if its membership were more broadly constituted when dealing with such questions. We see no particular reason for discretions in this area being reviewable, except in the case of decisions under section 119 which could preju­

dice the reputation, if not the livelihood, of artists and entertainers. For this type of case, we believe there should be recourse to the General Administrative Tribunal.

14. Much the same sort of problem can arise in relation to the powers of the Aus­ tralian Broadcasting Commission under section 118 which precludes broadcast etc. of blasphemous and indecent material. Since the Film Censorship Board has jurisdiction in relation to imported films, it would be sensible to use it in relation to disputes about locally made TV films.

15. We are not disposed to suggest any change in the present arrangements for appeal to the Minister from a decision of the Director-General of Health as regards the content of advertisements relating to medicines and texts dealing with medical subjects (sections 100 and 122).

16. We think the Australian Broadcasting Control Board should be subject to the Ombudsman for the purposes mentioned above.

Department of Civil Aviation.

17. Two main features dominate the legislation and regulations administered by this Department. They are first, the international agreements and arrangements

59

that determine so much of the conduct of the aviation industry, and second, the complex and highly technical safety considerations, partly stemming from inter­ national conventions, that must govern aircraft, the facilities they use and the personnel who fly them. The two airline policy also has its impact.

18. To provide the expertise required, the Department has resources of personnel from many disciplines. Review of decisions directed to technically based require­ ments could hardly be meaningful except by some body at least as well equipped as the Department. This is not to say that there is no scope for the Ombudsman in relation to complaints about maladministration or irregularities in adminis­ tration.

19. The Air Navigation Regulations have provisions which enable, or could deny, access to a number of occupations e.g. air crew and ground staff, and also permit the suspension or cancellation of licences carrying the consequence of prejudice to careers. The Regulations do not appear to extend to refusal to grant flying school and aerodrome licences and this should be remedied.

20. Part XV lays down procedures for review of decisions in the area presently covered. An aggrieved person may elect to proceed before a Board of Review con­ stituted by a chairman (a lawyer nominated by the Attorney-General) and two other members appointed by the Minister for their experience in the subject mat­ ter under review, or before the Commonwealth Industrial Court or a Supreme Court.

21. We doubt the need for this array of alternatives, though it stems from section 28 of the Air Navigation Act. In fact, the Board of Review is normally the choice, and we see no reason why the General Administrative Tribunal should not be substituted for the Board. Our proposals regarding membership will take care of the present arrangements under which the two members are appointed according to their expertise. If the Board is to be retained, we believe the chairman should be drawn from the corpus of Chairmen available to the General Administrative Tribunal.

22. At present, enquiries into air accidents under Part XVI of the Air Navigation Regulations are conducted by a Board consisting of a Judge of a Federal Court or a Court of a State or Territory or person possessing legal, aeronautical or

engineering knowledge or experience or other special knowledge or experience of air navigation and such assessors as the Minister considers necessary, being per­ sons possessing similar knowledge or experience. We see advantages in the chairman of an enquiry of this type being normally drawn from the corpus of Chairmen of the Tribunal. We think it would make sense to use the same chairman for all enquiries under the Air Navigation Act and Regulations.

23. A series of provisions is to be found in the Air Navigation Act and Regula­ tions and in the Air Navigation (Buildings Control) Regulations dealing with loss or damage suffered or expenses incurred by the citizen in specified circumstances

and with diminution of value of property around an airport. In place of the present remedy, which is by way of action against the Commonwealth or the

60

Department, we favour resort to our proposed Valuation and Compensation Tribunal.

24. Other provisions that could affect the rights of the citizen are to be found in the regulations concerning dumping of rubbish that might constitute a hazard to aircraft movements and measures to prevent interference with navigational aids etc. Clearly the Department must, because of safety considerations, retain the

power to act immediately in cases of emergency but that does not eliminate the desirability of review, even if it must be after the event. We think the General Administrative Tribunal appropriate where the Ombudsman process proves inade­ quate.

25. Incidentally, regulations 91 and 92A of the Air Navigation Regulations have no provision for compensation for loss or damage. Where a person is prejudiced in the enjoyment of his property, there should always be provisions for compen­ sation, where the Constitution does not extend, Its assessment should be a matter

for the Valuation and Compensation Tribunal.

26. The Air Navigation Regulations (regulations 57, 65, 97C and 97F) dealing with medical examination in relation to the grant and continued possession of licences raise the question whether there should be access to a Medical Appeals Tribunal.

27. We also invite attention to regulation 322 which gives an open discretion to the Director-General as to whether a licence or certificate should be issued to a person who is not a British subject ordinarily resident in Australia. If this is to be retained, there should be an appeal to the General Administrative Tribunal.

Department of Customs and Excise.

28. We invite attention to our observations in paragraphs 74 et seq of our Report.

29. The Department, in recent years, has done much to make public such matters as its by-laws. With by-law applications running at the rate of 40,000 per annum and increasing at the rate of 10,000 annually, means had to be found to reduce the work load in dealing with such applications. Publication of by-law decisions led quickly to applications needing detailed attention falling to 20,000 per annum.

The published particulars are in the hands of customs agents and many others. Another step was the appointment of an additional member of the Tariff Board to deal with complex cases related to e.g. substitute goods and by-law applica­ tions. It seems, however, that the procedures followed have, to date, not produced

the speedy decisions that circumstances require.

30. The legislation itself contains many instances of requirements of publication in the Gazette of decisions taken under discretions e.g. section 17 of the Coal Excise Act 1949-1968, sections 7(1), 8(1), 10(1), 12(1) and 15(2) of the

Customs Tariff (Dumping and Subsidies) Act 1961-1965, sections 10(1), 20(1) and 23(a) (i)-(iv) of the Customs Tariff Act 1962-1972 and section 8(3) of the Phosphate Fertilizers Bounty Act 1963-1971.

31. The Department was well disposed to the introduction of external review processes in appropriate circumstances and advised us that the whole of its legis­

61

lation was currently under review. Its outcome could not but mean more easily comprehensible legislation.

32. In addition to the processes for which sections 167, 265 and 269 of the Cus­ toms Act and corresponding provisions in the Excise Act provide there are the following:— (a) Part XI of the Customs Act provides for a Committee of Enquiry com­

posed of a Magistrate as Chairman, a member from the Department and a member nominated by an organization representing Customs Agents, to deal with questions related to the licensing of Agents and their conduct, referred by the Comptroller-General. A Customs Agent’s licence may be suspended or revoked by the Minister or his delegate. An aggrieved Agent may appeal to a Supreme Court. No appeal appears to lie from a refusal by a Collector to licence a Customs Agent. (b) Under section 119(3) of the Customs Act, an application may be made

to a court of competent jurisdiction for damages where the non granting of, or a delay in granting, an application for a Certificate of Clearance was without reasonable or probable cause. ( c) The Regulations (regulation 113 et seq) provide for the appointment of experts and an umpire to determine the value, when a Collector has doubts about the accuracy of the declared value of goods (section 158).

33. The Department advised us that the following Acts were no longer opera­ tive:— Copper Bounty Act, 1958-1966. Copper and Brass Strip Bounty Act 1962-1964 and Regulations.

Pyrites Bounty Act 1960-1971. Raw Cotton Bounty Act 1963-1969 and Regulations. Rayon Yarn Bounty Act 1954-1962. Ship Bounty Act 1939. Sulphate of Ammonia Bounty Act 1962-1970 and Regulations. Sulphuric Acid Bounty Act 1954-1971 and Regulations. Tractor Bounty Act 1939-1968 and Regulations. Urea Bounty Act 1966-1970 and Regulations. Vinyl Resin Bounty Act 1963-1966 and Regulations.

34. A list of sections conferring discretionary powers on the Minister which had not been delegated when we met with the Department appears as Schedule A. To be noted is that the Minister has delegated his powers to make by-laws under sections 272 and 273A of the Customs Act and to make determinations under section 273. Relevant here is that the Minister signs all Gazette Notices which he is authorized to publish, including those relating to by-laws, but excluding those under section 7(4) (ba) of the Customs Tariff (Dumping and Subsidies) Act

1961-1965. But the Minister does not sign all the instruments for which the legis­ lation provides. Examples of instruments signed by delegates are determinations made in pursuance of section 273 of the Customs Act, section 4(1) of the Cus­ toms Tariff (Dumping and Subsidies) Act and sections 8(1) and 31(2) of the Customs Tariff Act.

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Schedule A

Sections of Acts and Regulations containing powers which the Minister has not delegated

Agricultural Tractors Bounty Act 1966-1970 Sections 6 (5 ), 9, 10(1), 12, 13, 15(4) and 17

Book Bounty Act 1969-1970 Sections 4(2) (a) and (b), 4 (3 ), 9, 12, 14(4) and 16 Cellulose Acetate Flake Bounty Act 1956-1971 Sections 8 (3 ), 11, 13(4), 16 and 17

Coal Excise Act 1949-1968 Sections 15(2) and 17

Customs Act 1901-1971 Sections 17(a) and (b), 151(2) (a) (iii), 151(4) (a), 151(5), 151(6), 151(8), 157(2), 157(4) and 245

Customs Regulations Regulation 19(1)

Customs (Cinematograph Films) Regulations Regulation 24(1)

Customs (Import Licensing) Regulations Regulations 15, 17 and 18

Customs (Prohibited Exports) Regulations Regulations 4, 6, 6A and 6B and Item 9 of the First Schedule to the Regulations Customs (Prohibited Imports) Regulations

Regulations 4A, 4C and 4D and Items 8(b) and 18 of the First Schedule and Items 2 and 12 of the Third Schedule to the Regulations Customs Tariff (Dumping and Subsidies) Act 1961-1965 Sections 3(3), 4(1 A), 4(1B), 7(1), 8(1), 9(1), 9(3), 10(1), 10(3), 10(4),

10A(1), 10A(2), 12(1), 12(3), 12(4), 12(6), 15(2), 16(1) (e) and 17(1) Customs Tariff Act 1966-1972 Sections 10(1), 10(3), 11(1), 11(2), 11(4), 18(2), 18(6), 20(1), 20(3),

23(a) (i)-(iv), 23(b), 29(1), 29(3), 33B(1), 33B(2) (b), 33B(3), 33C(1) and 33C(5) Diesel Fuel Taxation (Administration) Act 1957-1966 Section 18(4)

Distillation Act 1901-1972 Section 24 Excise Act 1901-1972 Sections 43, 44, 153 and 154

Excise Regulations Regulations 75C(3A ), 77(1) and 8 5 ( l) ( a )

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Excise Tariff Act 1921-1972 Sections 6 (1 ), 6(2) (a ), 6(2) (b ), 6(3) and 7 and Items 9A and

1 0 (E )(3 ) of the Excise Tariff Schedule. By-laws made under Items 13(A) and 13(B) of the Excise Tariff Schedule.

Narcotic Drugs Act 1967 Section 9 Nitrogenous Fertilizers Subsidy Act 1966-1969 Sections 5(2)(b)(i), 5(2)(b)(ii), 6(l)(a), 6(l)(b), 6(2)(b), 6(2)(c), 6(2)(d),

6(3), 6(4), 11(1), 14, 17(1), 17(2)(a), 17(2)(b), 18, 20(4) and 22

Phosphate Fertilizers Bounty Act 1963-1971 Sections 7, 8 (3 ), 11, 14(1), 1 4 (2 )(a ), 15, 17(4) and 19

Spirits Act 1906-1972 Section 13

Spirits Regulations Regulation 62

States Grants (Petroleum Products) Act 1965-1969 Sections 4 (a ), 4 (b ), 5 (2 ), 5 (3 ), 6 (2 ), 6(5) and 6(8) Subsidy Scheme under States Grants (Petroleum Products) Act 1965-1969 Paragraphs B 2 ( l), B 2 (2 )(c ), C 4 (a), C5, C8, C 10(3), Cl 1(1),

C12, D 2 ( l) ( c ) , E5A (2) and E 5A (3) Northern Territory Petroleum Products Subsidy Ordinance 1965-1969 Sections 4, 5 (2 ), 6 (2), 6(5), 6 (8 ), 11 and 12 Trading with the Enemy Act 1939-1966

No powers have been delegated

The Defence Group of Departments

35. On the premises underlying our approach to our task, not a great deal of the legislation and regulations attracted our attention. Not merely did we see questions of terms and conditions of service of members of the Defence Forces as outside the scope of review processes set in a civilian context; similarly to be excluded was everything that stemmed from the command situation that is the basis of Service functioning.

36. There is an internal redress of grievance process under the Defence Act and the Services’ regulations and orders. The Court Martial system is the most formal. But there is, as well, a clearly defined process for dealing with the grievances of officers and other ranks. It is, however, entirely within the military system and culture. Some countries have doubted the advisability of this, perhaps because membership of the Services may not always be voluntary and because forms for the protection of members such as are to be found in industrial legislation and practices relating to Crown and other civil employment are not available in the Services. To be noted is that the grievance procedures make some distinction between officers and other ranks.

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37. It is understood that the Minister for Defence is directing himself to this whole subject, so we have not pursued it here.

38. The citizen is not untouched by the Defence legislation and regulations, in time of peace. He may have his property invaded or be denied access to it or have some property impressed and so on. Provisions for compensation exist (sections

67 and 69 of the Defence Act and A.M.R. 816 et seq). There are also powers under the Air Force Regulations to enter land for training and exercises (regula­ tion 432) and to impress, which are not limited to times of emergency or of war (regulation 441). In the case of the Navy, under regulation 163 et seq of the

Naval Forces Regulations, there are powers of impressment and of control of shipping in times of emergency which phrase carries no definition.

39. The Supply and Development Regulations contain examples of procedures for compensation and for acquisition and control of property. Regulation 8 authorises the requisitioning and compulsory acquisition of goods, material, machinery, apparatus etc. with liability in the Commonwealth to pay compensation arrived

at by agreement and, failing that, determined by a court of competent jurisdiction. There is a like provision in Part IV of the Regulations in respect of control of minerals (regulation 81) and entry upon land in a search for minerals (regulation 83) and in regulation 89 in respect of entry on land and its use for the purpose

of defence undertakings and testing of war material. Regulation 90, on the other hand, provides that a person ordinarily resident on land who suffers loss as a consequence of its becoming a prohibited area may be paid such compensation as the Minister determines.

40. We feel that the Valuation and Compensation Tribunal should be available for recourse in all these compensation cases.

41. We see scope for the Ombudsman to deal with disputes about proposed entry on privately owned lands. Our discussions with the Service Departments do not suggest that this would in any way interfere wtih the Services’ operations, planning for which occurs months ahead.

42. We see possible scope for the Ombudsman in relation to the War Service Estates Act and Regulations.

43. The citizen could be affected in other minor ways e.g. in relation to use of river and harbour waters defined as naval waters and of waters and lands in areas declared for specified kinds of exercises. If any recourse were needed, the Ombuds­ man would suffice.

44. We suggest that the need for some of the foregoing powers in times of peace should be examined by the departments. Doubtless in time of war, the powers required would be taken under some special National Security powers, as was the case in the 1939-45 war.

45. Safety precautions loom largely in munitions and like establishments and discretions directed to such objectives are to be found in regulations 88, 90 and 91 of the Supply and Development Regulations and under regulation 4 of the

65

Supply and Development (Rocket Range) Regulations. No special external review is called for.

46. There are special powers under defence legislation to declare and proclaim areas for defence purposes, e.g. the Defence (Special Undertakings) Act and to declare prohibited areas and protected places. We do not think these should be reviewable by any special external process but conceivably the Ombudsman could have a place in relation to civilians aggrieved by the consequences of such decisions.

47. One matter calling for special mention arises from section 19 of the Defence (Special Undertakings) Act. This authorises the Director-General of Civil Avia­ tion to suspend or cancel a licence or certificate issued under the Air Navigation Regulations where a person is convicted of an offence against the Act. We raise for consideration whether this power should lie with the court concerned, rather than the Director-General.

48. Under regulation 10 of the Control of Defence Areas Regulations the Minister may grant or refuse an application to construct a building or erection in a pro­ claimed defence area and under regulation 12 a person prevented from building has no action or claim nor may make any demand because he is prevented from building. We think the fairness of these provisions should be examined. They

could be analogous to actions by the Department of Civil Aviation in relation to building controls.

49. We propose that the Defence Force Retirement and Death Benefits Authority for which the 1973 Act provides should be scheduled as within the jurisdiction of the Ombudsman, though we think the scope for his involvement is likely to be minimal.

Departments of Education and Science

50. A series of Committees bringing a high content of academic and specialist expertise to their work have been appointed to make recommendations to the Minister in respect of the grants he may make under the Education Research Act. We see no scope for review of decisions taken by the Minister. They also involve selection of individuals and projects for grants within the limits of available funds.

51. Decisions of the Minister under the Independent Schools (Loan Guarantee) Act have a clear policy content. In any event, the legislation’s requirement that the Minister submit to Parliament an annual report on the legislation provides particular scope for parliamentary scrutiny.

52. The considerations apposite to the Child Care Act have been adverted to in paragraph 99 of the main text. That Act provides for a Child Care Standards Committee (i.a.) to advise on standards in the construction and equipment of child care centres and in the service provided in such centres.

53. There may be room for more extensive publicising of the Commonwealth Ordinary Scholarship Scheme, particularly as regards the opportunity to seek review of decisions of officers about scholarships and allowances payable in respect thereof.

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54. The present regulations dealing with these matters will, in due course, be replaced by new regulations under the Scholarships Act 1969, yet to be pro­ claimed. The Department felt that there should be built into these regulations provisions for a review body to deal with claims of persons aggrieved about deci­

sions affecting the award of scholarships and their continuation and the allowances accompanying them. We agree. We add that the proposals would fit more easily into the administrative scheme, if the Minister’s powers were limited to determ­ ining the number of scholarships and policy related to awards and allowances, with

actual decisions affecting individuals residing in the hands of an official and so within the jurisdiction of the Ombudsman.

55. As matters stand, we propose that the Commonwealth Scholarships Board should be within the Ombudsman’s jurisdiction.

56. Both the Australian National University Act and the Canberra College of Advanced Education Act enable the governing bodies to make Statutes which, when approved by the Governor-General and notified in the Gazette, have the force of law. Such Statutes, while they must be tabled in the Parliament, are not

subject to disallowance. They are thus to be distinguished from regulations made under legislation.

57. We feel that any discretions exercised under such Statutes should not be subject to any kind of review process. We believe that once approved by the Governor-General, the administration of the Statutes should remain the affair of the Governing Bodies. There are enough processes inherent in the functioning of

both institutions, starting well before submission of Statutes to the Governor- General and continuing through the course of their administration to ensure that any persons aggrieved may effectively ventilate their grievances.

58. We propose that the Commonwealth Scientific and Industrial Research Orga­ nization and the Australian Institute of Marine Science should be within the jurisdiction of the Ombudsman in respect of matters concerning use of inventions, payments to employees for inventions and fees for and conditions attached to

investigations. Sections 27 to 29 and sections 48 to 50 are respectively the rele­ vant sections in the two governing Statutes.

Department of Health

59. The National Health Act presently provides for external machinery:—

(a) to determine recognition of specialists or consultant physicians in par­ ticular specialties. For this purpose, there is a Specialist Recognition Committee in each State and Territory and a Specialist Recognition Appeal Committee at the federal level;

( b) to deal with the conduct of medical practitioners and the fees payable to medical practitioners under the pensioner medical service. For this purpose there are State Medical Services Committees of Inquiry and a Medical Services Federal Committee of Inquiry. Appeal to a State

Supreme Court is the ultimate recourse;

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(c) to inquire into matters related to the supply by a medical practitioner of evidence in support of a ciaim for benefit under Part III or Part V of the Act. For this purpose there is in each State a Medical and Hos­ pitals Benefit Committee of Inquiry;

(d) to deal with the services and conduct of approved pharmaceutical chemists in connection with the supply of pharmaceutical benefits or the provision of pensioner benefits. For this purpose, there is in each State a Pharmaceutical Services Committee of Inquiry and a Pharma­ ceutical Services Federal Committee of Inquiry. The ultimate recourse is appeal to a State Supreme Court;

(e) to deal with fees charged by Nursing Homes. For this purpose there is in each State, a Nursing Homes Fees Review Committee of Inquiry;

(/) to recommend to the Minister the drugs and medicinal preparations that should be made available as pharmaceutical benefits. For this pur­ pose, there is a Pharmaceutical Benefits Advisory Committee;

( g) to determine recognition of dentists under the National Health Act. Under section 136, two Committees, a Dentists Advisory Committee and Dentists Appeal Committee have been established;

( h) to advise the Minister in relation to the importation of certain drugs under the Customs (Prohibited Imports) Regulations. For this purpose, there is the Australian Drug Evaluation Committee established under the Therapeutic Substances Act.

60. Save as mentioned below, we see no reason to disturb any of the foregoing arrangements. The Committees under sub-paragraphs (a), (c), (e), (/), (g) and ( h) operate in support of the Department’s administration.

61. We raise for consideration whether an appeal should not lie from the Appeal Committees mentioned in sub-paragraphs (a) and (g) to the General Administra­ tive Tribunal. Recognition is presumably a matter of some importance to those concerned.

62. It is noted that there is no present provision for review of a refusal by the Director-General to enter into an agreement with a medical practitioner under the pensioner medical service. On the other hand, if the Director-General rejects an application of a pharmaceutical chemist under section 90, his redress is by way of appeal to the Minister. Prima facie, if there is justification for a review in one case, the same should be the case in the other. Since both types of cases go to conduct of businesses, we consider that, consistent with our general approach, any review of the Director-General’s decision should rest with the General Adminis­ trative Tribunal instead of the Minister. If there should be particular reasons why such a review should not be definitive, the Tribunal should be given the powei to review but on the basis of making a recommendation to the Minister. We also consider that, in place of the present provisions for appeals to the State Supreme

Courts against disciplinary decisions, there should be provision for appeal to the General Administrative Tribunal, whose decision should be definitive.

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63. Sections 40, 40AA and 40A of the National Health Act allow for approval by the Director-General of approved hospitals, approved nursing homes and approved handicapped persons homes. Under other provisions an approval may be varied or revoked or an application to alter the conditions applicable to a

nursing home may be refused. A person aggrieved by a refusal of approval or by a decision may request the Minister to review it.

64. The views expressed in paragraph 62 are equally applicable. For consistency, the General Administrative Tribunal should have a definitive power of review in cases of variation or revocation of approvals. And the Tribunal should, at least, have a review power with a recommendatory function in respect of refusal of

approvals or refusals to agree to alteration in conditions sought.

65. Part VI of the Act deals with Medical and Hospital Benefits Organisations. Applications for registration by organisations are referred to a Registration Com­ mittee, consisting of the Commonwealth Actuary or his nominee and of officers of the Department of Health appointed by the Director-General, which is required

to report to the Minister (sections 70-72A). The Minister may then grant, with or without terms and conditions, or refuse, the application and may vary or revoke any terms and conditions or add new ones (sections 73 and 73A).

66. If a registered organisation changes its rules etc. the Minister may, after considering a report by the Committee just mentioned, approve or refuse to approve the changes (section 78). The Minister may also suspend or cancel a

registration (section 79), in which case the organisation may appeal to a Supreme Court (section 80).

67. it will be noted that this appeal does not extend to a refusal to register an organisation, to matters relating to the terms and conditions on which registration may be granted or sustained or to a refusal to approve of changes in rules etc.

68. We suggest that the General Administrative Tribunal should be substituted for the present Registration Committee and that its powers should be recommen­ datory only. There appear to be reasons of policy that call for the Minister to have the final decision whether to register or not. The Commonwealth Actuary’s

contribution could continue to be secured by the Director-General before a matter were remitted to the Tribunal. We also consider that the General Administrative Tribunal be substituted for the Supreme Court as the appeal body under section 80.

69. Under sections 40AC and 58F a person aggrieved by a decision of the Director-General refusing admission to an approved nursing home or refusing approval of a person as an approved person in respect of a patient receiving

domiciliary care may request review by the Minister. We think that probably the Ombudsman would come in contact with such cases as decisions of the Director- General. Experience may point to the need for some other review in respect of decisions of the Minister.

70. Division 3 of Part VI of the National Health Act imports the Department of Social Security into the administrative process when assistance of the type for which the Division provides is relevant. Like the corresponding provisions in the

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Social Services Act, section 82ZC empowers the Director-General of Social Security to review any determination of his own or his delegate and section 82ZD entitles an aggrieved person to appeal to the Director-General of Social Security against certain decisions of officers of his department.

71. The administration of the Quarantine Act and the Regulations made under it requires a high degree of technical and medical competence for which the Depart­ ment of Health has equipped itself with personnel drawn from many disciplines. Decisions to quarantine brook no delay and demand decisiveness. While such decisions can involve great expense and inconvenience to those involved, there is no room for delay while a decision is subjected to formal review process. The cholera problem of last November was a timely reminder of this. Incidentally, an officer who maliciously and without reasonable cause orders any vessel, person, goods, animal or plant into quarantine is by section 84 guilty of an indictable offence. Conceivably considerations might emerge after the decision to quarantine that could persuade the quarantine officer to modify his first conclusion. The Department’s internal processes should be sufficient to take care of this.

72. In a nutshell, there is no scope for any qualification of the responsibility vested by the Parliament in quarantine officers to protect the health of the nation and to avoid any threat to animal husbandry or primary industries. So there is no scope for considering any review process, other than by the Ombudsman which necessarily would be an after the event affair and largely confined to ques­ tions of maladministration and proper process.

73. Questions of compensation may arise under section 7 of the Foot and Mouth Disease Act, and under section 57 of the Quarantine Act. Quarantine processes may give rise to disputes about costs and charges (sections 59, 59A and 60-64). All such questions would sensibly fall to our proposed Valuation and Compensa­ tion Tribunal.

74. As we see it, the General Administrative Tribunal in the context of this Department’s legislation would consist of a chairman drawn from the corpus of Chairmen available to the Tribunal, a member with experience of the Department of Health and a member from the relevant profession.

75. A series of provisions of the National Health Act make entitlements turn on medical evidence. Relevant sections are 40AB, 57, 57A, 58B and 58E dealing with the need for nursing home care, intensive nursing home care, handicapped persons care and home nursing care. These point to the desirability of having a Medical Appeals Tribunal.

Department of Housing

76. The Home Savings Grant Act is a nice example of legislation to deal with a novel problem with, at the time of its enactment, little experience on which to draw. As a consequence, the legislation confers wide discretions. The Department agreed that, in the light of experience, it would often be possible now to specify in the legislation many circumstances comprehended by discretions as presently

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exercised under detailed departmental instructions. Consequently there could be a significant narrowing of some of the discretions.

77. We were impressed by the practice of the Department of refraining from out­ right rejection of claims but instead of encouraging claimants to submit further information where there was a possibility that additional information could sup­ port the grant of a benefit, and by its arrangements for ensuring that novel issues

were considered at highest level.

78. We feel that the Secretary’s powers under section 4B of the Home Savings Grant Act to approve and withdraw approval of a credit union should be subject to review by the General Administrative Tribunal. Since valuation of property is vital to the calculation of a grant (section 20), we feel that aggrieved persons

should have a remedy by way of approach to the Valuation and Compensation Tribunal. The same should apply in respect of sections 16B, 21, 48B and 48C of the War Service Homes Act.

Department of Labour

79. The bulk of the legislation and regulations administered by this Department deals with various industrial tribunals, the mechanics of their functioning and of processes directed to resolving industrial disputation, and matters related to the industrial organisations, employer and employee, which are the basis of the arbi­

tration and conciliation system.

80. This legislation provides for a variety of tribunals and functionaries with elaborate systems of review and appeal. The system is, as well, under constant scrutiny by Parliament, trade unions and employer organisations and the public at large.

81. Much the same considerations apply to associated legislation like the Steve­ doring Industry Act and the Tradesmen’s Rights Regulation Act which not only had its origin in agreements between the government, employer organisations and

trade unions but has its own in-built tripartite committee review arrangements.

82. These circumstances are sufficient to justify excluding from any further review processes discretionary powers under the Conciliation and Arbitration Act, the Public Service Arbitration Act, the Coal Industry Act, the Stevedoring Industry Act and the Tradesmen’s Rights Regulation Act. However, we see no reason

why an appeal to the General Administrative Tribunal should not be substituted for the present appeal to a Supreme Court under section 44 of the Tradesmen’s Rights Regulation Act.

83. The recent termination of the National Service Scheme renders unnecessary any comment by us on the National Service Act.

Department of Minerals and Energy

84. The Petroleum (Submerged Lands) Act gives wide discretions to Designated Authorities in respect of permits and licences of a variety of types, prospecting

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and access authorities, and the obligations of permittees and licensees. Key sec­ tions are 22, 25, 32, 33, 37, 43, 49, 50, 55, 56-59, 65, 69, 71, 72, 96, 103,

105, 111 and 112.

85. The Designated Authorities are Federal and State Ministers and the legislation of the Australian Parliament fits in with like legislation of State Parliaments.

86. The provisions for external review of the exercise of discretions are few:—

® under section 72, an aggrieved person may bring an action in the High Court or a Supreme Court where a Designated Authority directs a varia­ tion in a pipe line licence but the Court’s powers are solely to determine whether it is just that the whole or part of the reasonable cost of comply­ ing with the direction should be paid by the plaintiff; • under section 88, a Supreme Court may order rectification of a Register of

Licences; • under section 91, a person dissatisfied with the registration fee determined by a Designated Authority may appeal to a Supreme Court.

87. Under the Petroleum (Submerged Lands) (Royalty) Act the Designated Authority can reduce royalties (section 6) and determine the quantity of petro­ leum recovered (section 10). Under section 9, if the value at the well head of petroleum is not agreed by the permittee or licensee with the Designated Authority, the latter determines this matter.

88. The Senate Select Committee on Offshore Petroleum Resources considered this legislation. In a Report tabled in the Senate on 8 December 1971, it reported adversely on the discretions appearing in the legislation.

89. We can only say that it is our view that, if this legislation is to remain on the Statute Book, any discretionary powers retained should take into account the views of the Senate Committee and those expressed in this Report. At the same time, consideration should be given to substituting the General Administrative Tribunal for a Supreme Court in relation to sections 72 and 91 of the Petroleum

(Submerged Lands) Act.

90. The absoluteness of the Minister’s powers is an odd feature of legislation in the mining field. Examples are to be found in the Mining Ordinance of the Aus­ tralian Capital Territory, upon which we would have commented had we not been told that it was proposed to repeal it. In a cognate field are the Minister’s powers to grant or refuse a licence, to include conditions and to revoke a licence to be found in section 38 of the Atomic Energy Act.

91. If there should be policy grounds for not subjecting decisions of the Minister under section 38 to definitive review by the General Administrative Tribunal, we feel that, at least, that Tribunal should be given a recommendatory function. We bring to attention in this connection the powers given to Mining Wardens’ and similar courts under State mining legislation.

92. We think that our proposed Valuation and Compensation Tribunal should have jurisdiction to deal with cases under section 42 of the Atomic Energy Act,

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section 6 of the Liquid Fuel (Defence Stocks) Act and section 33 of the Snowy Mountains Hydro-Electric Power Act.

93. While it has been announced that the Petroleum Search Subsidy Act will not apply after 30 June 1974, we refer to section 12 as an example of a very useful provision. This requires the Minister to report to Parliament annually on applica­ tions for subsidy refused by him. This sort of provision provides a valuable means

of canvassing decisions in exercise of discretionary powers.

94. We propose that the Atomic Energy Commission and the Snowy Mountains Hydro-Electric Authority should be scheduled as subject to the Ombudsman.

Postmaster-General’s Department

95. The discretions vested in the Postmaster-General and the Director-General and his officers by the legislation and regulations administered by the Department are numbered in thousands. Every year representations in relation to its activities to the Postmaster-General and direct to the Department at various levels run to far larger numbers.

96. Doubtless the Ombudsman will find himself much involved in the manner in which these discretions are exercised.

97. The legislation confers privileges in the transmission of books, periodicals and newspapers depending on the categories assigned to them. The legislation provides no complete criteria for determining the appropriate categories. Aggrieved persons may resort to a Judge of the High Court. We consider that the vehicle for review of these decisions would more properly be the General Administrative T ribunal.

98. A number of provisions raise difficult problems in the area of obscenity or indecency (sections 29, 43 and 44 of the Post and Telegraph Act). They relate to postage of books, periodicals and newspapers and other items, acceptance of telegrams, transmission of picturegrams and so on. Persons aggrieved by decisions

have resort to a Judge of the High Court. This hardly seems appropriate.

99. When we met with the Department we were told that when confronted with such problems, it sought the views of the Department of Customs and Excise with which was associated the National Literature Board of Review. That Department advised the Postmaster-General’s Department on the basis of its knowledge of the

Board of Review’s attitude to books etc. that it had considered. In some cases the Department sought the views of the Board. (Incidentally the Board is now under the Attorney-General’s Department). It seems highly desirable that one body should be entrusted with consideration of questions of obscenity and

indecency and it would seem appropriate that the National Literature Board of Review machinery should have that responsibility when such questions arise in relation to the activities of the Postmaster-General’s Department. If it is thought necessary provision could be made for an appeal to the Genera! Administrative Tribunal.

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100. Provisions for compensation appear in the Post and Telegraph legislation in relation to a variety of circumstances e.g. sections 13, 18, 85-90, 92 and 147. Sometimes the Postmaster-General is expressed to be the final arbiter (regulations 167 and 218 of the Postal Regulations).

101. The Overseas Telecommunications Act constitutes a special Compensation Board to deal with compensation for acquisition of property and termination of certain agreements and licences and gives a right to seek review by the High Court. The special circumstances that led to this provision may no longer exist.

102. Subject to this, we think the Valuation and Compensation Tribunal would be more appropriate to deal with all these compensation cases.

103. Part IV of the Post and Telegraph Act deals with the protection of telegraph lines from injurious affection by electric lines or works. This is an area where there appears scope for much disputation and those involved with electric lines or works are not limited to public authorities (vide definition of “electric authority’’ in section 3).

104. Rightly or wrongly, the legislation gives a predominant position to the Postmaster-General and where disputation reaches the courts per medium of the penalty clauses, the legislation provides some relief in that a penalty does not attach if the court is satisfied as to certain matters (sections 143(3), 144(2) and

145(2)).

105. It seems to us that consideration should be given to providing machinery for the settlement of such disputes in place of the penalty process that now applies. Clearly, complex technical issues must often arise. The General Administrative Tribunal with members specially chosen for their expertise would appear appro­ priate.

106. Sections 57 and 58 of the Post and Telegraph Act empower the Postmaster- General to direct, by order in the Gazette, that articles addressed to named per­ sons shall not be registered, transmitted or delivered and that money orders shall not be issued in favour of or paid to such persons. We feel an aggrieved person should have a right to review by the General Administrative Tribunal.

107. The Wireless Telegraphy Act gives the Postmaster-General exclusive privi­ leges in relation to wireless telegraphy and authorizes the issue of licences to indulge in wireless telegraphy. Some twenty different sorts of licences may be granted. The conditions of licences may be varied, involving perhaps cost to the licensee; licences may not be transferred without the consent of the Minister or

an authorized officer; and they may be suspended or revoked, and in this event no compensation is payable.

108. The Wireless Telegraphy Regulations also authorize the issue of a variety of Operators Certificates. These may be cancelled or suspended by the Minister.

109. Consistently with our general approach to licensing, we believe that refusals to grant these licences and certificates or to agree to transfer of licences, and decisions to attach or vary conditions or to suspend or revoke these licences and certificates should be reviewable by the General Administrative Tribunal.

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110. Decisions of the Department to terminate without notice a radio telephone service (regulation 43 of the Radio-Telephone Exchange Service Regulations) and refusals to approve applications for, or transfers of, such services and suspen­ sion of such services (regulation 51) should likewise be reviewable.

111. In these cases the Tribunal will need members of the necessary expertise.

Department of Primary Industry

112. The legislation administered by this Department is noteworthy for the variety of statutory authorities concerned with the orderly marketing of primary products. They are:—

(a) the Australian Meat Board under the Meat Industry Act; ( b) the Australian Honey Board under the Honey Industry Act; (c) the Australian Wheat Board under the Wheat Industry Stabilisation Act; ( d) the Australian Wine Board under the Wine Overseas Marketing Act;

(e) the Australian Dried Fruits Control Board under the Dried Fruits Export Control Act; (/) the Australian Egg Board under the Egg Export Control Act; (g) the Australian Tobacco Board under the Tobacco Marketing Act;

( h) the Australian Wool Corporation under the Wool Industry Act; ( 0 the Australian Apple and Pear Board under the Apple and Pear Orga­ nization Act; (/) the Australian Dairy Produce Board under the Dairy Produce Export

Control Act; (k) the Australian Canned Fruits Board under the Canned Fruits Export Marketing Act.

113. A common element is a system of licences and permits for exports. However the provisions are by no means uniform.

114. The Meat Industry Act has a detailed procedure for dealing with licences to export meat. The power to grant rests with the Meat Industry Board (section 29). It must cause notice of the grant of a licence to be published in the Gazette within one month. If it refuses an application for a licence, it must inform the applicant.

If an application is refused or not determined within one month of the application, the Board must, if the applicant so requests, inform the applicant in writing of the reasons for refusal or failure to determine the application. If the Board has not determined an application within 90 days, the applicant may request the Minister

to determine it and the Minister must do so within 90 days. Under section 29A, power to suspend or cancel a licence rests with the Board and reasons must be given the applicant, if he so requests. An aggrieved person may request the Minis­ ter to review the Board’s decision and the Minister must do so within 90 days of

the request, and must inform the aggrieved person of his reasons, if requested to do so. Where the Minister is requested to review a decision of the Board to suspend or cancel, the suspension or cancellation ceases to have effect until the Minister decides the matter.

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115. Under the Honey Export Control (Licences) Regulations, the Minister may grant licences to export honey on the recommendation of the Honey Board (regu­ lation 7) and the Minister may revoke or suspend a licence after receiving a report from the Board (regulation 8).

116. Under the Dried Fruits Export Control (Licences) Regulations (regulation 5), the Wine Overseas Marketing (Licences) Regulations (regulation 6) and the Dairy Produce Export Control (Licences) Regulations (regulation 6), the Minis­ ter or a person authorised by him may grant or refuse a licence to export and the Minister, on report by the relevant marketing Board, may cancel or suspend such a licence.

117. Under the Egg Export Control (Licences) Regulations, the Minister may grant or refuse a licence to export (regulation 5) but there appears to be no power to suspend or cancel a licence.

118. The Apple and Pear Organization Act authorises the Governor-General to make regulations prohibiting the export of apples and pears except by persons who hold licences issued, on the recommendation of the Apple and Pear Board, by the Minister or any authorised person and unless the Board has issued a permit to export (section 14). The Minister may, on the recommendation of the Board, suspend or cancel a licence. The regulations prohibit exports except by licensees and where the Board has issued a permit.

119. Section 23 of the Canned Fruits Export Marketing Act is on the lines of section 14 of the last mentioned Act. Under the Canned Fruits Export Control (Licences) Regulations, the Minister or a person authorised by him, may, on the recommendation of the Board, issue a licence (regulation 5) and the Minister may, on a report by the Board, cancel or suspend a licence.

120. Under the Wheat Industry Stabilisation Act (section 16), the Wheat Board may licence a person, firm, company or State Authority to receive wheat on behalf of the Board and may cancel or suspend any such licence.

121. Section 18 of the Tobacco Marketing Act authorises export control pro­ visions.

122. Of all the formats relating to licensing, that of the Meat Industry Act would be closest to the views we have expressed in our Report, if provision were made for recourse to the General Administrative Tribunal by a person aggrieved by a decision of the Minister. For consideration is whether the intermediate stage of

an appeal to the Minister would be really necessary. Until the other marketing legislation is amended to provide for an appeal to the Tribunal, we think that the various authorities should be scheduled as subject to the Ombudsman except that judgments about markets should not be his affair.

123. Some of the same issues arise in respect of the Fisheries, Whaling and the Continental Shelf (Living Natural Resources) Acts.

124. Under the Fisheries Act, powers are given to the Minister, Secretary and a prescribed authority to licence a person to engage in fishing in proclaimed areas,

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to grant a licence in respect of a boat for fishing and to register nets. Invested in the same functionaries are powers to transfer licences and cancel licences or regis­ trations. Under the Whaling Act, similar powers reside in the Secretary. Under the Living Natural Resources Act, the powers are vested in the Minister and the

Secretary. Extremely wide powers are given to officers under section 10 of the Fisheries Act, section 14 of the Whaling Act and section 14 of the remaining Act.

125. To the extent that powers are vested in officials, they will be within the jurisdiction of the Ombudsman. As well, redress would doubtless lie in the courts in case of false imprisonment or wrongful conversion of goods.

126. Not to be overlooked in relation to the three Statutes are difficult problems in the area of international relations. As to fisheries, State legislation operates within the territorial sea and there is a deal of co-operation with the States.

127. All in all, we incline to the view that no special provision should be made for external review.

128. Our comments in relation to the foregoing three Statutes have like bearing on the Exports (Meat) Regulations. Incidentally, the criteria on which the Secre­ tary has to exercise his discretions are reasonably clearly stated and the inter­ national aspects have perhaps more positive implications.

129. Our only comment on the Wool (Deficiency Payments) legislation is that consideration might be given to its repeal, since it appears to have run its course. Much the same might be said of section 82 of the Wool Industry Act. Policy issues are present in the case of regulation 4B of the Customs (Prohibited Imports) Regulations.

Repatriation Department

130. The Repatriation legislation has a galaxy of provisions directed to favouring a claimant seeking the benefits for which the legislation provides. The essence of the legislative scheme is that he must get the benefit of any doubt and that entitle­ ments should never be definitively determined. A corollary is that the Department

appears to have become conditioned to be even more beneficent than the depart­ ments administering social security benefits for those without an ex-service back­ ground.

131. Pensions under the Repatriation legislation fall into two broad classes: war pensions introduced in 1920 relating to death or incapacity from war caused disabilities and service pensions introduced in 1935 applicable to those who served in a theatre of war.

132. Claims to entitlements and assessments of pensions fall first to be determined by Repatriation Boards. There is a Board in each State. They consist of three members appointed by the Governor-General, one from lists submitted by returned soldier organisations.

133. An appeal lies from a Board to the Repatriation Commission, and from the Commission to a War Pensions Entitlement Appeals Tribunal on questions related

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to entitlements to pensions other than service pensions. Some 10,700 appeals were lodged in 1971/72. There are four regular Tribunals. They consist of three mem­ bers appointed by the Governor-General. The Chairman must be a barrister or solicitor. One of the members is selected from lists submitted by returned soldier

organisations.

134. On questions concerning the rates of pensions, other than service pensions, and on questions whether a service pension should be granted on grounds of permanent unemployability or of the member suffering from T.B., there is an appeal from the Commission to an Assessment Appeal Tribunal. Some 12,400

appeals were lodged in 1971/72. There are six regular such tribunals. They are appointed by the Minister and consist of a Chairman, who must be a barrister or solicitor, from lists supplied by returned soldier organisations, and two medical practitioners with the necessary knowledge of the nature of the disability from which the applicant is suffering.

135. Except for the appeal to the Assessment Appeal Tribunal on the grounds stated, the only appeal from a decision of a Repatriation Board as to the grant of a service pension lies to the Commission.

136. The Entitlements Tribunal unlike the Assessment Tribunal has no medical member despite the fact that medical issues loom large before it. We were told that this followed a deliberate decision that medical opinions should be treated as evidence to be adjudicated on. On the other hand, the two medicos who, under a lawyer chairman, constitute the Assessment Tribunal appear to discharge the role of examiners in assessing incapacity on medical grounds.

137. There seem some doubts as to whether there is provision for appeals to the Entitlement and Assessment Tribunals on some matters, which, in practice, they appear to deal with.

138. Elaborate provisions enable the Boards, the Commission and the Tribunals to reopen cases. The very volume of business being handled by the Tribunals after all these years of operation of the Repatriation legislation left us musing about the warnings it might convey in relation to the possible consequences of providing tribunals to review decisions under the social security legislation and about the standards of treatment meted out and decisions reached by the Tribunals. It seems

that reasons for decisions are rarely given and that decisions on cases having similar characteristics might not always be uniform.

139. Highly complex questions can arise in relation to the determination of the quantum of a service pension e.g. determination of income, means as assessed, property component and the value of accumulated property. Because these matters were imported into the Repatriation legislation via the social security legislation, the Repatriation Commission follows the practices of the Department of Social Security. The Department accepted that if we concluded that some review process should be introduced in relation to decisions under the social security legislation, it should extend to the counterpart provisions in the Repatriation legislation.

140. The Seamen’s War Pensions and Allowances Act gives to Seamen’s Pensions and Allowances Committees the power to determine entitlements and to assess

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rates of pensions. They are appointed by the Governor-General and have not less than three nor more than five members. An appeal lies to the Commission. How­ ever, under section 14, no pension is payable unless a duly qualified medical prac­ titioner certifies that the incapacity is directly attributable to a war injury. There is

no appeal from this decision. We think there should be— to our proposed Medical Appeals Tribunal.

141. Under the subordinate Repatriation legislation, provision is made for appeals to the Commission from decisions of Deputy Repatriation Commissioners.

142. Provisions analogous to those appearing in the Social Services Act give the Commission or a Repatriation Board power, without any qualification, to cancel a service pension or to increase or reduce its rate (section 98, Repatriation Act) and the Commission has power to reject a claim for a pension or terminate a

pension where it believes a grant or continuation of a pension would be undesir­ able (section 30, Seamen’s War Pensions and Allowances Act).

143. Provisions authorizing grant of less than maxima rates fixed in the Act, like those in the Social Services Act, are to be found in the Repatriation Act e.g. sections 84, 85 and 87. Property questions analogous to those in the Social Ser­ vices Act are to be found in section 9 0 ( 1a). Medical questions loom large in all the Department’s legislation.

144. The National President of the Returned Services League of Australia told us that “the appeal structure . . . works extremely well and assures justice to applicants. 1 do not believe we would see the need for a further level of review”.

145. Matters related to the repatriation system are currently before a Senate Com­ mittee and an Independent Enquiry being conducted by Mr Justice P. B. Toose. Were it not that we are aware that the Judge is examining in depth the whole of the Repatriation legislation and the arrangements for dealing with claims for bene­

fits including apeals and the tribunals appropriate to to-day’s circumstances, we would have felt obliged to make some observations of our own. Conceivably when Mr Justice Toose is aware of our own proposals for a General Administrative Tribunal he might find some value in looking to that Tribunal at least as a source

for the Chairmanship of any Tribunal he may propose.

146. Suffice for us to comment that much of what we have written in paragraph 45 et seq of our Report has relevance to the Repatriation Department’s legislation and that if the Repatriation Act is to continue to include provisions about service pensions based on the social security pensions legislation, then the arrangements

made for review of decisions under that legislation should extend to the analogous repatriation legislative provisions.

147. We add, finally, that we see no reason why the Repatriation Department and Commission should be excluded from the jurisdiction of the Ombudsman.

Department of Services and Property

148. The Lands Acquisition Act is the general vehicle for the acquisition of land by the Commonwealth.

79

149. Resort to compulsory process is not the rule and the number of cases that go to the courts for determination of compensation is singularly few. Despite the great emphasis on negotiations both as regards the acquisition of land and on arriving at mutually agreeable settlements of compensation, the Ombudsman could have a role in conciliation between agencies seeking land and citizens as to the most amicable way of accommodating conflicting interests.

150. We think that the Valuation and Compensation Tribunal should be substi­ tuted for the courts in determining questions of loss (sections 9, 12 and 19) and compensation for land acquired (sections 28 and 29). If the proviso to section 9 which provides that the section is not to apply in a case where the Minister certi­ fies there are special reasons why this should be the case is to be retained, we think there should be an appeal to the Tribunal.

151. The jurisdiction of the Tribunal should be definitive except for appeals or references on questions of law. The consequence should be a speedier end to the determination of most compensation matters.

152. We see no reason why the existing alternative of reference, by mutual agree­ ment, to arbitration should be disturbed.

Department of Social Security

153. Despite the vast range of discretionary powers exercised by the Director- General and his officers under the Social Services Act and the supplementary legislation dealing with aged persons homes and hostels, delivered meals subsi­ dies, handicapped children, sheltered employment, reciprocity in social services

with the United Kingdom and New Zealand, and subsidised health benefits, there is no statutory provision for any review except by the Director-General (section 15).

154. We invite attention to our observations in paragraph 45 et seq of our Report.

155. We believe that the Valuation and Compensation Tribunal would be the appropriate recourse in matters arising under sections 18, 30, 59 and 65 of the Social Services Act and that sections 27, 108, 117 and 135C point to the desir­ ability of a Medical Appeals Tribunal.

156. The Compensation (Commonwealth Employees) Act permits a party to a determination of the Commissioner for Employees’ Compensation to request a reference of all or any matter of a question to which the determination relates to a Commonwealth Employees’ Compensation Tribunal or to apply to a prescribed court for judicial review of the determination.

Taxation Office

157. A long established and well developed system of review of decisions of the Commissioner of Taxation is to be found in the taxing statutes. While the pro­ visions of the various Acts are not uniform, the broad pattern is— (a) a taxpayer may object to the Commissioner’s decision;

80

(fi) the Commissioner makes a determination on the objection;

(c) the taxpayer, if dissatisfied, may request a review which is limited to the grounds of his objection: a request must be accompanied by a fee of $2.00;

(d) depending on the taxpayer’s request, the Commissioner— (i) refers the objection to a Board of Review (or to a Valuation Board where value of property is in issue in the case of the gift and estate duty legislation); or (ii) treats the objection as an appeal and forwards it either to the

High Court or to the Supreme Court of a State;

(e) a Board of Review has all the powers and functions of the Commis­ sioner and its decision is substituted for that of the Commissioner;

(/) a Board gives its decision in writing and, on the request of the Com­ missioner or the taxpayer, its findings of fact and its reasons in law;

(g) a Board sits in camera unless the taxpayer otherwise elects but the Board may agree to sit in public if the Commissioner or taxpayer requests;

(h) there is representation as of right before a Board;

(z) the Commissioner or taxpayer may appeal to the High Court on a ques­ tion of law and the Board must, on the request of either the Commis­ sioner or the taxpayer, refer a question of law to the High Court.

158. It is our understanding that the Commissioner would wish that the objection and appeal provisions of the various Acts be brought into harmony with those of the Income Tax Assessment Act outlined above. We see great merit in this, and at the same time, invite attention to paragraph 187 of the text.

159. There are three Boards of Review, one each in Brisbane, Sydney and Mel­ bourne. They are peripatetic and their jurisdiction is not geographically limited. They consist of a Chairman and two members appointed by the Governor-General. The Chairman is normally an ex Taxation Officer, experienced in Board of Review

and appeal cases, who has had legal training. The members are a lawyer and an accountant. The Commissioner follows the practice of inviting interested bodies to submit names for consideration for appointment to Boards.

160. Legalism and formality in the functioning of Boards appears to vary from Board to Board and to respond to the character of the case and the advocates appearing.

161. The Commissioner did not assert that the Chairman of a Board had to be an ex officer of the Taxation Office. The Board based in Sydney is chaired by a former practising barrister who had earlier been an officer of the Taxation Office. No officer appointed to Boards of Review had ever returned to the Taxation

Office. One advantage of the ex Taxation Office appointee was his experience in handling the administrative aspects of the activities of Boards.

81

162. Cases are normally dealt with by Boards of Review in the order of the date of receipt of the reference from the Commissioner. Submissions made to us com­ plained that there was no time limit on the Commissioner within which he must refer an objection to a Board. Section 189 of the Income Tax Assessment Act provides that if the Commissioner does not make a reference within 60 days, he

must do so within 60 days of being given notice by the objector to do so, unless meantime the Commissioner requires information of the objector. The Commis­ sioner explained that sometimes objections received turned on a “test” case and, in these instances, it was practical common sense to await the outcome and thus obviate reference of other objections that were pending in the Taxation Office.

163. The Commissioner complained of the habit of objectors pulling out at the last moment cases set down for hearing by Boards and after much effort had been spent in his Office. He favoured an increase in the deposit of $2.00 which must accompany a request for reference to a Board or appeal to the High Court or a Supreme Court.

164. Since mid 1967 it has been the practice of the Commonwealth to bear the costs of an appeal by the Commissioner against a decision of a Board of Review favouring a taxpayer. An exception to this practice is where the Commissioner considers there had been attempted tax evasion. It would not seem just that the

question whether costs of appeals from decisions of Boards favourable to the taxpayer should, in any way, turn on such a consideration. Judging by submissions made to us, this view is apparently held in the community. It would be wise to provide clearly the circumstances in which the Commonwealth will or will not bear the costs of an appeal.

165. The Commissioner told us that while publication of decisions of Boards of Review was in the hands of private publishers, their practice was to publish all decisions unless they dealt with trivial matters, matters that had already been adequately reported or cases where the facts were such that it was impossible not to identify the taxpayer concerned.

166. Apart from the provisions to be found in the various Acts under the head­ ing “Objections and Appeals”, Boards of Review deal with decisions about the remission of additional tax under the Income Tax Assessment Act where the additional tax exceeds 10% of the tax assessable, refusals to issue certificates under Division 11A and determinations as to credits under Division 19 of Part III of that Act, requests under section 26 of the Loan (Drought Bonds) Act, decisions about export rebate entitlements under sections 16H, 16Q and 16R of the Pay-roll Tax Assessment Act, and decisions in relation to export incentive grants under sections 21, 22 and 29 of the Export Incentive Grants Act.

167. Under the Taxation Administration Act provision is made for the appoint­ ment of Valuation Boards by the Governor-General. There are 10 such Boards. Each has the same Chairman and each has two part-time members. The genesis of these Boards was the Federal Land Tax Act but nowadays their work is related to valuation matters associated with estate and gift duty (section 24 of the Estate Duty Assessment Act and section 31 of the Gift Duty Assessment Act).

82

168. Problems of dichotomy appear to exist in that, on request of a taxpayer, the Commissioner must refer so much of his objection that relates to value of property to a Valuation Board and the remainder to a Board of Review.

169. An appeal lies to the High Court from a decision of a Valuation Board, which, in the opinion of the High Court, involves a question of law and a Valua­ tion Board must, on request of the Commissioner or a taxpayer, refer to the High Court any question of law arising before the Board.

170. The Commissioner found no difficulty with our view that there should be a specialist tribunal to deal with all valuation and compensation cases under Com­ monwealth legislation. He saw considerable advantage in there being such a body divorced from the taxation legislation and taking the place of Valuation Boards,

and available to deal with valuation matters affecting land, buildings and machin­ ery where the taxpayer desired such matters so to be dealt with rather than by a Board of Review.

171. Provision is made by the Income Tax Assessment Act for the registration of tax agents. There is a Registration Board in each State consisting of the Officer- in-Charge of the Commonwealth Sub-Treasury who is Chairman, the Common­ wealth Chief Auditor for the State and another member appointed by the

Governor-General. Registration occurs if a Board is satisfied that the applicant is “a fit and proper person” to prepare income tax returns and act on behalf of taxpayers, is over 21 and is of “good fame, integrity and character”. Registration may be cancelled for prescribed reasons. If registration is cancelled, an appeal lies

to a County or District Court or to a Magistrates’ Court and from such Courts there is an appeal to a Supreme Court. There is no appeal from a refusal to register a tax agent. We think there should be.

172. The Commissioner did not cavil at our view that an appeal in relation to tax agents cases should lie to a General Administrative Tribunal in place of the successive appeals to courts, now allowed for.

173. Section 12A of the Sales Tax Procedure Act provides that a person may pay under protest, stating the ground of protest, sales tax levied in certain circum­ stances and within six months bring an action against the Commonwealth in any Commonwealth or State court of competent jurisdiction for the recovery of the

amount so paid. These provisions are analogous to section 167 of the Customs Act. The Commissioner agreed with our view that some more acceptable process should be substituted for court action. A remedy in the General Administrative Tribunal is our proposal. Alternatively there could be an election to have recourse

to the Tribunal (c.f. paragraph 80 of the main text).

174. A series of provisions give powers to Ministers and sundry officials to take decisions affecting liability for taxation. They include—

(a) the Prime Minister (section 78(5) of the Income Tax Assessment Act), the Treasurer, none of whose powers have been delegated, under many provisions of the legislation; the Minister for Primary Industry (section 18 of the Loans (Drought Bonds) Act) and the Minister for Customs

83

and Excise (sections 6A and 6B of the Sales Tax Assessment Act (No.

5 ) ) ;

( b) the Commonwealth Council for Scientific and Industrial Research, the Director-General of Health and the Secretary, Department of Labour who are empowered to approve research institutes under section 73A(6) of the Income Tax Assessment Act; (c) the Secretary, Department of Trade (section 23(c)(vii) of the Income

Tax Assessment Act, sections 16B and 16H of the Payroll Tax Assess­ ment Act and section 9 of the Export Incentive Grants Act); (d) the Comptroller-General of Customs and Excise (section 6B of the Sales Tax Assessment Act (No. 5) and regulation 57A of the Sales Tax

Regulations); (e) the Director-General of Social Security. Under Item 135A of the First Schedule to the Sales Tax (Exemptions and Classifications) Act, he may certify that a person is permanently unable to use public transport;

(/) a Collector of Customs (sections 6A and 6B of the Sales Tax Assess­ ment Act (No. 5 )).

175. We see no need for any external review process in respect of decisions of the Ministers and feel that the Ombudsman process will provide adequately for any review of powers conferred on the officials.

176. Under section 82B of the Income Tax Assessment Act deductions are allowed in respect of certain invalid relatives in respect of whom the taxpayer produces to the Commissioner a certificate, issued by a Department of Health Medical Officer or a medical practitioner appointed by the Director-General of Social Security for the purpose of examining claimants for invalid pensions, that the person is permanently incapacitated for work. This again raises the desir­

ability of a Medical Appeals Tribunal.

177. Where, under section 21 of the Australian Capital Territory Taxation (Administration) Act, the Commissioner revokes an authority to a banker to issue cheque forms bearing an impression of a stamp, the banker may appeal to the Supreme Court of the Australian Capital Territory. We feel that in place of this an appeal should lie to the General Administrative Tribunal.

178. Provision is made in the Income Tax Assessment Act (section 53E) for a Board of Referees constituted under the Wartime Company Tax Assessment Act to review decisions of the Commissioner in relation to deferred maintenance. This provision has fallen into desuetude.

179. In the broad, it may be said that all decisions of the Commissioner which are not by way of exercise of administrative management functions and of relief of taxpayers are subject to review. Under the former head are such powers as determining and extending times for lodging returns and payment of tax, requiring the supply of information and accepting security for the discharge of obligations. Under the latter are such powers as to reduce penalties and make remissions.

180. With the institution of an Ombudsman, matters in relation to these types of discretions would be within his jurisdiction. So also would claims by aggrieved

84

persons that their objections were being tardily dealt with or were not being referred to Boards of Review or the courts with timely dispatch.

181. The taxation legislation attracted perhaps the greatest number of submissions received by us. By and large, they reflected general satisfaction with the present re­ view arrangements though there were many points of detailed criticism. One deserv­ ing of mention for its quaint approach was that “Boards of Review, have in fact,

become judicial authority as distinct from becoming what was initially intended for them— a relatively cheap form of arbitration for the taxpayer to have objec­ tions decided on a moral and just basis’’. Some would have desired that the High Court or a Supreme Court should be invested with all the powers of Boards of

Review to substitute their decision on discretionary powers for that of the Com­ missioner.

182. We believe that the combination of the Ombudsman process and of current provisions for review of decisions of the Commissioner, hopefully to be tidied up to provide a code uniform through all the taxation legislation with changes on the lines discussed in this Report, would meet all needs.

Department of Transport

183. As with the legislation administered by the Department of Civil Aviation, provisions giving effect to international agreements and arrangements and directed to highly technical and complex considerations loom large in the legislation administered by the Department of Transport. They relate to e.g. the construction

and maintenance of vessels, seaworthiness, and the effectiveness and efficiency of equipment in vessels. The points made in paragraph 18 above are equally applicable.

184. The Navigation Act is a nice example of the practice current when the legislation was drafted of conferring on the Minister a wide range of discretions, irrespective of the importance of their subject matter. The consequence has been that the Minister has extensively delegated to officials at various levels.

185. We were told that the Navigation Act and Regulations were under review with a view to producing a code in consonance with to-days needs and circum­ stances. Many of the present provisions have their origin in imperial merchant shipping legislation and merit only the description— archaic. A number of the

points which we raised in discussions with the Department seem likely to influence the outcome of its review.

186. A series of review processes are provided for in the legislation: — (a) in relation to manning, discretions under sections 14(3) and 43(3) are exercised after advice from a Committee of Advice appointed under section 424 of the Navigation Act. Any decision taken may become the

subject of a dispute within the jurisdiction of the Conciliation and Arbi­ tration Commission; (b) engagements of seamen require the approval of a Marine Superintendent. A person aggrieved—his livelihood being obviously in jeopardy—has

access to the Commission just mentioned (sections 45A and 45B);

85

(c) crew accommodation, in relation to post 1954 constructed ships, is the affair of a Crew Accommodation Committee of representatives of owners and unions under departmental chairmanship (section 138). Disputes about accommodation are not excluded from the jurisdiction of the Commission. The Navigation (Crew Accommodation) Regulations apply to earlier built ships but the process is much the same; (d) extensive provisions require certificates of competency to be possessed

by deck officers, engineers and radio operators and prescribe pre­ conditions for their grant, surrender and so on. (See, e.g. Division 3 of Part II of the Navigation Act). A certificate holder thought to be unfit may be required to undergo medical examination and to deliver up his certificate. In this case, there is provision for review by a Court of Marine Inquiry (section 20). If a certificate is cancelled or suspended, there is likewise provision for review by a Court of Marine Inquiry

(Part IX ). Where a Court of Marine Inquiry cancels or suspends a certificate, an appeal lies to the Commonwealth Industrial Court (sec­ tion 375B); (e) extensive provisions deal with the safety of a ship and its equipment,

and the issue of appropriate certificates. Where the issue of a certificate is refused, there is an appeal to a Court of Marine Inquiry (section 192). The same court has jurisdiction in relation to ships detained as unseaworthy; (/) under the Seamens Compensation legislation, there is provision for out­

standing questions to be settled by arbitration in accordance with prescribed procedures in a District or County Court.

187. A Court of Marine Inquiry is constituted of one or more District or County Court Judges or Magistrates or by one or more Judges or Magistrates especially authorised by the Governor-General. The Chief Judge and Judges of the Com­ monwealth Industrial Court have been authorised. Every Court of Marine Inquiry must be assisted by not less than two assessors who advise the Court but do not adjudicate (section 359).

188. We see no reason to discard the time honoured functions and powers of Courts of Marine Inquiry. We do, however, think that the Chairman might be drawn from the corpus of Chairmen available to the General Administrative Tribunal.

189. Not all the provisions of the Navigation Act that bear on the livelihood of those going to sea allow for a review process. As to seamen, if the Marine Coun­ cil -or a majority of its members advises the Minister that, on character or conduct grounds, a person is unsuitable for engagement as a seaman, a Superintendent is bound to refuse approval to his engagement (section 45A (9)).

190. Nor is there a review process where it is decided that an applicant for a certificate of competency should not be granted one, even if he has passed the requisite examination. Regulation 7 of the Navigation (Loading and Unloading— Safety Measures) Regulations and regulations 47 and 48 of the Navigation (Radio) Regulations are other examples in a cognate field.

86

191. The department recognised these deficiencies and said it would take them into account in the course of its overall review of its legislation.

192. There are provisions in sections 156 and 157 relating to the disposal of the effects of deceased seamen and apprentices for which some external review process seems appropriate. The Ombudsman should suffice.

193. To the extent that the Navigation Act does not provide for a review where livelihood is at stake, this should be corrected. For example, we feel that where the Minister fails to issue a certificate of competency to an officer the remedy of review should be available. Likewise in place of section 20 of the Navigation Act

which gives the Minister a discretion to cause an enquiry by a Court of Marine Inquiry to determine whether an officer has ceased to be unfit for service, an officer should have access to a Court of Marine Inquiry if he considers himself fit.

194. The Court of Marine Inquiry should also, we feel, have jurisdiction to deal with cases where the Minister has determined under regulation 7 of the Navigation (Loading and Unloading— Safety Measures) Regulations that an establishment is not suitable as a testing or heat treatment establishment and where the Postmaster-

General has refused to grant a certificate to a radio officer or wireless signaller.

195. Numerous provisions are to be found in the legislation and regulations allow­ ing for refunds and exemptions and concessions from statutory requirements. See also paragraph 97 et seq of the main text.

196. The Australian National Shipping Line and the Commonwealth Railways are commercial undertakings operating in a competitive environment. None of the extensive discretions under the relevant legislation calls for special consideration except that where provision exists for compensation, as in sections 64 and 65 of

the Commonwealth Railways Act, recourse to the Valuation and Compensation Tribunal should be available.

197. Questions of physical fitness and health arise in the Navigation Act (sections 18 and 20), in the Navigation (Health) Regulations (regulation 5) and in the Navigation (Sight Tests for Apprentices) Regulations. Under section 80 of the Commonwealth Railways Act there is provision for medical examination of per­

sons injured in accidents. All of these provisions direct attention to the desirability of a Medical Appeals Tribunal.

198. Additional to the jurisdiction already mentioned, Courts of Marine Inquiry have jurisdiction in relation to casualties affecting ships or entailing loss of life on or from ships (section 364 of the Navigation Act). As in the case of inquiries

under the Air Navigation Act, we see decided advantages in drawing the Chairman of Courts constituted for that purpose from the corpus of Chairmen available to the General Administrative Tribunal.

The Treasury

199. A separate note is provided in respect of the legislation administered by the Commissioner of Taxation.

200. Under the Gold Mining Industry Assistance Act, the ascertainment of the cost of production rests with the Treasurer (section 10). Sections 8, 11, 12, 13

87

and 14 all bear on the amount of subsidy to be paid and leave a number of ele­ ments to the Treasurer’s discretion. In keeping with the views expressed in relation to the Customs and Excise legislation, we see no reason why these discretions should not be reviewable by the General Administrative Tribunal.

201. We propose that decisions of the Insurance Commissioner under sections 19 and 23A of the Life Insurance Act should be reviewable by the General Adminis­ trative Tribunal. Questions of confidentiality may require the Tribunal to sit in camera and clearly one member would need to be an actuary or someone experi­ enced in insurance business. There should likewise be an appeal to the Tribunal in respect of section 33 of the Act. Section 20 of the old Insurance Act dealing with the same matter provided for an appeal.

202. We note that an Insurance Act of the last Session of Parliament deals com­ prehensively with insurance other than life insurance. It constitutes an Insurance Tribunal and provides for appeal to the Tribunal on (i.a.) the matters we have mentioned above. It is a matter for consideration whether, if our recommendation for a General Administrative Tribunal is adopted, the functions vested in the Insurance Tribunal might be transferred to the new General Administrative Tribunal.

203. We propose that the General Administrative Tribunal should be substituted for the High Court as the appeal body under section 40(10) of the Life Insurance Act. The discretion involved is patently administrative. The same applies to sections 52 and 58.

204. In keeping with our general view, we suggest that the appeal to the High Court by an auditor which section 47 allows, should be to the General Adminis­ trative Tribunal.

205. The future of the Superannuation Act is currently under review. As the Act now stands, admission to the Superannuation Fund or the Provident Account turns on the successful passing of a medical examination. However, in practice, this question only arises, in the case of employment under the Public Service Act, if the candidate satisfies the Public Service Board as to medical fitness. There are

as well a series of provisions like sections 38, 45, 65 and 82 of the Superannuation Act, where pension entitlements turn on medical conditions and employability. All of these provisions raise the need for a Medical Appeals Tribunal.

206. Section 140 provides that questions as to whether a contributor is an invalid or is physically or mentally incapable or whether invalidity is due to wilful action shall be determined by the Superannuation Board upon report from a Medical Officer. In the event of an adverse report, the contributor has the right to a second opinion from a doctor mutually agreed on by the contributor and the Board. In fact, the practice seems to be to use the dispute provisions of section

141 which provides for an appeal to the High Court. We were told that no matter had ever reached that Court. We would propose, instead, an appeal to the General Administrative Tribunal.

207. We think that the Superannuation Board should be scheduled as subject to the Ombudsman so that a review process would be available for residual questions.

88

S e c tio n o r D e cisio n R e v ie w C h a ra c te r o f C h a r a c te r o f P r o p o s e d R e v ie w

R e g u la tio n M a k e r C o u r t a b je c t M a tte r R e v ie w D e c is io n P ro c ess

C u sto m s A c t

Section 119 Minister Court of

Competent Jurisdiction

Decision by Minister not to issue a Certificate of Clearance

Action for damages

Section 167 Customs Court of

Competent Jurisdiction

Disputes about amount or rate of duty or liability of goods to duty where duty is paid under protest

Action for recovery of sum paid

Section 183C Minister Supreme Court Suspension or revocation of

a customs agent’s licence Appeal Final

E sta te D u ty

Section 24 A sse ssm e n t A c t Commissioner of Taxation

High Court Supreme Court Dissatisfaction with Com­ missioner’s decision under

section 24

Appeal See note opposite

section 187 of the Income Tax Assessment Act

Leave unchanged.

Provide for an election for recourse to the General Administrative Tribunal (See text,

paragraph 80).

Substitute General Administrative Tribunal (Chairman sitting alone) for the Supreme Court

No comment.

E x c ise A c t

Section 154 Collector Court of Disputes about amount or Action for

Competent Jurisdiction

rate of duty recovery of

sum paid

Provide for an election for recourse to the General Administrative Tribunal (See text,

paragraphs 79(d) and 80).

G i f t D u ty A s se ssm e n t A c t

Section 31 Commissioner

of Taxation

High Court Supreme Court Dissatisfaction with missioner’s decision

section 31

Com- under

Appeal

In c o m e T a x A s se ssm e n t A c t

Section 187 Commissioner of Taxation High Court Supreme Court

Dissatisfaction with missioner’s decision section 185

Com- under

Appeal

See note opposite section 187 of the Income Tax Assessment Act

Final and conclusive. But appeal lies to High Court from Supreme Court

No comment.

No comment.

F i n a l a n d c o n c lu s iv e

subject to appeal to a Supreme Court

I n p l a c e o f a p p e a l s t o

t h e D i s t r i c t and like

Courts and then to the Supreme Court, provide for one appeal only, i.e.

to the General Administrative Tribunal (Chairman sitting alone)

L ife I n s u r a n c e A c t

Section 40 The Insurance

Commissioner

High Court Directions about liabilities and transfer of assets Appeal

Section 47 The Insurance

Commissioner

High Court or Supreme Court Refusal of approval of an auditor or revocation of an

approval

Appeal

Section 52 The Insurance

Commissioner

High Court Rejection of an account,

balance sheet or direction Appeal

Section 58 The Insurance

Commissioner

High Court Directions in respect of life

insurance business

Appeal

Court may confirm, disallow or vary the direction

Court may confirm or disallow

Court may confirm, disallow or vary

Substitute the General Administrative Tribunal for the High Court and > a Supreme Court. The

Chairman sitting alone in cases under section 47.

Court may confirm, disallow or vary

N a tio n a l H e a lth A c t

Section 37 Minister Supreme Court Termination of agreement

under sections 33, 35

Appeal Final

Section 80 Minister Supreme Court Suspension or cancellation

of the registration of a medical or hospital benefit organization

Appeal Final

Substitute the General Administrative Tribunal for the Court (Chair­ man sitting alone).

Substitute the General Administrative Tribunal for the court.

Section 97 Minister Supreme Court Suspension or revocation of Appeal Final

After report approval or authority of a

by appropriate medical practitioner or a

Committee of Inquiry

pharmaceutical chemist

Substitute the General Administrative Tribunal for the court (Chairman sitting alone).

S e c tio n o r D e c is io n R e v ie w ,, , . , M tt C h a ra c te r o f C h a r a c te r o f P r o p o s e d R e v ie w

R e g u la tio n M a k e r C o u r t U ^eC a e r R e v ie w D e c is io n P ro c ess

P e tro le u m (S u b m e rg e d L a n d s ) A c t

Section 72 Designated

Authority

High Court Supreme Court Reasonable cost of comply­ ing with a direction to vary

a pipeline

Appeal

Section 91 Designated

Authority

Supreme Court Determination of registration fee Appeal

P o s t a n d T e le g r a p h A c t

Section 29 Postmaster-

General Director of Posts and Telegraphs

High Court Supreme Court Removal of a publication from the register of news­

papers. Refusal to transmit or deliver or destruction of an issue containing indecent or

obscene matter.

Appeal

iS Section 43 Postmaster-

General Director

S ales T a x P ro c e d u re A c t

High Court Supreme Court Destruction of postal articles having anything profane, etc.,

on outside or any obscene enclosure

Appeal

Section 12A Commissioner of Taxation

S te v e d o rin g In d u s tr y A c t

Court of Competent Jurisdiction

Dispute about amount of sales tax where duty is paid under, etc.

Action for recovery of sum paid

Section 45M Australian Stevedoring Industry Authority

Commonwealth Industrial Court Decision of the Authority about long service leave

entitlements, etc.

Appeal

S u p e r a n n u a tio n A c t

Section 141 Superannuation Board High Court Disputes under the Act

determined by the Board Appeal

T ra d e s m e n ’s R ig h ts R e g u la tio n A c t Section 44 Central

Committee

Supreme Court Decision of the Central Committee in relation to dis­ missals from employment, engagement or elevation

Appeal

Court may affirm, reverse or modify

Final and conclusive

Final

See Appendix C, paragraph 89.

Substitute the General Administrative Tribunal > - for the court. See Appendix C, paragraphs

98 and 99.

Substitute the General Administrative Tribunal for the court.

Leave unchanged.

Substitute the General Administrative Tribunal for the High Court.

Substitute the General Administrative Tribunal for the court. (Chairman sitting alone).

APPE1NDIX E.

Administrative Discretions Vested by Statutes and Regulations in Ministers, Officials and Statutory Authorities Subject to Review by other than the Courts.

S e c tio n o r D e c is io n R e v ie w

R e g u la tio n M a k e r B o d y 7 R e v ie w D e c is io n

P r o p o s e d R e v ie w P ro c e s s

A i r N a v ig a tio n R e g u la tio n s

Regulation 259 Director- Board of Refusal to grant licence, Election as an Final

General Review variation, cancellation and alternative to the

suspension Commonwealth

Industrial Court or the Supreme Court

See Appendix C, para­ graphs 20 and 21.

A u s tr a lia n C a p ita l T e r r i to r y T a x a tio n ( A d m in is tr a tio n ) A c t

Section 74 Commissioner Commissioner Dissatisfaction with assess- Objection

of Taxation of Taxation ment

Disallow or allow wholly or in part Leave unchanged.

Commissioner Board of Dissatisfaction with decision Request

of Taxation Review of Commissioner under

section 74

All the powers and functions of the Commissioner Appeal to the Supreme Court of the A.C.T. on a question of law

Board may refer a question of law

See text, paragraph 187.

B ro a d c a s tin g a n d T e le v is io n A c t

Section 100 Director-General of Health Minister Advertisements relating to

medicine

Appeal Final

Section 122 Director-General of Health Minister Texts dealing with medical

subjects

Appeal Final

> Leave unchanged.

S e c tio n o r D e c is io n R e v ie w n . · , M a tt >· C h a ra c te r o f C h a ra c te r o f P r o p o s e d R e v ie w

R e g u la tio n M a k e r B o d y e R e v ie w D e c is io n P ro c ess

C o m m e rc e ( T ra d e D e s c rip tio n s ) A c t

Section 7 Comptroller-

General of Customs

Minister Delivery of seized goods on

security

Appeal

Section 10 Comptroller-

General of Customs

Minister Release of seized goods after

correction of description Appeal

Section 11 Secretary Minister Delivery of seized goods on

security

Appeal

Section 13 Secretary Minister Release of seized goods after

correction of description Appeal

C o m p e n s a tio n (C o m m o n w e a lth E m p lo y e e s ) A c t

Section 63 Commissioner

for Employees Compensation

Commonwealth Employees Compensation Tribunal

Determination made under the Act Request

C o p y r ig h t A c t Section 135 Comptroller- General of Customs

Minister for Customs and Excise

Delivery on security of copies of a work liable to be forfeited

Appeal

C u s to m s A c t

Section 119 Collector Minister Failure to issue Certificate

of Clearance

Application

Section 158 Collector Experts Value of dutiable goods Request

Section 265 Officer Minister Disputes between officers

and any person with regard to contravention of the Act

Consent of person aggrieved

Provide for appeal to the General Administrative

Tribunal.

Appeal on a question of law only to the Commonwealth Industrial Court

Final

Final

Experts appointed under regulations 114 and 117 at the request of the

objector

F in a l

See text, paragraph 187.

Provide for appeal to the General Administrative Tribunal.

Provide for appeal to the General Administrative Tribunal.

Leave unchanged.

S ee te x t, p a r a g r a p h 81.

Final subject to the right of the Minister under reg. 40 to direct that a matter be submitted to him for determination

Final

Report

Minister has to seek advice of Australian Drug Evaluation Committee in the case of therapeutic

substances

Subject to appeal to the Supreme Court

See text, paragraph 82.

Leave unchanged.

Provide for appeal to the General Administrative Tribunal.

Leave unchanged.

Leave unchanged.

Leave unchanged.

E s ta te D u ty A s se ssm e n t A c t

Section 24 Commissioner of Commissioner Dissatisfaction with Objection Disallow or allow

Taxation of Taxation assessment wholly or in part

Leave unchanged.

S e c tio n o r D e cisio n R e v ie w C h a ra c te r o f C h a ra c te r o f P r o p o s e d R e v ie w

R e g u la tio n M a k e r B o d y u ^e c t a tte r R e v ie w D e c is io n P ro cess

Commissioner of Taxation Board of Review

Dissatisfaction with decision of Commissioner under section 24 except as to value of property

Request See note opposite

section 187 of the Income Tax Assessment Act

Commissioner of Taxation Valuation Board Dissatisfaction with decision of Commissioner under

section 24 relating to value of property

Request Confirm, reduce or

increase value assigned. Appeal to High Court on question of law.

Board may refer question of law

E x cise A c t Section 155 Customs Officer Minister Settlement of disputes about

contravention of the Act Consent of preson aggrieved Final

Section 159 Customs Officer Minister Settlement of differences as

for Customs Act section 269 Request of parties interested Final

E x p o r t In c e n tiv e G r a n ts A c t

Section 21

Section 22

Section 29

Commissioner of Taxation

Commissioner of Taxation

Commissioner of Taxation

Board of Review

Board of Review

Board of Review

Review of base period of export sales

Review of amounts added to value of export sales

Dissatisfaction with determination under section 16

Application

Application

Application

See note opposite section 187 of the ■ Income Tax Assessment Act

G i f t D u ty A sse ssm e n t A c t

Section 31 Commissioner

of Taxation

Commissioner of Taxation Dissatisfaction with assessment

Objection Disallow or allow

wholly or in part

Commissioner of Taxation

Board of Review

Dissatisfaction with decision of Commissioner under section 31 except as to value of property

Request See note opposite

section 187 of the Income Tax Assessment Act

See text, paragraph 187.

Substitute the Valuation and Compensation Tribunal for the Valuation Board.

c.f. Customs Act, section 265. See text, paragraph 81.

c.f. Customs Act, section 269. See text, paragraph 82.

See text, paragraph 187.

Leave unchanged.

See te x t, p a r a g r a p h 187.

Commissioner of Taxation

V a l u a t i o n B o a r d Dissatisfaction with decision of Commissioner under section 31 as to value of property

R e q u e s t

H o m e S a v in g s G r a n t A c t

Section 11 Officer Secretary Determination, direction,

decision or approval under Appeal

the Act

In c o m e T a x A s se ssm e n t A c t Section 53E Commissioner Board of Decision regarding Request

of Taxation Referees maintenance review

See note opposite section 24 of the Estate Duty Assessment Act

Final

Final and conclusive

Section 128P Commissioner Board of Refusal of application for a Request

of Taxation Review Certificate under Division

11A of Part III

See note opposite section 187 of the Income Tax Assessment Act

S ubstitute th e V alu atio n and Compensation Tribunal for the Valuation Board.

See text, paragraphs 68 et seq.

See Appendix C, para­ graph 178. The question of repeal of this provision might be

considered.

See text, paragraph 187.

Section 159F Commissioner of Taxation Board of Review

Determination of an amount of income tax by reason of stock becoming redeemable

Request

Section 160AL Commissioner of Taxation Board of Review

Determination under Division 19 of Part III Request

Section 185 Commissioner of Taxation Commissioner of Taxation

Dissatisfaction with assessment

Objection

Section 187 Commissioner of Taxation Board of Review

Dissatisfaction with Commissioner’s decision Request under section 185 Remission of additional taxation

L o a n ( D r o u g h t B o n d s) A c t

Section 26 Commissioner Board of

of Taxation Review

Refusal to make a declaration

R e q u e st

See note opposite section 187 of the Income Tax

Assessment Act

Disallow or allow in whole or part

All the powers and functions of the Commissioner. Appeal to the High

Court on a question of law. Board may refer question of law to

the High Court

See note opposite section 187 of the Income Tax Assessment Act

See text, paragraph 187.

Leave unchanged.

See text, paragraph 187.

S ee te x t, p a r a g r a p h 187.

S e c tio n o r D e cisio n R e v ie w S u h ie r t M itte r C h a ra c te r o f C h a ra c te r o f P r o p o s e d R e v ie w

R e g u la tio n M a k e r B o d y R e v ie w D e c is io n P ro c ess

Final

Final

Report to Minister. Deportation is stayed unless Commissioner supports the

Minister’s decision

Final. Note that a Committee appointed under section 136 has similar functions

in respect of dentists

Final

Provide for an appeal to the General Administrative Tribunal (Chairman sitting alone).

Perhaps the present pro­ vision for review by the Attorney-General could be dispensed with.

See text, paragraphs 23 to 25 and Appendix C, paragraphs 112 to 122.

Substitute the General Administrative Tribunal (Chairman sitting alone) for the “Commissioner” .

See Appendix C, paragraph 61.

See Appendix C, paragraph 69.

Section 40AE Director-General of Health Minister Refusal to alter conditions

applicable to nursing home in accordance with application

Request

Section 45 Director-General of Health Minister Refusal or revocation of

approval of a hospital, nursing home, or handi­ capped persons home under section 40, 40AA and 40A

Request

In the case of fees, the Minister must have a report from the Nursing Home

Fees Review Committee of Inquiry

Final

See Appendix C, = ■ paragraph 64.

S e c tio n 5 8 F D i r e c t o r - G e n e r a l

o f H e a l th

M in is te r

Section 82ZD Officer of the Director-General Department of of Social

Social Security Security

Section 90 Director-General of Health Minister

R e f u s a l o f a p p r o v a l o f a R e q u e s t F i n a l

person as an approved person in respect of a patient receiving domiciliary care

Decisions under sections Appeal Final

82U or 82ZC

Rejection of application of Appeal Final

pharmaceutical chemist for approval as such

N a v ig a tio n A c t

Sections 45A and 45B

Marine Superintendent

Conciliation and Arbitration Commission

Refusal of approval of engagement Application for order directing the

Superintendent to approve

Section 192 Minister Court of Marine

Inquiry

Refusal of issue of a certificate in respect of a ship

Sections 210 and 377

Minister Court of Marine

Inquiry

Detention of alleged un­ seaworthy ship Appeal

Section 361 Minister Court of Marine

Inquiry

Cancellation or suspension of certificates of masters, etc.

Final

Appeal to the Commonwealth Industrial Court

P a te n ts A tto rn e y s R e g u la tio n s Regulation 29 Commissioner of Patents Attorney-General Removal of a Patent

Attorney from the Register Appeal Final

P a y r o ll T a x A s se ssm e n t A c t

Section 16H Secretary, Board of Dissatisfaction with a Request

Department of Review determination of the

Trade & Industry Secretary under section 16H

F in a l

S e e A p p e n d i x C .

paragraph 69.

See text, paragraphs 68 et seq

See Appendix C, paragraph 62.

Leave unchanged.

Leave unchanged.

Leave unchanged.

Substitute the General Administrative Tribunal for the Commonwealth

Industrial Court.

Provide an appeal to the General Administrative Tribunal (Chairman sitting alone). Perhaps the present provision for review by the Attorney-General could be dispensed with.

S ee te x t, p a r a g r a p h 187.

S e c tio n o r D e cisio n R e v ie w „ M C h a ra c te r o f C h a ra c te r o f P r o p o s e d R e v ie w

R e g u la tio n M a k e r B o d y u jec a a R e v ie w D e c is io n P ro c e s s

Section 16Q Commissioner of Taxation Board of Review

Base period for export sales Application

Section 16R Commissioner of Taxation Board of Review

Amounts added to value of export sales Application

Sections 38 and 40

Commissioner of Taxation

Commissioner of Taxation Dissatisfaction with a decision of the Commissioner

Objection Disallow or allow

wholly or partly

Commissioner of Taxation

Board of Review

Dissatisfaction with decision of the Commissioner under section 38.

Request See note opposite

section 187 of the Income Tax Assessment Act

P a y ro ll T a x (T e rrito rie s ) A s se ssm e n t A c t

Sections 38 and 40

Commissioner of Taxation

Commissioner of Taxation Dissatisfaction with a decision of the Commissioner

under the Act

Request Disallow or allow

wholly or partly

Commissioner of Taxation

Board of Review

Dissatisfaction with decision of the Commissioner under section 39

Request See note opposite

section 187 of the Income Tax Assessment Act

R e p a tr ia tio n A ct

See text, paragraph 187.

See text, paragraph 187,

Leave unchanged.

See text, paragraph 187.

Leave unchanged.

See text, paragraph 187.

Section 28 Repatriation

Board

Repatriation Commission

Assessment or determination of a Board Appeal

Section 64 Repatriation

Commission

War Pensions Entitlements Appeal Tribunal

Refusal of claim for a pension (other than a service pension) or other benefit

Appeal

Sections 67 and 70

Repatriation Commission or Repatriation Board

Assessment Appeal Tribunal Assessment of rates of pensions (other than service

pensions) and determinations where the Commission has

Appeal

refused to grant a service pension on stated grounds

Note that (i.a.) sections 64, 67 and 70 extend to the Repatriation (Far

East Strategic . Reserve) Act, the Repatriation (Special Overseas Service)

Act, and the Repatriation (Torres Strait Islanders) . Act

See Appendix C, paragraph 145.

Section 112 Repatriation

Board

Repatriati on Commission

Regulation 51 Deputy Commissioner Repatriation Commission

Regulation 91 Education Board Repatriation Commission

Regulation 173B Patriotic Funds Board Repatriation Commission

R e p a tr ia tio n ( F a r E a s t S tra te g ic R e se rv e ) R e g u la tio n s

Regulation 22 Deputy Repatriation

Commissioner Commission

R e p a tr ia tio n (S p e c ia l O v e rse a s S e rv ice ) R e g u la tio n s Regulation 22 Deputy Repatriation

Commissioner Commission

Determinations in respect of assistance and benefits under Part IV

Appeal Final

Refusal to grant an applica­ tion for assistance Appeal Final

Refusal of application for education and training of children

Appeal Final

Any decision Appeal Final

Refusal to grant benefit or assistance applied for Appeal Final

Refusal to grant benefit or assistance applied for Appeal Final

> See Appendix C, paragraph 145.

See Appendix C, paragraph 145.

See Appendix C, paragraph 145.

S a les T a x A s s e s s m e n t A c t (N o . 1)

Sections 40 Commissioner to 42 of Taxation

Board of Review

Any decision under the Act Request See note opposite

section 187 of the Income Tax Assessment Act

See text, paragraph 187.

Commissioner of Taxation

Commissioner of Taxation Dissatisfaction with decision of the Commissioner under

the Act

Objection

Commissioner of Taxation

Board of Review

Dissatisfaction with decision of the Commissioner under section 41

Request

Disallow or allow wholly or partly

See note opposite section 187 of the Income Tax Assessment Act

Leave unchanged.

See text, paragraph 187.

S e a m e n 's W a r P e n s io n s a n d A llo w a n c e s A c t

Section 7 Seamen’s

Pensions and Allowances Committee

Repatriation Commission

Determination or assessment of a Committee Appeal

Regulation 22 Deputy Commissioner Repatriation Commission

Refusal to grant benefit applied for Appeal Final

S e e A p p e n d ix C ,

> p a r a g r a p h 145.

P r o p o s e d R e v ie w P ro c e s s

See text, paragraphs 45 et seq.

Leave unchanged.

Leave unchanged.

Leave unchanged.

Leave unchanged, though the appeal should be to General Administrative Tribunal

(Chairman sitting alone).

See text, paragraphs 45 et seq.

Leave unchanged.

See text, paragraph 187.

C h a ra c te r o f P ro cess f o r D e te r m in in g C o m p e n s a tio n , V a lu a tio n , E tc.

The owner to be recompensed in the manner prescribed. No prescription appears to have been made.

Compensation for damage or loss to be made in the manner prescribed AMR & O 816 prescribes a Board to assess compensation, presided over by an officer and including a person competent to assess the damage or loss.

Valuation Board under the Taxation Administration Act. Appeal to the High Court on a question of law. Board references of questions of law to the High Court.

Action in a court of competent jurisdiction or, by consent, by arbitration in accordance with the laws of the A.C.T.

Valuation Board under the Taxation Administration Act. Appeal to the High Court on a question of law. Board references of questions of law to the High Court.

Compensation as agreed and, failing that, by action in the High Court or Supreme Court or lower courts. (Unless the Minister certifies section 9 should not apply — See Appendix C).

Compensation as agreed and, failing that, by action in the High Court or Supreme Court or lower courts.

High Court, Supreme Court or other Court of competent jurisdiction.

C om pensation as agreed a n d , in d efault, b y actio n ag ain st th e C om m onw ealth.

The Act in Part IV constitutes a Compensation Board consisting of a Chair­ man and two others appointed by the Minister. The Chairman must be one who holds or has held office as a Judge of a Supreme Court and one member must be a qualified practising accountant. The Minister may appoint

one or more having specialized knowledge of the subject matter of a claim as assessors. If either the O.T.C. or the claimant is dissatisfied with the Compensation Board’s assessment, an application may be made to the High Court for review of the assessment (Section 69).

As agreed between the permittee or licensee and the Designated Authority and, in default, as determined by the latter.

Mutual agreement and, in default, by arbitration.

Mutual agreement and, in default, by arbitration.

The P.M.G. shall make adequate compensation. If the amount cannot be agreed it shall be settled by arbitration.

Compensation shall be settled by arbitration if it cannot be agreed.

Postmaster-General.

Action by the Commonwealth in any court of competent jurisdiction.

C h a r a c te r o f P ro c e s s f o r D e te r m in in g M e d ic a l C o n d itio n

One or more medical practitioners nominated by the Commonwealth Rail­ ways Commissioner.

Medical Board constituted in accordance with section 57. In the absence of unanimity the Commissioner for Employees Compensation determines subject to review under Part V.

Medical Referee (section 56) or other legally qualified medical practitioner nominated by the Commissioner or Medical Board.

One or more legally qualified medical practitioners nominated by the Commonwealth.

A legally qualified medical practitioner.

Medical Officer of Department of Health or Medical Practitioner appointed by the Director-General of Social Security.

Director-General of Health, after consideration of certificate by a medical practitioner.

C h a ra c te r o f P ro c e s s f o r D e te r m in in g M e d ic a l C o n d itio n

Director-General of Health, after consideration of certificate by a medical practitioner.

The Minister may, and if the Master so requests shall, cause an inquiry to be held by a Court of Marine Inquiry into a charge of incompetence because of unfitness. If a charge is proved and it appears to the Minister that un­ fitness no longer exists, the Minister may cause an inquiry by a Court of

Marine Inquiry.

Examiner under the Navigation (Examination of Masters and Mates) Regulations.

Commonwealth Medical Officer. Provisions of these sorts are to be found in other legislation authorising the employment of officers, staff, etc.

Medical practitioner. The Repatriation legislation and regulations contain many provisions where entitlements turn on the report of a medical prac­ titioner.

C h a ra c te r o f P ro c e s s f o r D e te r m in in g M e d ic a l C o n d itio n

Duly qualified medical officer or practitioner nominated by the Repatriation Commission or a Pension Committee. The Regulations contain a number of provisions where entitlements turn on the report of a medical practitioner.

Legally qualified medical practitioner.

The claimant must satisfy the Director-General of Social Security—a certificate of a legally qualified medical practitioner must support a claim (See 117).

Legally qualified medical practitioner nominated by the Director-General.

Certificate of legally qualified medical practitioner.

Australian Stevedoring Industry Authority after report from legally qualified medical practitioner.

Authority, after report by a medical practitioner as defined.

Medical Board constituted by the Authority.

Medical Practitioner approved by the Superannuation Board or the Public Service Board. The Superannuation Board’s practice is to treat questions as a dispute under Section 141 and to constitute a medical tribunal.

Board acts on a report from a Medical Officer appointed by the Board. In the event of an adverse report, the contributor has the right to a second report from a doctor mutually agreed by the contributor and the Board.

Certificate of a duly qualified practitioner.

Provide an appeal to the General Administrative | Tribunal.

Provide an appeal to the General Administrative Tribunal. (Chairman sitting alone).

Provide an appeal to the General Administrative Tribunal.

Bounty not payable if printing, etc. would consti- Provide for review by the National Literature tute an offence. Board of Review, c.f. Reg. 4A, Customs (Prohibi­

ted Imports) Regulations.

Provide an appeal to the General Administrative Tribunal. (Chairman sitting alone).

P r o p o s e d R e v ie w P ro cess

No broadcast, etc. of matter which is blasphemous, The Film Censorship Board should be the reference indecent or obscene. point for disputes about locally made TV films.

Provide an appeal to the General Administrative Tribunal. (Chairman sitting alone).

Goods must be of good and merchantable quality. Provide an appeal to the General Administrative Tribunal.

Provide an appeal to the General Administrative Tribunal. (Chairman sitting alone).

Provide an appeal to the General Administrative Tribunal.

Parole type machinery. See Appendix C, Paragraph

Provide an appeal to the General Administrative Tribunal.

Direction that a person is not to act as a citizen- Provide an appeal to the General Administrative ship agent. Tribunal. (Chairman sitting alone).

Release from prison under a licence to be at large. Parole type machinery. See Appendix C, Paragraph Variation or revocation of a licence. Release from 1. custody: variation or revocation.

C u s to m s Act

Section 35A Collector Payment of duty where goods not kept safely, etc.

Section 78 Minister Licensing of warehouse.

Section 99 Collector Regauging of goods for duty.

Section 100 Collector Revaluation of goods for duty.

Section 126 Collector Refusal to allow export of other goods if Certi­

ficate of Clearance for goods not produced.

Section 149 Collector Duty on goods not produced. -

Section 151 Goods deemed to be the produce or manufacture

of a country.

Section 151A Collector Direct shipment of goods required for certain

preferences.

Section 154 Determination of value of goods.

Section 155 Inland freight charges on Canadian goods.

Section 157 Determination of rates of exchange.

Section 158 Collector Detention of goods and sale. Provisions don’t apply

if Minister believes evasion of Act committed.

Section 160 Minister Determination of value in certain cases.

Section 161 Collector Goods may be forfeited and sold in certain cases. V

Section 163

Collector

Refunds of duty. i

Provide an appeal to the General Administrative Tribunal.

Provide an appeal to the General Administrative Tribunal. (Chairman sitting alone).

Provide an appeal to the General Administrative ' Tribunal.

Provide an appeal to the General Administrative Tribunal, except as to specifications by and deter­ minations of the Minister notified in the Gazette.

Provide an appeal to the General Administrative “ Tribunal.

Provide an appeal to the General Administrative Tribunal, except as to determinations of the Minis­ ter notified in the Gazette.

Provide an appeal to the General Administrative Tribunal, which should extend to the Minister’s belief.

Provide an appeal to the General Administrative Tribunal whose function should be recommendatory only.

Provide an appeal to the General Administrative Tribunal.

S e c tio n o r R e g u la tio n D e cisio n M a k e r S u b je c t M a tte r

Section 164B Minister Refunds of export duty.

Section 183A Collector Refusal to grant a customs agent’s licence.

Section 206 Comptroller-General,

Collector

Goods seized may be returned on security.

Section 269 Minister Settlement of differences under the Act and in

relation to the Customs not involving contraven­ tion of the Act.

Section 271 Minister Making of by-laws.

Section 272 Minister Specification of goods in by-law.

Section 273 Minister Determination of goods for by-law purposes.

Section 273A Minister Determination of application of by-law.

Regulation 132 Collector Determination of drawback.

Regulation 133 Minister Determination of drawback.

P r o p o s e d R e v ie w P ro c ess

Provide an appeal to the General Administrative Tribunal whose function should be recommendatory only. Provide an appeal to the General Administrative Tribunal. (Chairman sitting alone).

Provide an appeal to the General Administrative Tribunal.

See text, paragraph 82.

See text, paragraphs 83 and 84.

Provide an appeal to the General Administrative Tribunal. Provide an appeal to the General Administrative Tribunal whose function should be recommendatory

only.

C u sto m s ( I m p o r t L ic e n s in g ) R e g u la tio n s

Regulation 11 Minister

Regulation 15 Minister

C u sto m s ( P r o h ib ite d E x p o rts ) R e g u la tio n s

Regulation 10A Collector

C u sto m s ( P r o h ib ite d Im p o rts ) R e g u la tio n s

Regulation 5 Collector

Grant or refusal of licence to import.

Revocation of licence.

Licence to export drugs.

Licence to import drugs.

Provide an appeal to the General Administrative Tribunal.

Provide an appeal to the General Administrative Tribunal.

Provide an appeal to the General Administrative Tribunal.

Customs Tariff Act

Section 7 Minister

Section 8 Minister

Section 30 Minister

Section 31 Minister

D is tilla tio n A c t

Section 20 Collector

Sections 24 and 27 Minister

Section 44 Collector

Section 50 Collector

Section 51 Collector

Regulation 107 Collector

E x cise A ct

Section 5A Collector

Section 26 , Collector

Section 28 Collector

Section 34 Collector

Section 60 Collector

Section 62 Collector

Section 97 Comptroller-General,

Collector

Section 105 Collector

Section 159

Value is as the Minister directs.

F.o.b. price.

Essential character of goods.

Landed costs.

Licence to distil.

Transfer and cancellation of licence.

Deficiency in quality.

Payments of excise for deficiencies.

Remission for loss during distillation.

Payment of duty on deficiency.

Declaration of approved places.

Registration of producers.

Registration of dealers.

Licence to manufacture.

Payment of excess where goods not kept safely.

Payment of excess on deficiency.

Return of seized goods on payment of security.

Payment for deficient goods.

Differences arising under the Act or in relation to the Customs Act not involving contravention of the Act.

Provide an appeal to the General Administrative Tribunal whose function should be recommendatory only.

Provide an appeal to the General Administrative Tribunal.

Provide an appeal to the General Administrative Tribunal.

See text, paragraphs 79(d) and 82.

P r o p o s e d R e v ie w P ro c ess

Provide an appeal to the General Administrative Tribunal.

Provide an appeal to the General Administrative Tribunal whose function should be recommendatory only.

Provide an appeal to the General Administrative > Tribunal.

Approval and withdrawal of approval of credit Provide an appeal to the General Administrative un' on· Tribunal. (Chairman sitting alone).

It is understood that this Act is to be repealed.

Provide an appeal to the General Administrative Tribunal. (Chairman sitting alone).

Decision that section 9 relating to payment of See Appendix C, paragraph 150. compensation should not apply.

Registration of a Minister of Religion who is not See Appendix C, paragraph 3.

Approval of a marriage guidance organization. See text, paragraphs 103 to 105.

Provide an appeal to the General Administrative Tribunal.

Provide an appeal to the General Administrative Tribunal.

Provide an appeal to the General Administrative Tribunal. (Chairman sitting alone).

Provide an appeal to the General Administrative Tribunal.

Provide an appeal to the General Administrative Tribunal. (Chairman sitting alone).

Provide an appeal to the General Administrative Tribunal.

S e c tio n o r R e g u la tio n D e c is io n M a k e r S u b je c t M a tte r P r o p o s e d R e v ie w P ro c ess

N a tio n a l H e a lth A c t

Section 33

Section 73

Director-General

Minister after considering the report of the Registration Committee

N a v ig a tio n A c t Section 18 Minister

Section 20 Minister

oo

N a v ig a tio n (L o a d in g a n d U n lo a d in g — S a fe ty M e a s u re s )

Regulation 7 Minister

N a v ig a tio n ( R a d io ) R e g u la tio n s

Regulations 47 and 48 Postmaster-General

N e w Z e a la n d R e -e x p o rts A c t

Section 3 Collector

N itr o g e n o u s F e r tiliz e r s S u b s id y A c t

Section 5

Section 6

Section 11

Section 13

Section 16

Minister

Minister

Minister

Comptroller-General

Minister

Refusal to enter into an agreement with a medical practitioner under the pensioner medical service.

Grant, subject to conditions he thinks fit, or refusal of, application for registration of a medical or hospital benefit organization. The Minister has to Gazette a grant or refusal, c.f. section 80 which

gives an appeal to the Supreme Court in suspension or cancellation of registration cases.

Failure to issue a certificate of competency to an officer.

Has discretion to cause an inquiry by a Court of Marine Inquiry to determine whether a master, etc. has ceased to be unfit.

R e g u la tio n s Notification that an establishment is not suitable as a testing establishment or a heat treatment establishment.

Refusal to grant a certificate to a radio officer or wireless signaller.

Increase in current domestic value.

Circumstances in which subsidy payable.

Subsidy not payable for certain imported goods.

Benefit of subsidy not passed on.

Goods must be of good and merchantable quality.

Registration of premises.

See Appendix C, paragraph 62.

See Appendix C, paragraphs 65 to 68.

See Appendix C, paragraphs 190 and 193.

See Appendix C, paragraph 193.

See Appendix C, paragraphs 190 and 194.

See Appendix C, paragraphs 190 and 194.

Provide an appeal to the General Administrative Tribunal.

Provide an appeal to the General Administrative Tribunal.

Provide an appeal to the General Administrative Tribunal. (Chairman sitting alone).

Provide an appeal to the General Administrative Tribunal.

Provide an appeal to General Administrative Tribunal but only in relation to re-entry visas for residents. See also text, paragraph 95.

Provide an appeal to the General Administrative Tribunal. (Chairman sitting alone).

Provide an appeal to the General Administrative Tribunal.

Provide an appeal to the General Administrative Tribunal. (Chairman sitting alone).

c.f. sections 29 and 43. See Appendix C, para­ graphs 98 and 99.

Provide an appeal to the General Administrative Tribunal.

See Appendix C, paragraphs 103 to 105.

P r o p o s e d R e v ie w P ro cess

Provide an appeal to the Valuation and Compen­ sation Tribunal.

Provide an appeal to the General Administrative Tribunal.

Release from prison under a licence to be at large: Parole type machinery. See Appendix C, para- variation or revocation. Release from custody: graph 1. variation or revocation.

Provide an appeal to the General Administrative Tribunal.

Provide an appeal to the General Administrative Tribunal.

APPENDIX I

Administrative Discretions Vested by A.C.T. Ordinances in Ministers, Officials and Statutory Authorities Subject to Review by the Courts

S e c tio n o r D e cisio n R e v ie w S u b je c ( M a U e r C h a ra c te r o f

R e g u la tio n M a k e r C o u r t R e v ie w

A g e n ts O rd in a n c e

Section 98 Agents Board Supreme Court

of A.C.T.

Refusal to register or license, revocation of registration or licence, finding a registered or licensed agent guilty of rules breach

Appeal

A rc h ite c ts O rd in a n c e Section 17 Architects Board Supreme Court

of A.C.T.

Refusal of Registration Appeal

Section 25 Architects Board Supreme Court

of A.C.T.

Removal from register or suspension Appeal

B u ild in g O rd in a n c e Section 19 Building Review

Committee

Supreme Court of A.C.T. Refusal, suspension or cancellation of a builder’s

licence

Appeal

Section 48 Building Review

Committee

Supreme Court of A.C.T. Building stop and demolition notices

Appeal

B u sin e ss N a m e s O rd in a n c e Section 19 Registrar of

Business Names Supreme Court of A.C.T. Cancellation of registration

of a business name

Application

C a n b e r r a R e ta il M a r k e t T r u s t O rd in a n c e

Section 35A The Trust Court of Petty

Sessions

Refusal of licence in certain circumstances Appeal

C ity A re a L e a se s O rd in a n c e

Section 11B Valuation Review Board Supreme Court of A.C.T.

Review of determinations of the Minister under section 11 of capital sums

Appeal

C h a r a c te r o f

D e c is io n

Rehearing

Rehearing

Rehearing

Rehearing

P r o p o s e d R e v ie w P ro c e s s

Substitue the General Administrative Tribunal for the Supreme Court*

Substitute the General Administrative Tribunal for the Supreme Court*

Substitute the General Administrative Tribunal > for the Supreme Court* See Appendix B

paragraph 9

Substitute the General Administrative Tribunal for the Supreme Court*

Substitute the Valuation and Compensation Tribunal for the Valuation Review

Board and eliminate the direct appeal to the Supreme Court

S e c tio n o r D e cisio n R e v ie w „ M n tt C h a ra c te r o f C h a ra c te r o f P r o p o s e d R e v ie w

R e g u la tio n M a k e r C o u r t “ ^eC Cr R e v ie w D e c is io n P ro cess

C o -o p e ra tiv e S o c ie tie s O rd in a n c e

Section 11 Registrar of

Co-operative Societies

Supreme Court of A.C.T. Refusal to register a Society or any of its rules

or refusing to register or directing a change of name

Summons

D e n tis ts R e g is tr a tio n O rd in a n c e

Section 24 Dental Board Supreme Court

of A.C.T.

Refusal of registration Appeal Rehearing

Section 30 Dental Board Supreme Court

of A.C.T.

Removal from register Appeal Rehearing

E le c tric ity O rd in a n c e

Section 31 A.C.T. Electricity

Authority

Supreme Court of A.C.T. Refusing, suspending or cancelling an electrical

contractor’s licence

Appeal

Section 31 A.C.T. Electricity

Authority

Court of Petty Sessions Likewise as regards electricians’ licences

Appeal

Section 33 A.C.T. Electricity

Authority

Court of Petty Sessions Proposal to fell trees etc. Application

F lu o ro s c o p e s O rd in a n c e

Section 12 Director-General of Health Court of Petty Sessions

Operation of fluoroscope Appeal

G u n L ic en c e O rd in a n c e

Section 7 Registrar of

Gun Licences

Court of Petty Sessions Refusal of licence Appeal

Section 10 Registrar of

Gun Licences

Court of Petty Sessions Refusal of gun dealer’s licence

Appeal

Substitute the General Administrative Tribunal for the Supreme Court*

Substitute the General Administrative Tribunal for the Supreme Court*

Substitute the General Administrative Tribunal for the Supreme Court*

Substitute the General Administrative Tribunal for the Court of Petty Sessions*

No change

Substitute the General Administrative Tribunal for the Court of Petty Sessions*

Substitute the General Administrative Tribunal for the Court of Petty Sessions*

In place of the role of the Court of Petty Sessions, provide for an appeal first to the

Minister and second to the General Administrative Tribunal

Note that the provisions for the Appeal Board were repealed in Ordinance 215/1970 subject to

saving clauses

Substitute the Valuation and Compensation Tribunal for the Appeal Board and

eliminate the direct appeal to the Supreme Court

Substitute the Chairman, General Administrative Tribunal for a Magistrate

Substitute the Valuation and Compensation Tribunal for the Valuation Review

Board and eliminate the direct appeal to the Supreme Court

Rehearing

Rehearing

Rehearing

Substitute the General > Administrative Tribunal for the Supreme Court*

S e c tio n o r D e cisio n R e v ie w S u h ie r t M a tte r C h a ra c te r o f C h a r a c te r o f

R e g u la tio n M a k e r C o u r t R e v ie w D e c is io n

M ilk A u th o r ity O rd in a n c e Section 34 Minister,

Milk Authority Supreme Court of A.C.T. Refusal to grant. Revocation

of wholesaler’s licence Appeal

Milk Authority Court of Petty Sessions Refusal or revocation of other licences or a

Vendor’s Permit

Appeal

M o to r T raffic

Milk Authority

O rd in a n c e

Court of Petty Sessions Directions to a licence holder or refusal of

transfer of licence or Vendor’s Permit

Appeal

Section 41N Minister Supreme Court

of A.C.T.

Refusal to approve an authorized insurer, approval subject to conditions, cancelling approval

Appeal

Section 104 Registrar Court of Petty

Sessions

Decisions of the Registrar about licences Appeal

N u r s e s R e g is tr a tio n O rd in a n c e Section 23 Nurses

Registration Board

Supreme Court of A.C.T. Refusal to register Appeal

Section 28K Nurses

Registration Board

Supreme Court of A.C.T. Refusal of enrolment as a nursing aide and removal

of name

Appeal

Section 30 Nurses

Registration Board

Supreme Court of A.C.T. Removal of name from register

Appeal

O p to m e tris ts O rd in a n c e Sections 17 and 26 Optometrists

Board

Supreme Court of A.C.T. Refusal to register and suspension and cancellation

Appeal

Reh earing

Rehearing

Rehearing

Rehearing

P h a rm a c y O rd in a n c e Sections 26 Pharmacy

and 32 Board

Supreme Court Refusal to register and Appeal

of A.C.T. removal from register

Rehearing

P r o p o s e d R e v ie w P ro c e s s

Substitute the General Administrative Tribunal for the Supreme Court*

Substitute the General Administrative Tribunal for the Court of Petty Sessions*

Substitute the General Administrative Tribunal for the Supreme Court*

No change

Substitute the General > Administrative Tribunal for the Supreme Court*

Substitute the General Administrative Tribunal for the Supreme Court*

Substitute the General Administrative Tribunal for the Supreme Court*

P o lic e ( D is c ip lin a r y P r o v is io n s ) O r d in a n c e

Section 43 Police Appeals Supreme Court

Board of A.C.T.

Disciplinary decisions of Appeal of Commissioner of Police

Substitute the General Administrative Tribunal for the Supreme Court*

R a te s

Section O rd in a n c e 32 Valuation Review Supreme Court Determination by the Appeal

Board of A.C.T. Minister under section 7

of unimproved values

Substitute the Valuation and Compensation Tribunal for the

Valuation Review Board and eliminate the direct appeal to the Supreme Court

S o il C o n s e rv a tio n O rd in a n c e

Section 7 Minister Supreme Court

of A.C.T.

Directing action to prevent or arrest soil erosion Appeal Substitute the General

Administrative Tribunal for the Supreme Court

S u rv e y o rs O rd in a n c e

Section 32 Surveyors

Board

Supreme Court Refusal to register, removal, Appeal of A.C.T. suspension, reprimand Rehearing Substitute the General

Administrative Tribunal for the Supreme Court*

V e te rin a ry S u rg e o n s R e g is tr a tio n O rd in a n c e

Section 28 Veterinary Supreme Court Refusal to register, removal, Appeal Rehearing

Surgeons Board of A.C.T. suspension, reprimand

Substitute the General Administrative Tribunal for the Supreme Court*

* General Administrative Tribunal with the Chairman sitting alone.

APPENDIX J

Administrative Discretions Vested by A.C.T. Ordinances in Ministers, Officials and Statutory Authorities Subject to Review by other than the Courts

C h a r a c te r o f

D e c is io n

Subject to appeal to the Supreme Court of the A.C.T.

Subject to appeal to the Supreme Court of the A.C.T.

Note that the Committee must adhere to the policies of National

Capital Development Commission

P r o p o s e d R e v ie w P ro c ess

Provide for an appeal to the General Administrative Tribunal*

Provide for an appeal to the General Administrative Tribunal

Substitute the General Administrative Tribunal for the Supreme Court. See also Appendix B,

paragraph 9*

Provide for an appeal to the General Administrative Tribunal. See also Appendix B

paragraph 9

Substitute the General Administrative Tribunal for the Supreme Court. See also Appendix B,

paragraph 9

See Appendix B paragraph 9

C ity A r e a Leases Ordinance S e c tio n 1 1 B M i n i s t e r V a l u a t i o n D e t e r m i n a t i o n o f c a p i t a l A p p e a l

R e v ie w B o a r d s u m s

Appeal lies to the Supreme Court of the A.C.T.

Section 28B Officer Minister Refusal to consent to certain Appeal

transactions in relation to leases

In s p e c tio n o f M a c h in e r y R e g u la tio n s

Regulation 18 Inspector Minister Requirements of Appeal

Inspectors

L a n d lo r d a n d T e n a n t O rd in a n c e

Section 30 Rent Controller Fair Rent Decision of Controller

Board

to ~J L a n d V a lu a tio n O rd in a n c e

Sections 7 Minister Land Decision and determination Request

and 20 Commissioner in relation to rentals

L eases (S p e c ia l P u rp o s e s ) O rd in a n c e

Section 5B Valuation Reappraisals Appeal

Review Board

Recommendation to Minister. If the lessee still objects the question is referred to

the Land Court of the A.C.T.

Subject to appeal to the Supreme Court of the A.C.T.

M o to r T raffic O rd in a n c e

Section 41M Authorized Minister

Insurer

Refusal of authorized Appeal

insurer to issue or renew a third party policy

Substitute the Valuation and Compensation Tribunal for the Valuation Review

Board and eliminate appeal to the Supreme Court

Provide for an appeal to the General Administrative Tribunal

Provide for an appeal to the General Administrative Tribunal

Provide for an appeal to the Valuation and Compensation Tribunal

Substitute the Valuation and Compensation Tribunal for the Land Commissioner and eliminate the appeal to the Land Court

Substitute the Valuation and Compensation Tribunal for the

Valuation Review Board and eliminate appeal to the Supreme Court

Provide for an appeal to the General Administrative Tribunal

S e c tio n o r R e g u la tio n S u b je c t M a tte r P r e s e n t A r r a n g e m e n ts

M in in g O rd in a n c e

Section 47 Suspension of lease for pastoral purposes. Return Mutual agreement and, in default, the Minister

or remission of reasonable rent and compensation for improvements

Section 60 Compensation in certain circumstances Minister but if more than $10.00 is involved the aggrieved person may require

assessment by arbitration under the Ordinance

P u b lic H e a lth (D a iry ) R e g u la tio n s

Regulations 21 and 25 Destruction of animals reacting to tuberculin tests Valuation by owner and authorized officer and, in default, by Minister or affected by disease

R a te s O rd in a n c e

Sections 7, 29 and 30 Determination of unimproved values Valuation Review Board

o S to c k O rd in a n c e

Section 15 Determination of the amount of stock rates Minister

P r o p o sa ls

Approval of a private adoption agency; suspension Transfer power to official with appeal to the or revocation General Administrative Tribunal

Ombudsman

Transfer power to official with appeal to the General Administrative Tribunal

Provide for an appeal to the Minister and then to the General Administrative Tribunal*

Refusal to approve plans and specifications or to Provide for an appeal to the General Admini- grant a building permit strative Tribunal. See also Appendix B, paragraph

9

Provide for an appeal to the General Admini­ strative Tribunal

Issue, suspension and cancellation of wireman's Provide for an appeal to the General Admini- licence strative Tribunal*

Issue, suspension and cancellation of plumbers’ and Provide for an appeal to the General Admini- drainers’ licences strative Tribunal*

P ro p o sa ls

Transfer power to officials and provide for appeal to the General Administrative Tribunal

Under section 11A of the Ordinance, the Supreme Court of the A.C.T. may vary any provision, covenant or condition of a lease. However the Court cannot vary if the Minister certifies the

variation would be repugnant to the principles governing the construction and development of Canberra. Substitute the General Administrative Tribunal for the Supreme Court

Provide for an appeal to the General Admini­ strative Tribunal

Provide for an appeal to the strative Tribunal General Admini-

Premises at which business may be carried on. Transfer power to official and provide for an Places where licenced vehicles may stand appeal to General Administrative Tribunal*

Refusal to grant, or suspension or cancellation of Provide for an appeal to the General Admini- licence strative Tribunal*

L iq u o r O r d in a n c e

M e a t R e g u la tio n s

Regulations 4 and 5

Licensing Magistrate Exclusive jurisdiction in respect of the grant, re­ fusal, forfeiture, cancellation, renewal, transfer etc. of licences, disqualification of licensed premises and persons, fees for licences etc.

Director-General of Health Grant, suspension or revocation of permits en­ abling slaughtering

M in in g O rd in a n c e

Section 30 Minister Objections to the grant of a mining lease

M o n e y L e n d e rs O rd in a n c e

Sections 9A Registrar of Business Registration of money lenders

and 9B Names

P o is o n s a n d D a n g e ro u s D ru g s O rd in a n c e

Sections 8 Pharmacy Board

and 29

P u b lic H e a lth ( B a rb e rs ’ S h o p s ) R e g u la tio n s

Regulation 6 Director-General of Health

Minister

P u b lic H e a lth (B o a rd in g H o u s e s ) R e g u la tio n s

Regulation 5 Director-General of Health

Minister

P u b lic H e a lth ( E a tin g H o u s e s ) R e g u la tio n s

Regulation 5 Director-General of Health

Regulation 6 Minister

Licences to sell poisons etc. and manufacture of narcotic drugs

Registration of Barbers’ Shops

Cancellation of legistration

Registration of Boarding Houses

Cancellation of registration

Registration of eating houses

Cancellation of registration

See Appendix B, paragraph 15

Ombudsman

Sec Appendix B, paragraph 17

Provide for an appeal to the General Admini­ strative Tribunal*

Ombudsman

Provide for an appeal to the General Admini­ strative Tribunal*

Transfer power to Director-General and provide for an appeal to the General Administrative Tri­ bunal

Provide for an appeal to the General Admini­ strative Tribunal*

Transfer power to Director-General and provide for an appeal to the General Administrative T ri­ bunal*

Provide for an appeal to the General Admini­ strative Tribunal*

Transfer power to Director-General and provide for an appeal to the General Administrative T ri­ bunal*

P ro p o sa ls

Registration, suspension and revocation of Meat Provide for an appeal to the General Admini- Vendor’s Licence. Transfer of licences strative Tribunal*

Provide for an appeal to the General Admini­ strative Tribunal* Transfer power to Director-General and provide

for an appeal to the General Administrative Tri­ bunal*

Registration of Private Hospitals and suspension Provide for an appeal to the General Admini- of registration strative Tribunal*

Transfer power to Director-General and provide for an appeal to the General Administrative Tri­ bunal*

Grant or cancellation of certificate of competency Provide for an appeal first to the Minister and to drive a power crane or hoist then to the General Administrative Tribunal*

Transfer power to official and provide for an appeal to the General Administrative Tribunal*

Provide for an appeal to the General Admini­ strative Tribunal*

Approval and revocation of approval of an insurer c.f. section 41N of the Motor Traffic Ordinance. Provide for an appeal to the General Admini­ strative Tribunal*

Appendix Μ

Persons and Organizations who made Submissions to the Committee

Miss J. Abbott.

Mr B. Conlon.

Mr E. J. Cooper, Senior Lecturer in Law, Canberra College of Advanced Education.

Mr R. E. Edwards.

Mr I. P. Juracick.

Mr Η. H. Mason, Senior Lecturer in Commercial Law, University of Queensland.

Mr A. D. Milne.

Professor R. W. Parsons, Faculty of Law, University of Sydney. Mr R. Pattison.

Mr A. D. Rose, Lecturer in Administrative Law, University of Queensland.

Mrs O. Sharkey.

Mr L. G. Taylor.

Mr G. Winterton. Group Captain E. A. Whitely, C.B.E., D.F.C., R.A.F. (Ret’d). Australian Commonwealth Pensioners’

Federation.

Australian Council of Social Service. Council of Social Service of Western Australia Inc.

Council of Social Service of Tasmania.

Victorian Council of Social Service.

Civil Liberties Association of Western Australia.

Victorian Council for Civil Liberties.

Council of Commonwealth Public Service Organizations.

Joint Council of Commonwealth Service.

Good Neighbour Council of Queensland.

The Good Neighbour Council of South Australia Inc.

Australian Society of Accountants.

The Institute of Chartered Accountants in Australia.

Law Institute of Victoria.

Law Society of South Australia Inc.

The Law Society of Western Australia.

The Law Society of the Australian Capital Territory.

Queensland Tax Agents’ Association.

The Returned Services League of Australia.

The Royal Institute of Public Administration (A.C.T. Group).

United Farmers and Woolgrowers’ Association of New South Wales.

War Widows’ Guild of Australia.

The Woden Valley Club (Inc.).

135