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Administrative Appeals Tribunal Act - Administrative Review Council - Report - Year - 1985-86 (10th)


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The Parliament of the Commonwealth of Australia

ADM INISTRATIVE REVIEW COUNCIL

Annual Report (10th)

1985-86

Presented 26 November 1986 Ordered to be printed 27 November 1986

Parliamentary Paper No. 386/1986

A

Administrative Review Council

Tenth Annual Report 1985-86

Administrative Review Council

Tenth Annual Report

1985-86

Australian Government Publishing Service Canberra 1986

© Commonwealth of Australia 1986 ISSN 0155-025X

Typeset in Australia by Graphic Services Ply. Ltd. North field. S.A.

Printed in Australia by Watson Ferguson and Co.. Brisbane. Qid.

Administrative Review Council G.P.O. Box 9955 Canberra, A.C.T. 2601

The Hon. Lionel Bowen, M.P. Attorney-General Parliament House Canberra, A.C.T. 2600

Dear Attorney-General,

In accordance with section 58 of the Administrative Appeals Tribunal Act 1975, I furnish to you the Annual Report of the Administrative Review Council, which was adopted by the Council on 1 August 1986.

Yours sincerely,

E. J. L. TUCKER Chairman

This photograph was taken at a meeting o f the Council on 12 June 1986. Those photographed are (from left to right): Mr E. J. L. Tucker (Chairman), Mr A. J. Ayers, Mr Justice J. D. Davies, Dr J. E. Griffiths (Consultant), Mr W. E. Impey, A VM J. C. Jordan, Mr D. P. O ’Brien (Director o f Research),

Mr J. Η. P. Disney, Dr C. A. Saunders, Mr R. G. Fraser (Principal Project Officer), Mr P. J. Flood, Mr L. J. Curtis, Mr J. F. Muir, Mr A. D. Rose. Two Council members (the Hon Xavier Connor and Mr P. R. Munro) do not appear in the photograph.

THE ADMINISTRATIVE REVIEW COUNCIL

Members

Mr E. J. L. Tucker (Chairman) * The Hon Mr Justice J. D. Davies (President, Administrative Appeals Tribunal) * Professor J. E. Richardson AO (Commonwealth Ombudsman) (to 23 September 1985)

* Air Vice-Marshal J. C. Jordan AO (Acting Commonwealth Ombudsman) (from 24 September 1985) * The Hon Xavier Connor AO, QC (President, Law Reform Commission) Mr A. J. Ayers AO

Mr L. J. Curtis AM Mr J. Η. P. Disney Mr P. J. Flood (from 2 April 1986) Mr L. J. Hartigan AO (to 3 February 1986) Mr W. E. Impey (from 2 April 1986)

Mr D. G. Mackay (to 3 February 1986) Mr J. F. Muir (from 2 April 1986) Mr P. R. Munro Mr A. D. Rose

Dr C. A. Saunders Mr R. J. Young (to 3 February 1986)

* Ex officio member

Officers of the Administrative Review Council’s Secretariat

Dr J. E. Griffiths (Director of Research) (to 31 December 1985) Mr D. P. O ’Brien (Director of Research) (from 16 May 1986—■ Mr O’Brien was the acting Director from 28 January 1986) Mr R. G. Fraser

Mr R. W. Hughes Ms B. McNaughton (from 11 November 1985) Ms Η. M. Watchirs (to 1 November 1985) Mr B. C. Newman

Miss Μ. I. King Mrs Μ. E. Dance Mrs D. L. Freedman Mrs E. A. Mills (to 6 December 1985)

Address for Correspondence

The Director of Research Administrative Review Council G.P.O. Box 9955 Canberra A.C.T. 2601

Telephone (062) 47 5100

ADMINISTRATIVE REVIEW COUNCIL FUNCTIONS AND POWERS

Section 51 of the Administrative Appeals Tribunal Act 1975 sets out the functions and powers of the Council as follows:

(1) The functions of the Council are: (a) to ascertain, and keep under review, the classes of administrative decisions that are not the subject of review by a court, tribunal or other body; (b) to make recommendations to the Minister as to whether any of those classes

of decisions should be the subject of review by a court, tribunal or other body and, if so, as to the appropriate court, tribunal or other body to make that review; (c) to inquire into the adequacy of the law and practice relating to the review

by courts of administrative decisions and to make recommendations to the Minister as to any improvements that might be made in that law or practice; (d) to inquire into the adequacy of the procedures in use by tribunals or other bodies engaged in the review of administrative decisions and to make

recommendations to the Minister as to any improvements that might be made in those procedures; (e) to make recommendations to the Minister as to the manner in which tribunals engaged in the review of administrative decisions should be constituted; (f) to make recommendations to the Minister as to the desirability of admini­

strative decisions that are the subject of review by tribunals other than the Administrative Appeals Tribunal being made the subject of review by the Administrative Appeals Tribunal; and (g) to make recommendations to the Minister as to ways and means of improving the procedures for the exercise of administrative discretions for the purpose of ensuring that those discretions are exercised in a just and equitable manner.

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

v i

REPORTS OF THE ADMINISTRATIVE REVIEW COUNCIL

Report Date of Transmission

*

*

*

*

1 Administrative Decisions (Judicial Review) Act 1977— Exclusions under Section 19 2 Repatriation Appeals 3 Review of Import Control and Customs By-Law

Decisions

4 Administrative Appeals Tribunal Act 1975—Amendments 5 Defence Force Ombudsman 6 Entry to Cocos (Keeling) Islands and Christmas Island 7 Citizenship Review and Appeals System

8 Social Security Appeals 9 Administrative Decisions (Judicial Review) Amendment

13 October 1978 26 February 1979

25 June 1979 26 June 1979 16 July 1979 2 November 1979

13 June 1980 27 June 1980

Bill 1980

10 Shipping Registration Bill *11 Student Assistance Review Tribunals *12 Australian Broadcasting Tribunal Procedures *13 Commonwealth Employees’ Compensation Tribunal

*14 Land Use in the ACT *15 Australian Federal Police Act 1979: Sections 38 and 39 *16 Review of Decisions under the Broadcasting and Television Act 1942

*17 Review of Taxation Decisions by Boards of Review *18 Compensation (Commonwealth Government Employees) Act 1971—Amendments *19 Rights of Review under the Migration Act 1958 and

Related Legislation—Interim Report on the Constitution of the Administrative Appeals Tribunal *20 Review of Pension Decisions under Repatriation Legislation *21 The Structure and Form of Social Security Appeals

*22 The Relationship Between the Ombudsman and the Administrative Appeals Tribunal *23 Review of Customs and Excise Decisions: Stage Two *24 Review of Customs and Excise Decisions: Stage Four,

Censorship

25 Review of Migration Decisions

16 July 1980 6 August 1980 23 January 1981 20 February 1981

8 May 1981

16 November 1981 11 February 1982

11 June 1982 6 June 1983

27 June 1983

4 August 1983

16 September 1983 12 April 1984

2 January 1985 28 June 1985

5 September 1985 24 December 1985

Published by the Australian Government Publishing Service

vii

CONTENTS

PART ONE

Para. Page

SUMMARY 1 1

1. THE COUNCIL’S WORK PROGRAM Projects on hand at start of year 20 6

Projects completed during year 28 6

Current work program 29 7

2. SUMMARY OF 1985-86 COUNCIL REPORTS AND OTHER ADVICE Review of Customs and Excise Decisions: Stage Four, Censorship 44 9

Review of Migration Decisions Submission on Freedom of Information

60 12

Legislation to the Senate Standing Committee on Constitutional and Legal Affairs 74 17

3. IMPLEMENTATION OF COUNCIL RECOMMENDATIONS Review of Taxation Decisions by Boards of Review 95 22

Passport Regulations 102 23

4 CUMULATIVE SUMMARY OF RECOMMENDATIONS AWAITING FINAL DECISION OR ACTION Registration of tax agents 105 24

Review of import control and Customs by-law decisions 106 24

Superannuation Act 1976—jurisdiction 107 25

Liquor Ordinance 1975 (A.C.T.) 108 25

Postal By-Laws Amendment (No. 2) 1981 109 25

Land use in the A.C.T. Compensation (Commonwealth Government Employees) 110 25

Act 1971—amendments 111 26

The structure and form of social security appeals The relationship between the Ombudsman and the 112 26

Administrative Appeals Tribunal 115 26

Customs and excise appeals: stage 2 116 27

Exclusion of committal proceedings from AD(JR) Act review 117 27

5. LEGISLATIVE AND RELATED DEVELOPMENTS Judicial review regulations 120 28

Student Assistance Amendment Act 123 29

Charges under the FOI Act 124 29

Veterans’ Entitlements Act 125 29

Product safety 126 29

Australian Broadcasting Tribunal procedures 127 30

Inspector-General of Intelligence and Security 128 30

The taxation jurisdiction of the AAT 129 31

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6. THE ADMINISTRATIVE APPEALS TRIBUNAL Jurisdiction 141 34

Comment on specific jurisdictions 144 35

Statistics on the operation of the Tribunal 158 37

Appeals to the Federal Court of Australia 160 37

Freedom of information requests 165 38

Administrative developments 166 38

Decisions of the Tribunal 168 38

Membership of the Tribunal 201 43

7. THE COMMONWEALTH OMBUDSMAN Delay in appointment of the Commonwealth Ombudsman Reports to the Prime Minister under section 16 of the 215 46

Ombudsman Act 1976 Reports to the Parliament under section 17 of the 216 46

Ombudsman Act 1976 217 47

Freedom of information 220 47

Work load and resources 221 48

Defence Force Ombudsman 224 48

‘The Ombudsman Through the Looking Glass’ 226 48

8. REVIEW BY THE COURTS Case law 228 49

AD(JR) Act 229 49

Ambit of Act (s. 3) 229 49

Grounds of review (ss 5— 6) 236 50

Statements of reasons (s. 13) 247 52

Availability of alternative remedy (s. 10) 251 53

Limitation of jurisdiction of State courts (s. 9) 257 54

Stay orders (s. 15) 258 55

Powers of the Federal Court (s. 16) 259 55

Discretion of the court to grant relief 261 55

The AD(JR) Act and Commonwealth administration 262 55

Other judicial review procedures 277 59

Legislative changes affecting judicial review 282 60

Council project on AD(JR) Act 286 61

AD(JR) Act statistics 287 61

9. OTHER REVIEW TRIBUNALS Immigration Review Panels 295 63

Films Board of Review 299 64

Student Assistance Review Tribunal 301 65

10. PERSONNEL, ORGANISATION AND ACTIVITIES Membership 302 66

Meetings, committees and working parties 308 67

Secretariat 310 68

Resignation of Dr Griffiths as Director of Research 313 68

Consultants 314 69

Consultation with the Council 315 69

Visitors 317 70

Appropriation and expenditure 318 70

Freedom of information 319 71

Seminars and conferences 320 71

Meetings with other organisations 322 71

x

Liaison with academics Contacts with overseas bodies Bibliography

323 324 325

72 72 72

PART TWO

LETTERS OE ADVICE 73

APPENDIXES

Appendix 1 Administrative Review Council appropriation and expenditure 1985-86 122

Appendix 2 Bibliography of publications relating to administrative law and public administration 123

Appendix 3 Administrative Appeals Tribunal membership 127

Appendix 4 Administrative Appeals Tribunal jurisdiction 130

Appendix 5 Administrative Appeals Tribunal statistics of business for the year ended 30 June 1986 162

Appendix 6 Administrative Decisions (Judicial Review) Act 1977 statistics for 1985 169

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PART ONE

SUMMARY

Assessment of year's activities

1. The Council’s function is to keep under review the whole of the Commonwealth system of administrative law. Its statutory charter requires it to monitor the operation of the system in order to maintain its cohesion and effectiveness and to make

recommendations on the extension of the system to new or existing administrative discretions. During the year the Council was active on both of these fronts. Of particular note is the Council’s report on review of migration decisions (paras 60-73) which makes substantial recommendations for review on the merits of administrative

decisions in the migration area.

2. During the year one of the most significant decisions yet taken by government by way of implementing recommendations of the Council was the decision to transfer to the Administrative Appeals Tribunal the jurisdiction formerly exercised by the Taxation Boards of Review (see Chapter 3). The transfer of jurisdiction takes effect

on 1 July 1986.

Completed reports

3. The Council transmitted two reports to the Government.

• Censorship. This report (Report No. 24) is stage four of the Council’s project on review of customs and excise decisions. The report deals with decisions of a censorship character made under the Customs (Cinematograph Films) Regulations and under regulation 4A of the Customs (Prohibited Imports)

Regulations. It deals in particular with decisions of the Film Censorship Board presently reviewable by the Cinematograph Films Board of Review. The major recommendation made in the report is that decisions of the Film Censorship Board currently subject to review by the Cinematograph Films Board of Review

should continue to be subject to that review. Other recommendations include recommendations that certain decisions be subject to review by the Administrative Appeals Tribunal, with the Attorney-General having a power, in particular cases where public interest considerations arise, to exclude review by a ministerial

certificate which would be tabled in the Parliament. (See paras 44-59.) • Migration. This is a major report. The recommendations made in it are based on the philosophy that the nature of the interests affected by migration decisions is such that it is desirable in general to have rights and entitlements clearly spelled

out in legislation or in easily accessible policy statements and for primary decisions to be amenable to an effective system of external review on the merits. The proposals for reform recommended include:

• the structuring of discretionary powers by the embodiment in legislation of principles and criteria relevant to the exercise of those powers; • the provision of outlines of reasons for decisions; • the establishment by statute of a two-tier system of review on the merits

comprising Immigration Adjudicators at the first level and the Administrative Appeals Tribunal at the second level; and

1

a power being given to the Minister, in particular cases where public interest considerations arise, to exclude review by a ministerial certificate which would be tabled in the Parliament. (See paras 60-73.)

Letters of advice

4. Advice to the Government was provided in letter form on a range of matters. Some of the more important advices were:

• Veterans’Entitlements Bill 1985. This Bill was tabled in the Senate for comment in the autumn sittings in 1985. The Council’s advice on the Bill included advice concerning the ‘Guide to the Assessment of Rates of Veterans’ Pensions’ which was proposed to be used to determine the degree of incapacity of a veteran, the time limits proposed for lodging claims and seeking reviews and the range of decisions proposed to be subject to review. The Bill was passed in the 1986 autumn sittings. (See Part Two, Letters 2, 2A.) • Exclusion o f prosecution decisions from review under AD(JR) Act. Advice on

this matter was sought following a proposal by the Director of Public Prosecutions to exclude from review under the Administrative Decisions (Judicial Review) Act decisions taken in connection with the prosecution of offences against Commonwealth or territory laws. The Council sought the views of various law bodies on this proposal. The advice concluded that prosecution decisions should not be excluded from review. Fundamental to the advice is the principle that independent statutory office-holders such as the DPP should be answerable in the courts for the lawfulness of their actions. (See Part Two, Letter 3.) • Review o f decisions under Extradition Acts. The Council advised that no action

should be taken to exclude extradition decisions from review under the Administrative Decisions (Judicial Review) Act. Those decisions should be subject to review as a matter of principle. Because of the availability of alternative judicial review procedures, no significant practical advantage in terms of expediting extradition proceedings was likely to be achieved by excluding those decisions from review under the Act. (See Part Two, Letter 4.) • Draft regulations under Broadcasting and Television Act. The draft regulations

were intended to complete the implementation of the Council’s recommendations on Australian Broadcasting Tribunal procedures which were made in the Council’s Report No. 12, Australian Broadcasting Tribunal Procedures. Part of the Council’s advice related to the need for a structuring of the discretionary powers proposed to be conferred on the Australian Broadcasting Tribunal. As a minimum, it was suggested that a statement of general principle should appear in the regulations to provide guidance in the exercise of the Tribunal’s powers. The regulations have now been proclaimed. (See Part Two, Letter 8.)

Discussion paper on Administrative Decisions (Judicial Review) Act

5. A discussion paper on alleged abuses under the Administrative Decisions (Judicial Review) Act was prepared and circulated for comment. Numerous submissions were received in response to the paper. The submissions were taken into account in preparing a report on the Act which is expected to be transmitted to the Attorney-General early in 1986-87.

2

Review of FOI Act by Senate Standing Committee

6. The Senate Standing Committee on Constitutional and Legal Affairs is presently reviewing the operation of the Freedom of Information Act. A comprehensive submission to the Committee on review aspects of the Act was made by the Council (see paras 74-93). The year saw a continuation of the valuable work in the area of

administrative review done by this Committee, the Senate Standing Committee for the Scrutiny of Bills and the Senate Standing Committee on Regulations and Ordinances. In particular, the two last-mentioned committees have been assiduous in drawing the attention of the Parliament to provisions of Bills and Ordinances that

do not make adequate provision for review of administratix» discretions.

New Ombudsman

7. Following the retirement of Professor Richardson, the Council welcomed the appointment of M rG . K. Rolls, OBE, QC as Ombudsman from 1 July 1986. Mr Rolls was formerly the First Parliamentary Counsel and has previously been an appointed member of the Council.

Administrative law watch

8. In Kioa v Minister for Immigration and Ethnic Affairs the High Court handed down an important decision concerning the principles of natural justice. A statement of Mr Justice Mason in that case concerning the obligation to accord procedural fairness in the making of administrative decisions which affect rights, interests and legitimate expectations is likely to become a definitive statement of the law in this

area (para. 237).

Discussion paper on anti-dumping and countervailing duty decisions

9. Review of decisions under the Customs Tariff (Anti-Dumping) Act is stage three of the Council’s project on review of customs and excise decisions. A discussion paper was prepared and is expected to be circulated for comment during July 1986.

New projects

10. Stage two of the Access Project has been commenced. Stage two is concerned with barriers to the administrative review system in the areas of social security, student assistance and the Isolated Patients Travel Accommodation and Assistance Scheme. The matters under study in those areas are:

• hardship cases; • section 69 of the Administrative Appeals Tribunal Act (legal and financial assistance) and related issues; • information about the review system that is available to lawyers and doctors;

• advice and assistance provided by agencies; • the review officer system in the Department of Social Security; • forms, advices and leaflets.

3

11. A report on stage one of the Access Project (Notification of Decisions and Rights of Review) is expected to be transmitted to the Attorney-General early in 1986-87.

12. A project has been commenced on review of matters relating to the divisional structure of the Administrative Appeals Tribunal. The project is in its early stages.

13. Other projects which the Council has established are:

• review of decisions in the Prime Minister and Cabinet portfolio; • review of decisions in the Aboriginal Affairs portfolio.

Due to the limited staff resources of the Secretariat, no substantial work has yet commenced on these projects.

Admin Review

14. Regular publication of the Council’s quarterly bulletin continued. Issues were published in July, October, January and April.

Review of Customs and Excise Decisions: Stage 2

15. The Council’s report No. 23 on this topic was tabled in the Parliament on 13 November 1985.

Legislative developments

16. Apart from the legislation transferring the jurisdiction of Taxation Boards of Review to the Administrative Appeals Tribunal, legislation of particular significance to administrative review was the Student Assistance Amendment Act 1985 which replaced the large number of Student Assistance Review Tribunals with a single Student Assistance Review Tribunal (see para. 123).

Administrative Appeals Tribunal

17. Of particular note is the increase in applications made to the Tribunal but with the results favouring agencies more than in previous years. This reflects the improvement that has taken place in primary decision making (para. 159). The appointment of deputy presidents in each of the States has now given the Tribunal a presence throughout the whole of Australia and the ability to manage much of its affairs locally rather than by the principal registry in Canberra (para. 166).

Ombudsman

18. The Ombudsman made his first reports to the Parliament under section 17 of the Ombudsman Act. The first dealt with a complaint about the Australian Broadcasting Corporation and the second dealt with a failure of a department to award a contract to the lowest tenderer. As at the end of the year, neither report had been examined by the Parliament. (See paras 217-219.)

4

Personnel

19. New members appointed to the Council during the year are Mr P. J. Flood, Deputy Secretary of Department of Foreign Affairs, Mr W. E. Impey, partner in the Melbourne law firm of Wisewould Schilling, and Mr J. F. Muir, Chief Manager of the Westpac Banking Corporation in Canberra. They replaced Mr L. J. Flartigan, Mr

D. G. Mackay and Mr R. J. Young (see para. 303). Dr John Griffiths resigned as Director of Research during the year. Mr Denis O’Brien was appointed as the new Director of Research.

5

THE COUNCIL’S WORK PROGRAM

CHAPTER 1

Projects on hand at start of year

(a) Active projects

20. The projects set out below were on the Council’s list of active projects as at the start of the year. Some of the projects remain on the Council’s work program as at the end of the year. These are more fully described at paras 29-38 below.

21. Migration. This project was concerned with review of decisions under the Migration Act 1958 and related legislation.

22. Customs. The Council’s customs project has been divided into five stages. As at the start of the year, reports on two of the stages had been transmitted to the Government (Report No. 3, Review o f Import Control and Customs By-Law Decisions, AGPS, 1982, and Report No. 23, Review o f Customs and Excise Decisions: Stage Two, which was tabled in the Parliament on 13 November 1985). This left three stages on hand as at the start of the year—stage three, anti-dumping and countervailing duty decisions; stage four, censorship; stage five, remainder of customs and excise area.

23. AD(JR) Act review. This project is concerned with reviewing the operation of the Administrative Decisions (Judicial Review) Act.

24. Access to administrative review. This project is concerned with barriers to the administrative review system.

25. Damages in administrative law. This project considers whether damages should be able to be awarded by administrative tribunals.

(b) Reserve projects

26. The following projects were on the Council’s reserve list at the start of the year:

• immunities, privileges and time limits affecting statutory authorities; • costs before administrative tribunals; • air navigation; • review of Merit Protection and Review Agency; • reconsideration of Council Report No. 16 on review of decisions under the

Broadcasting Act.

27. The Council wrote to the Attorney-General on 13 September 1985 recommending that he consider referring the project on immunities, privileges and time limits affecting statutory authorities to the Law Reform Commission. This recommendation was made because, due to a lack of suitable staff available to work on the project, the Council had been unable to make any progress on it.

Projects completed during year

28. During the year the Council completed two project reports and transmitted them to the Government. Those reports are Report No. 25, Review o f Migration Decisions

6

(transmitted 24 December 1985), and Report No. 24, Review o f Customs and Excise Decisions: Stage Four, Censorship (transmitted 5 September 1985 and tabled in the Parliament on 11 May 1986). Summaries of these reports appear in Chapter 2.

Current work program

29. The projects included in the Council’s current work program are set out below. It should be noted that those projects do not make up the entirety of the program. The program also includes the substantial work involved in preparing letters of advice to the Government on issues referred to the Council, the preparation of the Council’s

quarterly bulletin, Admin Review, and the preparation, from time to time, of submissions and advice to government bodies and other bodies on matters relating to administrative review.

(a) Active projects

30. AD(JR) Act review. This project has been divided into stages. A report on stage one, which relates to alleged abuses of the Act, is expected to be transmitted to the Attorney-General early in 1986-87. A report on other aspects of the operation of the Act has been commenced. This report is being written having regard to the large number

of submissions on the operation of the Act that were received following circulation in 1984 of the Council’s Issues Paper on the Act. Dr John Griffiths, the former Director of Research of the Council, has been engaged as a consultant to assist with the completion of this project. Professor J. E. Richardson, the former Commonwealth Ombudsman, was also a consultant on the project during the year.

31. Access to administrative review. A report on stage one of the Access Project (Notification o f Decisions and Rights o f Review) is expected to be transmitted to the Attorney-General early in 1986-87. Work on stage two has commenced. This stage is concerned with barriers to the administrative review system in the areas of social security, student assistance and the Isolated Patients Travel Accommodation and Assistance Scheme. The matters under study in those areas are:

• hardship cases; • section 69 of the Administrative Appeals Tribunal Act (legal and financial assistance) and related issues; • information about the review system that is available to lawyers and doctors; • advice and assistance provided by agencies;

• the review officer system in the Department of Social Security; • forms, advices and leaflets.

32. Mr Tom Brennan has been engaged as a consultant to assist with the preliminary work in stage two. Mr John Schwartzkoff of MSJ Keys Young has been engaged as a consultant to conduct a users survey in the student assistance area.

33. Customs and excise: stage 3, anti-dumping and countervailing duty decisions. This project is concerned with the question of rights of review of decisions under the anti­ dumping legislation. A discussion paper has been prepared by a consultant to the Council, Mr Jeffrey Waincymer, Lecturer in Law at Monash University. The discussion

paper is about to be circulated to interested persons and organisations for comment. Work has not yet commenced on the fifth and final stage of the Customs project which will deal with rights of review in relation to customs and excise decisions that have not been dealt with in other stages of the project.

7

34. Aboriginal Affairs. The Council has established a project on review of decisions in the Aboriginal Affairs portfolio. The project is not expected to be large but little work has been done on it because of higher priority commitments.

35. Prime Minister and Cabinet. The Council has established a project on review of decisions in the Prime Minister and Cabinet portfolio, other than decisions relating to employment matters which are to be considered when the Council examines the

operation of the Merit Protection and Review Agency (see para. 40). The project is not expected to be large but no work has been done on it to date because of higher priority commitments.

36. Air navigation. This project is concerned with review of decisions in the air navigation area. It is a very large project. The project was moved from the reserve list to the priority list during the course of the year. Some preliminary work has been done on preparing a discussion paper for circulation to interested persons and bodies.

37. Damages in administrative law. Work on this project is being undertaken by Mr David Mitchell, Senior Lecturer in Law, University of Newcastle, and Mr Michael Pickering of the Melbourne law firm, Madden Butler Elder and Graham, in their capacities as honorary consultants.

38. Administrative Appeals Tribunal. The Council has established a project concerned with review of certain aspects of the operation of the Administrative Appeals Tribunal. In particular, this project will review past policy, and will attempt to establish principles for the future, concerning the establishment of separate divisions of the Tribunal, the appointment of members to more than one division and the composition of the Tribunal for particular hearings. This project is in its early stages.

(b) Reserve projects

39. The following projects are on the Council’s reserve list:

• costs before administrative tribunals; • review of Merit Protection and Review Agency; • reconsideration of Council Report No. 16 on review of decisions under the Broadcasting Act.

40. Work on the project on costs before administrative tribunals will not be reactivated until sufficient and suitable staff become available to develop it at a satisfactory rate. The project on review of the Merit Protection and Review Agency relates to an invitation to the Council to participate in a review of the agency which is expected to be conducted

for the Minister Assisting the Prime Minister in Public Service Matters towards the end of 1986. The Council has agreed to reconsider Report No. 16 following implementation by the Australian Broadcasting Tribunal of uniform inquiry procedures. Those procedures are now in place following the coming into effect in May 1986 of new regulations. The Council’s project should commence in the latter half of 1986-87.

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CHAPTER 2

SUMMARY OF 1985-86 COUNCIL REPORTS AND OTHER ADVICE

41. This chapter summarises the reports made by the Council during the year. Other advice given by the Council in the form of letters to the Attorney-General is set out in Part Two of this report, together with brief annotations. There is also in this chapter a brief summary of the Council’s submission on freedom of information legislation

which was made to the Senate Standing Committee on Constitutional and Legal Affairs.

42. The date upon which each report was forwarded to the Attorney-General appears in the heading of each summary. In the interests of brevity, the summaries necessarily omit some details of the Council’s recommendations and some explanatory material. For a full appreciation of the Council’s views, reference should be made to the full

reports where these are publicly available.

43. On 13 November 1985 the Council’s Report No. 23, Review o f Customs and Excise Decisions: Stage Two, was tabled in the Parliament. A summary of that report was included in the Council’s Ninth Annual Report (paras 59-86). On 11 May 1986 the Council’s Report No. 24, Review o f Customs and Excise Decisions: Stage Four,

Censorship, was tabled in the Parliament.

Review of Customs and Excise Decisions: Stage Four, Censorship

(transmitted 5 September 1985)

Introduction

44. The project constituted stage four of a five-stage examination of review of customs and excise legislation, of which two other stages have been completed (Report No. 3, Review o f Import Control and Customs By-law Decisions, AG PS, 1982, and Report No. 23, Review o f Customs and Excise Decisions: Stage Two, AGPS, 1985; and

see Third Annual Report, paras 27-38, and Ninth Annual Report, paras 59-86). Stage three, on anti-dumping decisions, and stage five, on rights of review in relation to all other customs and excise decisions not dealt with in the earlier stages, are still in the course of development (see para. 33). The report also constitutes part of the

Council’s continuing examination of all Commonwealth administrative tribunals with a view to reporting on those whose jurisdictions should be transferred to the A AT (see Eighth Annual Report, para. 266).

45. The report dealt with decisions of a censorship character made under the Customs (Cinematograph Films) Regulations (the Films Regulations’) and under regulation 4A of the Customs (Prohibited Imports) Regulations (the Prohibited Imports

Regulations’), together with film censorship decisions made by the Film Censorship Board (the Censorship Board’) and the Cinematograph Films Board of Review (the Board of Review’) under agreements between the Commonwealth and the States and State and Territory legislation. The project was largely concerned with rights of review

in relation to films and video material, whether imported for sale or hire or otherwise, but in its consideration of regulation 4A of the Prohibited Imports Regulations the relevant subject matter included categories of goods wider than films and video material.

9

46. In its consideration of the review provisions in the Films Regulations, the Council examined the functions and procedures of the Board of Review, and as part of that task considered whether its jurisdiction would be better vested in the AAT. The Council also examined whether there was a need to provide for review of decisions of the Attorney-General under the provisions of regulation 40 of the Films Regulations (which enable the Attorney-General to give directions to the Chief Censor concerning matters arising under those Regulations), or of decisions of the Attorney-General or persons authorised by the Attorney-General under regulation 4A of the Prohibited Imports

Regulations (which, broadly speaking, defines prohibited imports in the censorship area, and provides a discretion to permit the importation of such prohibited goods). Certain miscellaneous decisions under the Films Regulations were also examined.

47. The Council was aware that, during the development of the project, major interconnected changes at Commonwealth, State and Territory levels had been made to the co-operative legislative provisions under which the Commonwealth acts in the field of censorship. One of the main reasons for introducing new legislation was to

provide for a classification system for video material similar to that which already existed for films intended for public exhibition. The changes included the introduction by the Commonwealth of a package of legislation which came into effect on 1 February 1984, and which it was intended would be followed by complementary State legislation. As a result of parliamentary and community criticism, State legislation did not carry into effect all the matters which had been agreed upon by Commonwealth and State

Ministers with responsibility for censorship. There were also subsequent amendments to the legislation brought forward by the Commonwealth Government, some in response to criticism and some designed to remedy technical defects.

Prohibited imports

48. As part of the overall package of amendments designed to provide for regulation of video material, amendments were made in 1983 to the Prohibited Imports Regulations with effect from 1 February 1984. The result as far as film and video material was concerned was to introduce a two-stage system for material not intended for public exhibition:

• control at the Customs barrier of extreme material of all kinds by means of the application of regulation 4A; • classification (or refusal thereof) by the Censorship Board (or its members or deputy censors) of other films and video material admitted under regulation 4A.

Film Censorship Board

49. The Council noted that the principal functions of the Film Censorship Board were as follows:

• granting or refusing import licences for films; • registering or refusing to register films imported for public exhibition, and passing or refusing to pass associated advertising material; and • classifying films and video material under agreements between the

Commonwealth and the States and under State and Territory legislation.

50. The classification function constitutes a major extension of the roles of the Censorship Board and the Board of Review as defined in the Films Regulations. Since the early 1970s there has been in existence a system which approaches a uniform system of film censorship. As already stated, this was supplemented in 1983-84 by legislation concerning video material.

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The Cinematograph Films Board o f Review

51. The Council noted that the Board’s major functions were to review decisions of the Censorship Board made under the Films Regulations and to review classification decisions of the Censorship Board about films and video material under co-operative agreements between the States and the Commonwealth. The Board of Review is made up of five or six members, of whom one is required to be a woman, and its current membership ranges widely. As far as possible, all members of the Board take part in reviews, especially where a film (or video material) is controversial. The procedures of the Board are very informal and not adversarial in nature, and are designed to dispose of applications for review within two to three weeks. The annual number of applications for review by the Board is not high: in 1984 it was 17.

Statutory criteria and guidelines employed by the two Boards

52. The Council examined the statutory criteria and other guidelines employed by the Censorship Board and the Board of Review in relation to registration and other matters arising under the Films Regulations and classification of films and video material. The Council concluded that the two Boards were required to make sensitive

judgments about community standards and attitudes and on matters of artistic or educational judgment.

Adequacy o f specialist tribunal

53. The Council reached the conclusion that the Board of Review was adequately fulfilling the functions for which it was designed and that there was no need to contemplate replacing it by another review body such as the A AT, and the Council recommended accordingly. The Council took the view that although it would be possible to invest the A AT with the power to review decisions in the censorship area, to do so would substantially change the nature of the existing review process which is being performed satisfactorily.

54. The Council noted that the operations of the Board of Review within a broadly uniform system are acceptable to the States, and its view was that this interlocking structure of arrangements should not be disturbed. It was also considered significant that the results of the consultations conducted by the Council revealed general confidence on the part of the industry groups concerned.

55. In order to provide for review of certain miscellaneous decisions under the Films Regulations, the Council also recommended that all decisions made under those regulations by members of the Film Censorship Board, including the Chief Censor or an officer acting on the Chief Censor’s behalf, or by deputy censors, should be subject to review by the Board of Review.

Securities 56. The Council recommended that there should be review on the merits by the AAT of all aspects of decisions concerning the requirement and taking of securities under provisions of the Films Regulations.

Attorney-General’ s powers under regulation 40 o f the Films Regulations

57. The Attorney-General is empowered by regulation 40 of the Films Regulations to direct that a matter arising under those regulations be submitted to him for determination and may thereafter give such directions as he thinks fit which the Chief Censor is to ensure are given effect. The power extends to making primary decisions

and altering decisions of the Censorship Board or the Board of Review. The Council

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was informed that these powers had been exercised only rarely. It recommended that such decisions of a substantive nature should be subject to review on the merits by the AAT, but that the Attorney-General should be empowered to issue a certificate which would have the effect of excluding review on the merits of a particular decision. The Council recommended that the Attorney-General should be required to table in the Parliament within 15 sitting days a copy of such a certificate specifying the grounds for issuing it.

Regulation 4A o f the Prohibited Imports Regulations

58. Regulation 4A of the Prohibited Imports Regulations, as amended on 27 June 1985, provides in effect that goods which are prohibited goods in the terms of the regulation (which specifies several categories of objectionable goods) cannot be imported without permission to do so being granted under sub-regulation 4A(2) by the Attorney-General or a person authorised by the Attorney-General for the purpose. Such prohibited goods are also subject to seizure under the provisions of the Customs Act. The regulation is the main instrument for Commonwealth control at the Customs barrier of goods which may be considered objectionable for a range of reasons of a censorship kind.

59. Consistently with its views on law enforcement decisions expressesed in Report No. 23 (paras 157-65; and see Ninth Annual Report, paras 77-9), the Council did not consider that there was a need for review on the merits of decisions that goods which come within the provisions of regulation 4A be seized. However, the Council recommended that decisions taken under sub-regulation 4A(2) should be subject to review on the merits by the AAT, but that the right to apply for review of decisions granting permission to import goods should be restricted to applicants for permission, while any person whose interests are affected by a decision refusing permission to import such goods should be entitled to apply for review of that decision by the AAT. The Council also recommended that the Attorney-General be empowered to issue a certificate of the kind referred to in paragraph 57 above, and subject to the same procedures.

Review of Migration Decisions (transmitted 24 December 1985)

60. The report constitutes the third and final stage of the Council’s review of decisions made under legislation administered by the Department of Immigration and Ethnic Affairs. Earlier reports are Citizenship Review and Appeals System (AGPS, 1981) {Fourth Annual Report 1980, paras 53-68) and Rights o f Review Under the Migration Act 1958 and Related Legislation, Interim Report on the Constitution o f the Administrative Appeals Tribunal (AGPS, 1983) {Eighth Annual Report 1983-84, paras

80-4). This report is concerned largely with review of decisions made under the Migration Act and Regulations and the overseas students charge legislation.

Existing avenues o f review

61. The Council examined existing avenues for review of migration decisions, including the present role of the Ombudsman, the Human Rights Commission, and the AAT under its present immigration jurisdiction. In particular, the Council examined the role of the Immigration Review Panels which currently make recommendations to the Minister in respect of a large number of appeals. While recognising that a

significant number of primary decisions are either reversed or modified following review by the Panels, the Council considered that they suffered from several deficiencies and

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that they did not provide an adequate alternative to an effective system of external review on the merits. In addition, the Council examined the Determination of Resident Status (DORS) Committee, the role of the Commissioner specified in section 14 of the Migration Act 1958, and the unusually large role played by ministerial representations in the migration field.

Need for review

62. The Council took the view that there was a need for a system of external review on the merits in respect of many migration decisions. It noted that significant personal interests might be affected by such decisions, which could relate not only to persons seeking to enter or remain in Australia but also to Australian citizens and permanent

residents who might have interests of a family, personal or business nature which would be affected by particular migration decisions. The Council believed that in principle a special duty was owed to such persons to provide them with a right to obtain an independent review on the merits of decisions which affected their interests.

63. The Council also considered that there was a need to bring the migration jurisdiction into line with other areas of Commonwealth administration, such as social security and repatriation, where there already existed systems of external review on the merits. In the Council’s opinion, the availability of such review was important

in ensuring that decisions were made fairly on the basis of existing facts and in accordance with the requirements of the law.

64. In devising a system of review on the merits in the migration field, the Council took account of many other factors including the high volume of primary decisions, the broad and largely unstructured nature of the discretionary powers exercised by primary decision makers, the Minister’s personal involvement in some decisions, the

fact that many decisions were taken at Australian posts overseas, the potential for abuse of a review system particularly in delaying the implementation of primary decisions, the relevance of the illegal status of some persons subject to migration decisions, the desirability of rationalising rights of review of migration decisions and

the cost of establishing and operating a merits review system.

65. The Council took account also of the nature of the interests affected by migration decisions, together with the factors of national sovereignty, human rights and community confidence which had implications for the need or otherwise for review on the merits of migration decisions. It also examined the various forms of ministerial

responsibility in the migration area which were relevant to the question whether there was a need for review on the merits of such decisions.

Rationalisation o f review rights

66. The Council examined some of the interrelationships between existing review bodies, together with the existing jurisdictions of those bodies, and expressed the view that the introduction of a two-tier determinative external review system of the kind proposed in the report would lead to a rationalisation and simplification of the

operation of various means of review of migration decisions.

67. The proposals for reform recommended by the Council in the report included the following major features:

• the structuring of discretionary powers in the migration field, where appropriate, by the embodiment in legislative form, preferably in the Act or Regulations, of identifiable principles and criteria; • the provision of outlines of reasons for decisions made by primary decision

makers;

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• the establishment by statute of a two-tier system of merits review comprising Immigration Adjudicators at the first level and the AAT at the second level, with review by Adjudicators being a prerequisite to AAT review in most cases; • decisions taken personally by the Minister to be subject to review by the AAT

without prior review by Adjudicators; • to reduce the potential for use of the two-tier system merely to delay the implementation of decisions in cases without substantial grounds for appeal, review by the AAT in relation to certain classes of decision should only be

available if the Tribunal grants leave; • Adjudicators should act as single-person authorities to hear appeals and should exercise the power of determinative, rather than recommendatory, decision

making; • the AAT should also exercise a power of determinative, rather than recommendatory, decision making in its migration jurisdiction, consistent with most of its other jurisdictions; • the Minister should be empowered to table a certificate, the effect of which is

to exclude review on the merits in relation to a particular decision, if the Minister is of the opinion that it is in the public interest, because of considerations such as national security, defence, or international relations, that final responsibility for the decision should remain with the Government; • provision of accommodation and support services for Immigration Adjudicators,

including the creation of a specialist immigration advisory service independent of the Department to advise and assist applicants for review; and • various other recommendations dealing with the membership, procedures and operations of both the Adjudicators and the AAT.

68. On the question of the appointment of Immigration Adjudicators, the Council believed that the persons concerned should have a capacity for objective assessment and sound judgment, actual or potential ability to conduct review proceedings, and a general understanding of the perspectives of public administration and of immigrants and ethnic communities. The Council also took the view that serving departmental

officers should not be appointed as Adjudicators since, while their knowledge of immigration policies and procedure could be an advantage, this was likely to be outweighed by the fact that their appointment might well be perceived as reflecting adversely on the independence of the first-level review authority. The Council did not oppose the possibility of the appointment as Adjudicators of former officers of the Department of Immigration and Ethnic Affairs, if they have the necessary qualities and qualifications, but it believed that it was important that in considering whether to appoint such persons regard should be paid to the desirability of limiting the number of such appointments to avoid jeopardising the community’s perception of the Adjudicators’ independence. The Council also proposed that the first-level review authority should be organised and coordinated on an Australia-wide basis.

69. The Council recommended that the following classes of decisions should be subject to review in accordance with the proposed two-tier structure of merits review at the instance of any person whose interests were affected by a decision, unless some restriction on standing was otherwise specified (decisions marked with an asterisk are those in respect of which a requirement of leave is recommended where review is sought

from the AAT):

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Migration Act and Regulations

• a decision to refuse a migrant entry visa or temporary entry visa but only at the instance of an Australian citizen or permanent resident whose interests are affected by the decision*; • a decision to cancel a migrant entry visa or temporary entry visa; • a decision requiring the provision of a maintenance guarantee;

• a decision to refuse entry to a person who has a visa, or a return endorsement, or who is exempt from the requirement to possess an entry permit*; • a decision to grant a temporary entry or other permit on a basis inconsistent with that on which a visa has been granted, other than a decision to grant a

temporary entry permit to allow eligibility for permanent residence to be determined; • a decision to refuse an application for change of status from temporary to permanent resident*;

• a decision to refuse to grant a temporary entry permit to a prohibited non-citizen at the instance only of an Australian citizen or permanent resident whose interests are affected*; • a decision to declare that the continued presence in Australia of a person who

is in an exempt class of persons is undesirable*; • a decision to refuse or to cancel a resident return visa or a return endorsement; • a decision to refuse change of status from one category of temporary entry to another but only at the instance of an Australian citizen or permanent resident

whose interests are affected*, • a decision to cancel a temporary entry permit*; • a decision to refuse to extend a temporary entry permit but only at the instance of an Australian citizen or permanent resident whose interests are affected or

at the instance of any person whose interests are affected by the decision where a person is seeking an extension for medical treatment not available in that person’s home country, or for the purpose of continuing an approved course of study*; • a decision not to grant a temporary entry permit to a person who has been

granted refugee status and who wishes to apply for permanent resident status; • a decision to require voluntary departure at the instance only of an Australian citizen or permanent resident whose interests are affected*; • a decision to deport a prohibited non-citizen pursuant to section 18 of the

Migration Act at the instance only of an Australian citizen or permanent resident whose interests are affected*; • a decision to refuse to deport, at the request of the spouse of a deportee, the spouse and dependent children of the deportee;

• a decision by a Commonwealth agency to take action to recover a debt arising under regulation 22 of the Migration Regulations; • a decision to require a security to secure compliance with the provisions of the Migration Act or Regulations;

Overseas student charge legislation

• a decision that a person is liable to pay a charge; • a decision determining the rate of a charge;

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• a decision refusing a temporary entry permit to an overseas student; and • a decision that a student is not exempt from or entitled to a remission of a charge

70. The Council recommended that the following should be decisions from which a right of review lies directly to the AAT at the instance of any person whose interests are affected by such a decision, unless otherwise specified:

• a decision to refuse a claim for refugee status by a person who has arrived in Australia, but only after the leave of the Tribunal has been obtained; • a decision to deport a person pursuant to section 12 of the Migration Act at the instance only of an Australian citizen or permanent resident whose interests

are affected by the decision; and • a decision to deport a person pursuant to section 14 of the Migration Act, except where it has been made on the grounds of an adverse or qualified security assessment provided by the Australian Security Intelligence Organisation, but

only at the instance of an Australian citizen or permanent resident whose interests are affected where the basis for deportation is conviction of a criminal offence.

Estimated costs o f the proposed system o f review

71. The Council obtained from the Department of Immigration and Ethnic Affairs and the AAT estimates of the respective resource implications for them of the Council’s proposals. However, it was the Council’s view that the costs of its proposals could not be predicted with any precision, primarily because of the uncertainty as to the likely number of appeals at both levels of review. The Council noted that in the past there had been a tendency to overstate the likely workload of the AAT in two-tier

structures of review, but recognised that there might be special features in the migration area which would contribute to a high volume of appeals being brought at both levels of review.

Dissenting opinion

72. One member of the Council, Mr J. Disney, recorded his dissent on two recommendations made in the report, namely that the first-level review authority should consist of Immigration Adjudicators acting as single-member review authorities, and that in relation to certain classes of decisions it should be necessary to obtain the leave of the AAT before a right of appeal from the Immigration Adjudicators could be exercised. Mr Disney’s contentions in support of his first point included the following:

• that migration was an area in which it was especially important for a wide range of experience and perspectives to be present within a review authority in order to increase the prospects not only of arriving at well-informed and balanced decisions but also of attracting broadly-based public confidence; • experience of the multi-member Social Security Appeals Tribunals (SSATs) had

demonstrated the benefits which collegial discussion and decision making could provide both in the quality of those decisions and in the members’ enjoyment of their work; • the likelihood that most appointees to the ‘single-member authority’ would be lawyers or public servants (or retired public servants) raised the grave risk of proceedings being unduly formal and legalistic, or at least pedantic; the procedures for multi-member tribunals would be simpler, and more informal and economical;

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• the Council was not correct in considering that single-member tribunals would cost less to establish and operate than multi-member tribunals; and • on the whole single-member tribunals were not likely to be subject to less delay than multi-member tribunals.

73. Mr Disney’s view in support of his second point, concerning leave to appeal to the AAT, included the following:

• there might be a case for a leave requirement in certain special cases, for instance where there was a very high volume of appeals which threatened grave damage to the expedition and quality of the AAT’s work, or there was a special need for urgent finalisation, as in point of entry cases; • however, imposition of a leave requirement in relation to most classes of decisions,

as recommended in the report, was unfair to appellants who should be entitled, after a first-level review which was purposely informal and quick, to a more thorough-going and formal review by the AAT; • there might be a heavy and uncongenial burden on AAT members in determining

and resolving leave applications, and the standing and ability of the AAT to attract and retain members of high calibre might be affected; and • the leave requirement might prejudice bona fide appellants without significantly reducing gross abuses.

Submission on freedom of information legislation to the Senate Standing Committee on Constitutional and Legal Affairs (submitted 18 April 1986)

74. The Council responded to an invitation from the Senate Standing Committee on Constitutional and Legal Affairs to make a submission to it on the operation and administration of the freedom of information (‘FOI’) legislation. It did not seek to comment on the operation of the legislation as a whole but, consistently with its

statutory charter, concentrated on the review features of the legislation.

R ole o f th e O m b u d sm a n

75. E xp ecta tio n s. The Council examined at some length the expectations which had been held concerning the role which the Ombudsman would play in FOI review, and how that role had developed in fact. It re-examined the advice which had been given by the Senate Standing Committee in its 1979 report on the proposed Freedom of

Information Bill 1978 (F reed o m o f In fo rm a tio n : R ep o rt by the Senate S ta n d in g C o m m itte e on C o n stitu tio n a l a n d L egal A ffa ir s on th e F reedom o f In fo rm a tio n B ill 1978 a n d aspects o f the A rc h iv e s B ill 1978, AGPS, 1979). It also reconsidered views

which it had itself expressed in a letter of advice to the Attorney-General on 8 February 1980. (See F ourth A n n u a l R e p o rt 1980, paras 79-88 and S ix th A n n u a l R e p o rt 1981-82, paras 77-8.)

76. R ole in practice. The Council noted that the Ombudsman had not played as large a part in the review of FOI decisions as had been originally expected.

77. The Council took the view that the Ombudsman had been fulfilling the expectations held in 1979-80 in relation to the need for a process of conciliation in FOI matters and acknowledged the important role which was now being played by the Ombudsman in FOI matters and which it expected the Ombudsman would continue

to play. However, it was clear that the Council’s expectation that the Ombudsman

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would act as a virtual first-tier review authority with the A AT acting as a second-tier authority had not occurred in fact, and it seemed better to envisage the Ombudsman and the AAT as exercising concurrent jurisdiction in FOI matters, although there were some ways in which the Ombudsman’s jurisdictions was wider than the AAT’s: in particular, the Ombudsman has power to investigate and make recommendations concerning actions of agencies in relation to the exercise of their discretion to provide access to documents even when those documents are, or may be, exempt under the FOI Act (cf. s.14 of the FOI Act).

78. A p p ro p ria ten ess o f O m b u d sm a n review. The Council remained firmly of the opinion that the less formal kind of review provided by the Ombudsman would in many cases be more appropriate than AAT review, as both the Senate Standing Committee and the Council had earlier hoped. It was an important part of the thinking

of those two bodies that resort to the impartial mediating offices of the Ombudsman would be preferable to an immediate resort to the more formal procedures of the AAT where the parties are more at arm ’s length. It also seemed very likely that Ombudsman procedures were less costly than those of the AAT in FOI matters, and that their employment would often preclude the need for application to the AAT.

79. O th er m ea n s o f filte r in g ’com plaints. It was noted that the Ombudsman, while handling a substantial number of complaints (both written and oral), no longer served as the only means, in the words of the 1979 Report of the Senate Standing Committee (at para. 27.23), to ‘filter out those disputes where compromise and consensus are, after all, possible’. The filtering of cases which proceed to the AAT, it was noted,

was now also achieved by the Government’s directions on administration of the FOI Act, given on 14 June 1985. Among those new directions were the following:

• encouragement of early consultation with applicants for access to documents; • direction that requests for noncontentious material are not to be refused simply because technical grounds of exemption are available; and • direction that agencies are to clear with the Attorney-General’s Department any

appeal they wish to contest before the AAT.

The O m b u d sm a n a n d th e A A T

80. The Council explored in some depth the practical effects of the legislation concerning the review functions of the Ombudsman and the AAT (Parts VA and VI of the FOI Act).

81. Factors fa v o u r in g review by either the O m b u d sm a n o r th e A A T . In the Council’s view the distribution of FOI complaints/applications between the two review authorities should reflect in a general way the fact that the procedures and powers of each body are different and that one may be more suitable than the other in particular cases (see Council’s Report No. 22, paras 46-7). The Council set out in Report No. 22 (paras 54-5) the general factors which may make review by either the Ombudsman or the AAT more appropriate. In the case of the FOI jurisdiction, ir. addition to those factors

referred to in that report which favour review by the Ombudsman, investigation by the Ombudsman has the advantage that the Ombudsman may obtain access to the relevant documents under the Ombudsman’s general powers to require production of documents and records. It also has the advantage that the Ombudsman may recommend access to documents even when those documents are exempt and that the Ombudsman may seek to mediate between the agency and the person seeking access to documents. On the other hand, the Council pointed out that AAT review may be

more appropriate in FOI matters where, for example, the issues are complex; there is a need to utilise the fact-finding procedures of the AAT; the agencies are apparently

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intractable; or the person concerned wishes to establish rights to access in binding form. The Council concluded that while the AAT had played a role of great significance in interpreting the Act, and could be expected to continue to do so, it might not be the most appropriate body to deal with the bulk of cases which do not raise difficult

questions of interpretation.

82. P ro p o sed a m e n d m e n t o f sectio n 52B (2) o f the F O I A ct. The Council noted that there had been amendments to the provisions of sub-section 6(3) of the O m b u d sm a n A c t 1976 since the FOI Act was passed, and that as a result it was no longer necessary, for the purpose of preserving the Ombudsman’s power to investigate most FOI complaints, for sub-section 52B(2) of the FOI Act to refer to sub-section 6(3) of the

Ombudsman Act. It was submitted that sub-section 52B(2) should be amended accordingly, but that in rewording the section the Ombudsman’s power to investigate FOI complaints should continue to be limited by the provisions of sub-section 6(2) of the Ombudsman Act in cases where a complainant has already applied to the AAT.

83. A m e n d m e n t to Parts VA a n d V I o f th e F O I A ct. The Council noted that the FOI legislation itself did not draw attention to the Ombudsman’s role in the review process. Although sub-section 52B(1) provides that complaints may be made to the Ombudsman, the section is not contained in Part VI, ‘Review of Decisions’, and this may lead a person reading the Act to believe that only the AAT can review decisions.

The separate existence of Part VA, ‘Role of the Ombudsman’, reflected the unusual legislative history of the Act and had the disadvantage of seeming to isolate the Ombudsman’s functions from the review process. The Council suggested that a solution would be for Part VA to be incorporated within Part VI, which would have the

advantage of presenting the various elements of review (internal review, Ombudsman review, and AAT review) as constituting a total system of review.

D ep u ty O m b u d sm a n f o r F O I a n d s ta ffin g resources

84. The Council considered that the designated position of Deputy Ombudsman for FOI serves a useful statutory focal point for the performance of the FOI function. It was suggested that there should be a separate FOI unit within the Ombudsman’s office. The establishment of such a unit would require sufficient staffing resources. The FOI function of the Ombudsman’s office should be publicised.

Section 52F: the O m b u d sm a n a n d representation before the A A T

85. The Council noted the history of the introduction of section 52F into the Freedom of Information Act. This section provides for the Ombudsman to represent persons before the AAT in FOI cases. A representation role for the Ombudsman was recommended by the Senate Standing Committee in 1979. This recommendation was

carried into effect by amendments moved by Senator Missen in October 1983 and accepted by the Government. The Council believed that it was clear that the intention of the Senate Standing Committee and of the Parliament was to ensure that cases raising issues of general importance, in which there was a reasonable prima facie case

for granting access to documents, ought not to go untested by the AAT because of an applicant’s lack of means to secure professional representation. The Council noted developments in Sweden, Canada and Victoria. In Canada there were provisions for the Information Commissioner, and in Victoria there were provisions for the

Ombudsman, to play certain roles in relation to the review of access decisions.

86. Preference f o r 'amicus curiae’role. After evaluating the Ombudsman representation role, the Council concluded that the Ombudsman might be able to play a more helpful and active role in FOI proceedings before the AAT if the Ombudsman’s role were

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not to provide ‘representation’ as such, but rather to act as an a m ic u s curiae in cases of importance already before the AAT, as both the Canadian Information Commissioner and the Victorian Ombudsman can do. The Council accordingly suggested that the Senate Standing Committee consider recommending, in substitution for the Ombudsman’s representation role under section 52F, that the Ombudsman be empowered to intervene in AAT proceedings, with the leave of the AAT, in matters which the Ombudsman considers involve principles of general importance, as amicus curiae with the function of assisting the AAT to reach the correct or preferable decision. The Ombudsman could act either on his own motion, or at the request of an applicant, but in either case would not be responsible for conducting an applicant’s case before the AAT, although the Ombudsman should be permitted by the AAT to play a significant role where an applicant was not represented.

A ccess b y the O m b u d sm a n to d o c u m e n ts w hen acting u n d er se ctio n 52F

87. The Council reiterated the advice it had given to the Attorney-General on 31 July 1985 (see Part Two, Letter 1) concerning the absence under section 52F of any statutory right of access on the part of the Ombudsman to documents which are the subject of the relevant proceedings before the AAT. It confirmed its view that section 52F of the FOI Act should be amended to provide that the Ombudsman should have access to the subject documents in such cases. This view was predicated on the existing role of the Ombudsman as representative for FOI matters, and the Council’s thinking concerning that role has undergone some development since its original advice was given. Nonetheless, the Council believed that its earlier recommendation should be implemented as soon as possible whilst the representation role under section 52F continued to exist in its present form.

O m b u d s m a n ’s m o n ito rin g role

88. The Council noted that, because of a lack of staffing resources, the Ombudsman has been unable to fulfil the tasks of making observations on the operation of the FOI Act and making recommendations concerning the improvement of public access to documents (as specified in sub-section 52D(3)) in as much detail as the Ombudsman would have wished. The Council urged that staffing resources be provided to the Ombudsman to enable him to fulfil adequately the FOI functions conferred on him.

P rocedures a n d p o w e rs o f th e A A T

89. O peration o f section 5 8 C o f F O I A c t. The Council’s submission restated recommendations and views which the Council had given to the Attorney-General on 31 July 1985 concerning some problems which had arisen in relation to the provisions of section 58C which provide for the holding of AAT hearings in private in certain circumstances (see Part Two, Letter 1).

90. O peration o f paragraph 63(2)(b). FI ere, too, the Council reiterated advice it had given to the Attorney-General on 31 July 1985, to the effect that a problem had arisen in relation to paragraph 63(2)(b) in that the circumstances in which it may be necessary to exclude an applicant from part of a hearing are wider than the circumstances specified in that paragraph (see Part Two, Letter 1).

91. P ro d u ctio n o f d o c u m e n ts cla im ed to be exem p t. It was suggested to the Senate Standing Committee that it consider amendments to sub-section 64(1) and section 58E of the FOI Act to ensure that the AAT may at any time require the subject documents to be produced for inspection by members of the AAT. It noted that the current legislation prevented the AAT from requiring the production of the documents in question unless it was not satisfied, by evidence on affidavit or otherwise, that the

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document is an exempt document, or in the case of documents in relation to which a conclusive certificate is in force, unless the AAT is not satisfied that there exist reasonable grounds for the claim made in the certificate. The Council took the view that these limitations were unnecessary, and could lead to unnecessary delay in the

hearing of an application. It noted also that, in relation to documents in respect of which a conclusive certificate was in force, particularly difficult procedural problems had arisen for the Tribunal. The Council also noted the view that the inherent

disadvantage of applicants in FOI applications, in being unaware of the precise contents of the documents the subject of the application, could be substantially overcome where the AAT itself had inspected the documents.

U nreasonable or vexa tio u s a p p lica tio n s

92. Several agencies had expressed concern about the lack of procedures to deal with vexatious applications, and the President of the AAT had also suggested to the Senate Standing Committee an amendment to the FOI Act to enable unreasonable or vexatious requests to be refused and to enable the applicant’s history of requests to be taken

into account in assessing the matter. The Council did not consider that it should express a view on the policy question whether it was necessary or appropriate to confer power on agencies to refuse to process an FOI request on the ground that it was vexatious, frivolous or unreasonable. The Council noted, however, that decisions under such a

power would be subject to AAT and Ombudsman review. The Council also considered whether it might be appropriate to confer power on the AAT to strike out at any stage of proceedings an application for review which it determined to be vexatious or to disclose no reasonable course of action. The Council preferred to examine that question

in a general way as part of an assessment of the operation of the AAT in all its jurisdictions, at some stage in the future. Flowever, it suggested that the Senate Standing Committee might wish to consider the matter as it affects the FOI jurisdiction of the AAT.

Review o f decisions n o t to rem it charges u n d e r th e F O I A c t

93. The Council noted that in a recent decision (R e W aterford a nd A ttorney-G eneral’ s D ep a rtm en t (1985) 8 ALD 545) the AAT decided that it did not have jurisdiction to review a decision under section 30 of the FOI Act to refuse a request seeking the total or partial remission of a charge paid or imposed under the provision of section 29

of that Act. After examination of the legislation and discussion of the appropriateness of reviewing decisions not to remit charges under the FOI Act, the Council suggested that the Senate Committee consider recommending an amendment to the FOI Act to provide for AAT review of such decisions. It was suggested that the Senate

Committee might also wish to consider:

• whether or not it should be possible· to apply for remission of any charge imposed, at the same time as a person lodges a request for access to a document (in addition to being entitled to seek remission after the imposition of a charge); and • whether the legislation concerning the imposition of charges should specify the

considerations relevant to the making of a decision to impose a charge.

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CHAPTER 3

IMPLEMENTATION OF COUNCIL RECOMMENDATIONS

94. During 1985-86 one of the most significant decisions yet taken by Government by way of implementing recommendations of the Council was the decision to transfer to the Administrative Appeals Tribunal the jurisdiction formerly exercised by the Taxation Boards of Review. The transfer of jurisdiction takes effect on 1 July 1986. The matter is fully described below.

Review of Taxation Decisions by Boards of Review (Report No. 17; Seventh Annual Report, paras 71-82)

95. In Report No. 17 the Council recommended:

• that the existing jurisdiction of the Boards of Review be vested in the AAT; • that taxpayers be permitted to request the Commissioner to refer their objections to the AAT; • that section 28 of the AAT Act be inapplicable in relation to review' by the AAT

of decisions presently reviewable by Boards of Review; • that the operation of section 37 of the AAT Act be amended in relation to taxation decisions in order to require the Commissioner of Taxation to lodge statements and documents with the AAT at the time the case is referred to the

Tribunal; • that the Commissioner be authorised to grant, in his discretion and on specified grounds, an extension of time for lodgment of objections and requests for reference or appeal; • that a refusal by the Commissioner to grant such an extension of time be

reviewable by the AAT; • that the taxpayer when seeking a review of a decision be limited to the grounds stated in his objection unless the AAT otherwise orders; and • that section 41 of the AAT Act should not apply to taxation decisions presently

reviewable by the Boards of Review.

96. The Council furthermore decided in Report No. 17 not to recommend any alteration to the operation of section 35 of the AAT Act in the proposed tax jurisdiction. Sub-section (3) of that section states as a general principle the desirability of holding hearings of proceedings before the AAT in public. The Council believed that this principle should apply equally in hearings concerning tax matters as it does in other jurisdictions where matters of a private and personal nature are considered. The Council considered that adequate protection for the individual taxpayer who wished his affairs to be kept private could be provided through the AAT’s power to order that hearings in particular cases be held in private.

97. The Taxation B oards o f R eview (Transfer o f Jurisdiction) A c t 1986 substantially implements the recommendations made by the Council. The Act creates a separate Taxation Appeals Division within the AAT, to which members are assigned after consultation between the Attorney-General and the Treasurer. The existing Boards of

Review are abolished and those of their chairmen and members who held office

22

immediately before 1 July 1986 become full-time senior members of the AAT by virtue of the Act as if they had been appointed to the AAT under the AAT Act.

98. As was the case in relation to the reference of objections to the Boards of Review, requests to the Commissioner for reference of objections to the AAT will be examined first by the Commissioner. This provides an opportunity for reconsideration of decisions.

99. Consistently with the practice of the Boards of Review but contrary to the recommendation of the Council concerning hearings referred to above, all taxation decisions are to be conducted in private unless the taxpayer requests a public hearing; the identity of the taxpayer will not be revealed in the published reasons for decisions.

A gloss on the recommendation made by the Council that section 37 of the AAT Act apply in relation to the lodging by the Commissioner of material documents with the AAT is the modification made to that section to the effect that it will not apply until after 1 July 1988 in relation to decisions referred to the AAT. Until that date,

a statement of the kind formerly provided to Boards of Review under regulation 35 of the Income Tax Regulations will be lodged with the AAT.

100. As with appeals from the AAT in other areas, an appeal from the AAT in the exercise of its taxation jurisdiction will lie to the Federal Court on a question of law. Section 196 of the Income Tax Assessment Act is repealed by the Taxation Boards of Review (Transfer of Jurisdiction) Act. That section provided for a wider right of

appeal to a State Supreme Court from any decision of a Board of Review: it provided for an appeal from any decision involving a question of law. In respect of matter: pending before a Board of Review as at 1 July 1986, the wider right of appeal that was provided for by section 196 continues to apply.

101. The Council notes that a substantial backlog of requests for review by Taxation Boards of Review has developed in recent years. This backlog is far larger than the backlog of cases which was facing the Boards when the Council made its report.

Passport Regulations (Third Annual Report, paras 53 and 54)

102. The Passport Regulations (Amendment) (SR 1985 No. 277) were made on 21 October 1985 and notified in the Gazette on 28 October 1985. These regulations provide for review of decisions by the Minister under the regulations, including decisions to grant an exemption from the payment of fees, to give certain directions to authorised

officers, to extend the time within which a person may seek review of a reviewable decision, to require an applicant to furnish further evidence with an application for a passport, to issue or renew or not to issue or renew a certificate or document of identity, and not to endorse a passport (e.g. by not including children in the passport).

In May and June 1979, the Council wrote to the Attorney-General recommending that jurisdiction be conferred on the AAT to review certain decisions under the Passports Act and regulations, except to the extent that the decisions to review and endorse passports were directed by foreign governments. This exclusion was based on the

inappropriateness of an Australian tribunal reviewing such decisions. The enactment in 1984 of the Passport Amendment Act 1984 (Ninth Annual Report 1984-85, para 159) and the coming into force of the 1985 regulations mean that all relevant recommendations made by the Council in 1979 concerning review of passport decisions

have now been implemented.

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CHAPTER 4

CUMULATIVE SUMMARY OF RECOMMENDATIONS AWAITING FINAL DECISION OR ACTION

103. This chapter provides a summary of recommendations of the Council on which no final decision or action by way of implementation had been taken as at 30 June 1986. The recommendations are summarised in greater detail in the annual reports referred to. Where a recommendation was furnished in the form of a published report, the relevant report is also indicated. Where a final decision has been made during

1985-86 which either rejects or implements Council recommendations, details of such decisions are contained in Chapter 3. Recommendations made during 1985-86 which are awaiting final decision or action are not set out below but, in cases where the recommendations are made in reports of the Council, full summaries of the recommendations are set out in Chapter 2 and, in cases where the recommendations are made in letters of advice, the text of those letters appears in Part Two.

104. Certain recommendations which were referred to in the equivalent chapter in earlier annual reports of the Council are not referred to this year because, for one reason or another, they no longer have relevance or currency. Those recommendations and the particular reasons for no longer referring to them in annual reports are:

• Legislative Assembly (Election) Regulations (A.C.T.) (Third Annua! Report, paras 73-76) —the A.C.T. House of Assembly has ceased to exist; • review of the O m b u d sm a n A c t 1976 (Third Annual Report, paras 100-126)—

recommendations concerning the amendment of the Ombudsman Regulations to redefine the Ombudsman’s jurisdiction by excluding certain tribunals and not excluding certain authorities from that jurisdiction —the recommendations concerned are not of major significance;

—action has been taken in respect of other recommendations referred to in the Third Annual Report (see E ig h th A n n u a l R e p o rt 1983-1984, paras 120 and 173).

Registration of tax agents (Second Annual Report, paras 54-56)

105. R eco m m en d a tio n : that jurisdiction be vested in the Administrative Appeals Tribunal to review decisions of Tax Agents Boards refusing to register persons as tax agents.

Review of import control and Customs by-law decisions (Report No. 3; Third Annual Report, paras 27-38)

106. R e c o m m en d a tio n s: that jurisdiction be vested in the AAT to review:

• decisions allocating quotas; • decisions refusing to accept an application for by-law entry of goods; • refusals of the Minister to refer a by-law question to the Industries Assistance Commission.

24

(Note: Action has been taken regarding the Council’s recommendations relating to review by the Industries Assistance Commission of decisions. Although the Council’s recommendations concerned the commercial by-law system, the new system for granting tariff concessions is comparable to the old by-law system in terms of the appropriate review procedures: see S e v e n th A n n u a l R e p o rt 1982-83, paras 133-4.)

Superannuation Act 1976—jurisdiction (Fourth Annual Report, paras 76-77)

107. R e c o m m e n d a tio n : jurisdiction should be vested in the Administrative Appeals Tribunal to review decisions under the Superannuation (Salaries) Regulations, including decisions made by authorised persons under those regulations.

Liquor Ordinance 1975 (A.CT.) (Fourth Annual Report, para. 78)

108. R e c o m m e n d a tio n : jurisdiction should be vested in the AAT to review decisions under the Ordinance.

Postal By-Laws Amendment (No. 2) 1981 (Fifth Annual Report, paras 211-212)

109. R eco m m en d a tio n s:

• that power be vested in the Chief General Manager to extend time within which a proprietor may seek a reconsideration; and • a right to appeal to the AAT be available from decisions of the Chief General Manager not to extend time.

Land use in the A.C.T. (Report No. 14; Sixth Annual Report, paras 105-120)

110. R e c o m m e n d a tio n s:

• that jurisdiction be conferred on the AAT to perform the review functions presently exercised by the Design and Siting Review Committee, the Building Review Committee and Valuation Review Board and those performed by the Supreme Court of the A.C.T. under sub-section 28(4) of the C ity A re a Leases

O rdinance 1936;

• that certain decisions under the C ity A rea Leases O rdinance 1936 and the B uilding O rdinance 1972 which are at present not subject to review be reviewable by the AAT; • that third party rights of review in respect of certain decisions be available; and • that while the present statutory framework exists, decision making with respect

to applications under sections 10 and 11A of the C ity A re a Leases O rdinance 1936 remain with the Department of Territories, but that the present statutory role of the National Capital Development Commission should be recognised by a statutory requirement of consultation between the Department and the

Commission. .

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Compensation (Commonwealth Government Employees) Act 1971—amendments (Report No. 18; Seventh Annual Report, paras 83-98)

111. Recommendations:

• that the Act be amended to provide that the Commissioner for Employees’ Compensation shall determine a claim within 60 days of lodgment of a claim; • that the Commissioner be deemed to have made a determination adverse to the claimant if a claim has not been determined on the expiration of the prescribed

time limit; and • that the Commissioner be the respondent in proceedings for the review of his or her determinations and that sub-sections 65(6), (7) and (8) of the Act be repealed.

The structure and form of social security appeals (Report No. 21; Eighth Annual Report, paras 100-109)

112. Recommendations: the Council recommended the improvement of the existing two-tier structure of external review consisting of a national Social Security Appeals Tribunal (rather than the current SSATs) and the AAT. Improvements recommended to the system of review provided by the SSAT were:

• that the SSAT be given a legislative foundation and be granted determinative powers; • that certain conditions apply to the membership and constitution of the SSAT; • that various provisions be made regarding the powers of the SSAT and the

conduct of proceedings; and • that review by a Review Officer of the Department of Social Security not be a prerequisite to SSAT review.

113. Minor changes were recommended in order to improve the system of review provided by the AAT.

114. The Council also recommended that a national survey of the needs of social security claimants be conducted.

The relationship between the Ombudsman and the Administrative Appeals Tribunal (Report No. 22; Ninth Annual Report, paras 41-58)

115. Major recommendations:

• that sub-section 6(3) of the Ombudsman Act be amended so as to require the Ombudsman to have regard to certain specified factors when exercising his discretion under that sub-section not to investigate;

• that provision be made in the Ombudsman and AAT Acts for mutual referral of cases with the consent of the complainant or applicant; • that, in addition to the process in section 11 of the Ombudsman Act for the principal officer of an agency, on the recommendation of the Ombudsman, to

refer a question to the AAT for an advisory opinion, there should be a power in the Ombudsman to refer a question directly to the AAT for such an opinion; and

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• that the words ‘conferred by an enactment’ should be removed from sub-section 11(1) of the Ombudsman Act so that action taken pursuant to a prerogative or non-statutory power was not excluded from being the subject of an advisory opinion of the AAT.

Customs and excise appeals: stage 2 (Report No. 23; Ninth Annual Report, paras 59-86)

116. M a jo r re c o m m en d a tio n s:

• that the right of appeal to a court of competent jurisdiction in disputes as to duty, which exists as an alternative to AAT review, should be abolished; • that the jurisdiction of the Minister for Health to review certain decisions of the Secretary to the Department of Health be transferred to the AAT;

• that the procedure for payment under protest be abolished and replaced by a ‘notice of dispute’ procedure; • that decisions relating to an application for permission to import or export a prohibited export should be subject to review by the AAT, subject to a power

in the Minister to issue a certificate which would have the effect of excluding review in particular cases; • that most decisions relating to the taking of securities, the movement of goods and the disposal of goods should be subject to review by the AAT;

• that decisions relating to the drawback of import duty be subject to review by the AAT; and • that most decisions of a law enforcement nature made under the Customs legislation not be subject to review by the AAT.

Exclusion of committal proceedings from A1)(JR) Act review (Ninth Annual Report, paras 115-122)

117. R eco m m en d a tio n s:

• that decisions of magistrates in committal proceedings be added to the class of decisions in Schedule 1 to the AD(JR) Act which are excluded from the operation of the Act; and • that paragraph 9(2)(b) of the Act be amended so as to ensure that the inclusion

of that class of decisions in Schedule 1 does not have the effect of removing the jurisdiction of State courts to review such decisions.

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CHAPTER 5

LEGISLATIVE AND RELATED DEVELOPMENTS

118. This chapter sets out legislative and related developments which took place during the year and which are of particular significance to administrative review. A brief description of each matter is provided. A legislative development which implements Council recommendations is not dealt with here but is discussed in Chapter 3.

119. The legislative developments noted here are as follows:

• Administrative Decisions (Judicial Review) Regulations (SR 1985 No. 209) • Administrative Decisions (Judicial Review) Regulations (Amendment) (SR 1986 No. 50) • Administrative Decisions (Judicial Review) Regulations (Amendment) (SR 1986

No. 108) • S tu d e n t A ssista n ce A m e n d m e n t A c t 1985 • Freedom of Information (Charges) Regulations (Amendment) • Veterans’ E n title m e n ts A c t 1986 • Trade Practices R evisio n A c t 1986

• Australian Broadcasting Tribunal (Inquiries) Regulations • Inspector-G eneral o f In tellig en ce a n d Secu rity B ill 1986 • Administrative Appeals Tribunal Regulations (Amendment) (SR 1986 No. 168)

Judicial review regulations

120. Section 19 of the A d m in istra tiv e D ecisions (Judicial R eview ) A c t 1977 provides that regulations may declare certain decisions or classes of decisions to be not subject to judicial review under the AD(JR) Act. On 28 August 1985 regulations (SR 1985 No. 209) were made to declare decisions made under the B u ilding In d u stry A c t 1985 (Act No. 92 of 1985) by the Australian Conciliation and Arbitration Commission not subject to judicial review under the AD(JR) Act. These regulations were notified in the C o m m o n w e a lth o f A u stra lia G azette on 5 September 1985.

121. On 15 April 1986, following Royal Assent to two Acts relating to the deregistration of the Builders Labourers’ Federation, regulations were made to exempt decisions made under those Acts from AD(JR) Act review. The Administrative Decisions (Judicial Review) Regulations (Amendment) (SR 1986 No. 60) were notified in the C o m m o n w e a lth o f A u stra lia G azette on 16 April 1986. The Council was not consulted before these regulations were made because of the urgency of the matter. Schedule 1 to the AD(JR) Act exempts certain decisions of an industrial relations nature from AD(JR) Act review, and the exemptions made by these regulations were considered to be consistent with those exemptions.

122. On 22 May 1986, regulations were made excluding decisions made under the P arliam entary C o m m issio n o f In q u iry A c t 1986 from the operation of the AD(JR) Act (Administrative Decisions (Judicial Review) Regulations (Amendment) (SR 1986 No. 108), gazetted 30 May 1986). In a letter to the Council informing the Council of the making of the regulations the Attorney-General pointed out that the Commission

28

(set up to inquire into the conduct of Mr Justice Murphy) was a unique instrument of Parliament created to serve a singular and special purpose of primary national importance. The Attorney-General also said that, in its function, the Commission was analogous to a parliamentary committee, the proceedings of which have never been

subject to judicial review. Furthermore, the Commission was required by its Act to conduct its inquiries as quickly as proper consideration of the matters before it permitted and to report by 30 September 1986. In these circumstances, there was an overriding public interest that the time limits set by the Parliament be met and that

there be no possibility of the AD(JR) Act being used to delay or frustrate the work of the Commission.

Student Assistance Amendment Act

123. This Act was assented to on 28 November 1985 and the provisions which did not come into force on assent came into force on 1 January 1986. The Council was not consulted prior to the introduction of this legislation which replaced the large number of existing Student Assistance Review Tribunals (SARTs) with one Student Assistance Review Tribunal. The State-level organisation was retained, however. The

Act sets up a pool of convenors (formerly called chairpersons) and members. There is one convenor and a number of members in each State, and tribunals for each appeal are constituted out of this pool. AAT review of SART decisions was unaffected by the amendments.

Charges under the FOl Act

124. On 13 November 1985, the Senate disallowed regulations which had among other things, increased the charges payable by persons seeking access to information under the FOl Act and narrowed the class of personal affairs documents to which free access could be granted. Statutory Rules 1985 No. 113, the Freedom of

Information (Charges) Regulations (Amendment), were notified in the Gazette on 20 June 1985. Following the disallowance by the Senate, the Freedom of Information (Charges) Regulations (SR 1982 No. 197) were revived, to apply from and including 13 November 1985. Decisions on charges made up to and including 12 November 1985

under the regulations which were disallowed, however, remained valid and charges payable remained as calculated under those regulations.

Veterans’ Entitlements Act

125. This Act came into force on 22 May 1986. The Council provided advice on the relevant Bill in 1985 (see Part Two, Letters 2, 2A). The Act continues in existence the Veterans’ Review Board that was established under the now repealed R ep a tria tio n A c t 1920. It also provides for continuation of a two-tiered system of external review of

decisions relating to pension entitlement and assessment, with the Administrative Appeals Tribunal comprising the second tier of review.

Product safety

126. The Trade Practices R evision A c t 1986 was assented to on 13 May 1986, and section 35 of that Act inserts a new division in the Trade P ractices A c t 1974 entitled

29

‘Product Safety and Product Information’, effective from 1 July 1986. This division sets up a system for the recall of unsafe products. A conference procedure is established whereby suppliers of products are to be given an opportunity to ‘show cause’ why a product should not be recalled before the Minister actually makes a recall decision. At the request of a supplier, a conference is convened by the Trade Practices Commission which makes a recommendation to the Minister following the conference. Where the Minister makes a decision contrary to the Commission’s recommendation, reasons for the Minister’s decision are required to be gazetted. A special procedure is available for situations where there is imminent danger or risk to public health and safety. In these cases, a recall order may be made immediately and the conference procedure follows. The Minister then is required to confirm or revoke the order. The provisions dealing with hearing rights substantially implement informal advice provided by the Council during the drafting of the legislation.

Australian Broadcasting Tribunal procedures

127. The Council has made two reports concerning broadcasting and in one of these reports, A u stra lia n B roadcasting Tribunal P rocedures (Report No. 12), recommended major changes to the procedures of the Australian Broadcasting Tribunal (‘the ABT’) including, inter alia, uniform inquiry procedures. Amendments made by the B roadcasting a n d Television A m e n d m e n t A c t 1985 implemented the bulk of the recommendation in Report No. 12, and most of the remaining recommendations are now implemented by the Australian Broadcasting Tribunal (Inquiries) Regulations (SR 1986 No. 100), notified in the Gazette on 23 May 1986. The Council was asked to comment on a draft of these regulations but due to the shortness of time was only able to make some preliminary remarks. The Council has been requested by the Attorney-General to reconsider some of the recommendations in its Report No. 16, R eview o f D ecisions u n d e r th e B roadcasting a n d Television A ct, and has advised the Attorney that it proposes to address the question of AAT review of procedural decisions of the ABT as part of that reconsideration.

Inspector-General of Intelligence and Security

128. Towards the end of the 1986 Autumn sittings of the Parliament, the Government introduced in the House of Representatives a package of proposed legislation relating to Australia’s intelligence services. The Bills are on the Senate notice paper as at the end of the 1985-86 year. Included amongst the Bills is the Inspector-G eneral o f Intelligence a n d Security B ill 1986. The Bill provides for the appointment of an Inspector-General of Intelligence and Security and for the performance by the Inspector-General of certain review functions. Specifically, the Inspector-General may, at the request of the responsible Minister, of his own motion or in response to a complaint made to him, inquire into any matter that relates to the compliance by the

security and intelligence agencies of Australia with the laws of the Commonwealth, the States or the Territories, the propriety of particular activities of the agencies and, in certain cases, acts or practices of the agencies that may be inconsistent with or contrary to any human right. In certain circumstances the Inspector-General also has the function of inquiring into the procedures of the agencies relating to redress of grievances of employees of the agencies.

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The taxation jurisdiction of the AAT

129. Following the enactment of the Taxation Boards o f Review (Transfer o f Jurisdiction) Act 1986 (see paras 97-100), the Taxation Appeals Division of the AAT was established. The Administrative Appeals Tribunal Regulations (Amendment) (SR 1986 No. 168), gazetted on 30 June 1986, inserts reg. 5B in the Administrative

Appeals Tribunal Regulations. Regulation 5B provides that taxation matters shall be dealt with in the Taxation Appeals Division.

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CHAPTER 6

THE ADMINISTRATIVE APPEALS TRIBUNAL

130. With the coming into force of the Taxation B o a rd s o f R eview (Transfer o f Jurisdiction) A c t 1986, the Administrative Appeals Tribunal has at last assumed the mantle originally proposed for it, namely, that of a general administrative appeals tribunal. This important concept was first enunciated by the Commonwealth Administrative Review Committee, of which the Honourable Mr Justice Kerr was Chairman and the Honourable Mr Justice Mason, the Honourable R. J. Ellicott, QC, and Professor H. Whitmore were members. The Committee reported in 1971. It outlined one of the problems of judicial review and its recommended solution in the

following paragraphs:

5 8 . I t is g e n e r a l l y a c c e p t e d t h a t t h i s c o m p l e x p a t t e r n o f r u l e s a s t o a p p r o p r i a t e c o u r t s ,

p r i n c i p le s a n d r e m e d ie s is b o t h u n w i e l d y a n d u n n e c e s s a r y . T h e p a t t e r n is n o t f u lly u n d e r s t o o d

b y m o s t la w y e r s ; t h e l a y m a n t e n d s t o f i n d t h e t e c h n i c a l i t i e s n o t m e r e l y i n c o m p r e h e n s i b l e

b u t q u i t e a b s u r d . A c a s e c a n b e l o s t o r w o n o n t h e b a s i s o f c h o i c e o f r e m e d y a n d t h e n o n ­

la w y e r c a n n e v e r a p p r e c i a t e w h y t h i s s h o u l d b e s o . T h e b a s i c f a u l t o f t h e e n t i r e s t r u c t u r e

is, h o w e v e r, t h a t re v ie w c a n n o t a s a g e n e r a l r u le , in t h e a b s e n c e o f s p e c ia l s t a t u t o r y p r o v is io n s ,

b e o b t a i n e d ‘o n t h e m e r i t s ’— a n d t h i s is u s u a l l y w h a t t h e a g g r i e v e d c i t i z e n is s e e k i n g .

2 9 1 . S t a t e d b r o a d l y , o u r v ie w is t h a t t h e w o r k o f t h e C o u r t s h o u l d b e c o m p l e m e n t a r y

t o a s y s t e m o f a d m i n i s t r a t i v e r e v ie w o n t h e m e r i t s . A s w e h a v e a l r e a d y i n d i c a t e d , w e a r e

d i s p o s e d t o t h e v ie w t h a t , a s p a r t o f a n y c o m p r e h e n s i v e s y s t e m o f a d m i n i s t r a t i v e la w in

A u s t r a l i a , t h e r e s h o u l d b e a g e n e r a l A d m i n i s t r a t i v e R e v ie w T r i b u n a l .

131. The Tribunal came into being on 1 July 1976. It commenced with one member, the first President, the Honourable Mr Justice E G. Brennan (as he then was), and with the 22 areas of jurisdiction specified in the Schedule to the A d m in istra tive A ppeals Tribunal A c t 1975, none of which was a mass volume jurisdiction. During its first year of operation, the Tribunal received 49 applications for review.

132. In his Foreword to the First Annual Report of the Council, Mr Justice Brennan, who was Chairman of the Council in addition to being President of the Administrative Appeals Tribunal, adverted to the sensitivities that would have to be taken into account in future development and said:

I t s h o u l d n o t b e t h o u g h t t h a t t h e n e w s y s t e m w ill b e s t a ti c . T h e l i m i t e d e x p e r i e n c e o f t h e

f i r s t fe w m o n t h s s t i m u l a t e d t h e i n t r o d u c t i o n o f a B ill t o a m e n d t h e Administrative Appeals

Tribunal Act 1975. F u r t h e r e x p e r i e n c e is lik e ly t o r e v e a l t h e n e e d f o r f u r t h e r a m e n d m e n t .

I t w o u l d b e s u r p r i s i n g i f i t w e r e o t h e r w i s e , f o r t h e n o v e l t y o f t h e s y s t e m w ill t h r o w u p n e w

i s s u e s w h i c h m a y w e ll r e q u i r e l e g i s l a t i v e s o l u t i o n . T h e f e a t u r e s o f t h e n e w s y s t e m a r e

n o t e w o r t h y : t h e j u d i c i a l m e t h o d , d e s i g n e d f o r t h e a p p l i c a t i o n o f s e ttle d p r in c ip le s , is m o d i f i e d

in t h e T r i b u n a l t o c o p e w i t h t h e d y n a m i c s o f a d m i n i s t r a t i v e d e c i s i o n m a k i n g ; t h e lin e s o f

b u r e a u c r a t i c a u t h o r i t y a r e i n t e r s e c t e d b y t h e T r i b u n a l o r b y t h e O m b u d s m a n ; t h e t r a d i t i o n a l

r e t ic e n c e o f t h e a d m i n i s t r a t i v e d e c i s i o n - m a k e r is r e p l a c e d b y h is w r i t te n e x p r e s s io n o f r e a s o n s ;

a c c e s s t o t h e C o u r t is s i m p l i f i e d a n d f a c i l i t a t e d . T h e c i t i z e n is t h u s e n a b l e d t o c h a l l e n g e ,

a n d t o c h a l l e n g e e f f e c t iv e ly , a d m i n i s t r a t i v e a c t i o n w h i c h a f f e c t s h is i n t e r e s t s . I f t h a t r e s u l t

is a c h i e v e d i n w id e a r e a s o f g o v e r n m e n t a l a c t i o n , t h e a d m i n i s t r a t i o n w ill b e a n s w e r a b l e

n o t o n l y t o g o v e r n m e n t , b u t t o i n d i v i d u a l c i t i z e n s . N i c e a d j u s t m e n t s w ill h a v e t o b e m a d e

b e t w e e n t h e p u r p o s i v e o r d e r l i n e s s o f t h e b u r e a u c r a c y a n d t h e e x p e c t a t i o n s o f t h e c i t i z e n

w h o s e i n t e r e s t s a r e a f f e c t e d .

133. Fortunately, as the Tribunal has developed and as wide use of it has been made by citizens, it has been possible to reconcile the divergent interests which his Honour

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mentioned. In a complex society in which dealings between the citizen and the government have become pervasive and have assumed such significance to the citizen, the Tribunal has been able to provide a means of ensuring that the relationship is governed by principles of justice and equity. At the same time the response from

administrators to decisions of the Tribunal has generally been positive. Administrators have come to see more and more that the Tribunal is able to offer guidance in the interpretation of the statutes which they administer and in the application of the law and administrative practice in individual cases.

134. The development of the Tribunal which has taken place over ten years would not have taken place without the support of Members of Parliament and of Senators of all parties. The Council has earlier commented upon, and again takes the opportunity to note, the invaluable support given to review on the merits by the senate

standing committees, particularly the committees on Scrutiny of Bills, Regulations and Ordinances and Constitutional and Legal Affairs.

135. Nor would the development have occurred without the encouragement and work of very many officers of the Attorney-General’s Department. The Council expresses its gratitude to them. Although it would be generally inappropriate to mention the names of individuals, it is appropriate to record the special interest and influence which

Mr L. J. Curtis, AM, a Deputy Secretary of the Attorney-General’s Department and a member of the Council from 28 July 1983, has had in the development of the new administrative law remedies. Mr Curtis’s term on the Council is to come to an end on 28 July 1986.

136. The Tribunal’s development in the past ten years demonstrates the effectiveness of the Tribunal’s structure, having, as it does, a wide spectrum of members—judges of the Federal Court of Australia, other distinguished lawyers and also members having specialist knowledge or experience which enables them to add to the quality of decision

making in specialist areas.

137. Moreover, the flexibility of the Tribunal’s practices and procedures enables it to arrange a hearing by a judge sitting alone or with others in a court-like atmosphere for a substantial commercial case or a hearing by a senior member in telephone hook-up with the parties and witnesses in other places, as occurs in cases under the Isolated

Patients Travel and Accommodation Assistance Scheme. Such flexibility has enabled the Tribunal to cope with the diversity of the jurisdiction which has been conferred on it.

138. Preliminary conferences continue to be an important aspect of the operations of the Tribunal. During 1985-86 the Tribunal held 1174 hearings and 3233 preliminary conferences. These informal conferences are held in private and are confidential to the parties. Often cases are resolved at the preliminary conference stage without the

necessity of there being a hearing.

139. The appointment of deputy presidents in each of the States has now given the Tribunal a solid presence throughout the whole of Australia and the ability to manage much of its affairs locally rather than by the principal registry in Canberra. This will

assist to ensure that close attention is given to individual problems notwithstanding the magnitude of the case load.

140. Undoubtedly, the dramatic growth of the past decade will be replaced by a period of consolidation. However, the Tribunal has been successful in fulfilling the role seen for it by the Kerr Committee and the concept has functioned well in practice. It is

of importance that persons aggrieved under federal legislation may challenge not only the legality of a decision but also the facts and merits upon which the decision proceeded.

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Jurisdiction

141. A summary of the Tribunal’s jurisdiction as at 1 July 1986 has been prepared by the Tribunal and is set out in Appendix 4. The increase in the jurisdiction of the Tribunal during the year is summarised in paragraph 142.

142. The enactments under which jurisdiction to review decisions was conferred upon the Tribunal during the year ended 30 June 1986 are as follows:

• Apple and Pear (Conditions of Export) Regulations* • Australian Capital Territory Taxation (Administration) Act 1969* • Australian Citizenship Act 1948*) • Australian Meat and Livestock Corporation Act 1977* ® Bank Account Debits Tax Administration Act 1982 • Bookmakers Ordinance 1985 (A.C.T.) • Bounty (Agricultural Tractors and Equipment) Act 1985 • Bounty (Commercial M otor Vehicles) Amendment Act (No. 2) 1985* • Bounty (Metal Working Machines and Robots) Act 1985 • Children’ s Services Ordinance 1986 (A.C.T.)f • City Area Leases Ordinance 1936 (A.C.T.)* • Dairy Produce Act 1986 • Dairy Produce Levy (No. 1) Act 1986 • Defence Force Regulations, SR No. 131 of 1985 • Estate Duty Assessment Act 1914 • Export Control (Unprocessed Wood) Regulations • Fringe Benefits Tax Assessment Act 1986 • Gift Duty Assessment Act 1941 • Grain Legumes Levy Collection Act 1985 • Grape Research Levy Collection Act 1986 • Great Barrier Reef Marine Park Regulations, SR No. 169 of 1985* • Health Authority Ordinance 1985 (A.C.T.) • Health Insurance Act 1973 (Part VB—Medicare Participation Review

Committees)* • Income Tax Assessment Act 1936* • Interstate Road Transport Act 1985) • Leases (Special Purposes) Ordinance 1925 (A.C.T.)* • Life Insurance Act 1945* • Loan (Drought Bonds) Act 1969 • Passport Regulations, SR No. 277 of 1985 • Pay-roll Tax Assessment Act 1941

• Pay-roll Tax (Territories) Assessment Act 1971 • Prescribed Goods (General) Orders (No. 2 of 1986) • Protection o f Movable Cultural Heritage Act 1986 • Public Lending Right Act 1985) • Sales Tax Assessment Act (No. 1) 1930*

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• Sales Tax A sse ssm e n t A c t (N o. 2) 1930*

• Sales Tax A sse ssm e n t A c t (No. 3) 1930* • Sales Tax A sse ssm e n t A c t (N o. 4) 1930*

• Sales Tax A sse ssm e n t A c t (No. 5) 1930*

• Sales Tax A sse ssm e n t A c t (N o. 6) 1930*

• Sales Tax A sse ssm e n t A c t (N o. 7) 1930*

• Sales Tax A sse ssm e n t A c t (No. 8) 1930*

• Sales Tax A sse ssm e n t A c t (N o. 9) 1930*

• Sales Tax A sse ssm e n t A c t (No. 10) 1985*

• Sales Tax A sse ssm e n t A c t (No. 11) 1985*

• S u b sid y (G rain H arvesters a n d E q u ip m e n t) A c t 1985

• Taxation A d m in istra tio n A c t 1953* • Taxation (U n p a id C o m p a n y Tax) A sse ssm e n t A c t 1982 • Telecommunications (General) By-laws • Trust R e c o u p m e n t Tax A ss e s s m e n t A c t 1985

• Veterans’ E n title m e n ts A c t 1986 • W ool Tax (A d m in istra tio n ) A c t 1964

[t—indicates not in operation as at 1 July 1986 * —indicates in addition to jurisdiction already conferred]

143. An evident aspect of the jurisdiction conferred during the year is its diversity. Although most of the jurisdictions concern taxation and commercial matters, the Veterans’E n titlem en ts A c t 1986, the amendments to the A ustralian C itizenship A c t 1948 and the Passport Regulations involve the Tribunal in quite different types of problems. The environmental jurisdiction of the Tribunal is widened by the amendments to the

Great Barrier Reef Marine Park Regulations and by the P rotection o f M ovable C ultural H eritage A c t 1986. The In tersta te R o a d Transport A c t 1985, when it comes into force, will involve the Tribunal in another area of industry.

Comment on specific jurisdictions

Social security

144. There has been an upwards trend in the number of applications in the social security jurisdiction during the past year. This is, in part, accounted for by the introduction of the assets test and its subsequent impact on pension entitlements.

However, there was also an unexpected increase in the number of invalid pension cases coming before the Tribunal, particularly during the last quarter. As there has been a like increase in the number of applications respecting Commonwealth employees’

compensation and superannuation, perhaps the country’s stringent economic circumstances have played a part in this.

Veterans’ entitlements

145. The veterans’ appeals jurisdiction was the second largest in volume in the year. Indeed, in the last quarter, it was the largest.

146. Appointments of members were made to the Veterans’ Appeals Division of the Tribunal and these are referred to at paragraph 204. It is hoped that, during the coming

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year, some other members assigned to the General Administrative Division will also be assigned to the Veterans’ Appeals Division so that occasional shortages of available members, particularly of medical practitioners, can be avoided.

147. The co-operation of the Department of Veterans’ Affairs in facilitating review by the Tribunal has been exemplary. The development and use of legally qualified officers as advocates by the Department has been successful in encouraging the consistent and efficient conduct of matters, though the availability of legal aid has been of concern to veterans’ organisations in some States. Meetings have been held by the President with representatives of these organisations and the relevant Commonwealth bodies to discuss this and other procedural problems in the jurisdiction.

148. On 22 May 1986, the R ep a tria tio n A c t 1920 was repealed and replaced by the Veterans’ E n title m e n ts A c t 1986, Applications to the Tribunal under the former legislation not determined at that date are, pursuant to section 19 of the Veterans’ E n title m e n ts (T ransitional P rovisions a n d C o n se q u e n tia l A m e n d m e n ts ) A c t 1986, to be determined under the new legislation.

Taxation

149. As stated in Chapter 3, the jurisdiction of the Boards of Review to review decisions made under taxation legislation has been vested in the Tribunal as from 1 July 1986.

150. A Taxation Appeals Division of the Tribunal has been created and the six chairmen and members of the Boards of Review as at 30 June 1986 are deemed to have been appointed as senior members of the Tribunal. The re-assignment of certain existing senior members and members of the Tribunal to the new division will occur shortly and it is expected that a limited number of additional members and registry staff will be appointed in the near future.

151. As approximately 50 000 cases were awaiting hearing at the time of the transfer, the challenge facing the Tribunal to maintain, with limited additional resources, the quality of review that has been achieved up to the present, will be a major one.

F O I applications

152. The number of freedom of information applications decreased only slightly but, as there is now a substantial body of Tribunal decisions in this area, cases are being disposed of more quickly than first occurred.

E x p o rt m a rk e t grants a n d h o m e o w n e rs’ assistance

153. In each of these jurisdictions, there was a surprising growth in the number of applications during the year. However, the numbers are not so great as to give rise to concern.

Iso la ted P a tien ts Travel a n d A c c o m m o d a tio n A ssista n c e S ch em e

154. The number of applications in this jurisdiction continues to fall.

C om m ercial fis h in g licences

155. During the year, the Tribunal dealt with most of its applications involving quotas for the taking of southern bluefin tuna and licences for scallop fishing in Bass Strait. Some further applications were received during the year in both these areas. In addition,

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the Tribunal received and heard several applications with respect to licences to fish by trawling in the south eastern sector of Commonwealth waters.

N ursing h o m e a n d p riv a te h o sp ita l approval

156. A growth was noticeable in the number of applications respecting decisions under the N a tio n a l H ealth A c t 1953 in relation to private hospitals and nursing homes. Most have been resolved without the necessity for a hearing.

M igration

157. There were 46 applications for review of decisions with respect to the deportation of criminals, a number greater than that seen for several years. The rate of success for applicants has tended to be lower than in the first years of the Tribunal’s jurisdiction, reflecting the generally sympathetic approach taken by the Minister for

Immigration and Ethnic Affairs with respect to the problems of criminals with families in this country.

Statistics on the operation of the Tribunal

158. Statistics on the operation of the Tribunal during the year have been compiled by the AAT registry and are presented in Appendix 5. The Appendix also includes tables setting out the number of applications received in the various jurisdictions over several years.

159. The statistics in Appendix 5 show that the number of applications increased, particularly in the last quarter. The increase occurred principally but not only in the medico-legal areas of the Tribunal’s jurisdiction. During the year, the results of applications favoured agencies more than in prior years, reflecting the improvement

that has taken place in primary decision making. The number of cases on hand has increased substantially due to the increase in applications but the Tribunal has increased the rate of listing in order to overcome this. Save when a specially constituted Tribunal is required, as when a judge is appointed to a Tribunal, there is still no delay in obtaining

a date for hearing in any area of the Tribunal’s jurisdiction other than taxation.

Appeals to the Federal Court of Australia

160. During the course of the year 64 appeals were lodged with the Federal Court of Australia from AAT decisions. Seven cases were discontinued. Of the 46 appeals determined in 1985-86, in 14 cases the Tribunal decision was affirmed, in 11 cases it was set aside and in 11 cases it was set aside and remitted to the Tribunal. These

statistics are set out in table form in Appendix 5.

161. One reference of a question of law was forwarded to the Federal Court pursuant to section 45 of the AAT Act (C o m m issio n e r o f Taxation v Sw iss A lu m in iu m A ustralia L im ited, delivered 26 May 1986). The court did not receive any applications under the A d m in istra tiv e D ecisions (Judicial R eview ) A c t 1977 or pursuant to its prerogative

writ powers in respect of the Tribunal.

162. The question referred by the Tribunal to the Federal Court in C o m m issio n e r o f Taxation v Sw iss A lu m in iu m A u stra lia L im ite d was whether a certain document that was subject to a request by Swiss Aluminium for access under the Freedom of Information Act was an exempt document by virtue of section 38 of the Act on the

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ground that section 16 of the Income Tax Assessment Act applied specifically to information of a kind contained in the document and prohibited persons referred to in the Act from disclosing information of that kind. The decision of the Commissioner of Taxation refusing access to the document was the subject of an application for review before the AAT. Parts of the document consisted of information respecting the affairs of persons other than Swiss Aluminium.

163. By a majority of 2 to 1 (Chief Judge Sir Nigel Bowen and Mr Justice Jackson, Mr Justice Fox dissenting) the court answered in the affirmative the question referred to it.

164. On at least two occasions, a Full Court of the Federal Court of Australia dismissed an appeal from a decision of the Tribunal for want of jurisdiction. In C o m m issio n e r o f Taxation v Sw iss A lu m in iu m A u stra lia L im ite d (20 March 1986), applying the test laid down by the majority in D irector-G eneral o f S o cia l Services v C haney (1980) 31 ALR 571, the Full Court held that, as the Tribunal had not yet decided whether all exemption provisions relied upon under the FOI Act applied, its decision did not constitute ‘the effective decision or determination of the application for review’

and thereby was not a ‘decision’ from which an appeal could lie under section 44(1) of the A d m in istra tiv e A p p e a ls Tribunal A c t 1975. In M itsu b ish i M o to rs A u stra lia Ltd v Secretary to th e D e p a rtm e n t o f Transport (13 May 1986) the Full Court reached the same conclusion in relation to an appeal from certain directions given by the Tribunal in an application to review a refusal to grant access to documents under the FOI Act.

Freedom of information requests

165. During the year two requests were received for access under the FOI Act to documents held by the Tribunal. One request concerned all decisions of the Tribunal on applications made to it under the Isolated Patients Travel and Accommodation Assistance Scheme over a five-year period. The other pertained to all files relating to various applications for review before the Tribunal made by the party seeking access.

In the latter case access was granted to all the material requested but in the former the request was withdrawn before the arrangements for access could be finalised.

Administrative developments

166. The listing of applications for review has been decentralised among the State district registries of the Tribunal, although, as in the past, all arrangements and listings will continue to be subject to supervision by the President.

167. The introduction of a case management system, using the Attorney-General’s Department FACOM computer, is expected to be completed in late July of 1986. The existing interstate data communications network connected to the FACOM has been extended to provide terminals in each of the registries. This system was chosen as the best option to meet the Tribunal’s increased data processing needs in view of its cost effectiveness, the volume of cases anticipated in the Taxation Appeals Division and its compatibility with the proposed Federal Court system.

Decisions of the Tribunal

168. Several of the many decisions of the Tribunal throughout the year are summarised below. Cases have been selected on the basis of a number of criteria.

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In particular the case summaries aim at showing the scope of subjects dealt with by the Tribunal, the operating procedures of the Tribunal and the range of issues raised. Summaries given are not meant to be authoritative and the full reasons for decisions should be checked in all cases. Those who require a more comprehensive analysis of

important decisions of the Tribunal are referred to the excellent service edited by Professor Dennis Pearce in the A u stra lia n A d m in istra tiv e L a w B ulletin (Butterworths) which commenced publication in October 1985.

A ir navigation

169. The Tribunal denied a request that the hearing of a review of a decision to suspend a pilot’s licence be conducted notwithstanding pending proceedings in a Magistrate’s Court—R e G ru zm a n a n d Secretary to th e D e p a rtm e n t o f A v ia tio n (N.85/474, 28 February 1986).

C o m p en sa tio n

170. A manual labourer was held to be entitled to compensation because heavy work had been a contributing factor to acceleration of underlying coronary artery disease resulting in a heart attack—R e Z a n ic o tti a n d A u stra lia n T elecom m unications C o m m issio n (N.85/132, 20 January 1986).

171. Compensation was payable for asbestosis notwithstanding that it had not been detected until 5 years after retirement—R e R eyn o ld s a n d C o m m o n w e a lth o f A ustralia (S.84/91, 24 February 1986).

172. It was noted by the Tribunal that an employer has no duty to offer suitable work to a partially incapacitated former employee who resigned for reasons other than the incapacity—R e B ing a n d A u stra lia n T eleco m m u n ica tio n s C o m m issio n (N.83/127, 17 June 1986).

173. The Tribunal was satisfied that a partially incapacitated applicant may experience periods of total incapacity and was compensable in respect of such periods—Re Saunders a n d C o m m o n w e a lth o f A u stra lia (V.85/356, 24 June 1986).

174. The Tribunal affirmed a decision that imported machine-made lace was properly classified as a ‘knitted fabric’—R e W ildia E nterprises a n d C ollector o f C u sto m s (N S W ) (N.85/109, 17 January 1986).

175. Imported aloe vera juice was more properly classified as a ‘medicament’ than a fruit or vegetable juice notwithstanding some dispute as to its therapeutic value— R e Forever L iv in g P ro d u c ts a n d C o llecto r o f C u sto m s (N.85/139, 30 January 1986).

176. The fact that a minor part of a quarrying operation involved mining for sand and gravel did not attract a rebate for diesel fuel used generally in the quarry—R e Sanders Q uarries a n d C o llecto r o f C u sto m s (Q.85/137, 3 June 1986).

E x p o r t m a rk e t d e v e lo p m e n t grants

177. The Tribunal refused a claim for expenditure incurred in establishing and operating an electronic overseas meat marketing system on the ground that the expenditure was for the purpose of facilitating and not soliciting business—R e M ich ell M ea t a n d E x p o r t D e v e lo p m e n t G rants B oard (N.85/138, 31 January 1986).

178. The provision of free bottles of soft drink to overseas distributors on a one- for-one basis with those for which full price was paid was held to be in the nature

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of ‘discounts allowed’ and not ‘samples’, thereby making the expenditure ineligible for a grant—R e O pal C o rd ia l a n d A ustralian Trade C o m m issio n (V.85/222, 11 April 1986).

First h o m e ow ners

179. In a case of a long-term home purchase contract, the Tribunal exercised its discretion to determine the date of contract as the completion date so as to allow a claim for assistance under more recent legislation—R e C o o p e r a n d Secretary to the D e p a rtm e n t o f H o u sin g a n d C o n stru c tio n (T.21/85, 24 March 1986).

180. The current year, rather than the preceding year, of income of an applicant’s spouse was correctly taken into account in refusing to grant assistance where the spouse had not been resident, within the meaning given in the In c o m e Tax A sse ssm e n t A c t 1936, in Australia for the whole of the preceding year of income—R e N g u y e n a nd Secretary to th e D e p a rtm e n t o f H o u sin g a n d C o n stru c tio n (A.86/3, 20 June 1986).

F isheries

181. In affirming a decision to limit the fishing licence granted to a South Australian vessel in respect of southern bluefin tuna to a particular quota, the Tribunal noted that, in this type of matter, where policy has been decided at the highest level and where a whole industry could be affected, policy ought to be applied in the absence of special circumstances—R e A s to n a n d Secretary to th e D e p a rtm e n t o f P rim ary In d u stry (S.85/27, 6 November 1985).

F reedom o f in fo rm a tio n

182. The Tribunal affirmed a refusal to grant access to a document relating to the export of uranium from Australia on the basis that it was exempt, pursuant to sections 43(l)(c) and 45, because its disclosure would constitute a breach of confidence, could reasonably be expected to affect adversely an organisation’s business, commercial or

financial affairs and to prejudice the future supply of information to the Commonwealth—R e M a h e r a n d D e p a rtm e n t o f R esources a n d E nergy (V.84/290, 24 January 1986).

183. Access was denied to some Department of Treasury policy-making documents relating to diamond mining in Western Australia on the ground that disclosure would be contrary to the public interest, but the Tribunal required the production of the remaining documents for inspection as it was not satisfied on the evidence that reasonable grounds existed for a similar claim of exemption to support a conclusive certificate issued by the Treasurer—R e D illon a n d D e p a rtm e n t o f Treasury (D.84/16, 7 February 1986).

184. The Tribunal affirmed a decision that a document had originated with the Australian Security Intelligence Organisation and was thereby exempt from the operation of the F reedom o f In fo rm a tio n A c t 1982— R e A n d e rso n a n d A tto rn e y - G eneral’ s D e p a rtm e n t (N. 85/78, 21 March 1986).

185. A pilot was granted access to a transcript of taped air/ground communications between the applicant as pilot and flight service officers so that he could ascertain whether a court action lay for wrongful dismissal by his employer. Despite concern on the part of the Department of Aviation about objections by the Air Traffic Controllers’ Association, the Tribunal held that disclosure would not have a substantial adverse effect on the conduct of industrial relations and, in any event, would be in the public interest—R e T hies a n d D e p a rtm e n t o f A v ia tio n (V.85/366, 29 May 1986).

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D ep o rta tio n

186. A decision of the Minister for Immigration and Ethnic Affairs to deport a New Zealand citizen who had been imprisoned for a series of fraud and dishonesty offences was affirmed by the Tribunal. Among the factors taken into account were the seriousness of the offences, the possibility of recidivism and the lack of social ties

with Australia on the applicant’s part—R e R ogers a n d M in iste r f o r Im m ig ra tio n a n d E th n ic A ffa ir s (V.85/254, 30 October 1985).

187. The Tribunal affirmed a decision to deport a Turkish national who had been convicted for importation of heroin notwithstanding that it had been made over 12 months before the applicant’s earliest possible release date. It was considered that there was no prospect of any significant change in the facts and circumstances relevant to

the decision between the time of the hearing and the potential release date—R e O zsayin a n d M in iste r f o r Im m ig ra tio n a n d E th n ic A ffa ir s (N.84/380, 15 July 1985).

Isolated P a tien ts Travel a n d A c c o m m o d a tio n A ssista n c e S ch em e

188. The parents of a young ballet dancer, whose career was put in doubt by chronic shin splints, were held not to be entitled to benefits in respect of two return journeys from Rockhampton to Sydney in relation to an operation performed on their daughter. The Tribunal concluded that, as the operation could have been carried out adequately

in Brisbane, the referral was not to the “nearest suitable’ specialist—R e H e g v o ld a n d Secretary to th e D e p a rtm e n t o f H e a lth (Q.84/222, 5 September 1985).

189. Travel involved in consulting an audiologist for the fitting of a hearing aid was held to qualify for payment under the scheme because it involved a professional service performed ‘on behalf of’ a medical specialist—/?e Warren a n d Secretary to the D ep a rtm en t o f H ea lth (N.85/68, 16 January 1986).

N u rsin g h o m e s a n d p riv a te h o sp ita ls

190. The Tribunal set aside a determination of the Minister for Health that a small private psychiatric hospital situated in Tasmania receive daily bed payments under the lowest category of private hospital. The Tribunal concluded from the evidence

that the planning of health care services in Hobart required the maintenance of a high quality facility and that, in view of the very small cost increase involved, the likely effect on Commonwealth funding did not outweigh the desirability of giving effect to the recommendation of the State Minister for Health that a higher category be approved—R e H o b a rt C linic a n d M in iste r f o r H ea lth (T.85/9, 10 December 1985).

191. The Tribunal affirmed a decision of the Minister for Community Services refusing to grant approval in principle for additional private nursing home beds, eligible for subsidy, in a large establishment in Hobart on the basis that the need for additional beds in that region had not been clearly identified—R e F reem a so n s’ H o m e s a n d

M in ister f o r C o m m u n ity S ervices (T.85/39, 20 June 1986).

Social security

192. Four school children who had left home because of intolerable domestic problems were held to be eligible for special benefit. The Tribunal concluded that the discretion to provide benefits ought to be exercised in their favour as the only other financial support available to them was in the nature of supplementary benefits

only—Re M T a n d O thers a n d Secretary to the D epartm ent o f Social Security (N.85/545, 30 January 1986).

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193. In the case of a young aboriginal child living in the north of Western Australia, late lodgment of an application for handicapped child’s allowance was permitted in view of special circumstances such as the social and geographical isolation of the applicant—R e B a tes a n d Secretary to th e D e p a rtm e n t o f Social S ecu rity (W.84/29, 27 May 1986).

194. An applicant who had shown signs of a medical disability shortly after arrival | in Australia was held not to be disqualified from receiving an invalid pension because the condition was not incapacitating at that time—R e Jaballah a n d Secretary to the D e p a rtm e n t o f S o cia l S ecu rity (V.85/336, 6 May 1986).

<95. The Tribunal affirmed a decision to reduce an age pension following the introduction of the assets test on the basis that the pensioner could reasonably be expected to sell an undeveloped block of bushland which was not the site of his home. The Tribunal found that, although there was a sentimental attachment to the property, there would not be any severe financial hardship suffered—R e Trotter a n d Secretary to the D e p a rtm e n t o f S o cia l Secu rity (N.85/561, 1 May 1986).

Supera n n u a tio n

196. A widowed applicant was held to be the ‘spouse’ of a deceased contributor in relation to pension entitlements, although they had separated 6 months prior to the ) latter’s death, because she was still ‘wholly or substantially dependent’ upon the contributor at the time of his death—R e S c o tt a n d C o m m issio n e r f o r S u perannuation (Q.85/107, 15 May 1986).

Veterans’ en titlem en ts

197. The Tribunal declined an application for an order staying a decision of the Veterans’ Review Board to grant a Vietnam war veteran a disability pension in respect [ of a cerebral tumour until the matter had been reviewed by the Tribunal. However, the fact that hardship may have been experienced if on-going entitlements were not paid, did not preclude an order that no arrears be paid, pending the substantive hearing, in view of the fact that such monies may not be recoverable—R e R epatriation C o m m issio n a n d B ra m sto n (V.85/281, 5 November 1985).

198. An ex-serviceman was held to be ineligible for a service pension on the basis that his service in the Borneo region after the formal Japanese surrender was not in a theatre of war’ as, on the evidence, he was in no danger from organised or disorganised enemy forces—R e M a rsh a n d R ep a tria tio n C o m m issio n (N.85/277, 30 January 1986).

199. An 81-year-old retired architect was not entitled to a pension at the special rate rather than the general rate because he was not prevented, by reason of a service related injury or disability alone, from continuing to undertake remunerative work— R e Lucas a n d R epatriation C o m m issio n (N.85/423, 6 May 1986).

W ildlife p ro tectio n

200. The Tribunal set aside approval of the 1985 management programme for kangaroos in Queensland given by the Minister for Arts, Heritage and Environment and remitted the matter for re-consideration by the Minister. Approval of the programme, designed to conserve various species of kangaroos by regulating export of the animals, was held to be invalid because of significant discrepancies between the programme, as approved, and that actually being carried out in Queensland. The Tribunal also noted that the programme, as approved, was invalid on the basis that there was insufficient information available concerning the biology and ecology of

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a particular species, that the inclusion of two similar but separate species in the same quota was inconsistent with requirements relating to the survival of species and that the programme did not contain sufficient provision for monitoring and assessment of the effect of culling—R e F u n d f o r A n im a ls L td a n d M in ister o f S ta te f o r A rts,

H eritage a n d E n v iro n m e n t (N.85/229, 6 June 1986).

Membership of the Tribunal

201. During the year the number of members increased from 59 to 91. Of particular note are the appointments of deputy presidents in Sydney, Brisbane and Perth. As a result of these appointments, the Tribunal now has deputy presidents in every State.

202. The following appointments were made to the Tribunal during 1985-86:

• The Honourable Mr Justice C. W. Pincus, the Honourable Mr Justice J. E. J. Spender, and the Honourable Mr Justice P. R. A. Gray, judges of the Federal Court of Australia, as presidential members of the Tribunal.

• The Honourable Mr Justice R. N. J. Purvis, a judge of the Family Court of Australia at the Parramatta Court in Sydney, as a presidential member. Mr Justice Purvis is the first appointment made from the Family Court of Australia to the Tribunal.

• The Honourable Mr Justice D. G. Stewart, as a deputy president of the Tribunal. Mr Justice Stewart is the Chairman of the National Crime Authority and is unlikely to sit on the Tribunal while he holds that office.

• Mr C. J. Bannon, QC, as a deputy president in Sydney. Mr Bannon has been practising as a barrister in Sydney and has taken silk in NSW, Victoria and the A.C.T. In 1984-85 he was a governor of the Law Foundation of NSW.

• Mr R. D. Nicholson, as a deputy president in Perth. Mr Nicholson has been a partner in the Perth office of Freehill, Hollingdale & Page and is a former Secretary-General of the Law Council of Australia.

• Mr D. P. Breen, as a deputy president in Brisbane. Prior to his admission as a barrister in 1975, Mr Breen was in practice as a solicitor in a Brisbane firm.

203. As a result of the corning into operation of the Taxation B oards o f R eview (Transfer o f Jurisdiction) A c t 1986, the following former chairmen and members of the Boards of Review are deemed, as from 1 July 1986, to be senior members of the Tribunal and are assigned to the Taxation Appeals Division:

Dr P. Gerber Mr Η. P. Stevens Mr J. E. Stewart Mr K. P. Brady

Mr P. M. Roach Mr K. L. Beddoe

204. On 18 November 1985, the Attorney-General announced the appointment of 19 part-time members to the Veterans’ Appeals Division of the Tribunal. All senior members of the Tribunal were appointed to the Veterans’ Appeals Division. The appointments as part-time members to the Veterans’ Appeals Division were:

• Mr A. Argent, a retired army officer and former member of a Repatriation Board • Mr N. J. Attwood, AO, a former Deputy Secretary of the Department of Defence

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• Brigadier I. R. W. Brumfield, CBE, DSO, RL, a retired army officer and former Director-General of Personnel Operations • Mr S. Crawshaw, a Sydney barrister and former private secretary to the Minister for Veterans’ Affairs • Dr D. A. Dowie, a former Director of Medical Services in the Department of

Social Security, with extensive experience in rehabilitation of the disabled • Dr J. Francis, a former consultant dermatologist and former member of the Repatriation Review Tribunal • Commodore B. G. Gibbs, AM, a former Director of Naval Legal Services and

former senior member of the Veterans’ Review Board • Brigadier T. R. Gibson, a retired army officer, currently General Manager of St John’s Ambulance in Queensland • Brigadier J. A. Hooper, CBE, a former Director-General of Personnel

Operations, currently private secretary to His Excellency the Governor of New South Wales • Mr D. A. Kearney, AM, a former registrar of the University of Tasmania • Ms J. M. Maher, a former supervisor of nurses at Heidelberg Repatriation Hospital • Dr W. McLaren Thompson, a general practitioner and former member of the Repatriation Review Tribunal and Veterans’ Review Board • Dr J. B. Morley, a consultant neurologist and former member of the Repatriation , Review Tribunal • Mr R. B. Rogers, a former Lieutenant-Colonel and Deputy Commissioner in the Department of Veterans’ Affairs • Mr T. R. Russell, a registered public accountant and former Chairman of the I NSW Division of the Australian Society of Accountants • Dr P. A. Staer, a surgeon and former member of the Repatriation Review Tribunal • Dr E. H. Stephenson, AO, OBE, a specialist physician and former Director- General of Air Force Health Services • Major-General K. J. Taylor, AO, a former Director of Army Recruiting • Dr Μ. E. C. Thorpe, a consultant physician and former member of the Repatriation Review Tribunal

205. Two of the appointees, Mr N. Attwood and Mr D. Kearney, were also assigned to the General Administrative Division of the Tribunal.

206. During the year, the following part-time members were appointed:

• Dr N. Marinovich, the Director of Geriatric and Community Medicine and Senior Consultant Physician at Fremantle Hospital and a former Social Security Appeals Tribunal member in Perth.

• Dr D. B. Travers, who retired in 1983 as First Assistant Director-General, Medical Services Division, Department of Health.

• Dr D. B. Williams, who was formerly Director of the Roseworthy Agricultural College and Assistant Secretary of the Department of Primary Industry. He was also at one time visiting Professor of Agriculture at the University of Melbourne.

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207. The following changes were made to the appointments of members of the Tribunal during 1985-86:

• Dr R. A. Hayes, formerly a part-time senior member, was appointed a full-time senior member.

• Dr A. P. Renouf, OBE, formerly a part-time member, was appointed a part­ time senior member.

• Mrs Η. E. Hallowes, formerly a part-time member, was appointed a part-time senior member.

208. The following members of the Tribunal were re-appointed during 1985-86:

• Mr 1. A. Wilkins as a part-time member • Mr L. J. Cohn as a part-time member

209. The following members retired from the Tribunal during 1985-86:

• The Honourable G. D. Clarkson, QC, a part-time senior member • Mr D. R. S. Craik, CBE, OBE, a part-time member • Dr A. H. Marsh, CBE, a part-time member

210. Mr Clarkson, who was first appointed to the Tribunal on 30 November 1979, was farewelled at a function held in Perth on 6 May 1986.

211. Dr P. Henke resigned as a part-time member of the Tribunal due to commitments arising from his position as Director of Rehabilitation Medicine at the St George Hospital.

CHAPTER 7

THE COMMONWEALTH OMBUDSMAN

212. This chapter reports, from the Council’s point of view, the major developments affecting the Ombudsman’s office during the year. Detailed information on the activities of the Commonwealth Ombudsman and the Defence Force Ombudsman is contained in the Ombudsman’s Ninth Annual Report 1985-86.

213. Professor J. E. Richardson, AO retired as Commonwealth Ombudsman in September 1985. Mention of the record of the Council’s appreciation of his work as Ombudsman is made at paragraph 302 below. Professor Richardson was the first Commonwealth Ombudsman and established the office with energy and skill. Following Professor Richardson’s retirement, Air Vice-Marshal J. C. Jordan, AO acted as Ombudsman.

214. The announcement by the Government in April 1986 of the appointment of the new Ombudsman, Mr G. K. Kolts, OBE, QC, was welcomed by the Council. Mr Kolts is a former member of the Council and will become an ex officio member

when he takes up his new office on 1 July 1986.

Delay in appointment of the Commonwealth Ombudsman

215. The Council expressed concern to the Attorney-General and the Prime Minister at the delay in appointment of a Commonwealth Ombudsman following the retirement of Professor Richardson. The Ombudsman is an integral and vital part of the system of administrative review that has been developed in Australia over the last decade and, in the Council’s view, any diminution in support for the office, even if only apparent, is detrimental to the system as a whole. Delay in filling the position can lead to a loss of public confidence in it, to a perception by government departments and agencies that the office is regarded by the Government as having less than prime importance, and to a loss of momentum and purpose within the office itself.

Reports to the Prime Minister under section 16 of the O m b u d s m a n A c t 1976

216. Section 16 of the Ombudsman Act provides that, where in the opinion of the Ombudsman adequate and appropriate action is not taken within a reasonable time with respect to the matters and recommendations included in a section 15 report of any investigation, he may inform the Prime Minister. The Prime Minister’s response is currently awaited in respect of four complaints. In two of these cases the agency concerned was unable to implement Ombudsman recommendations because the Minister for Finance did not approve the submission made to him under the Audit Act for an act of grace payment to the complainant. The Ombudsman’s office is discussing with the Departments of Finance and Prime Minister and Cabinet ways in which the special nature of Ombudsman recommendations can be given effect to without the constraint of act of grace guidelines.

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Reports to the Parliament under section 17 of the O m b u d s m a n A c t 1976

217. Aspects of the relationship between the Ombudsman and the Parliament have been discussed in earlier annual reports of the Ombudsman. (See Fourth A n n u a l R eport 1980-81, pp 57-60, 70-78; F ifth A n n u a l R eport 1981-82, pp 26-27; Sixth A n n u a l R eport 1982-83, pp 4-5; C o m m o n w ea lth O m b u d sm a n a n d D efence Force O m b u d sm a n A n n u a l Report 1984-85, pp 4-5.)

218. The first report of the Ombudsman under section 17 of the Ombudsman Act dealt with a complaint about the Australian Broadcasting Corporation and was tabled in both Houses of Parliament on 10 September 1985. The Parliament did not take any action on the report, and there is indeed no procedure whereby the Ombudsman’s

reports, whether under section 17 or section 19, receive the attention of the Parliament. This led the Ombudsman to raise with the Prime Minister the questions whether and by what means his reports might receive attention by the Parliament. This matter is currently under examination by the Department of the Prime Minister and Cabinet.

A second report under section 17, this time dealing with the failure of a department to award a contract to the lowest tenderer, was tabled on 27 May 1986 and, as at the end of the year, it too had not been examined by the Parliament.

219. The Council has become concerned that the sanction of reporting to the Parliament may not be a sufficient provision in the absence of established parliamentary procedures for dealing with reports by the Ombudsman. The Council is therefore examining possible procedures for dealing with the Ombudsman’s reports

to the Parliament, including, for example, the establishment of a parliamentary committee with the statutory responsibility for their consideration. Any advice which the Council may wish to give on this matter has been deferred, however, until the new Ombudsman assumes office and has had an opportunity to consider the

correspondence which the Acting Ombudsman initiated with the Prime Minister.

Freedom of information

220. The Council accepted an invitation to make a submission to the Senate Standing Committee on Constitutional and Legal Affairs in connection with its inquiry into the operation and administration of the freedom of information legislation (paras 74-93). .Consistently with the Council’s statutory charter, its submission concentrated

on the review features of the FOI legislation. So far as the Ombudsman’s jurisdiction in FOI matters is concerned, the submission recommended—

• preservation of the separate and distinct jurisdictions of the Ombudsman and the AAT in the review of FOI decisions; • legislative change to allow interchange of complaints or applications between the Ombudsman and the AAT with the consent of the complainant or applicant;

• that a greater emphasis be given, both legislatively and administratively, to the review role of the Ombudsman in FOI; • that the Committee consider substituting for the Ombudsman’s representational role under section 52F of the FOI Act a power to intervene, by leave, in AAT

proceedings, as an a m ic u s curiae·, • that the Ombudsman be given access to the subject documents in circumstances where he has a representational role before the AAT; • that staff resources be made available to the Ombudsman to allow adequate

fulfilment of his monitoring role under the FOI Act;

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that should agencies be empowered to refuse to process an FOI request on the grounds that it is vexatious, frivolous or unreasonable, such decisions be subject to A AT or Ombudsman review.

Work load and resources

221. Professor Richardson said in last year’s Annual Report of the Ombudsman that the flow of complaints to the Ombudsman had yet to reach the ten year plateau which has been the experience of other Ombudsmen. The office now reports a pattern of .

complaint flow which seems to have stabilised at about 3750 written and 17 000 oral complaints per year.

222. The 1985/86 levels nevertheless represent increases of 400 written and 1000 oral complaints over those for 1984/85. The office has had to deal with this increased work load with the same staff resources (64 plus 4 statutory officers, including the Ombudsman) as were available to Professor Richardson in both 1983/84 and 1

1984/85—during which years he reported great difficulty in discharging his responsibilities under the Ombudsman, Freedom of Information and Complaints (Australian Federal Police) Acts.

223. The office has indicated that, despite the increase in business, it has reduced the written complaints backlog from the 1900 reported at 30 June 1985 to 1750 at the corresponding date this year.

Defence Force Ombudsman

224. The Defence Force Ombudsman received some 260 complaints during the year, ) about 140 from serving members and about 120 from ex-service people. As in the previous year a number of serving complainants had failed to pursue their complaint first through service channels with the result that their complaints were not investigated by the Defence Force Ombudsman. The jurisdiction seems not to be widely understood within the Defence Force but publicity in the Service newspapers and visits by the Defence Force Ombudsman to selected units is slowly extending knowledge of the function.

225. Complaints of serving members continue to take the Department overly long to investigate even though procedures have been modified. The Defence Force Ombudsman is seized with the need for further improvement.

The Ombudsman Through The Looking Glass’

226. The seminar The Ombudsman Through The Looking Glass’, conducted at the Australian National University Law School on 7 September 1985, was very well i attended. It proved to be a valuable public review of the Ombudsman’s role and future j directions, held as it was just before Professor Richardson’s retirement. Its proceedings have been published by the Royal Australian Institute of Public Administration (A.C.T. \ Division).

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CHAPTER 8

REVIEW BY THE COURTS

227. This chapter highlights major developments during 1985-86 concerning judicial review of Commonwealth administrative action.

Case law

228. The following section contains brief notes on selected court decisions relating to review of Commonwealth administrative action. The first part deals with the AD(JR) Act, which is the primary avenue for obtaining judicial review of such action, and the second part deals with alternative avenues for obtaining judicial review. Where

a case has been reported in the Federal Court Reports, the citation of those reports is given. Where a case has not been reported in the Federal Court Reports but has been reported in the Australian Law Reports, the citation of those reports is given. Other citations used are the Administrative Law Notes (which form part of

Butterworths A ustralian A d m in istra tiv e L aw Service) and the Federal Court Reporter, the latter being cited as Fed Ct Reporter.

AD(JR) Act Ambit of Act (s. 3)

229. As compared with previous years (see, for example N in th A n n u a l R eport 1984-85, para. 226), there have been fewer decisions concerning the ambit of the Act. This may reflect a clarification of the basic scope of the Act in previous decisions of the Federal Court.

230. M ea n in g o f \decision o f an a d m in istra tive character’ . In L etts v The

C o m m o n w ea lth a n d O rs (1985) 62 ALR 517 the applicant sought review of a decision of the Registrar of the Fligh Court that the commencement of certain proceedings in the Fligh Court be referred to a Justice of the court on the basis that the originating process appeared to the Registrar to be an abuse of the process of the court. The

respondent argued that there was no ‘decision’ susceptible of review or, if there was a decision to which the AD(JR) Act applied, then the court in its discretion should refuse to grant the application. It was held by Mr Justice Toohey that there had been a decision made by the Registrar—he had not purported to determined the matter

but he had made a decision to refer it to a Justice. Although on the outer edge of decision making, this was within the meaning of ‘decision’ as defined in the AD(JR) Act. However, the decision had not been of ‘an administrative character’—the Registrar had been exercising the jurisdiction of the High Court to control frivolous or vexatious

applications, a jurisdiction that could be exercised through officers of the court as well as Justices.

231. In N arain v P arnell (25 March 1986) Mr Justice Burchett held that a decision of a magistrate under section 26(2) of the E xtra d itio n (C om m onw ealth C ountries) A c t 1966 not to continue or grant bail to the applicant was a decision of an administrative character. The power conferred on a magistrate under that sub-section was said to

be comparable to the corresponding power of a committing magistrate as well as being an incident of the performance of duties in respect of extradition procedures which are themselves administrative.

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232. M ea n in g o f ‘m a d e . . . u n d er an e n a c tm e n t’ . In M in iste r f o r Im m ig ra tio n and E th n ic A ffa ir s v M a y e r (1985) 61 ALR 609 the High Court held by a 3-2 majority that a decision by the Minister that a person was not eligible for refugee status had been made under an enactment. The issue in that case was whether the requirement in section 6A(l)(c) of the M igration A c t 1958 that dhe Minister has determined’ that a person has the status of a refugee should be read as referring to the objective fact I that a determination had been made or whether that section itself impliedly gave the j Minister the power to make such a determination. The majority of the court preferred the latter construction. It followed that the Minister’s decision was a decision made under an enactment. Hence the person was entitled under the AD(JR) Act to seek reasons for the decision.

233. A finding that a decision was a decision made under an enactment was also made by the Full Court of the Federal Court in B alnaves v D e p u ty C om m issioner i o f Taxation (1985) 61 ALR 509 where the decision concerned was a decision not to I reinstate arrangements with a tax agent for the extension of time for the lodgment | of income tax returns. The decision was characterised as one made under section 161(1) of the Income Tax Assessment Act.

234. The wide scope of the Act may be seen in the decision of the Full Court in M in iste r f o r In d u stry a n d C o m m erce a n d A n o r v E ast West Trading Co. P ty Lim ited ) (3 March 1986), which concerned a decision of the appellant revoking the balance of the respondent’s 1984 quota allocation and withdrawing ‘previous import performance entitlements’ under an administrative scheme for regulation of the importation of textiles. The effect of the decision was to give notice to the respondent that it would not be allocated a quota in 1985. It was held that the decision was a decision under section 273 of the C u sto m s A c t 1901 even though the decision related to entitlements under a non-statutory scheme.

235. The question whether the AD(JR) Act’s ambit should be extended to include decisions made otherwise than under an enactment will be addressed in the Council’s forthcoming report on its review of the operation of the AD(JR) Act.

Grounds of review (ss 5-6)

236. N atural justice. There were several important decisions during the year concerned with whether there had been a breach of the rules of natural justice. Of particular significance was the decision of the High Court in K ioa v M in iste r f o r Im m igration a n d E th n ic A ffa ir s (1985) 62 ALR 321. In that case the High Court ruled that, as a result of legislative amendments which had occurred since earlier decisions concerning section 18 of the Migration Act, the statute did not wholly displace the duty to act fairly in accordance with the doctrine of natural justice. It was held by a majority of four to one (Chief Justice Sir Harry Gibbs dissenting) that by not providing the appellants, prohibited non-citizens, with an opportunity to answer certain prejudicial material which had been before the delegate of the Minister, the delegate had failed to afford them the procedural fairness required by the rules of natural justice. The court ordered that the deportation order be set aside and that the matter be referred back to the Minister. It was also held by the court as a whole that section 5(l)(a) of the AD(JR) Act does not impose an obligation to observe the rules of natural justice in circumstances other than those where the obligation arises under the common law.

237. The significance of the decision extends beyond deportation orders under section 18 of the Migration Act. Mr Justice Mason’s judgment contains an important statement of principle. His Honour said: .

It is a f u n d a m e n t a l r u l e o f t h e c o m m o n la w d o c t r i n e o f n a t u r a l j u s t i c e e x p r e s s e d in t r a d i ti o n a l

t e r m s t h a t , g e n e r a l l y s p e a k i n g , w h e n a n o r d e r is t o b e m a d e w h i c h w ill d e p r i v e a p e r s o n

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o f s o m e r i g h t o r i n t e r e s t o r t h e l e g i t i m a t e e x p e c t a t i o n o f a b e n e f i t , h e is e n t i t l e d t o k n o w

t h e c a s e s o u g h t t o b e m a d e a g a i n s t h i m a n d t o b e g i v e n a n o p p o r t u n i t y o f r e p l y i n g t o it

. . . T h e r e f e r e n c e t o T i g h t o r i n t e r e s t ’ in t h i s f o r m u l a t i o n m u s t b e u n d e r s t o o d a s r e l a t i n g

t o p e r s o n a l l i b e r ty , s t a t u s , p r e s e r v a t i o n o f l i v e l i h o o d a n d r e p u t a t i o n , a s w e ll a s t o p r o p r i e t a r y

r i g h t s a n d i n t e r e s t s .

T h e r e f e r e n c e t o ‘l e g i t i m a t e e x p e c t a t i o n ’ m a k e s it c l e a r t h a t t h e d o c t r i n e a p p l i e s in

c i r c u m s t a n c e s w h e r e t h e o r d e r w ill n o t r e s u l t i n t h e d e p r i v a t i o n o f a l e g a l r i g h t o r i n t e r e s t . . .

T h e l a w h a s n o w d e v e l o p e d t o a p o i n t w h e r e it m a y b e a c c e p t e d t h a t t h e r e is a c o m m o n

l a w d u t y t o a c t f a i r l y , i n t h e s e n s e o f a c c o r d i n g p r o c e d u r a l f a i r n e s s , i n t h e m a k i n g o f

a d m i n i s t r a t i v e d e c i s i o n s w h i c h a f f e c t r i g h t s , i n t e r e s t s a n d l e g i t i m a t e e x p e c t a t i o n s , s u b j e c t

o n l y t o t h e c l e a r m a n i f e s t a t i o n o f a c o n t r a r y i n t e n t i o n . ( 1 9 8 5 ) 6 2 A L R 321 a t 3 4 5 - 6

238. In several subsequent migration cases (K a u fu si a n d A n o r v M in iste r f o r Im m igration a n d E th n ic A ffa ir s (1986) 96 Fed Ct Reporter 20, S in n a th a m b y v M in ister fo r Im m ig ra tio n a n d E th n ic A ffa ir s (24 December 1985), A q b a l a n d O rs v H urforcl (29 April 1986) and S o o a n d O rs v Tuchin a n d A n o r (30 April 1986)), which were

also concerned with deportation decisions, it was held by the Federal Court that there had not been a failure to accord the applicants natural justice because no material of a prejudicial kind which had not been disclosed to them had been relied upon by the decision makers. There was therefore no obligation to give the applicants an

opportunity to respond to the material before the decision makers.

239. However, in N arain v P arnell (para. 231 above), a magistrate had refused bail in extradition proceedings where no notice had been given that bail was opposed or that it was intended to treat the matter as entirely unaffected by the earlier decision to grant bail. Mr Justice Burchett considered that, in these circumstances, there had

been a failure to accord the applicant natural justice. He cited with approval the words of Mr Justice Mason in K io a ’ s case (paras 236-237) as to the “importance which the law attaches to the need to bring to a person’s attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity

of dealing with it’.

240. The question whether there had been a denial of natural justice arose before the Full Court of the Federal Court in M a rin e H u ll a n d L ia b ility In su ra n ce Co. L td v H u rfo rd a n d A n o r (18 June 1986). That case concerned directions given to Marine Hull by the Treasurer under section 62 of the In su ra n ce A c t 1973 that it refrain from

issuing or renewing insurance policies. Marine Hull argued that the requirements of natural justice were that it be given a hearing before the directions issued.

241. It was held by Mr Justice Fox and Mr Justice Davies that there was no evidence of a denial of natural justice. Mr Justice Fox considered that in certain circumstances a denial of natural justice might arise because an insurer had not been given an adequate opportunity to be heard before directions were issued by the Treasurer.

However, he said that in the present case the evidence did not disclose a denial of natural justice. Mr Justice Davies said that, in giving directions under the Insurance Act, the Treasurer was under a duty to accord procedural fairness. However, the requirements of procedural fairness were satisfied in the particular case by compliance

with the provisions of the Act relating to investigations before directions issued, by the right to obtain re-consideration of the directions and by the right to obtain review by the Administrative Appeals Tribunal of any directions.

242. In C o lp itts v A u stra lia n T eleco m m u n ica tio n s C o m m issio n (9 January 1986), on the other hand, it was held that a breach of the rules of natural justice had taken place in relation to a decision compulsorily to retire the applicant from his employment. The court said that the existence of a right to ‘appeal’ to a review tribunal which had

only recommendatory powers did not satisfy the requirements in the Telecommuni­ cations Regulations that there should be provision for “review’ of the relevant class

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of decisions. The existence of that ‘truncated remedy’ did not exclude the right to be j heard, and the fact that the applicant had ‘appealed’ to the review tribunal did not j preclude the right to seek judicial review since the remedy was itself insufficient.

243. R elevant a n d irrelevant considerations. Cases involving questions as to relevant and irrelevant considerations included: W attm aster A /c o P ty L td a n d O rs v Button j (24 January 1986) (an anti-dumping case); L a re m o n t v M in ister f o r Im m ig ra tio n and | E th n ic A ffa ir s (1986) 98 Fed Ct Reporter 53 (a deportation case); and M in ister for )

In d u stry a n d C o m m e rc e a n d A n o r v E a st West Trading Co. P ty L im ite d (para. 234) (which concerned allocation of tariff quotas under section 273 of the C u sto m s Act 1901).

244. Interesting questions have continued to arise concerning the extent to which a decision maker is under a duty to initiate inquiries on his or her own behalf and of what facts a decision maker should have been aware (see N in th A n n u a ! Report 1984-85, para. 235). V ideto a n d A n o r v M in iste r f o r Im m ig ra tio n a n d E th n ic Affairs (No. 2) (1985) 8 ALN N238 involved an application based on an alleged failure to take into account relevant considerations. The application related to a decision of the Minister that the applicant be deported. The applicant had been informed by officers of the Department that he was not eligible to seek permanent residence when there were in fact circumstances based on compassionate grounds upon which he could have ;

sought to base such a claim. In granting the application, it was held by Mr Justice Toohey that, in relation to a decision that a prohibited non-citizen be deported, if an officer of the Department withholds relevant information from the decision maker, it is no answer to a complaint that the decision maker failed to take into account a relevant consideration to say that the matter was not before him; the information was constructively before him. In failing, of necessity, to take the information into account, the decision maker failed to take all relevant considerations into account.

245. In Singh v M in iste r f o r Im m ig ra tio n a n d E th n ic A ffa ir s (4 December 1985) Mr j Justice Wilcox put to one side cases where the material before the decision maker indicated cause for concern about a relevant matter but where a person who would be affected by an adverse decision had no reasonable opportunity to put the facts relating to that concern before the decision maker. Apart from those cases, his Honour said that he was not aware of any authority which supported the proposition that, in relation to matters within the knowledge of an affected person, the decision maker was bound to embark upon an independent inquiry as to the facts. (See also his Honour’s judgment in P rasad v M in iste r f o r Im m ig ra tio n a n d E th n ic A ffa ir s (1985) 6 FCR 155.)

246. Im p ro p e r exercise o f power. The adoption of policy guidelines by the Minister in relation to capital grants to non-government schools was held by the Full Court of the Federal Court not to be illegal or improper, provided the Minister remained ready to consider arguments of particular applicants that their cases should be considered as exceptions (P eninsula A n g lic a n B o ys S c h o o l v R y a n a n d A n o r (1986) 98 Fed Ct Reporter 53). The rules of natural justice did not require the Minister to give a warning to the applicant of the adoption of new policy guidelines.

Statements of reasons (s. 13)

247. Some guidance on what is required in a statement of reasons provided under section 13 of the AD(JR) Act may be gained from the judgments in A g h e d o v M inister f o r Im m ig ra tio n a n d E th n ic A ffa ir s (7 March 1986) and A .R .M . C on stru ctio n s P ty Ltd v D e p u ty C o m m issio n e r o f Taxation (3 April 1986). In the former case, the Minister’s

delegate, in reaching his decisions, had relied on a comprehensive report (and attached documents) prepared by a departmental officer and set out under headings 1

52

corresponding to the requirements of section 13. In the statement of reasons for his decisions the delegate simply adopted the findings and reasoning of that report. Mr Justice Muirhead commented that the ‘omnibus type approach’, even where the report referred to was a balanced one, made it difficult to challenge the decision and, perhaps, to decide the issues on review. He went on to say:

. . . It w o u l d p e r h a p s b e m o r e s a t i s f a c t o r y t o m a k e s o m e s p e c i f i c r e f e r e n c e t o t h o s e m a t t e r s

w h i c h p r e d o m i n a t e d o r p r o v e d d e c i s i v e in t h e m i n d o f t h e d e c i s i o n m a k e r . . . A r e f e r e n c e

in a d e c i s i o n t o a m u l t i t u d e o f f i n d i n g s s o m e o f w h i c h m a y b e o f i m p o r t a n c e , o t h e r s n o t ,

i m p o s e s d i f f i c u l t i e s u p o n s u b s e q u e n t a n a l y s i s f o r t h e p u r p o s e o f review .

248. Nonetheless, despite criticism of the statement of reasons, the court dismissed the application for review as the applicants had not established any grounds for review.

249. In A .R .M . C o n stru c tio n s P ty L im ite d a n d O rs v D e p u ty C o m m issio n e r o f

Taxation (para. 247) Mr Justice Burchett concluded that a section 13 statement of reasons given by the Deputy Commissioner of Taxation was inadequate in not indicating that consideration had been given to the strength of the applicants’ submissions in support of requests to extend the time for payment of disputed

assessments to income tax. These submissions concerned the likelihood of the success of objections against the assessments and the financial effects of having to pay the tax. In the course of his judgment his Honour made the following remarks:

S e c t i o n 13 is a c r u c i a l p r o v i s i o n d e s i g n e d t o e n s u r e t h a t t h e b a s i s u p o n w h i c h a d e c i s i o n

is m a d e is a b l e t o b e s e e n , s o t h a t its l e g a l i t y c a n b e d e t e r m i n e d . It s h o u l d n o t b e v ie w e d

b y a n y d e c i s i o n m a k e r a s a t h r e a t t o b e e v a d e d b y a c a m o u f l a g e o f o b s c u r i t y . . . I t w o u l d

b e w r o n g f o r c o u r t s t o c o n s t r u e r e a s o n s i n a n y o v e r l y c r i t i c a l s p i r i t , f o r g e t f u l t h a t t h e y a r e

t h e r e a s o n s o f a n a d m i n i s t r a t o r , n o t t h e d r a f t s m a n o f a n A c t . B u t it w o u l d b e a s b a d t o

b e t r a y t h e a i m s o f t h e A D ( J R ) A c t , b y i g n o r i n g w h a t h a s b e e n r e q u i r e d b y t h e P a r l i a m e n t

t o b e d i s c lo s e d in t h e i n te r e s ts o f j u s t a n d la w f u l ( a n d n o t m e r e l y u n a s s a i l a b l e ) a d m i n i s t r a t i o n

. . . [ T h e s e c t i o n 13 o b l i g a t i o n ] d e m a n d s t h e f u r n i s h i n g o f r e a s o n s w h i c h m a k e i n te llig ib le

t h e t r u e b a s i s o f t h e d e c i s i o n .

250. The availability of discovery and its relationship to a section 13 statement of reasons is discussed in N e stle A u stra lia L im ite d v C o m m issio n e r o f Taxation (14 February 1986). In that case, review of a refusal to extend time for payment of income tax was sought. To determine whether discovery was available, Mr Justice

Wilcox followed the ‘anti-fishing’ approach of the Full Court in W.A. P ines P ty L td v B a n n erm a n (1980) 30 ATR 559, that is, Whether there is evidence to ground a suspicion that the applicant has a good case, proof of which is likely to be aided by discovery’. It was held that the applicant’s complaint that the Commissioner had failed to take into account particular matters was not a sound basis for discovery because

the section 13 statement of reasons itself was admissible to provide evidence of the matters which the Commissioner took into account.

Availability of alternative remedy (s. 10)

251. It was decided by the Full Court of the Federal Court in Woss v Jacobsen a nd Z em pilas (1985) 60 ALR 313 that, while a review under section 19 of the Service a nd E xecu tio n o f P rocess A c t 1901 was not a review that was withdrawn from the courts of the States by section 9 of the AD(JR) Act, it came within the provisions of section

10(2). The judge at first instance had been correct in dismissing the application in the light of an alternative remedy. Two members of the court indicated that, while the discretion to refuse an application on the basis of an alternative remedy was not limited to a particular stage in the course of the proceedings, it would in many cases

be appropriate to deal with the issue at the outset. A similar approach had been indicated by Mr Justice Fisher in P erry v D irector o f P u b lic P rosecutions (1985) 6 FCR 578.

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252. The Council will be examining the question of overlapping remedies in its report on the operation of the AD(JR) Act. In stage one of its report on the Act, the Council deals with the need to consider questions of alternative remedies at the outset of proceedings.

253. In M ercantile C redits L td v F ederal C o m m issio n e r o f Taxation (1985) 61 ALR 331 Mr Justice Morling declined to exercise the court’s discretion under section 10(2)(b)(ii) not to consider the application because of the existence of an alternative remedy under section 128F of the In c o m e Tax A sse ssm e n t A c t 1936, as the matter could be dealt with quickly and conveniently by the Federal Court and the onus of showing that the court should not exercise its jurisdiction under the AD(JR) Act lay upon the respondent. The issue was not raised in the Commissioner’s appeal to the Full Court of the Federal Court ((1986) 64 ALR 154). See also D o m a in e F inance Pty L td v Federal C o m m issio n e r o f Taxation (1985) 61 ALR 375.

254. In A n d e rso n v C o m m issio n e r f o r E m p lo y e e s ’ C o m p e n sa tio n (23 May 1986), on the other hand, Mr Justice Sweeney exercised the court’s discretion under section 10(2)(b)(ii) to refuse to grant an application for review. The refusal was based on the ground that adequate provision was made by the C o m p e n sa tio n (C om m onw ealth

G o vern m en t E m p lo y e e s) A c t 1971 whereby the applicant was entitled to seek a review of the decision of the Commissioner for Employees’ Compensation by the Administrative Appeals Tribunal.

255. A decision which should be carefully noted by government departments and authorities in connection with their practice of notifying persons about their review rights in respect of decisions made by them is the decision of Mr Justice Burchett in P o zn ia k v M in iste r f o r H e a lth a n d O rs (14 March 1986). In the course of a decision granting an extension of time to lodge an application for review under the AD(JR) Act, his Honour said:

. . . w h e r e a d e p a r t m e n t , w h e n n o t i f y i n g a d e c i s i o n , f u r n i s h e s a d v i c e a b o u t a p p e a l rights,

w h e t h e r b e c a u s e it is r e q u i r e d t o d o s o b y s o m e r e g u l a t i o n o r b e c a u s e it c o n s i d e r s it a p p r o ­

p r i a t e t o d o so, it is i m p o r t a n t t h a t t h e i n f o r m a t i o n s h o u l d n o t b e c a p a b l e o f m i s le a d in g

t h e r e c i p i e n t b y s u g g e s t i n g t h a t h i s a v e n u e s o f a p p e a l a r e m o r e l i m i t e d t h a n t h e y are.

256. The notice sent to the applicant omitted two alternative avenues of appeal, including that under the AD(JR) Act, and an extension of time to apply was held to be justified.

Limitation of jurisdiction of State courts (s. 9)

257. Section 9 of the AD(JR) Act continues to present problems. For example, in D elm ore P ty L td v C o m m o n w ea lth o f A ustralia a n d A n o r (1985) 60 ALR 613 Mr Justice McLelland in the Equity Division of the New South Wales Supreme Court distinguished between a review of a decision on the one hand, and a determination of the correctness or otherwise of a question which has been the subject of a decision, on the other. In the first class of case, what was under examination was the act of the decision maker. In the second class of case, what was under examination was a question which may be independent of any act of a decision maker. The two classes of case were not mutually exclusive: they were intersecting classes. However, no case which did not fall within the first class was caught by the terms of section 9 of the AD(JR) Act. Thus, if the invalidity or impropriety of the act of the decision maker, as such, was not a

necessary element of the claim for relief, section 9 did not operate to exclude the jurisdiction of a State court. In the case before him, Mr Justice McLelland held that the Supreme Court had jurisdiction to determine the plaintiff’s claim for a declaration of entitlement to hospital benefits. The validity of the acts of the decision maker in

question was irrelevant to the substantive issue in the proceedings, namely, whether

the Commonwealth was liable to make payments to the plaintiff under the Health Insurance Act (Cth). That issue was to be resolved simply by applying the terms of that Act to the facts as found, and not by any examination of any acts of the decision maker. (For a case which discusses the meaning of section 9(l)(d) of the AD(JR) Act,

see C lam back a nd H ennessy P tv L td v C o m m o n w ea lth o f A ustralia (1985) 62 ALR 233.)

Stay orders (s. 15)

258. In the case of P revato v G overnor, M e tro p o lita n R e m a n d C entre a n d O rs (1986) 64 ALR 37 Mr Justice Wilcox held that a magistrate’s order to commit a person to prison under section 17(6) of the E x tra d itio n (Foreign States) A c t 1966 was subject to review under the AD(JR) Act, and that section 15 of the Act gave the court power

to make an interim order suspending the operation of the decision the subject of review pending the determination of the review. In a proper case it would be possible for the court to suspend the operation of a committal order upon appropriate conditions as to bail. For the court’s approach to stay orders in migration cases, see paragraph 266.

Powers of the Federal Court (s. 16)

259. There were several important decisions during the reporting period which illustrate the court’s powers on an application for an order of review. In one of these, A ze m o u d e h a n d A n o r v M in ister f o r Im m igration a n d E th n ic A ffa irs (10 October 1985), Mr Justice Wilcox took the unusual course of making orders requiring the Minister

for Immigration and Ethnic Affairs to take whatever steps were necessary and reasonably available to arrange the return of an applicant from overseas, as the only method of protecting his position pending a final determination of his application for review of decisions refusing to grant an entry permit. In his Honour’s view there

was a ‘serious question to be tried’, and the case was one where the applicant faced considerable disadvantages in not being allowed to remain in Australia pending the hearing of the application for review.

260. In Brow n v T ahm indjis (6 September 1985) the Chief Judge, Sir Nigel Bowen, expressed the view that section 16(1) of the AD(JR) Act authorised the making of specific orders directing a magistrate hearing committal proceedings to discharge a defendant in respect of the offence of which he was charged. His Honour rejected

the argument that in exercising the power given by section 16(1) the court was limited to what could have been done at common law when reviewing an administrative decision under one of the prerogative writs.

Discretion of the court to grant relief

261. It was stated by the Full Court of the Federal Court in the case of C ham berlain v B a n k s a n d O rs (8 November 1985) that, even if it had found that grounds for relief had been established, it would not have granted an application for an order of review of a decision of a Promotion Appeals Committee because of the lapse of time since the original decision and the impact on other officers whose appointments had been

confirmed. The court referred to the desirability to join as a party at an early stage the officer sought to be ousted.

T he A D (J R ) A c t a n d C o m m o n w e a lth a d m in istra tio n

262. As in 1984-85, the Act was used extensively in areas such as immigration, customs, taxation and broadcasting, and very little, for example, in the social security area. In the N in th A n n u a l R ep o rt 1984-85 the Council stated that it might be significant that those areas most exposed to review under the Act tended to be areas where a

right to review on the merits by the AAT was not generally available. Although there

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has been in the taxation area provision for review on the merits by a Board of Review on an objection against a taxation assessment, as from 1 July 1986 that jurisdiction is transferred to the AAT. In the areas of customs and immigration, the Council’s Reports No. 23 and 25 recommend that many decisions under the relevant legislation

should be subject to review on the merits (Ninth Annual Report 1984-85, paras 59-86, and Chapter 2, paras 60-73 above).

263. Some significant cases affecting particular areas of Commonwealth administration are briefly noted below.

264. Customs. The Full Court of the Federal Court, in Pearce and Anor v Button and Ors (1986) 65 ALR 83, held that, upon an application under the AD(JR) Act to review a decision to seize imported goods, there is no power in the court, pursuant to section 16(l)(c) of the AD(JR) Act, to determine the question of forfeiture of those goods. The AD(JR) Act was not intended to provide for review of findings of fact on the ‘merits’ of a case, and to determine the question of forfeiture would be to become involved in questions such as whether a breach of the Customs Act had occurred, and the title and right to possession of goods. These were questions to which the AD(JR) Act was not directed. The decision at first instance was reversed in this respect (but not otherwise). The decision impliedly overrules that of Mr Justice Jackson in Sandery v Commissioner o f Police and Anor (1986) 65 ALR 181, insofar as in the latter case his Honour relied on section 16(l)(c) of the AD(JR) Act to hold that, on a review under that Act of a decision to seize goods under the Customs Act, the court was not precluded from examining whether the goods were in fact forfeited goods. An earlier case concerned with the question of seizure under the Customs Act was

Tetron International Pty Ltd and Anor v Luckman and Anor (7 August 1985) where it was held that, in the exercise of its ‘accrued jurisdiction’, the court would allow the applicant to amend his application to include a claim in detinue in respect of seized goods. The Full Court in Pearce left open the question whether the Federal Court had power in its accrued jurisdiction to determine matters associated with the matter the subject of the application under the AD(JR) Act, but Mr Justice Fox suggested that the addition of a common law claim could have involved a misuse of the Act.

Mr Justice Jackson has since held in O ’Neill v Wratten and Ors (2 May 1986) that the court has no jurisdiction under section 16( 1 )(c) of the AD(JR) Act or section 32(1) of the Federal Court o f Australia Act 1976 to decide whether goods were forfeited, and that, if the court has jurisdiction under its accrued jurisdiction, that jurisdiction should not be exercised. See also Frost v Collector o f Customs (1985) 63 ALR 297.

265. The question of seizure was again in issue in Murphy and Ors v KRM Holdings Pty Limited (1985) 63 ALR 397 where it was held that a decision to seize goods was not one which was exempted, by virtue of paragraph (e) or (f) of Schedule 2 to the AD(JR) Act, from the need to give reasons under section 13 of the Act.

266. Migration. (See also above.) Many AD(JR) Act applications concerning review of orders for deportation involve the court in making a preliminary determination whether to order a stay of the execution of the deportation order. In many of the cases the court has made a decision on the basis of whether or not there is a serious question to be tried (for example, Jungpradit and Ors v Hurford, Minister for Immigration and Ethnic Affairs (21 August 1985), Hamm v Minister fo r Immigration and Ethnic Affairs (7 February 1986), Dallikavak v Minister for Immigration and Ethnic Affairs (1985) 93 Fed Ct Reporter 387 (a decision of the Full Court of the Federal Court), Azemoudeh’ s case (para. 259 above), and Kaufusi’ s case (para. 238 above).

However, in Videto v Minister fo r Immigration and Ethnic Affairs (1985) 8 ALN N237, while Mr Justice Toohey held that there was a serious question to be tried, he expressed strong reservations as to whether that test, which applied in determining whether to

56

grant interlocutory injunctive relief, was the appropriate one in relation to stay orders. He preferred the approach of Mr Justice Jenkinson in Dallikavak (above) that section 15 requires that the court be satisfied that reasons or circumstances exist which make it just that the court should make the order sought. In a later case, Li Guong Yo v Minister for Immigration and Ethnic Affairs (14 March 1986) Mr Justice Muirhead

stayed the execution of a deportation order, stating that he preferred to base his decision on principles of procedural fairness or natural justice rather than the principles appropriate to interlocutory injunctions.

267. In Long Dai Cuong v Minister for Immigration and Ethnic Affairs (10 July 1985) and Alpaslan and Anor v Minister fo r Immigration and Ethnic Affairs (16 July 1985) the court dealt with applications seeking release from custody.

268. Mention may also be made of the decision of the Full Court of the Federal Court in Minister fo r Immigration and Ethnic Affairs v Akbas (1985) 93 Fed Ct Reporter 388 and 8 ALN N26, in which it was held that the applicant was not entitled to have his case reviewed by the non-statutory Immigration Review Panels. The court decided

that a prohibited non-citizen, who by definition did not hold a current temporary entry permit, could not be described as a person eligible for consideration under the provisions of section 6A(l)(e) of the Migration Act which provides for the grant of an unrestricted entry permit on compassionate or humanitarian grounds. (The decision

was later reflected in amendments to the review rights applying to the Panels.) Following Akbas, it was held in Sinnathamby and Ors v Minister for Immigration and Ethnic Affairs (24 December 1985) that the applicant was not entitled to a hearing by an Immigration Review Panel, and that even if the applicant had been so entitled the procedure could not be said to be one ‘required by law to be observed in connection with the making of the decision’ as provided in section 5(l)(b) of the AD(JR) Act.

269. It is the Department’s normal practice to consider an application from a prohibited non-citizen for a change of status under paragraph 6A(l)(e) and at the same time to determine whether the applicant should be granted a temporary entry permit, the latter being a precondition to eligibility under that paragraph for

consideration for permanent residence. In its Report No. 25, Review o f Migration Decisions, the Council mentioned (para. 42) that in its view the Department’s practice is not in accordance with the statutory provisions and that either the Department should consider the question of a person’s entitlement to a temporary entry permit before

considering whether a change of status should be granted, or there should be a change in the legislation to permit the two matters to be considered together.

270. The Council has, in any case, recommended AAT review of refusals to grant a temporary entry permit to a prohibited non-citizen who wishes to apply for a change of status, but only at the instance of an Australian citizen or permanent resident whose interests are affected.

271. Broadcasting. The Australian Broadcasting Tribunal’s inquiry into the granting of a third television licence in Perth generated a large number of AD(JR) Act actions. In the period under review these included: TVWEnterprises Ltd v Duffy (12 July 1985) (validity of notice inviting applications); Swan Television and Radio Broadcasters Ltd

V Australian Broadcasting Tribunal (No. 3) (1985) 61 ALR 319 (an appeal to the Full Court of the Federal Court involving a challenge to the ABT decision to require a range of financial information); TVW Enterprises Ltd v Duffy (No. 2) (1985) 62 ALR 63 (the Full Court); TVW Enterprises v Australian Broadcasting Tribunal and Ors (1986)

64 ALR 279 (width of ABT’s duty to receive evidence). Other decisions of note included: Capital City Broadcasters Pty Ltd and Anor v Australian Broadcasting Tribunal and Ors (8 October 1985) (whether ABT should proceed with an inquiry);

57

A ustralian B roadcasting Tribunal a n d A n o r v Saa tch i a n d Saa tch i C o m p to n (Vic) Ply L im ite d (1985) 60 ALR 756 (where it was held by the Full Court of the Federal Court that the making of certain program standards was beyond the power conferred by the B roadcasting a n d Television A c t 1942); and C anberra a n d D istrict R acing and S p o rtin g B roadcasters L td v C anberra Stereo P u b lic R adio Inc. (1986) 63 ALR 502 (meaning of the reference in section 81(4) of the Broadcasting Act to the ‘objects’ of a corporation).

272. Taxation. Taxation decisions have been challenged in a large number of applications during 1985-86. In several decisions the court has dismissed the applications as being in the nature of ‘fishing expeditions’ or as failing to reveal a reasonable cause of action or as being frivolous, vexatious and an abuse of the process of the court. For example, see the decision in: E ig h th O upan P ty L td v D eputy C o m m issio n er o f Taxation (1986) 86 ATC 4309 (Full Court of the Federal Court); Gray v D e p u ty C o m m issio n e r o f Taxation (1985) 85 ATC 4690 (where Mr Justice Northrop criticised the ‘scattergun approach’); and S ix th R avini P ty L td a n d A n o r v Federal C o m m issio n e r o f Taxation (1985) 6 FCR 356.

273. There have also been certain decisions on the question whether a decision in respect of which review is sought falls within one of the exemptions from the ambit of the Act specified in Schedule 1.

274. In M ercantile C redits L td v Federal C o m m issio n e r o f Taxation (1985) 61 ALR 331 the applicant sought an order of review in respect of decisions by the Commissioner refusing to issue certificates that certain loans complied with section 128H(2) of the In c o m e Tax A sse ssm e n t A c t 1936. The decisions were said to be excluded from the scope of the AD(JR) Act under paragraph (e) of Schedule 1 to that Act. Mr Justice Morling held that the refusal to issue a certificate under section 128H was a decision affecting liability to payment of withholding tax, not a decision forming part of the

process of making or leading to the making of the calculation of the tax and, therefore, was not within paragraph (e) of Schedule 1 to the Act. See also D o m a in e Finance P ty L td v Federal C o m m issio n e r o f Taxation (1985) 61 ALR 375.

275. In C onstable H o ld in g s P ty L td v F ederal C o m m issio n e r o f Taxation (21 April 1986) Mr Justice Beaumont held that a decision by the Commissioner of Taxation not to allow a further period of time for a distribution to shareholders under section 47(2B) of the In c o m e Tax A sse ssm e n t A c t 1936 was made in the exercise of the Commissioner’s administrative functions divorced in character from the Commissioner’s assessment functions. A decision of that kind therefore did not come within the exemption from the operation of the AD(JR) Act of decisions making or

leading up to the making of assessments or calculations of tax under paragraph (e) of Schedule 1 to the Act.

276. C o m m itta l proceedings. The court continued to assert that it would only intervene in relation to committal proceedings in exceptional circumstances and it declined to do so in M u r p h y v D P P (1985) 7 FCR 55 and F oord v W h id d e tt (1985) 6 FCR 475. In H o p c r o ft v P rice a n d A n o r (26 September 1985) Mr Justice Lockhart declined to interfere in committal proceedings concerning offences under the H ealth In su ra n ce A c t 1973. Among other reasons, his Honour stated that it was impossible to deal with the questions of statutory interpretation raised by the application divorced

from conflicts of evidence or of inferences to be drawn from the extensive evidence in the proceedings. However, in T ahm indjis v B row n a n d A n o r (1985) 60 ALR 120 Mr Justice Fox held that committal orders should be set aside on natural justice grounds because the magistrate had communicated with the solicitor for the prosecution and the defence had not been informed.

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O ther ju d ic ia l review p ro ced u res

277. This section briefly notes some significant judicial decisions which arose in proceedings brought other than under the AD(JR) Act.

278. Alternative procedures to the AD(JR) Act for obtaining judicial review of Commonwealth administrative action are to be found in the High Court’s original jurisdiction under paragraphs 75(iii) and (v) of the Constitution, as well as in the Federal Court’s original jurisdiction under section 39B of the Judiciary A c t 1903 which

provides that the court may entertain applications for prohibition, mandamus or an injunction against a Commonwealth officer. Such procedures are likely to be resorted to in circumstances where review is not available under the AD(JR) Act because, for example, of the restrictions applying to that Act’s ambit.

279. Combined proceedings under the AD(JR) Act and section 39B of the Judiciary Act were taken in A b o rig in a l Sacred Sites P ro tectio n A u th o r ity v T h e H o n . M D A M aurice, A b o rig in a l L a n d C o m m issio n e r a n d O rs (27 March 1986). In that case the Full Court of the Federal Court was called upon to review decisions of Mr Justice

Maurice, in his capacity as Aboriginal Land Commissioner conducting an inquiry into the Waramunga land claim, requiring the production of certain documents based on material provided by aboriginal people to anthropologists and others acting on behalf of the Aboriginal Sacred Sites Protection Authority. The Authority had objected

to the production of the documents on the grounds of public interest immunity, and the argument had been rejected by Mr Justice Maurice. Review of his decision was sought by way of the AD(JR) Act and by way of a prerogative writ for prohibition and certiorari issued pursuant to section 39B of the Judiciary Act, although section

39B does not refer expressly to certiorari. By differing routes, all members of the court held that the documents were not subject to public interest immunity. In remarks which were ob iter dicta, Mr Justice Woodward expressed the opinion that a fresh·category of public interest immunity should be recognised, covering secret and sacred aboriginal

information and beliefs.

280. The result of the decision of the Full Court of the High Court in P u b lic Service B o a rd o f N e w S o u th Wales v O s m o n d (1986) 63 ALR 559 is that, in the absence of statutory requirements for the giving of reasons for administrative decisions, the common law does not require them to be given. (However, note the suggestion in Giris

P ty L td v Federal C o m m issio n e r o f Taxation (1968-69) 119 CLR 365 at 384 that the Commissioner of Taxation would be obliged to give his reasons for a decision if requested by a taxpayer.) The High Court reversed the decision of the New South Wales Court of Appeal which had found that in the circumstances of the case the giving

of reasons was comprehended in the duty to act fairly. The possibility of legislative reform was a matter expressly referred to by the High Court in O sm ond.

281. The application of section 25D of the A c ts Interpretation A c t 1901 was raised in D alton v D e p u ty C o m m issio n e r o f Taxation (1986) 64 ALR 321 in relation to a reference by the Commissioner of Taxation to a Board of Review of an objection to a tax assessment. Section 25D provides that where an Act requires a tribunal, body

or person making a decision to give written reasons for the decision, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings are based. Regulation 35(l)(c) of the Income Tax Regulations provides that the Commissioner shall furnish

the Board of Review with a written statement containing the Commissioner’s reasons for disallowing the taxpayer’s claim. There is no requirement that the Commissioner inform the taxpayer of the reasons for disallowing the claim. In a joint judgment the Full Court of the High Court held that section 25D did not apply in those

5 9

circumstances, stating that the purpose of section 25D appeared to be to enable a person affected by a decision for which reasons must be given to be supplied with findings and a reference to the evidence or other material on which they were based so that he may shape the course of his future conduct accordingly. That purpose will not be effectuated when the information is to be given to him only after he has chosen | and embarked upon a particular course.’ In the court’s opinion the wording of the J section suggested th a t the duty under section 25D is imposed on a person by reason > of, and as an incident to, the fact that he is making a decision’.

Legislative changes affecting judicial review

282. During 1985-86 there have been few legislative changes concerning the availability of judicial review of decisions taken by Commonwealth departments and 1 authorities. However, there have been three sets of changes involving restrictions on the availability of judicial review. One of these arose out of the proceedings against the Builders Labourers’ Federation and one out of the appointment of the

Parliamentary Commission of Inquiry concerning Mr Justice Murphy. A third is , contained in the F ringe B e n e fits Tax (M iscella n eo u s P rovisions) A c t 1986 and comes '' into effect on 1 July 1986. That Act amends the AD(JR) Act by inserting a reference to the Fringe Benefits Tax Assessment Act in the list of other taxation Acts specified in paragraph (e) of Schedule 1 to the AD(JR) Act. Paragraph (e) excludes certain tax assessments and related decisions from the ambit of the AD(JR) Act.

283. The other exclusions of decisions from judicial review under the AD(JR) Act were the result of regulations made under section 19 of the Act. The Administrative i Decisions (Judicial Review) Regulations (Statutory Rules 1985, No. 209) and the Administrative Decisions (Judicial Review) Regulations (Amendment) (Statutory Rules

1986, No. 60) had the effect of exempting from AD(JR) Act review certain decisions 1 relating to the building industry and are described in more detail in paragraphs 120-121. The Administrative Decisions (Judicial Review) Regulations Amendment (Statutory Rules 1986, No. 108) had the effect of excluding decisions made under the Parliamentary C om m ission o f In q u iry A c t 1986 from the operation of the AD(JR) Act (see para. 122).

284. Since the Council’s last annual report, some minor amendments concerning the AD(JR) Act’s application to certain defence decisions have taken effect. By a combination of amendments in the D efence Force (M iscellaneous Provisions) A c t 1982, which came into operation on 3 July 1985, and the S ta tu te L a w (M iscellaneous P rovisions) A c t (No. 1) 1985, paragraph (o) of Schedule 1 to the AD(JR) Act (which lists classes of decisions to which the AD(JR) Act does not apply) now reads:

‘( o ) d e c i s i o n s u n d e r t h e Defence Force Discipline Act 1982.'

285. A further amendment of Schedule 1 to the AD(JR) Act was made by the Statute L aw (M iscellaneous P rovisions) A c t (No. 1) 1986. That Act repealed paragraph (k) of Schedule 1. Paragraph (k) had the effect of exempting from judicial review decisions made under the Passport Regulations by Commonwealth officers in respect of British or non-Australian passports or British visas. The omission of paragraph (k) was consequential upon amendments made on 21 October 1985 to the Passport Regulations (Statutory Rules 1985, No. 277) as a result of which Commonwealth officers no longer

have the power to make such decisions. Paragraph (k) was therefore redundant.

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Council project on AD(JR) Act

286. The Council’s project on the operation of the AD(JR) Act is continuing. The Council expects to complete stage one of its report, which deals with alleged abuses of the procedures of the Act, early in the new financial year.

AD(JR) Act statistics

287. Detailed statistics for the calendar year 1985 regarding requests for statements of reasons and applications for review under the Act are set out in Appendix 6. Statistics regarding the operation of section 13 are compiled by the Attorney-General’s Department based on returns made by government departments and authorities. The

total number of requests for reasons made during 1985 was 1807, which was significantly lower than the total for 1984 of 2677.

288. Table 2 of Appendix 6 sets out the grounds on which some requests for reasons were refused. The main grounds for refusal were again that a decision was not subject to section 13, that the request was made out of time, and that the applicant was not a person aggrieved.

289. Detailed statistics concerning the time taken and resources expended by departments and authorities in responding to section 13 requests are set out in Table 3. The reported figure of 8164.33 staff hours used in responding to requests in 1985 is very much lower than the reported figure of 13 076 staff hours for 1984. This is in

line with the apparent decline in the number of requests referred to in paragraph 287. There has also been an improvement in the reported average staff hours spent on requests from 6.35 in 1984 to 4.67 in 1985.

290. Of the three agencies which in 1984 accounted for approximately half of the time spent responding to section 13 requests, the figures for the Australian Taxation Office are approximately the same as in 1984 (1951 hours in 1985 as against 2011 in 1984), but there has been a substantial decline in the figures for the Public Service

Board (from 2714 to 247) and for the Australian Telecommunications Commission (from 1852 to 653). The decline in the figure for the Public Service Board is consistent with the overall decline in the use of AD(JR) Act procedures by public servants in personnel management matters. The Australian Taxation Office, the Department of

Immigration and Ethnic Affairs, and the Department of Industry, Technology and Commerce have continued to take far more than the prescribed time limit of 28 days to respond to requests in a significant number of cases.

291. Table 5 contains statistics relating to applications for orders of review lodged during the calendar year 1985. These statistics were compiled by the Attorney-General’s Department on the basis of information supplied to it by the Federal Court registry. The total number of applications lodged was 264 compared with 248 during 1984.

Despite the fact that the total number of applications lodged was only marginally higher than in 1984, there were quite significant increases in applications lodged in relation to certain areas: applications relating to migration decisions increased from 45 to 80, those relating to the Department of Industry, Technology and Commerce

increased from 35 to 41, and those relating to the Australian Broadcasting Tribunal increased from 7 in 1984 to 13 in 1985. It is of interest that all three are areas in relation to which complaints have been made as to alleged ‘abuses’ of AD(JR) Act procedures (see para. 286). On the other hand the Australian Taxation Office is down from 48

applications in 1984 to 38 in 1985, and the Department of Health has dropped from 16 in 1984 to 8 in 1985.

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292. Applications in the migration field have become the largest single category of applications. The Council will be interested to see whether implementation of its recommendations in Report No. 25, Review o f Migration Decisions (AG PS, 1986), to the effect that many classes of migration decisions should be subject to review on the merits, will lead to a decline in the number of AD(JR) Act applications concerning mig-ation decisions. The Department of Immigration and Ethnic Affairs has informed the Council that there have been no AD(JR) Act applications relating to decisions made under those sections of the Migration Act 1958 (ss 12 and 48) in respect of which there is at present provision for review on the merits by the AAT.

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CHAPTER 9

OTHER REVIEW TRIBUNALS

293. This chapter reviews some significant developments during 1985-86 concerning Commonwealth administrative review tribunals other than the AAT and the Ombudsman, which are dealt with in Chapters 6 and 7 respectively.

294. During the year under report, the Council considered Immigration Review Panels and the Films Board of Review in connection with its various reports. In addition, the Council notes change in relation to Student Assistance Review Tribunals and Taxation Boards of Review. Changes concerning the latter are referred to in Chapter 3.

Immigration Review Panels

295. Immigration Review Panels were considered in the Council’s Report No. 25, Review o f M igration D ecisions (discussed in more detail in paras 60-73). Those panels are non-statutory bodies which review on the merits certain classes of migration decisions made at departmental level (e.g. refusal of a migrant sponsorship, refusal

of permanent resident status to persons lawfully in Australia, refusal to issue or cancellation of a return endorsement to a permanent resident of Australia, grant of temporary rather than permanent residence to a person arriving in Australia with a migrant visa, and refusal or cancellation of a temporary entry permit of a person

legally in Australia) and make recommendations to the Minister regarding the determination of the cases coming before them. Currently three review panels operate, one each in Sydney, Melbourne and Canberra. Each panel is constituted by three members, consisting of a chairman (a former departmental officer in each case) and

two other members (chosen from a field of 29 persons who have been appointed part­ time members). The panels are serviced by a secretariat provided by the Department and staffed by departmental officers.

296. The first of these panels was established in January 1982 by ministerial decision. The expressed objective was to provide a simple review process which would carry with it the guarantee of ministerial consideration of an unfavourable departmental decision. The Council, in drafting its report, was informed by the Department, however,

that this guarantee no longer operates. Although cases in which the panels have recommended some change to the departmental decision are submitted to the Minister for final decision, those cases in which it is recommended that the original departmental decision be affirmed are remitted not to the Minister but to the senior officer in charge

of the review branch of the Department. Such cases will only be submitted to the Minister if that officer considers, that some change should be made to the original departmental decision. Otherwise the panel’s recommendation is accepted and a decision conveyed to the applicant.

297. The rights of review by the panels in relation to prohibited non-citizens have been curtailed. In the words of the ‘Policy on Illegal Immigrants’, ‘Any eligibility for review by the Immigration Review Panel lapses immediately a person becomes an illegal immigrant, or is ordered deported under the Migration Act’. This follows the decision

of the Full Court of the Federal Court in M in iste r f o r Im m ig ra tio n a n d E th n ic A ffa irs v K em al A k b a s (para. 268) in which the court held that a prohibited non-citizen, who by definition did not hold a current temporary entry permit, could not be described as a person eligible for consideration under the provisions of the Migration Act which

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concern the grant of an unrestricted entry permit on compassionate or humanitarian grounds (s. 6A(l)(e)). The Minister announced on 17 October 1985 that the Immigration Review Panels would no longer review decisions refusing ‘illegal immigrants’temporary or permanent residence. The amended policy provisions (set out above) took one step

further the former policy provision that any previous review rights (in relation to the panels) lapsed ‘immediately a person is apprehended as a prohibited immigrant or is ordered deported under the Migration Act’.

298. The Council recommended in its Report No. 25 that the discretionary powers conferred by the Migration Act and Regulations be structured, in order to lay down identifiable principles and criteria applicable to their exercise. This could be done by embodiment of such principles and criteria in the legislation. Furthermore, it has recommended that a two-tier review structure be established for merits review of decisions in the field of migration, with a leave requirement operating between the

first and second levels of external review in relation to certain classes of decisions. The Council is of the opinion that effective and efficient processing of review applications in a high volume jurisdiction is facilitated by two-tier review. The first- level review authority should operate speedily and informally and deal satisfactorily with most cases coming before it, and the second-level authority should provide review of a high standard in those cases which require detailed consideration, especially in relation to complex questions of fact and law. It was recommended that the AAT was the appropriate body to conduct the second-level review.

Films Board of Review

299. The role of the Cinematograph Films Board of Review was examined by the Council as part of its Report No. 24, Review o f Customs and Excise Decisions: Stage Four, Censorship. The principal function of the Board of Review is to review decisions of the Censorship Board made under the Films Regulations. A decision of the Board of Review is final, subject to the over-riding power of the Attorney-General to take certain actions. The Board also reviews classification decisions of the Censorship Board. The procedures of the Board of Review are informal and not adversarial in nature.

It has before it technical details of films and the Censorship Board’s reports, which contain the Censorship Board’s decisions and brief reasons for rejection of a film where that has occurred. Where applicants appear before the Board of Review, they are permitted to have other people with them and are given an opportunity to address the Board. Once a decision is made, the applicant receives written notification, the Censorship Board is directed to act on it and a record of the decision is published in the Gazette.

300. The Council recommended that decisions of the Censorship Board reviewable by the Board of Review should continue to be so reviewable. Among the reasons for this recommendation were the need for cohesiveness and continuity of membership of the Board in order to develop a consistent approach to film censorship based on a knowledge of previous decisions and emerging trends, the interlocking legislation and agreements between the Commonwealth and States and Territories which provide a broadly uniform system acceptable to the States and which should not be disturbed, the speed of the Board’s consideration of matters for review and the general confidence in the working of the Board. The Council saw no advantage in providing a further avenue for review on the merits by the AAT, and there seemed to be no pressing requirement for a two-tier system of external review as the volume of applications for review was relatively low and there was no need to develop guidelines and principles for application to future cases.

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Student Assistance Review Tribunal

301. Administrative changes to the Student Assistance Review Tribunals (SARTs) were brought into effect by the Student Assistance Amendment Act 1985, all provisions of which had commenced operation by 1 January 1986 (para. 123). One of the major changes was the constitution of the SART at the State level—instead of a large number of tribunals, one tribunal was set up with a convenor and a number of members in each State and the tribunal for hearing an individual appeal is constituted out of this

pool. In addition, the amendment enabled the appointment of acting convenors, allowed the SART to remit matters to the Department for reconsideration in accordance with its directions or recommendations, and provided for more flexible procedures with regard to notice of hearings.

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CHAPTER 10

PERSONNEL, ORGANISATION AND ACTIVITIES

Membership

302. The Commonwealth Ombudsman is an ex officio member of the Council. On 23 September Professor J. E. Richardson, AO retired as Commonwealth Ombudsman. Air Vice-Marshal J. C. Jordan, AO (RAAF Retired) has been acting Commonwealth Ombudsman since 24 September 1985. Mr G. K. Kolts, OBE, QC has been appointed Commonwealth Ombudsman from 1 July 1986. Upon Professor Richardson’s retirement the Council placed on record its appreciation of his long service and distinguished contribution to the work of the Council and to the development of administrative review. Professor Richardson was the first Commonwealth Ombudsman and, upon his retirement, was the longest serving member of the Council.

303. The terms of appointment of Mr L. J. Hartigan, AO, Mr D. G. Mackay and Mr R. J. Young expired on 3 February 1986. The Council at its meeting on 4 April 1986 placed on record its appreciation of their services during their terms of office as members of the Council.

304. Mr A. J. Ayers, AO and Mr A. D. Rose were re-appointed to the Council for a further three year period commencing on 2 April 1986.

305. Mr P. J. Flood, Mr J. F. Muir, and Mr W. E. Impey were appointed to the Council for a period of three years from 2 April 1986.

306. As at 30 June 1986 the Council members (and the dates on which their terms expire) were:

Mr E. J. L. Tucker (Chairman) The Hon Mr Justice J. D. Davies

9 February 1987

(President, Administrative Appeals Tribunal) The Hon Xavier Connor, AO, QC Ex officio (President, Australian Law Reform Commission) Air Vice-Marshal J. C. Jordan, AO

Ex officio

(Acting Commonwealth Ombudsman) Ex officio

Mr A. J. Ayers, AO 2 April 1989

Mr L. J. Curtis, AM 28 July 1986

Mr J. Η. P. Disney 4 October 1987

Mr P. J. Flood 2 April 1989

Mr W. E. Impey 2 April 1989

Mr J. F. Muir 2 April 1989

Mr P. R. Munro 9 February 1987

Mr A. D. Rose 2 April 1989

Dr C. A. Saunders 21 October 1987

307. Details of Council members are as follows:

• Mr E. J. L. Tucker was formerly an Associate Member of the Trade Practices Commission, a Commissioner of the Health Commission of Victoria, a member of the Tariff Board, the Treasurer of Comalco Ltd and the Managing Director of AUC Holdings Ltd.

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• The Hon Mr Justice J. D. Davies has been a Judge of the Federal Court of Australia since 1978 and the President of the Administrative Appeals Tribunal since 1979.

• Air Vice-Marshal J. C. Jordan, AO has been acting as the Commonwealth Ombudsman since the retirement of Professor J. E. Richardson, AO in September 1985.

• The Hon Xavier Connor, AO, QC has been President of the Australian Law Reform Commission since May 1985, is a former Judge of the Federal Court of Australia and the Australian Capital Territory Supreme Court, a former Chairman of the A.C.T. Parole Board and the Victorian Bar Council, and is

currently the President of the Defence Force Discipline Appeals Tribunal.

• Mr A. J. Ayers, AO has been Secretary to the Department of Social Security since 1981.

• Mr L. J. Curtis, AM is a Deputy Secretary of the Attorney-General’s Department.

• Mr J. Η. P. Disney is the Co-ordinator of the Welfare Rights Centre (Sydney), and the President of the Australian Council of Social Service, and was formerly a member of the New South Wales Law Reform Commission.

• Mr P. J. Flood is Deputy Secretary of the Department of Foreign Affairs.

• Mr W. E. Impey is a partner in the Melbourne law firm of Wisewould Schilling.

• Mr J. F. Muir is the Chief Manager of the Westpac Banking Corporation in Canberra.

• Mr P. R. Munro is the National Secretary of the Administrative and Clerical Officers Association, and a member of the A.C.T.U. Executive and the A.C.T.U. Australian Government Employees Section Executive. He was a Commissioner of the Royal Commission on Australian Government Administration from 1974

to 1976.

• Mr A. D. Rose is the Secretary to the Department of Community Services.

• Dr C. A. Saunders is a senior lecturer in law at the University of Melbourne, with specialist research and teaching interests in public law, including comparative public law.

Meetings, committees and working parties

308. During the year under report the Council met on eight occasions. Various committees of the Council met on a total of nineteen occasions, their membership consisting of:

(1) Access to Administrative Review (Mr Munro (Chair), Mr Justice Davies, AVM Jordan, Mr Ayers, Mr Curtis and Mr Disney) (2) Administrative Decisions (Judicial Review) Act (Dr Saunders (Chair), Mr Justice Davies, Hon Xavier Connor, Mr Curtis and Mr Munro; consultants: Professor

Richardson and Dr Griffiths) (3) Criminal Records (Mr Justice Davies, Hon Xavier Connor and Mr Disney) (4) Customs (Mr Tucker (Chair), Mr Justice Davies, Mr Curtis, Mr Flood and

Mr Muir) (5) Operation of the Administrative Appeals Tribunal (Dr Saunders (Chair), Mr Justice Davies, Mr Disney and Mr Muir) (6) Privacy (AVM Jordan, Mr Ayers, Mr Flood, Mr Munro and Mr Rose)

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(7) Admin Review (Mr Curtis (Chair), AVM Jordan, Mr Justice Neaves and Mr Todd). Mr Justice Neaves is a judge of the Federal Court. Mr Todd is a deputy president of the Administrative Appeals Tribunal.

(8) Ombudsman (Mr Curtis (Chair), AVM Jordan, Hon Xavier Connor and Mr Rose) (9) Industrial Property (Mr Tucker (Chair), Mr Justice Davies, Mr Curtis and Mr Rose)

309. The Chairman, while formally appointed a member of some committees, is a member ‘ex-officio’ of all the Council’s committees.

Secretariat

310. As at 30 June 1986 the Secretariat’s establishment was five full-time and three part-time positions. These positions are held by: Mr D. P. O’Brien (Director of Research), Mr R. G. Fraser (Principal Project Officer), Mr R. W. Hughes and Ms B. McNaughton (Project Officers), Mr B. C. Newman (part-time Administrative

Officer), Miss M. !. King (Steno-Secretary), Mrs D. L. Freedman and Mrs Μ. E. Dance ' (part-time Word Processing Typists). Ms Η. M. Watchirs resigned from her position as a Project Officer on 1 November 1985 and Ms B. McNaughton was appointed to the position on 11 November 1985.

311. The high incidence of repetition strain injury (RSI), particularly among staff members operating keyboards, which occurred during the previous year has not occurred this year due to several factors. A strict control of work patterns has been

introduced, an additional word processing typist position has been established and the Secretariat’s word processing equipment has been changed to a modern and more efficient system. The word processing equipment is now the same as that in use by the Head Office of the Attorney-General’s Department. This has allowed relief manning when required from the typing pool in the Attorney-General’s Department.

312. The Council continues to be concerned about the size of its staffing level and the problems which this creates. The Council’s advice to the Government on questions l referred to the Council is generally required as a matter of urgency. The resultant need to give this work priority means that the resources of the Secretariat are frequently being diverted from work on the Council’s projects. This is because there is simply not sufficient staff to perform this work without disruption to the Council’s projects. The publication of Admin Review and of the Annual Report also place a significant strain on the limited staff resources of the Council. The inadequacy of the Council’s staffing level makes it very difficult to plan ahead with any certainty and makes it f almost impossible for a work program to be adhered to. That the Council is able to complete the work which it does is due in no small measure to the conscientiousness of the staff and to their readiness to work long hours. The Council expresses its appreciation of the quality of their work and their willing response to the demands of the Council’s work program.

Resignation of Dr Griffiths as Director of Research

313. Dr J. E. Griffiths resigned as Director of Research in December 1985. j Dr Griffiths was the Director of Research for 3 years. The Council placed on record its appreciation of the outstanding service rendered by Dr Griffiths during his term , of office and noted that throughout his term he had brought legal scholarship and

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i

esearch skills of a high order to bear on the matters under consideration by the Council. Mr D. P. O ’Brien of the Commonwealth Attorney-General’s Department was ippointed as the new Director of Research.

Consultants

114. There are currently eight consultants to the Council. Professor J. E. Richardson, \ 0 is assisting in the Council’s project on the Administrative Decisions (Judicial Review) Act. Dr J. E. Griffiths (former Director of Research) is also acting as a :onsultant on this project. Mr J. Waincymer has prepared a draft discussion paper 3n the Council’s project on review of decisions under the Customs Tariff (Anti­ Dumping) Act. Mr T. Brennan is assisting in the preliminary planning aspects of stage ;wo of the access project. Also in connection with stage two of that project, Mr J. Schwartzkoff is conducting a users’ survey in connection with review mechanisms available to tertiary students under the Student Assistance Act. Mr D. Mitchell and Mr M. Pickering are preparing a draft discussion paper for the Council’s damages in administrative law project. Professor E. Campbell is engaged as an honorary consultant to comment on work prepared by the Council’s Secretariat in the costs before administrative tribunals project.

Consultation with the Council

315. As mentioned in the Ninth Annual Report (para. 6), amendments were being drafted at the end of 1984-85 to both the Cabinet and Legislation Handbooks so that they would more accurately reflect the role of the Council and the need for it to be consulted in certain circumstances in regard to legislative proposals affecting

administrative review. It was also mentioned that a code of consultation was being prepared dealing with arrangements whereby the Attorney-General’s Department consults with the Council with regard to particular legislative proposals.

316. During the year, agreement to the amendments to the Cabinet and Legislation Handbooks was reached with the Attorney-General’s Department and the suggested alterations were referred to the Department of Prime Minister and Cabinet for inclusion in the next edition of the handbooks. Agreement on the code of consultation was

also reached, the code being retitled as Guidelines Concerning Consultation with the ARC. Those guidelines are as follows:

G uidelines concerning c o n su lta tio n w ith A R C 1. The Administrative Review Council should be consulted at an appropriate time with regard to any legislative proposal which:

• would amend or modify the operation of any of the following Acts, including the schedules thereto (other than amendments of a minor nature):

— A d m in istra tiv e A p p e a ls Tribunal A c t 1975

— O m b u d sm a n A c t 1976

— A d m in istra tiv e D ecisions < Judicial R eview ) A c t 1977

— C o m p la in ts (A ustralian Federal Police) A c t 1981;

• would amend the law or practice relating to the review by courts of administrative decisions or actions; • would create a new tribunal for review of administrative decisions or actions;

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• would exclude or restrict judicial review of administrative decisions or actions (including such exclusion by means of additions to Schedule 1 of the Administrative Decisions (Judicial Review) Act); • would exclude or restrict review of administrative action by the Ombudsman; • would reduce or restrict the jurisdiction of the Administrative Appeals Tribunal; ,

• would amend or modify the powers, procedures or jurisdiction of any of the following review tribunals; —Student Assistance Review Tribunals —Social Security Appeals Tribunal

—Veterans’ Review Board; • has implications for administrative review which are of sufficient importance, in the opinion of the Attorney-General’s Department, to warrant seeking the advice of the Council.

2. Where consultation with the Council is required as defined above, approaches from government departments should, in the first instance, be made to the Attorney- ! General’s Department which will refer the matter to the Council as necessary. The ! Council’s advice to Government will be provided to the Attorney-General and interested departments will subsequently be informed by the Attorney-General’s

Department of that advice. This should not, however, prevent informal contacts between departments and the Council on questions relating to administrative review.

Visitors

317. During the course of the year the Council and/or Secretariat were visited by:

• the Hon. Chris Hurford, MP (Minister for Immigration and Ethnic Affairs) • Professor D. G. T. Williams, Rouse Ball Professor of Law and President, Wolfson College, Cambridge University • Mr Mario Bouchard, co-ordinator, administrative law, Canadian Law Reform

Commission • Professor F. Gruen, Australian National University, author of Review o f the Customs Tariff (Anti-Dumping) Act 1975 • Mr P. Brazil, Secretary, Attorney-General’s Department • Mr D. Anderson, member, Canadian Immigration Appeal Board

• Mr Eddison Zvobgo, Minister for Justice, Zimbabwe; Mrs Julia Zvobgo, MP, I Zimbabwe; Mr David Zaamchiya, Permanent Secretary, Ministry of Justice, Zimbabwe

Appropriation and expenditure

318. Expenditure of the Council during the 1985/86 financial year amounted to $379 942. This figure does not include the remuneration and travelling allowances of members. Certain expenses of the Council are met from those parts of the appropriations for the Attorney-General’s Department that relate to the Administrative Appeals Tribunal and are not included in the Council’s expenditure. These expenses are telephone expenses for telephones linked to the Tribunal’s switchboard and registry and photocopying expenses. Details of funds appropriated and expended are set out in Appendix 1.

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1

Freedom of information

3i9. The Council is a subject agency for the purposes of the Freedom o f Information Act 1982. It has received no requests for access to documents this year.

Seminars and conferences

320. Members of the Council and its Secretariat attended several seminars and conferences during the year and delivered a number of papers and addresses to various conferences and interested groups on topics relating to the role and function of the Council or administrative law generally. These occasions included:

• Australasian Universities Law Schools’ Association (August 1985) • 10th Annual Conference of Australian Law Reform Agencies (August 1985) • 23rd Australian Legal Convention (July 1985) • Public Service Board Personnel Management Seminar (July 1985)

• Public Service Assistant Research Officers induction course (September 1985) • 1985 National Conference of the Australian Institute of Tertiary Education Administrators (August 1985) • public law workshop at the Australian National University (September 1985)

• Australian National University, seminar, The Ombudsman Through the Looking Glass’ (September 1985) • Law Institute of Victoria Seminar (September 1985) • Royal Australian Institute of Public Administration conference (13-15 November

1985) • senior management seminar organised by the Department of Industry, Technology and Commerce (November 1985) • Legal Aid Commission of Victoria (December 1985)

• Law Council of Victoria, seminar on customs law (February 1986) • Law Society of South Australia, seminar on the Administrative Appeals Tribunal (May 1986)

321. In addition, public seminars were held in Brisbane and Melbourne in December 1985 in connection with the Council’s project on Access to Administrative Review.

Meetings with other organisations

322. Members of the Council and of the Secretariat met with a number of bodies during the year principally for the purpose of obtaining information relevant to Council projects or providing views on research topics undertaken by such bodies. Organisations with which discussions were held included:

• the Australian Law Reform Commission in connection with its project on criminal records; • the Australian Customs Service in connection with the Council’s project on review of decisions under the Customs Tariff (Anti-Dumping) Act; and

• officers of the Department of Education, the Department of Health and the Department of Social Security, welfare officers and review tribunals in Townsville,

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Brisbane and Sydney in connection with the access to administrative review project.

Liaison with academics

323. As stated in previous annual reports, the Council attaches importance to fostering and maintaining close contact with academics involved in research in administrative law and public administration. Over the past year the Council has continued its practice of forwarding copies of discussion papers, issues papers and reports to the following list of persons who have agreed to act as liaison officers at various tertiary institutions:

• Professor E. M. Campbell, Monash University, Victoria • Dr R. J. K. Chapman, University of Tasmania • Professor J. Goldring, Macquarie University, New South Wales • Mr M. C. Harris, University of Adelaide, South Australia • Associate Professor S. D. Hotop, University of Sydney • Mr K. Mackie, University of Tasmania • Professor G. Nettheim, University of New South Wales • Dr P. W. O ’Brien, Flinders University, South Australia • Professor D. C. Pearce, Australian National University, Australian Capital

Territory • Dr R. Tomasic, Canberra College of Advanced Education, Australian Capital Territory • Mr R. R. S. Tracey, University of Melbourne, Victoria • Mr D. Tucker, University of Queensland.

Contacts with overseas bodies

324. As stated in previous annual reports, the Council maintains contact with several overseas bodies involved in administrative law reform including the Council on Tribunals and the Justice—All Souls Committee on Review of Administrative Law

in the United Kingdom, the Canadian Law Reform Commission, the Administrative Conference of the United States, and the Law Commission and Legislation Advisory Committee in New Zealand. Papers and information are exchanged with these bodies concerning administrative law developments in Australia and overseas. The Council considers that it derives great benefit from maintaining and fostering personal contact with members of these bodies.

Bibliography

325. A bibliography of selected work relevant to the work of the Council is contained in Appendix 2 to this report. That appendix refers to publications relating to administrative law and public administration. The Council is aware that many readers find this bibliography a useful source of information. Suggestions from readers as to items which may be included in future bibliographies would be welcome.

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PART TW O

LETTERS OF ADVICE

CONTENTS

Page

Preface 74

Letter No. Subject

1. Freedom of Information Act 1982— access to documents by Ombudsman and procedures of the AAT 75

2. 2A. Veterans’ Entitlements Bill 1985 79

3. Administrative Decisions (Judicial Review) Act 1977—exclusion of decisions taken in connection with prosecution of Commonwealth offences 84

4. Administrative Decisions (Judicial Review) Act 1977—exclusion of extradition decisions 90

5. Student Assistance Amendment Bill 1985 96

6. Trade Practices Amendment Bill 1985 98

7. Director of Public Prosecutions Act 1983—power to take a civil remedy 99

8. Australian Broadcasting Tribunal procedures 101

9. Customs Act 1901—standing to challenge tariff classification decisions 104

10. Australia Card—review of administrative decisions 108

11. A.C.T. self-government—administrative review aspects 111

12. Prohibited imports and exports— review of decisions 114

13. Review of decisions concerning export of prohibited goods 116

14. Customs and Excise Legislation Amendment Bill 1986 117

15. Electricity (Amendment) Ordinance 1985 (A.C.T.) 119

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PREFACE

This Part contains letters of advice from the Council to the Attorney-General transmitted during the period 1 July 1985 to 30 June 1986 (other than a letter transmitted on 4 July 1985 concerning the exclusion of decisions of magistrates in committal proceedings from the ambit of the AD (JR) Act, which was summarised in the Ninth Annual Report).

Since its inception at the end of 1976 the Council has provided advice to the Attorney-General both in the form of formal reports and in the form of letters. In the case of formal reports it has been the practice for a number of years for them to be published by the Australian Government Publishing Service as separate documents and to be tabled in Parliament. Since 1979 the Council has also included a summary of each report in the annual report following the transmission of the report to the Attorney-General.

No corresponding set of consistent practices has developed in relation to letters of advice to the Government, although the Council’s recent practice has been to publish summaries of its letters of advice in its annual report. Publication of the full text of a letter usually depends on whether it is tabled in the Parliament and this will usually only occur when the subject matter of advice is relevant to some topical issue before the Parliament, such as a legislative proposal.

Whether advice issues from the Council in the form of a report or a letter depends largely on whether the advice is expected to be brief or requires more extended treatment, and to some extent on the urgency with which the advice needs to be given and the degree of consultation necessary. However, what starts out as a brief draft can, on occasions, become a longer and more complex document while still retaining the form of a letter. There is certainly no essential difference in character between topics dealt with by letter and those whose treatment takes the form of a report.

The experience of the Council in recent years is that there has been an increasing number of occasions when advice is required to be provided urgently. Accordingly, in 1984 the Council instituted special procedures for dealing more speedily with the provision of urgent advice. It seems likely to the Council that the trend will continue

for the provision of such advice in the form of letters rather than of formal reports.

In order to make available the full text of all its advice provided to the Government, whatever the format of that advice, the Council has decided to publish in its annual report copies of letters of advice transmitted to the Government during the relevant year, subject to any exclusions which may be necessary in the public interest. The

1985-86 annual report is the first report containing the full text of letters of advice to the Attorney-General.

The Council has included a brief explanation of the background to each letter, and has referred to any subsequent action taken as at 30 June 1986. The text of the letters has not been changed other than by the silent correction of typographical errors.

One letter of advice has not been included because it related to draft legislation which was provided to the Council on a confidential basis and which remains confidential as at the end of the year. While the Council’s advice itself is not confidential, it is not possible to publish it without breaching the confidentiality of the matter to which it relates. The Council proposes to publish the letter at an

appropriate time in the future.

7 4

LETTER 1

FREEDOM OF INFORMATION ACT 1982—SECTIONS 52F, 58C and 63—ACCESS TO DOCUMENTS BY OMBUDSMAN—PROCEDURES OF AAT— PUBLICATION OF AAT’S REASONS FOR DECISIONS The C ouncil was in fo r m e d by th e O m b u d sm a n a n d th e A A T o f p ro b le m s being

experienced in exercising their ju risd ic tio n s u n d er th e F reedom o f In fo rm a tio n A c t 1982. The O m b u d sm a n , w ho u n d e r se c tio n 52 F o f th e A c t m a y represent a p p lica n ts to the AAT, is h a n d ica p p ed in exercising th is fu n c tio n b y h a vin g n o legal rig h t o f access to exem pt d o cu m en ts. T h e A A T ’s d iffic u ltie s related to exclusion o f a p p lica n ts fr o m p a rt

o f a hearing (u n d er paragraph 63(2)(b) o f th e F reedom o f In fo rm a tio n A c t) a n d

publication o f its reasons f o r decision in co n c lu siv e certificate cases (section 5 8 C o f the A ct).

Follow ing the C o u n c il’ s a d vice to the A tto rn ey-G en era l, the A tto rn e y -G e n e ra l’s D epartm ent gave s o m e co n sid era tio n to the issues raised in th e C o u n c il’s advice. A lso, the 1984-85 A n n u a l R e p o rt o n th e F reedom o f In fo rm a tio n A c t m e n tio n e d th e A A T ’ s problem s in conclusive certifica te cases (pp. 90-91). H ow ever, fu r th e r consideration o f

the m a tter has been deferred by th e A tto rn e y -G e n e ra l in view o f th e cu rren t review o f the F reedom o f In fo rm a tio n A c t by th e Sen a te S ta n d in g C o m m itte e o n C o n stitu tio n a l and Legal A ffa irs. T h e C o u n c il m a d e a d eta iled su b m issio n to th e S en a te Stan d in g C o m m ittee on 18 A p r il 1986, a su m m a ry o f w hich appears in C h a p ter 2.

31 July 1985 Dear Attorney-General, I am writing to convey to you the views of the Council on some matters concerning the Ombudsman and the Administrative Appeals Tribunal in regard to some aspects

of their respective jurisdictions under the F reedom o f In fo rm a tio n A c t 1982. In the case of the Ombudsman, the matter concerns his legal right of access to documents for which exemption has been claimed in cases where the Ombudsman has decided to represent a person in AAT proceedings in accordance with section 52F of the

Freedom of Information Act. In the case of the AAT, difficulties have occurred with regard to the procedures to be adopted in Freedom of Information hearings and the extent to which the publication of the Tribunal’s reasons for decision in conclusive certificate cases needs to be restricted.

The Council is aware that the operation of the Freedom of Information Act is expected to be reviewed next year by the Senate Standing Committee on Constitutional and Legal Affairs but considers that the questions raised by the matters referred to above fall within the ambit of the Council’s statutory functions under section 51 of

the A d m in istra tiv e A p p e a ls Tribunal A c t 1975 and that its advice on these questions should be brought to your notice without delay.

O m b u d sm a n

Before proceeding to discuss the specific matter concerning the Ombudsman’s role as counsel under Freedom of Information legislation, the Council wishes to note that it has not considered the appropriateness of the function thus conferred on the Ombudsman. The function was conferred by an amendment to the Freedom of

Information (Amendment) Bill 1983 made during the debate on that Bill in the Senate and is consistent with a recommendation made by the Senate Standing Committee on Constitutional and Legal Affairs in its Report on Freedom of Information. The Administrative Review Council was not consulted on that recommendation, or on the

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conferring of the function on the Ombudsman. The advice which the Council gives in this letter is predicated on the fact that the role of Ombudsman as counsel has been conferred by the Parliament, and the Council should not be taken either to approve or disapprove of the Ombudsman having that role.

The specific point made by the Ombudsman is that he is handicapped in exercising his function under section 52F by having no statutory right of access to the exempt documents which are, or are to be, the subject of proceedings before the Administrative Appeals Tribunal.

In deciding whether he will exercise his function under section 52F, the Ombudsman is required to have regard to, amongst other things, the importance of the principle involved in the matter under review, the likelihood that the proceedings will establish a precedent in future proceedings and the reasonableness of the decision under review. While the Ombudsman may be able to form an opinion on these matters in some cases from instructions given by the applicant for access, in many cases he will not be able to come to an informed opinion thereon unless he has access to the documents the subject of the proceedings before the Administrative Appeals Tribunal.

Moreover, as it is the intention of the Parliament that the Ombudsman should exercise the function of representing an applicant in proceedings before the Tribunal where important matters of principle are involved or where significant precedents could be established, it seems desirable that the Ombudsman should be able to perform that function in a manner which is best adapted to assisting the Tribunal to come to the correct or preferable decision. The Ombudsman will be better equipped to present a case to the Tribunal if he has access to the documents in question.

The Council has noted that if the Ombudsman commences an investigation under the Ombudsman A ct 1976 in relation to a decision not to grant access to a document under the Freedom of Information Act, he is entitled to see the document in question unless a certificate is given under sub-section 9(3) of the Ombudsman Act. The Council can see no reason in principle why the Ombudsman should not also be entitled to have access to a document for the purpose of performing his statutory function under section 52F of the Freedom of Information Act and it recommends that section 52F should be amended accordingly.

The Council notes, however, that where an exempt document is produced to the Administrative Appeals Tribunal under section 64 of the Freedom of Information Act pursuant to an order of the Tribunal, the Tribunal is under a specific obligation of confidentiality in its handling of the document and an obligation to return the document at the end of the proceedings if the claim to exemption is upheld. If the Ombudsman were to be given a statutory entitlement to access to a document claimed to be exempt for the purposes of his function under section 52F, then a like or appropriate obligation as to confidentiality should be inserted in the amended section 52F.

Administrative Appeals Tribunal

Turning to the problems which have been encountered by the AAT in its Freedom of Information jurisdiction, the Council has noted that section 63 of the Freedom of Information Act provides:

‘63 (1) In proceedings under this Part, the Tribunal shall make such orders under sub-section 35(2) of the Administrative Appeals Tribunal Act 1975 as it thinks necessary having regard to the nature of the proceedings and, in particular, to the necessity of avoiding the disclosure to the applicant of— (a) exempt matter contained in a document to which the proceedings relate; or (b) information of the kind referred in sub-section 25(1).

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(2) Notwithstanding anything contained in the Administrative Appeals Tribunal Act 1975— (a) the Tribunal shall not, in its decision, or reasons for a decision, in a matter arising under this Act, include any matter or information of a kind referred

to in sub-section (1); and (b) the Tribunal may receive evidence, or hear argument, in the absence of the applicant or his representative where it is necessary to do so in order to prevent the disclosure to the applicant of matter or information of a kind referred to

in sub-section (1).’ A problem has arisen in relation to paragraph 63(2)(b) since the circumstances in which it may be necessary to exclude the applicant from part of a hearing are wider than the circumstances specified in that paragraph. It may be necessary, for example, to exclude the applicant while confidential information, which is unrelated to exempt

matter contained in a document, is communicated to the Tribunal. It is the Council’s view that paragraph 63(2) (b) may be seen as unduly limiting and that an amendment is required to make it clear that the paragraph does not derogate from the ordinary powers of the AAT under section 35 of the Administrative Appeals Tribunal Act 1975

to make orders concerning the hearing of proceedings.

A separate problem has arisen concerning the giving of reasons for decision by the Tribunal in conclusive certificate cases. Sub-sections 58C(2) and (3) of the Freedom of Information Act provide: ‘58C. (2) At the hearing of a proceeding referred to in sub-section 58B(1), the

Tribunal— (a) shall hold in private the hearing of any part of the proceeding during which evidence or information is given, or a document is produced, to the Tribunal by—

(i) an agency or an officer of an agency; (ii) a Minister or a member of the staff of a Minister; or (iii) a member, an officer, or a member of the staff, of a body referred to in sub-section 7(1) or the person referred to in that sub-section,

or during which submission is made to the Tribunal by or on behalf of an agency or Minister, being a submission in relation to the claim— (iv) in the case of a document in respect of which there is in force a certificate under sub-section 33(2) or 33A(2) or section 34 or 35—that the document

is an exempt document; (v) in the case of a document in respect of which there is in force a certificate under section 36—that the disclosure of the document would be contrary to the public interest; or

(vi) in the case where a certificate is in force under sub-section 33(4) or 33A(4)—that information as to the existence or non-existence of a document as described in a request would, if contained in a document of an agency-

(A) in a case where the certificate was given under sub-section 33(4)— cause the disclosure of an agency to be contrary to the public interest for a reason specified in sub-section 33(1); or (B) in a case where the certificate was given under sub-section 33A(4)—

cause that document of an agency to be an exempt document under section 33A; and (b) subject to sub-section (4), shall hold the hearing of any other part of the proceeding in public.

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(3) Where the hearing of any part of a proceeding is held in private in accordance with sub-section (2), the Tribunal— (a) may, by order give directions as to the persons who may be present at that hearing; and (b) shall give directions prohibiting the publication of—

(i) any evidence or information given to the Tribunal; (ii) the contents of any documents lodged with, or received in evidence by, the Tribunal; and (iii) any submission made to the Tribunal, at that hearing.

The Council considers that these provisions are unduly restrictive. Their application leads to the result that the reasons for decision of the Tribunal cannot be made public in so far as those reasons refer to the evidence or information given in private.

In some cases, the agency or Minister does not desire that the hearing should be in private and would be satisfied with the making by the Tribunal of a confidentiality order under s. 35 of the Administrative Appeals Tribunal Act 1975. In other cases, there is only a part of the evidence or submissions that the agency or Minister desires to be given in private. Moreover, it is only in the minority of cases that the agency or Minister desires that the applicant be excluded while evidence is given and submissions are made on behalf of the agency or Minister. Indeed, rarely does an agency or Minister seek to have the applicant excluded from the hearing for more than a short time. In the Council’s view, it is desirable that the hearings of the Tribunal and the reasons for decision of the Tribunal should be public unless there are good reasons to the contrary in a particular case.

These problems arise in every case involving a conclusive certificate. Presently, the result is that, ordinarily, the reasons for decision of the Tribunal in conclusive certificate cases are distributed in full to the respondent and either in full or in part to the applicant but only in part or not at all to the public. In particular, the private reasons for decision are not distributed to members of the Tribunal who do not consitute the Tribunal

for the particular case. If no change to the law is made, a useful body of precedent will be built up of which probably the only agency which could be aware of it is your own department. For these reasons, consideration should be given to whether section 58C should be repealed. The repeal of that section would have the effect of permitting the Tribunal to exercise its discretionary powers under sub-section 35(2) of the Act to make confidentiality orders in appropriate cases.

The Council recognises, however, that the Government may take the view that such a step would raise major policy considerations concerning the operation of Freedom of Information legislation and ought to be examined in detail by the Senate Committee as part of its review of the Act. In these circumstances, the Council considers that, if it is the Government’s view that no immediate action should be taken to repeal section 58C, paragraph 58C(3)(b) should be amended so as to confer upon the Tribunal a discretion not to give directions prohibiting the publication of material included in that paragraph unless the Tribunal is requested by a person or agency described in paragraph 58C(2)(a) to give such directions, in which case the Tribunal should be obliged to accede to such a request. Yours sincerely,

E. J. L. TUCKER (Chairman)

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LETTERS 2 AND 2A

VETERANS’ ENTITLEMENTS BILL 1985—ASSESSMENT GUIDE—TIME LIMITS—STATEMENTS OF REASONS—REVIEWABLE DECISIONS—POWERS OF VETERANS’ REVIEW BOARD When tabling the draft Veterans’Entitlements Bill 1985 the Minister fo r Veterans’Affairs

invited comments from interested bodies. The Council wrote to the Attorney-General on 31 July 1985 and commented on provisions in the draft Bill relating to the proposed Guide to the Assessment o f Rates o f Veterans’ Pensions’ , time limits fo r lodging applications for review, the provision o f statements o f reasons and the range o f decisions

of the Repatriation Commission which were not proposed to be subject to external review. The Council wrote a further letter to the Attorney-General on 12 September 1985 concerning provisions relating to the introduction o f new evidence before the Veterans’ Review Board.

The Attorney-General referred both advices to the Minister fo r Veterans’ Affairs and \ the Council’ s comments were taken into account during the review o f the Bill which was undertaken before its reintroduction in the Parliament on 16 October 1985.

31 July 1985

Dear Attorney-General, The draft Veterans’ Entitlements Bill 1985 was tabled in the Senate by the Minister for Veterans’ Affairs during the last sitting of Parliament. The Minister asked for comments by 17 July 1985, but, in the case of the Council, this date was extended

to 1 August 1985 to enable it to finalise its comments at its meeting on 25 July 1985.

I am writing on behalf of the Council to convey its views on several aspects of the Bill for transmission to the Minister for Veterans’ Affairs.

The basic objective of the Veterans’ Entitlements Bill 1985 is to rationalise and simplify the diverse and complex legislative developments which have occurred in the repatriation field since the introduction of the Repatriation Act 1920. In the main, the Bill retains the present claims determination and review system, which gives effect to the scheme of review proposed by the Council in its Report No. 20, Review o f Pension

Decisions under Repatriation Legislation. ■

The aspects of the Bill on which the Council wishes to comment are as follows:

(a) The ‘Guide to the Assessment of Rates of Veterans’ Pensions’; (b) Time limits; (c) Statements of reasons; and (d) The range of decisions of the Commission which are not subject to external

review.

Guide to the Assessment o f Rates fo r Veterans’ Pensions

Clause 29 of the Bill provides that the Commission may prepare a ‘Guide to the Assessment of Rates of Veterans’ Pensions’ which is to be used to determine the degree of incapacity of a veteran. The Guide is to be approved by the Minister and tabled in both Houses of Parliament. Sub-clause 22(4) further provides that the Commission

shall determine the degree of incapacity according to the provisions of the Guide.

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It appears to the Council that if the Commission is legally bound to apply the criteria set out in the Guide, both the Veterans’ Review Board and the AAT would be similarly bound. The Council considers that such an effect would be undesirable.

The Council accepts that there are advantages in having guides or manuals which are publicly available and which set out criteria or principles for the guidance of primary decision makers and review bodies. One such advantage is the likelihood that consistency in decision-making will be promoted. But it is the Council’s view that

such a guide should not be legally binding on the Repatriation Commission, the VRB or the AAT. If the objective is to bind the Commission’s delegates, the Council believes that it is preferable to make the Guide a policy document in much the same way as the Pensions Manuals bind delegates of the Secretary to the Department of Social Security.

The Council’s concern on this matter relates essentially to the rigidity of the Guide insofar as its aim is to set out criteria to be applied in individual cases. In the Council’s view, it is impossible to prescribe in advance all the relevant factors which may need to be taken into account in determining the degree of incapacity in a particular case. Flexibility is required to ensure that all relevant considerations are able to be considered.

Such a Guide cannot precisely and comprehensively itemise all the social and psychogenic considerations which may be relevant to particular applications. The significance of a particular impairment will vary markedly from one claimant to another by virtue of personal factors. Moreover, it is the Council’s view that one of the major benefits of AAT review is the Tribunal’s ability, to enunciate correct principles to be applied by primary decision-makers. Such a benefit is unlikely to occur in the

repatriation field if the Tribunal is confined to the application of inflexible criteria in determining an applicant’s rights or entitlements.

Time Limits

Time limits are provided for in the Bill in respect of initial decisions and applications for review of decisions in sub-clause 59(2), clause 112, clause 113, sub-clauses 134(4) and (5), and sub-clause 175(4). The time limits imposed appear to be more generous

than under other enactments, but the time limits provided for are absolute. For example, sub-section 29(2) of the Administrative Appeals Tribunal Act 1975 prescribes the time limit for lodgment of a request for review to the AAT as being a period commencing on the day the decision is made and extending to the 28th day after that decision and there is no limit to the Tribunal’s power to extend that period in appropriate cases. Sub-clause 175(4) of the Bill overrides that provision by allowing a 3 months period from the date of the Board’s or Commission’s decision within which an appeal may be taken to the AAT. This time limit may be extended by up to 12 months from the date on which the decision was sent to the applicant. The Bill is drafted so as to preclude any discretion in extending this or any other time limit.

It is the Council’s view that there should be more flexibility in time limits, both for lodging primary claims and for seeking reviews, in order to accommodate genuine cases. It is desirable that there should be a discretion to extend time limits in special circumstances, and that the exercise of that discretion by bodies other than the AAT should be subject to review on the merits. Review of decisions of the Commission regarding applications for extension of time should be conducted by the Veterans’ Review Board in the first instance (except in the case of service pensions which, at present, are not reviewable by the VRB but only by the AAT). It is the Council’s view, moreover, that the AAT should review decisions of the Commission where an application has been made to lodge a claim for a service pension out of time, and that it should also review decisions of the Board regarding extension of time applications. The Council considers that the Bill should be amended accordingly.

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Statements o f Reasons

The Bill provides that, in the case of pensions other than service pensions, the Commission must provide a claimant with a copy of its decision and a statement of reasons for that decision, including its findings on questions of fact (clause 34). A similar provision applies in respect of decisions made by the Commission

following a review of a primary decision on a service pension application (clause 62), but there is no provision for a statement of reasons in respect of the primary decision of the Commission in service pension cases. The Council recommends that provision should be made that applicants be provided with a copy of the decision and the reasons

for that decision, including findings on questions of fact, in such cases.

Range o f Decisions Subject to Review

The Council has examined Part X of the Bill which deals with review by the AAT of the decisions of the VRB and decisions of the Commission in respect of service pension claims. The Council has noted that clause 174 of the Bill provides as follows:

Applications for review 174. (1) Where a decision made by the Commission under section 19 or 31 has been reviewed by the Board and affirmed or set aside, then, subject to section 29 of the Administrative Appeals Tribunal Act 1975, application may be made to the

Administrative Appeals Tribunal for a review— (a) of the decision of the Commission that was so affirmed; or (b) of the decision made by the Board in substitution for the decision so set aside, as the case may be.

(2) Where the Commission, under section 59, affirms a decision of the Commission made under section 46 or 58 or sets aside a decision made under section 46 or 58 and substitutes another decision for it, then, subject to section 29 of the Administrative Appeals Tribunal Act 1975, application may be made to the

Administrative Appeals Tribunal for a review— (a) of the decision so affirmed; or (b) of the decision made by the Commission under section 59 in substitution for the decision previously made by the Commission under section 46 or 58.

Claims for pensions made pursuant to clause 14 and applications for increased pensions made pursuant to clause 15 are determined by the Commission under clause 19. A decision to approve a particular date as the date from which payment of a pension or payment of an increased pension is to be made is arguably a decision under clause

19. Both sub-clause 20(1) and sub-clause 21(1) relate to the effective date of payment of pensions in such cases. The Veterans’ Review Board has jurisdiction to review ‘any decision’ of the Commission in respect of a clause 14 claim or a clause 15 application (see sub-clause

134(1)). This provision may be broad enough to include the consequential decisions under clauses 20 and 21, particularly in the light of sub-clause 31(3). There could, however, be arguments to the contrary. The AAT’s review jurisdiction is defined in more limited terms in sub-clause 174(1). Under that sub-clause the AAT is limited

to review of a decision made by the Commission under section 19 or section 31 that has been affirmed by the Board, or to review of a decision made by the Board in substitution for a decision of the Commission.

In the view of the Council, the legislation should make it clear that decisions under clauses 20 and 21 are capable of review by both the Board and the AAT. The Council

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considers that the review jurisdictions of the two bodies should be coextensive and that the use of similar language would make this clear.

The Council is concerned with the general effect of clause 31 of the Bill, which enables the Commission to review its own decision where an application for review has been made to the Board or the AAT. If the Commission varies or revokes its original decision in such a case, it would appear that an applicant who is still dissatisfied with the new decision would be required to lodge a fresh application for review. In the view of the Council the Bill should make it clear that in such circumstances the jurisdiction of the VRB or the AAT to review the original decision should not be affected by the variation or revocation of that decision, and that the Board and the AAT may, in their discretion, give such weight to the variation or revocation as they consider

appropriate. This may require amendments to sub-sections 31(2), and 134(2), and section 174.

The Council recognises that the question of the effect on the AAT’s jurisdiction where a decision under appeal is varied or revoked before the Tribunal determines the appeal, is relevant to all the Tribunal’s jurisdictions, not just repatriation. Accordingly, the Council proposes to consider whether an amendment to the Administrative Appeals Tribunal Act is required to deal with this issue. In the meantime, in the context of the Tribunal’s repatriation jurisdiction, the Council recommends that the matter be dealt with in the way recommended in the preceding paragraph.

Sub-clause 31(2) provides that the consent of the applicant must be obtained before a decision, pending review before the AAT, can be varied by the Commission. As indicated above, it is arguable whether a decision relating to the operative date in such circumstances is a decision in relation to which the AAT has jurisdiction. Where there

is a disagreement between the applicant and the Commission as to the operative date there is a need for a right to obtain review by the AAT, and the Council recommends that the legislation should provide accordingly.

Sub-clause 31(3) would appear to leave room for considerable argument as to what constitutes ‘manifest error’ and the Council considers that it is desirable, in the interests of economy and efficiency, to avoid such a situation if possible. The Council considers it would be preferable to make the exercise of the Commission’s powers subject to the consent of the applicant or the Principal Member of the Board.

Yours sincerely,

E. J. L. TUCKER (Chairman)

12 September 1985

Dear Attorney-General, On 31 July 1985 the Council transmitted to you its advice on the Veterans’Entitlements Bill 1985. The Council’s attention has subsequently been drawn to another aspect of the Bill relating to the issue of the scope of the review conducted by the Veterans’

Review Board and the Administrative Appeals Tribunal and 1 am writing on behalf of the Council to convey to you its views on this matter.

Sub-clause 138(1) of the Bill provides:

‘on a review, the Board shall have regard to the evidence that was before the Commission when the decision the subject of the review was made and to any

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further evidence before the Board on the review that was not before the Commission but would have been relevant to the making of the decision by the Commission’.

This provision is in identical terms to sub-section 107VG(1) of the Repatriation Legislation Amendment Act 1984 which currently applies to the Board’s review function.

It is the Council’s view that in exercising its review function the Board should not be limited to evidence that would have been relevant to the making of the Commission’s decision. The limitation imposed by sub-clause 138(1) may prevent the Board from conducting a full merits review of a decision of the Commission refusing to grant

a pension or an increased pension. The Council considers that the Board’s review should be in the nature of a de novo hearing and the Board should determine for itself what is the correct or preferable decision on the basis of all the evidence and material before it.

The Repatriation Legislation Amendment Act 1984 confers jurisdiction on the Administrative Appeals Tribunal to review a decision made by the Commission under sections 29A and 31 of that Act that has been reviewed by the Board and affirmed or set aside by it. A similar provision is made in sub-clause 174(1) of the Veterans’ Entitlements Bill. There is no express provision in either the Repatriation Legislation

Amendment Act or the Veterans’ Entitlements Bill which restricts the ordinary scope of merits review by the AAT to determine what is the correct or preferable decision on the basis of the material or evidence before the Tribunal. However, on one possible construction of the Bill it might be argued that the nature of the AAT’s review is not

whether the applicant’s claim for a pension should succeed having regard to the facts as they existed at the date of the hearing but rather whether the applicant’s claim for a pension is correct having regard to the facts existing at the time of the original decision by the Repatriation Commission. The Council considers that the scope of

review by the AAT should not be restricted in this manner and the Tribunal should be able to exercise its normal review function. The Council considers that the Bill should be amended to make this abundantly clear.

In the Council’s view, it is highly desirable in a two-tiered structure of review on the merits as presently exists in the repatriation area, that the scope of review available from both review tribunals should be identical and should allow for a full review of the merits of the subject decision. Otherwise there is a risk that appeals which might

have been resolved at the first tier of review will flow on to the AAT where a wider scope of review is available. Alternatively, appellants will have to lodge a fresh application with the Commission and, if necessary, reactivate the review processes. Such a system would clearly be inefficient, costly and add to the time taken to resolve

applicants’ claims. Accordingly, the Council recommends that appropriate amendments should be made to the Repatriation Legislation Amendment Act 1984 and the Veterans’ Entitlements Bill to remove any restriction on either the Veterans’ Review Board or the Administrative Appeals Tribunal conducting a full merits review of repatriation

decisions falling within their respective jurisdictions.

Yours sincerely,

E. J. L. TUCKER (Chairman)

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LETTER 3

ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977—EXCLUSION OF DECISIONS TAKEN IN CONNECTION WITH PROSECUTION OF OFFENCES AGAINST COMMONWEALTH OR TERRITORY LAWS

On 25 June 1985 the Secretary to the Attorney-General’ s Department (Mr P. Brazil) sought the Council’ s urgent advice on a proposal to exclude from judicial review under the AD(JR) Act decisions in connection with the prosecution o f persons fo r offences against Commonwealth or Territory laws. Before finalising its advice the Council received submissions from a number o f bodies including the Australian Institute o f Criminology,

the Office o f the Director o f Public Prosecutions, the Law Societies o f NSW, Queensland and WA, Bar Associations o f the A.C.T., Victoria, Queensland and WA, and the Law Institute o f Victoria. The views o f those bodies are summarised in Attachment 1 to the letter o f advice.

The Council is not aware o f any developments since the transmission o f its advice to the Attorney-General on 5 September 1985. The principles underlying the exclusions contained in Schedule 1 to the Act are being examined by the Council in its project on review o f the operation o f the Act.

5 September 1985

Dear Attorney-General, I am writing to convey the Council’s views on a proposal by the Director of Public Prosecutions to exclude from review under the Administrative Decisions (Judicial Review) Act 1977 decisions taken in connection with the prosecution of offences against Commonwealth or Territory laws. The Council’s urgent advice on this proposal was sought by the Secretary to your Department in a letter dated 25 June. The matter was briefly considered by the Council at its meeting held on 28 June but, as you are aware, the Council took the view that it had not had an adequate opportunity at that stage to form a considered opinion on the issues raised by that proposal. In particular, it considered that it was desirable that the Director of Public Prosecutions be given an opportunity to make a detailed submission to the Council in support of his proposal and that the views of organisations representing the legal profession should also be obtained. The Council has since received submissions from the Office of the DPP as well as from various law bodies listed in Attachment 2 to this letter.

Summary o f the Council’s Advice

For reasons which are set out in detail in Attachment 1 to this letter, it is the Council’s opinion that, to the extent that prosecution decisions are currently susceptible of review under the AD(JR) Act, they should remain so, at least for the time being. It is considered, however, that use of the Act to challenge prosecution decisions should be closely monitored. Although experience to date with the operation of the Act in this area does not justify the introduction of a requirement of leave, it might become necessary, in light of future experience, to consider the desirability and appropriateness of requiring an applicant for review of a prosecution decision to obtain the leave of

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the Court before lodging an application for review. Further, if a leave requirement were introduced in those circumstances but proved ineffective in dealing with abuse of the Act in its application to prosecution decisions, the Council accepts that consideration would then need to be given to partial or total exclusion of such decisions

from the ambit of the Act.

The question whether a requirement of leave should be inserted in the Act in relation to all decisions within its ambit—not just prosecution decisions—is one of the matters which the Council will consider as part of its current major project reviewing the operation of the Act. The Council’s current work programme provides for this project to be completed in approximately six months’ time, and the Council will be using its best endeavours to adhere to this.

Yours sincerely,

E. J. L. TUCKER (Chairman)

Attachment 1

Nature of the Proposal and Considerations Urged in Favour of It

In his letter of 25 June, Mr Brazil said that the proposal was not intended to exclude from judicial review decisions in connection with the issue of search warrants or other decisions taken in connection with the investigation of evidence. It was, however, intended to exclude decisions such as:

• a decision of a Minister in relation to the giving of consent to a prosecution; • a decision to lay a charge against a person; • a decision to file an indictment; and • a decision not to proceed against a person committed for trial.

The letter suggested that the exclusion might be effected either by way of amendment to the Act or by the making of a regulation under section 19. The letter said that the matter had become urgent because of the increasing number of challenges to prosecution decisions being made under the Act and the effect which this was having

upon the orderly and expeditious conduct of prosecution proceedings and related matters.

In its submission to the Council, the Office of the DPP urged the Council to recommend to the Government that “ review of the entire prosecution process from the investigation stage, passing to the decision to prosecute and related decisions and finally to the committal and the decision to commit should not be reviewable under

the Administrative Decisions (Judicial Review) Act 1977’. The Council has noted that this proposal is expressed in wider terms than those which are set out in Mr Brazil’s letter.

The Office of the Director advanced four primary reasons in support of its proposal. First, although at the date of its submission the Office had been involved in only two AD(JR) Act proceedings in relation to prosecution decisions, it apprehended that there was a developing trend to use the Act in this area and it feared

that the Act would be used even more extensively in the future to challenge pre­

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committal decisions if committal proceedings were excluded from the Act’s ambit in accordance with the Council’s recent advice. Secondly, it was suggested that past experience had demonstrated how the Act could be used to delay, hamper and harass the due administration of criminal justice. Thirdly, it was claimed that procedures and processes associated with the conduct of a criminal trial provided an adequate review of prosecution decisions. Finally, it was argued that judicial review of prosecution

decisions was impractical since the Court would have to examine all the evidence in the case and, in some cases, all the information relevant to the sentencing of any defendant who might be found guilty.

The Preliminary Question Whether Prosecution Decisions are Currently Within the A c t’s Am bit

The Council considers that there is some uncertainty as to whether the AD(JR) Act currently applies to all the decisions covered by the proposal. For example, although it is reasonably clear that a decision of a Minister or the DPP taken pursuant to a

statutory power to consent to the bringing of a prosecution is within the Act’s ambit (see Murchison v Keating (No. 2) (1984) 54 ALR 386), it is less clear that some other prosecution decisions are within its scope. It seems likely that the Director takes the view that they are, or presumably he would not be putting forward the present proposal.

In support of this view, it might be said that such decisions are of an administrative character and are made under an enactment within the meaning of sub-section 3(1) of the Act, e.g. sections 69 and 78 of the Judiciary Act 1903 and sections 6 and 9 of the Director o f Public Prosecutions Act 1983. Indirect support for this view might

also be derived from paragraph (e) of Schedule 2 of the AD(JR) Act which excludes from the obligation to provide reasons in section 13 of the Act, ‘decisions relating to the administration of criminal justice and, in particular, (i) decisions in connection with the investigation or prosecution of persons for any offence against the law of the Commonwealth or of a Territory’. It might be argued from this that the Act, read

as a whole, contemplates that prosecution decisions are within its ambit so that a specific exclusion from section 13 is necessary if prosecution decisions are to be exempt.

The contrary view is that some prosecution decisions are not subject to review under the Act generally because they are not decisions made under an enactment. Decisions to lay a charge, file an indictment or not to proceed against a person committed for trial in particular might be considered to fall into this category, by analogy with the reasoning of the High Court in Barton v R (1980) 32 ALR 499.

The Council took the view that the uncertainty of the question of the applicability of the Act to these decisions is such that ultimately it will have to be decided by the courts themselves. If the view that the Act does not apply to such prosecution decisions were to prevail, the problems which the Director now foresees would, for the most part, automatically disappear.

The Question o f Principle: Should Prosecution Decisions be Subject to AD(JR) Act Review?

Whatever the precise applicability of the AD(JR) Act to prosecution decisions, the Council considers that the central issue at stake is one of principle. The Act applies only to decisions made under enactments. Prima facie, in the Council’s view, the legality of the exercise of any power conferred by legislation should be subject to judicial control

no matter by whom it is exercised. Similarly, independent statutory office-holders, of which the DPP is one, should be answerable in the courts for the lawfulness of their actions. To provide otherwise would derogate from the rule of law.

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Once the necessity for judicial review is established, the applicability of the AD(JR) Act should follow. The Federal Court is the most appropriate court to review decisions made by Commonwealth officers and the AD(JR) Act provides the most appropriate procedure for obtaining judicial review by the Federal Court of Commonwealth

administrative action.

For these reasons, the Council considers that very strong and exceptional grounds would be necessary to justify the exclusion of the present jurisdiction of the Federal Court under the AD(JR) Act to review prosecution decisions made by Commonwealth officers, including the Attorney-General or the DPP. In the Council’s view, such

grounds have not been shown to exist at this stage.

The Council understands that one of the primary objectives of creating the statutory office of the DPP was to provide a forum for taking prosecution decisions which was largely independent from the political process. One consequence of that is that such political controls that were exerciseable over the taking of prosecution decisions by the Attorney-General no longer apply. It is recognised that the Attorney-General is empowered under the DPP Act to issue directions and guidelines relating to the performance of the Director’s functions and the exercise of the Director’s powers (sub-s.

8(1)) and that, to that extent, the Attorney retains formal control over the DPP’s activities for which the Attorney would be answerable in the Parliament. In practice, however, Attorneys-General have been and are likely to remain, most reluctant to impose such control in an individual case on the ground that it might be seen as political

interference. In any event, as a matter of general principle, the Council considers that review by the courts is a more appropriate remedy for matters of law because Parliamentary control of prosecution decisions is likely to be seriously affected by

the sub-judice rule.

The Office of the Director has also said that procedures and processes associated with the conduct of a criminal trial provide an adequate review of prosecution decisions. In many cases this is true. Many problems may adequately be dealt with either at the committal stage or at the trial stage. For example, in relation to the filing of an

indictment, although the Barton decision established that the court will not review the exercise of a discretion to file an indictment, it was held in that case that the court may quash an indictment where to proceed on the indictment would be an abuse of the process of the court. There is also authority for the proposition that the power

to quash an indictment may be exercised upon an application being made to the court for that purpose and that the accused does not have to wait until he is arraigned (R v Siugzdinis (1985) 32 NTR 1). However, there are other cases (e.g. as to jurisdiction or authority to exercise a statutory power to consent to a prosecution, or the exercise of

a power in bad faith) where an authoritative ruling at an early stage may do justice and save time either by terminating the proceedings or putting them on a correct course. This is particularly so where a charge has been laid but no indictment filed.

The Council does not consider that judicial review of prosecution decisions presents practical difficulties of the sort described in the submission of the Office of the DPP. For example, if the Federal Court was asked to review a decision to proceed by way of indictment rather than summarily, and assuming that such a decision is one made

under an enactment (which will not always be the case as illustrated by the unreported decision of the Federal Court in Kidman Reid v Nairn, 24 April 1985), it would not be necessary for the court to examine all the evidence of the case and all the information that is relevant to the sentencing of the defendant. In accordance with

established principles, the applicant for review would be required to discharge the burden of proof establishing to the court’s satisfaction that unlawful administrative action had occurred and the application would be dismissed on this ground if the applicant failed to do so.

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Availability o f Other Judicial Review Procedures

The AD(JR) Act provides the primary means of obtaining judicial review of Commonwealth administrative action but it is not the only procedure by which such action may be reviewed in the courts. Proceedings may also be brought in the High Court’s original jurisdiction under paragraphs 75(iii) and (v) of the Constitution, and the Federal Court has jurisdiction under section 39B of the Judiciary Act 1903 to grant remedies of mandamus, prohibition or an injunction against a Commonwealth officer. It is clear that both the Attorney-General and DPP are Commonwealth officers. Decisions made by them in connection with the prosecution of Commonwealth offences therefore are subject to review by the High Court and the Federal Court in accordance with common law principles of judicial review. The High Court’s jurisdiction could not be excluded without an amendment to the Constitution.

In the Council’s view, there seems to be no point in excluding AD(JR) Act review of these decisions. Indeed, to do so would belittle the AD(JR) Act which in the Council’s view has provided beneficial reform of judicial review procedure. The Office of the DPP stated in its submission that the “resources that some defendants can bring to bear on the prosecution are vast’. The Council considers that, in these circumstances, there is every likelihood that, even if the AD(JR) Act were not available, such defendants would turn to other procedures for obtaining judicial review of prosecution decisions as has occurred in other areas of Commonwealth administration, such as taxation.

View o f Law Organisations

As noted above, the Council sought the views of various law organisations on the proposal and copies of Mr Brazil’s letter were circulated to them. The proposal was opposed by the Queensland Law Society, the Administrative Law Committee of the Law Institute of Victoria, the Administrative Law Committee of the Law Society of Western Australia (5 to 2), the Victorian Bar Council, and the Western Australian Bar Association. The proposal was supported by the Criminal Law Committee of the Law Society of NSW and the Queensland Bar Association. Several reasons were given for opposing any abrogation of existing rights of review but the primary reason was the need to safeguard the rights and interests of accused persons.

Need to Monitor Operation o f the Act

The submission from the Office of the DPP highlights the problems of delay and disruption which can arise in the administration of the criminal justice system when the AD(JR) Act is used by defendants with substantial resources to review prosecution decisions. The Office pointed to two cases in which it had been involved where these problems had arisen. The Council is aware also of other instances where the Act has been used to seek review of prosecution decisions. Unfortunately, it has for many years been a feature of the administration of criminal justice in common law countries that wealthy defendants who are involved in organised crime have been able to abuse processes which are necessary to safeguard the liberty of the general population. The Council appreciates the importance in the public interest that the criminal justice system operate as efficiently, expeditiously and economically as is practicable compatible with the need to protect individual rights and interests.

The Council therefore believes that use of the Act to review prosecution decisions should be closely monitored, although for the reasons given above, it considers that no action should be taken to exclude prosecution decisions from AD(JR) Act review at this stage. If evidence emerges in the future which establishes that the Act in fact is being used to delay and frustrate the criminal justice system, consideration should be given to amending the Act to require an applicant for the review of a prosecution

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decision to obtain the leave of the court before lodging an application for review. Such a requirement would operate to minimise delays and disruption to the criminal justice system by screening out unmeritorious cases while still preserving the right of accused persons to seek judicial review of prosecution decisions in appropriate cases.

It also would be consistent with a similar requirement which applies to prerogative writ proceedings. Furthermore, the Council considers that if a leave requirement were introduced in these circumstances and experience showed that it was proving ineffective to control abuse of the Act in relation to prosecution decisions, consideration would need to be given at that time to total or partial exclusion of those decisions from the

ambit of the Act.

In the Council’s view, no case has been made out at this time to justify the immediate insertion of a leave requirement in the AD(JR) Act insofar as it applies to prosecution decisions but the Council believes that the matter should be kept under review. In the absence of such a case, it would be premature to introduce such a

requirement in advance of the Council’s report on the operation of the AD(JR) Act since one of the issues which is being considered by the Council as part of that project is whether a requirement of leave should be inserted in the Act with regard to some, or all, areas of Commonwealth administration which fall within the Act’s ambit. The Council’s current work programme provides for this project to be completed in

approximately six months’ time, and the Council will be endeavouring to meet this timetable.

Attachment 2

Copies of Mr Brazil’s letter dated 25 June 1985 were sent to the following organisations with an invitation to comment. Those organisations (or committees thereof) which subsequently made submissions to the Council are marked with an asterisk:

Law Institute of Victoria* The N.S.W. Bar Association The Victorian Bar Council* The Law Society of Western Australia*

The South Australian Bar Association The Western Australian Bar Association* Bar Association of Queensland* The A.C.T. Bar Association

Bar Association of Tasmania The Law Society of the A.C.T.

Queensland Law Society Inc* Law Society of S.A. Inc.

The Law Society of N.S.W* The Law Society of N.T.

Law Society of Tasmania Law Council of Australia

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LETTER 4

ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977—REVIEW OF DECISIONS TAKEN UNDER THE EXTRADITION (FOREIGN STATES) ACT 1966 AND THE EXTRADITION (COMMONWEALTH COUNTRIES) ACT 1966

The question ofjudicial review o f extradition decisions was referred to the Council for consideration and advice on 30 August 1985 by the Secretary to the Attorney-General’s Department (Mr P. Brazil). The Council is not aware o f any developments since it transmitted its advice to the Attorney-General on 1 October 1985.

1 October 1985

Dear Attorney-General,

Review o f Decisions made under the Extradition Acts

On 30 August 1985, the Secretary to your Department wrote to the Council requesting its urgent advice on a proposal to exclude from review under the Administrative Decisions (Judicial Review) Act 1977 decisions taken under the Extradition (Foreign States) Act 1966 and the Extradition (Commonwealth Countries) Act 1966. The Council was advised that consideration was being given to including in the Statute Law (Miscellaneous Provisions) Bill (No. 2) 1985, which is due to be introduced in October, a provision which will add to Schedule 1 of the AD(JR) Act decisions made under both Extradition Acts. .

I am writing to convey the Council’s advice on the proposal. In formulating its advice, the Council has taken account of material provided in a working paper attached to Mr Brazil’s letter as well as discussions between officers of your Department and the Council’s Director of Research. The Council has also had the advantage of seeing a copy of the printer’s draft of that part of the Statute Law (Miscellaneous Provisions) Bill which contains proposed amendments to the Extradition Acts, including those amendments relating to the creation of a statutory right of review of certain extradition decisions. In view of the urgent nature of the matter, however, the Council has not had an opportunity of carrying out its normal practice of consulting with a range of interested groups and persons before finalising its advice.

Before summarising its advice on the proposal, the Council wishes to express its regret that it was not consulted in accordance with the provisions of the Legislation Handbook (para. 4. 67A) before the Extradition (Foreign States) Amendment Bill 1985 and the Extradition (Commonwealth Countries) Am endment Bill 1985, which both had significant administrative law implications, were introduced into the Parliament.

Summary o f the Council’s Advice

For reasons which are explained in detail in an Attachment to this letter, it is the Council’s view that no action should be taken at present to exclude any extradition decisions from review under the AD(JR) Act. The Council considers, however, that use of the Act to obtain review of extradition decisions should be closely monitored and consideration should be given to introducing a requirement of leave in the Act

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in relation to some or all extradition decisions if experience reveals that the existing provisions of the Act are adequate to deal with any overlap in judicial remedies which are available in this area.

As you are aware, the question whether a requirement of leave should be inserted in the AD(JR) Act in relation to all decisions within its ambit, is one of the matters which the Council is considering as part of its current review of the Act’s operation.

Finally, the Council assumes that, in accordance with the provisions of the Legislation Handbook, it will be given an effective opportunity to advise the Government if it is proposed to take legislative action to exclude any of the other existing remedies for obtaining review of extradition decisions.

Yours sincerely,

E. J. L. TUCKER (Chairman)

Attachment

Extraditions from Australia

The Council appreciates the concern to ensure that Australia should be able to respond promptly to requests for extradition as stated in Mr Brazil’s letter. The Council considers, however, that this concern must be balanced with the need to ensure both in the public interest and in the interest of individual justice that administrative

decisions which have the capacity to affect an individual’s rights or interests should be amenable to judicial scrutiny.

The Council has noted in this regard that the proposal to create a statutory right of review will only apply to certain decisions taken in the course of extradition proceedings. Other significant aspects of the extradition process which are currently subject to AD(JR) Act review will not reviewable under the proposed statutory review

procedure. For example, decisions of the Attorney-General to issue a notice to a magistrate following an extradition request from another country and decisions of magistrates to issue warrants for arrest will not be subject to the proposed review procedure. The Council considers that the legality of such decisions should be capable of being tested in a court of law. Such decisions themselves have the capacity to affect rights and interests irrespective of whether a magistrate ultimately finds that the individual is liable to be extradited. The Council reiterates the view it expressed in

its letter of advice dated 5 September 1985 concerning the proposal to remove prosecution decisions from AD(JR) Act review that both justice and savings in time are more likely to be achieved if there is a facility for obtaining an authoritative ruling on questions of law and jurisdiction at an early stage in proceedings.

The Council has also noted that under the proposal the Attorney-General’s ultimate decision to issue a warrant for the surrender of a fugitive will not be subject to review under either the proposed statutory review procedure or the AD(JR) Act. The Council does not favour the exclusion of such decisions from review under the AD(JR) Act.

While it is true that a surrender warrant can only be issued after a magistrate has determined that a fugitive is liable to be surrendered and that the magistrate’s determination on this issue will itself be subject to statutory review, the Council

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considers that it is misleading to describe the Attorney’s role as merely one of implementing the magistrate’s decision. Under the Extradition (Foreign States) Act, for example, both the magistrate and the Attorney-General are obliged to determine whether the ‘political offence’ doctrine applies (see sub-s. 13(1) and para. 18(2)(b)), but it is apparent that their determinations on this question might be based on quite different material. Evidence relating to the political offence issue which was not relied upon by a magistrate because it was either not then available or was legally inadmissible might be relevant to the Attorney-General’s subsequent determination of this issue. Indeed, it is particularly significant in the Council’s opinion that under the proposed

amendments to the Extradition (Foreign States) Act, a court reviewing a magistrate’s order will be prohibited from taking into account material which was not before the magistrate (sub-cl. 18(3)) and, accordingly, only the Attorney-General will be entitled to take into account material or evidence relevant to the political offence issue which was not before the magistrate.

The Council considers that the Attorney-General’s decision to issue a surrender warrant should be subject to AD(JR) Act review not only because the Attorney is required to exercise independent judgment on questions which also may have been determined by the magistrate, possibly on the basis of quite different material or evidence, but also because the Attorney-General is required to determine additional

questions to those which have to be determined by the magistrate. It cannot be said therefore that the proposed statutory review will obviate the need for judicial review of the Attorney’s decisions. Under the Extradition (Foreign States) Act, for example, in addition to determining whether the political offence doctrine applies, the Attorney is also required under section 14 of that Act to determine whether there are substantial grounds for believing that—

‘(a) the requisition for the surrender of the fugitive, although purporting to have been made in respect of an offence for which, but for this section, he would be liable to be surrendered to that state, was made for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinions; or (b) if the fugitive is surrendered to that state, he may be prejudiced at his trial, I

or punished, detained or restricted in his personal liberty, by reason of his race, | religion, nationality or political opinions.’ 1

The Attorney-General is expressly prohibited from issuing a surrender warrant if the requirements of section 14 are established. Section 14 clearly requires the Attorney to form an opinion on the matters specified in that section. The Council considers ' that the Attorney-General’s duty under this provision should be subject to AD(JR) j Act review and that similar reasoning applies to the Attorney’s comparable function under section 11 of the Extradition (Commonwealth Countries) Act.

The Council has noted the argument made in the working paper attached to Mr Brazil’s letter that the decision of the Attorney-General to issue a warrant for surrender is a ‘sovereign act’ for which the Executive Government should be responsible and that such decisions should not be amendable to judicial review. The Council does not

accept this argument. It is well established and widely accepted both in Australia and in other common law countries that extradition decisions made in the exercise of statutory powers should be subject to judicial review, including decisions on such questions as whether the political offence doctrine applies or whether there are humanitarian reasons for not extraditing a fugitive. The Council reiterates the principle it stated in its letter to you dated 5 September that, prima facie, the legality of the exercise of any power conferred by legislation should be subject to judicial control no matter by whom it is exercised. The question whether different considerations might

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apply to extradition decisions made in the exercise of prerogative power (see, for example, Barton v The Commonwealth (1974) 3 ALR 70) does not arise under the current proposal.

The Council appreciates that the time limit for commencing AD(JR) Act proceedings is 28 days (unless an extension of time is obtained), compared with a strict time limit of 15 days under the proposed statutory review procedure. It might be thought that this is likely to give rise to practical administrative difficulties in a situation where

arrangements have been made to extradite a fugitive and AD(JR) Act proceedings are commenced after the expiry of the time limit for seeking a statutory review. The Council does not, however, regard this risk as being a serious one. In the first place, a 15 day time limit currently applies to habeas corpus proceedings under the Extradition Acts and the Council is not aware of any significant problems having arisen as a result of the longer period for obtaining a review under the AD(JR) Act. Secondly, the Council has noted that the execution of an extradition decision is not automatically stayed on lodgment of an application for review under the AD(JR) Act. For a stay

order to be granted, the fugitive would need to persuade the Federal Court that the case was an appropriate one in accordance with established principles.

Extraditions to Australia

The Council has noted that no provision is being made for statutory review of any decisions or actions taken in relation to extradition proceedings to Australia (as opposed to extraditions from Australia), even though under the current proposal such matters will cease to be reviewable under the AD(JR) Act. The Council is aware of two cases

where the AD(JR) Act has been used to challenge the legality of different aspects of extraditions to Australia (see Wong v Evans (1985) 89 FCR 335 and Trimbole v Dugan (1984-85) 57 ALR 75). Both applications were unsuccessful but the Council considers that, irrespective of the substantive merits of these particular cases, it is

important that there be a facility by which questions of law relating to such matters as the specialty rule or the jurisdiction and role of a magistrate in the extradition process can be authoritatively resolved in a court of law at an appropriate stage in proceedings. Not all these questions would adequately be dealt with in criminal proceedings which take place subsequent to a fugitive’s extradition to Australia.

Other Review Procedures

A separate question raised by the proposal is whether exclusion of AD(JR) Act review would have the desired effect of expediting extradition proceedings. The Council doubts whether this would occur because other judicial review procedures are available in relation to many aspects of extradition. The Council has noted that it is proposed to replace a fugitive’s existing right to seek a writ of habeas corpus from the Supreme

Court of either a State or a Territory or the Federal Court of Australia with a statutory review procedure available in those courts. But the draft legislation does not contain any ouster clause which would prevent State courts from exercising their jurisdiction to grant a writ of habeas corpus in appropriate circumstances. The jurisdiction of

State courts to review Commonwealth administrative action is severely circumscribed by the operation of section 9 of the AD(JR) Act but the jurisdiction of those courts with regard to the writ of habeas corpus is expressly excluded from the ambit of that provision (see sub-s. 9(4)).

Other procedures for obtaining judicial review of extradition decisions which are also apparently unaffected by the proposal involve the High Court’s original jurisdiction under paragraphs 75 (iii) and (v) of the Constitution, the High Court’s jurisdiction to grant habeas corpus under paragraph 33(l)(f) of the Judiciary Act 1903,

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and the Federal Court’s jurisdiction under section 39B of the Judiciary Act. Any abrogation in the High Court’s original jurisdiction would, of course, require a Constitutional amendment.

These alternative review procedures have their own limitations and procedural peculiarities, and, individually, they may not cover the same ground as the AD(JR) Act’s application to extradition decisions but, cumulatively, they are substantially co-extensive with the ambit of the AD(JR) Act. In these circumstances, the Council considers that no practical advantage is likely to be gained by excluding AD(JR) Act review since aggrieved persons will be able to invoke other judicial review procedures in challenging extradition decisions. Indeed, to exclude AD(JR) Act review would,

in the Council’s opinion, be highly undesirable since it would derogate from the primacy of that Act which provides the principal method for obtaining judicial review of Commonwealth administrative action. The Council is not aware of any special reasons why the AD(JR) Act should be excluded while other judicial review remedies will remain

available.

The Council is mindful of the fact that if action is not taken to remove the existing jurisdiction of the Federal Court under the AD(JR) Act in relation to extradition decisions, there will be an overlap between this form of review and the proposed statutory review procedures, at least insofar as some extradition decisions are concerned.

The Council considers, however, that adequate provision exists in the AD(JR) Act to minimise the risk of duplication of remedies. Sub-paragraph 10(2)(b)(ii) of the Act empowers the Federal Court, in its discretion, to refuse to grant an application for the reason:

‘(a) that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the Court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure.’

This provision was invoked by the Full Court of the Federal Court in Woss v Jacobsen (unreported decision 5 June 1985) to refuse relief in an AD(JR) Act application in relation to extradition proceedings made under the Service and Execution o f Process Act 1901. The Court held that the statutory review procedure established | under that Act provided an adequate alternative remedy. In addition, the Court held that the correct time for a court to determine whether to exercise its discretion under I

the AD(JR) Act to refuse relief because of the existence of an adequate alternative 1 remedy is at the outset of those proceedings. It may be desirable to amend paragraph 10(2)(b)(ii) to make this clear and this matter will be considered by the Council as I part of its current review of the AD(JR) Act.

In the Council’s view, it is preferable to rely on the Federal Court exercising its j discretion in appropriate cases to avoid an overlap in remedies rather than excluding j from AD(JR) Act review decisions which are susceptible of review under the proposed statutory review procedure. This will enable the Court to determine for itself whether the statutory review procedure provides an adequate remedy in all the circumstances of a particular case.

Conclusion

For reasons given above, the Council considers that no action should be taken at this stage to exclude any extradition decisions from AD(JR) Act review. It is the Council’s view that in principle such decisions should be subject to judicial review under that Act. Furthermore, no significant practical advantage in terms of expediting extradition proceedings is likely to be achieved by excluding AD(JR) Act review because of the availability of alternative remedies for reviewing extradition decisions.

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It is the Council’s view, moreover, that it would be premature to exclude AD(JR) Act review before any experience is obtained of the practical operation of the proposed statutory review procedure. The Council considers that, to the extent that the procedure overlaps with AD(JR) Act review, adequate provision exists in the Act to enable the Federal Court to deal with any overlap in remedies. The relationship between the two

forms of review should, however, be closely monitored and if a serious problem of duplication of remedies emerges, consideration should be given in the first instance to introducing a leave requirement with regard to applications for review under the AD(JR) Act of some or all extradition decisions. As you are aware, the question whether

a general requirement of leave should be inserted in the Act is one of the matters that the Council is currently considering as part of its current review of that legislation.

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LETTER 5

STUDENT ASSISTANCE AMENDMENT BILL 1985—STUDENT ASSISTANCE REVIEW TRIBUNAL—NOTIFICATION OF RIGHTS OF REVIEW

The background to this advice is contained in the letter o f advice. On 25 February 1986 the Attorney-General advised the Council that he had taken the matter up with the Minister fo r Education who had indicated her agreement to the inclusion o f a notification provision in the Act as suggested by the Council. The Minister also suggested further

discussions between the Council and her Department on the matters raised in the Council’ s advice. The Council has since advised the Attorney-General o f its proposal to examine the student assistance jurisdiction more closely in connection with Stage Two o f the Council’s Access to Administrative Review Project.

15 October 1985

Dear Attorney-General,

Student Assistance Amendment Bill 1985

The Student Assistance Amendment Bill 1985 was introduced in the Senate on 11 September 1985. The Bill propose several changes to the structure and operations of Student Assistance Review Tribunals. I am writing at the request of the Council to draw to your attention the fact that it was not consulted prior to the Bill’s introduction in the Parliament and to inquire whether the Government wishes to receive the Council’s advice on those aspects of the Bill which have a bearing on administrative review.

The Bill raises some significant issues relating to administrative review and the Council considers that it should have been given an effective opportunity to advise the Government on those issues before the Bill was introduced. The Council has a particular interest in any legislative proposal which would amend or modify the powers and procedures of Student Assistance Review Tribunals. In 1981, the Council transmitted a major report to the then Attorney-General on the operation of such Tribunals and it indicated in that report an ongoing interest in the operation of the Tribunals. Moreover, on 1 May 1985 the Council’s Director of Research wrote to your Department at the Council’s request seeking discussions on establishing appropriate procedures for consultation with the Council and an attachment to his letter set out a list of legislative proposals on which the Council expected to be consulted. That list made specific reference to any legislative proposal amending or modifying the powers, procedures and jurisdiction of Student Assistance Review Tribunals.

As you are aware discussions are continuing between officers of your Department and the Council’s Secretariat on the subject of consultation with the Council. It is envisaged that these discussions will result in certain amendments being made to the Cabinet and Legislation Handbooks to clarify when and how the Council should be consulted on legislative proposals raising issues which fall within its charter. It is also expected that the discussion will lead to a Code of Consultation being agreed upon

between your Department and the Council which will set out the circumstances in which the Council should be consulted and the role of the Department in this regard.

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The Council hopes that when these matters are finalised there will be a clear understanding about the need to consult with it.

There are several specific issues raised by the Student Assistance Amendment Bill upon which the Council would wish to comment if it is not too late for its advice to be taken into account by the Government. These issues relate to such matters as the absence in the Bill of a requirement to notify applicants of the availability of rights of review, the proposal relating to non-disclosure of certain information to applicants (clause 10), and whether a National Chairman should be appointed to co-ordinate the Tribunal’s operations at a national level. A full study of the Bill may well reveal

other matters on which the Council should tender advice. However in view of its limited resources the Council believes that it should not undertake such a study unless it is clear that there will be an opportunity for its advice to be considered.

The Council would be grateful if you could indicate whether the Government would wish to receive the Council’s advice on these and any related matters arising from the Bill.

Yours sincerely,

E. J. L. TUCKER (Chairman)

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LETTER 6

TRADE PRACTICES AMENDMENT BILL 1985—PRODUCT SAFETY AND PRODUCT INFORMATION

On 26 June 1985 the Attorney-General released a discussion paper on the recall o f unsafe products, after which members o f the Council’s Committee and its Secretariat had discussions with the Office o f Consumer Affairs during the drafting stages o f the Trade Practices Amendment Bill 1985.

The Bill was subsequently withdrawn, but the Trade Practices Revision Act 1986, which incorporated the provisions o f the earlier Bill concerning the recall o f unsafe products, has since been passed by the Parliament.

1 November 1985

Dear Attorney-General,

Recall o f Unsafe Products

The Trade Practices Amendment Bill 1985 was introduced in the Parliament on 9 October 1985. It is proposed in the Bill to amend the primary Act by inserting a Division 1A dealing with product safety and product information.

The Bill was considered by the Council at its meeting held on 1 November 1985. The Council noted that during the drafting stages of the Bill there had been several discussions between the Office of Consumer Affairs and members of the Council’s Committee which was established to examine this area and officers of the Council’s Secretariat. Clauses 65J-P of the Bill, which deal with hearing rights and the conduct of hearings, substantially implement informal advice provided by the Council’s Committee and its Secretariat during those decisions.

The Council wishes to inform you that, following its consideration of the Bill, it determined that there were no issues arising from it which warranted the Council giving you its formal advice on this occasion.

Yours sincerely,

E. J. L. TUCKER (Chairman)

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LETTER 7

DIRECTOR OF PUBLIC PROSECUTIONS ACT 1983—SUB-SECTION 6(7)— POWER TO TAKE A CIVIL REMEDY—JURISDICTION OF COURTS TO DETERMINE

The circumstances relating to the Council’s involvement in this matter are set out in the Council’s letter o f advice to the Attorney-General.

On 3 January 1986 the Attorney-General replied to the Council’s letter. He said that in his view sub-sections 6(6) and 6(7) o f the Act were largely “ housekeeping’ provisions which were necessary to ensure certainty o f administration. The Attorney pointed out that the DPP Act requires the Director to furnish a report in relation to

the taking o f civil remedies within 2 years o f the commencement o f the amended provisions. In the light o f that report, the Attorney indicated that it may be necessary to review the provisions o f the Act relating to the taking o f civil remedies.

6 November 1985

Dear Attorney-General,

Director o f Public Prosecutions Act 1983—Sub-section 6(7)

At its meeting on 1 November the Council considered recent amendments to sub­ section 6(7) of the Director o f Public Prosecutions Act 1983. The amendments modify the previous provision in that Act which purported to prevent the courts from examining whether the taking of a civil remedy by the Director in fact fell within the

Director’s statutory powers. I am writing on behalf of the Council to convey to you its advice on those amendments.

In considering this matter the Council has taken account of information provided in your letter dated 11 June 1985. Since receiving that letter, the Council has made further enquiries and has obtained the views of the Office of the DPP on the significance to it of the ouster clause set out in sub-section 6(7). In formulating its

advice, the Council has also considered the views expressed on the amended sub-section 6(7) by the Senate Standing Committee on Constitutional and Legal Affairs in its Report on Annual Reports Referred to the Committee (1985, paras 25-42) and by the Chairman of the Senate Standing Committee for the Scrutiny of Bills, Senator Michael Tate, in a paper presented by him to the Conference of the Australian Study of

Parliament Group in Adelaide (August 1985, para. 3.25).

The Council has noted that the amendments to sub-section 6(7) are consequential upon other amendments made by the Director o f Public Prosecutions Amendment Act 1985 to the Director’s power to take civil remedies under sub-section 6(1) of the primary Act. In this sense, the amended sub-section 6(7) is not materially different

from the previous sub-section 6(7). The Council would emphasise, however, that it was not consulted concerning the original ouster clause in sub-section 6(7).

The Council recognises that the DDP Act does not purport to grant to the Director power to take any civil remedies which are not currently within the competence of

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the Commonwealth and that, in this respect, the Act does not create new rights and liabilities on the part of defendants. It is also recognised that sub-section 6(7) does not prevent a defendant from arguing in legal proceedings that there was no liability to the Commonwealth. Moreover, the Council recognises the desirability in principle of the Director having similar powers as those which were available to Special Prosecutors to take civil remedies. Of course, the Director is a statutory office holder and the Parliament might have elected to confer by statute a general power on the Director to take civil remedies while leaving the limits of that power to be worked out by administrative arrangement. Instead, the Parliament has chosen to specify those limitations in the Director’s enabling legislation and to include an ouster clause which is designed to prevent a defendant from challenging the nexus which the legislation requires. Courts are prevented from considering whether the Director has acted within power.

The Council considers that, since the Director’s power to take a civil remedy is limited to the circumstances specified in paragraphs 6(l)(fa) and (h), a defendant should be able to raise the question whether those limitations have been observed. It is the Council’s view that, as a matter of general principle, the courts should not be denied the opportunity to determine whether a Commonwealth office holder has acted within the limits of his or her statutory powers. The Council considers that sub-section 6(7) in its modified form should not have been retained. If the ouster clause is removed from the legislation in accordance with the Council’s view, the Parliament may wish to reconsider whether it is necessary and desirable to retain statutory limitations on

the Director’s power to take civil remedies.

The Council’s comments above have been directed primarily to sub-section 6(7) of the Act but they also apply to sub-section 6(6) of the Act which purports to prevent a defendant in proceedings brought by the DPP to recover a pecuniary penalty from challenging the Director’s authority to bring such proceedings.

Yours sincerely,

E. J. L. TUCKER (Chairman)

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LETTER 8

AUSTRALIAN BROADCASTING TRIBUNAL—DRAFT REGULATIONS— UNIFORM PROCEDURES FOR INQUIRIES

On 12 November 1985 the Attorney-General’ s Department referred to the Council for advice a copy o f draft regulations on uniform inquiry procedures fo r the Australian Broadcasting Tribunal. In Report No. 12 (1981) the Council had made detailed recommendations to the Government on procedures fo r the Tribunal.

The regulations came into force in May 1986.

6 December 1985

Dear Attorney-General,

On 12 November 1985 your Department sent to the Council copies of draft regulations implementing a uniform procedure for Australian Broadcasting Tribunal (ABT) inquiries and drafting instructions relating to those regulations. The Council was advised by your Department that the draft regulations are intended to complete the

implementation of the Council’s recommendations on ABT procedures which were made in the Council’s Report No. 12 on Australian Broadcasting Tribunal Procedures (1981).

Your Department invited the Council’s comments on the draft regulations and, in particular, on the following matters:

• the implementation of the Council’s recommendations; • the question of the width of the discretionary powers proposed to be conferred upon the Tribunal; • the question of review by the AAT of the ABT’s proposed powers.

Your Department’s letter was considered by the Council at its meeting held on 5-6 December 1985 and I am writing to convey to you its advice.

The Council assumes that the draft regulations have been prepared in the light of decisions taken by the Government to accept or reject detailed advice given to it by the Council in its Report No. 12. In these circumstances, the Council considers that, in the absence of a request from you for the Council’s advice, it would be

inappropriate for it to comment on the extent to which the draft regulations implement the Council’s earlier recommendations.

With regard to the matter of the width of the discretionary powers proposed to be conferred upon the ABT, the Council has not had sufficient time to consider all the discretions in detail, however, its general view is that, wherever practicable, discretionary powers should be structured by the specification in legislation of criteria

or principles relevant to the exercise of those powers. The Council was advised by your Department that the Department of Communications considers that *it will not be possible to spell out in the regulations the criteria on which decisions relating to the conduct of an inquiry will be made without unduly restricting the flexibility of

the ABT to tailor procedures to suit individual inquiries’. In these circumstances, the

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Council believes that, as a minimum, consideration should be given to including in the regulations an objects clause or some other statement of general principle which will provide guidance in the exercise of the Tribunal’s powers.

The Council has also considered the question of review on the merits of procedural decisions made by the ABT under the draft regulations. It is noted that no provision is made in the regulations for merits review of any such decisions.

. In the Council’s view the arguments for and against conferring jurisdiction on the AAT to review decisions of the ABT under the draft regulations are finely balanced. On the one hand, the Council has noted that several of the draft regulations contain powers the exercise of which is likely to affect significant interests and, accordingly, in principle, decisions made under those regulations should be amenable to merits review (see Council’s Eighth Annual Report, para. 39). Such regulations include those dealing with the power of the ABT:

• to refuse to take into account applications, submissions or documents which it considers to be scandalous, vexatious, frivolous, lacking in substance, or an abuse of its procedures (sub-regs 4(1) and 10(10)); • to terminate an inquiry or to make a decision without taking any further steps

in an inquiry (sub-regs 7(1), 13(1) and (2), and 14(10)); • to state new terms of reference (reg 12); and • to grant or refuse an extension of time for the lodgment of an application, submission or document (reg 20).

On the other hand, the Council believes that as a general proposition Tribunals should be given considerable freedom in the conduct of their proceedings subject, of course, to the availability of judicial review. The Council has noted in this regard that judicial review is currently available to any person aggrieved by a procedural decision of the ABT if that person considers that the Tribunal has not complied with the requirements of natural justice and/or procedural fairness. The Council considers that such review would also be available in relation to decisions of the Tribunal under the draft regulations.

The Council is concerned, moreover, that a consequence of conferring jurisdiction on the AAT to review procedural decisions of the ABT would be to create an additional opportunity for persons to delay and disrupt ABT proceedings. The Council has noted in this context the ABT’s concerns expressed in its Annual Report for 1984-85 that use of the AD(JR) Act by some persons to challenge procedural decisions of the Tribunal is having harmful consequences on the Tribunal’s operations. The Tribunal stated in its Annual Report that there is a need to consider improving limits on the use of the AD(JR) Act in interlocutory proceedings. This is one of the matters which the Council is considering as part of its current review of the operation of that Act.

It is the Council’s view that the question whether ABT decisions should be subject to AAT review requires detailed and careful study. The Council was advised by your Department that it is planned to submit the regulations to Executive Council by mid- December. The Council considers that it has not been given sufficient time to enable it to consult with interested parties and to finalise its views on the question of AAT review of ABT decisions made under the draft regulations. As you are aware, the Government has referred back to the Council the question of review of decisions of the ABT made in its Report No. 16 on the Review o f Decisions Under the Broadcasting and Television Act (see your letter of 23 April 1985—M85/3268:JR). In the absence of a request from you for earlier advice on this matter, the Council proposes to consider

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the question of AAT review of ABT procedural decisions as part of that reconsideration which is likely to commence during the course of 1986.

Yours sincerely,

E. J. L. TUCKER (Chairman)

LETTER 9

CUSTOMS ACT 1901—SECTION 167—STANDING TO CHALLENGE DECISIONS ON TARIFF CLASSIFICATION OF IMPORTED GOODS

The issue o f "standing’ was considered in the Council’ s Report No. 23, Review o f Customs and Excise Decisions: Stage Two, in connection with the import and export o f pro­ hibited goods. The Council’s attention was subsequently drawn to the the A A T ’s decision in Re Pilkington-ACI Ltd and Collector o f Customs (A.84/190), in which

the Tribunal held that it did not have jurisdiction to deal with a dispute as to duty where a third party claimed that the duty paid by an importer should be higher.

After seeking the views o f interested bodies the Council proposed a modification o f one o f its recommendations made in Report No. 23 to enable any persons whose interests are affected by a decision as to duty to have standing to challenge that decision. This advice was conveyed to the Attorney-General on 6 December 1985 and is being studied in conjunction with the Council’ s main report.

6 December 1985

Dear Attorney-General, At its meeting on 5-6 December 1985 the Council considered the question of standing to challenge decisions on tariff classification of imported goods. The matter was highlighted in the recent case, Re Pilkington-ACI Ltd and Collector o f Customs (A.84/190), where the AAT held that it had no jurisdiction to deal with a dispute as to duty where the applicant alleged that the rate of duty should be higher than that demanded by the Collector of Customs.

The issue of standing was considered by the Council in Report No. 23, Review o f Customs and Excise Decisions: Stage Two, which was tabled in the Parliament on 13 November 1985, in relation to the review of decisions concerning the importation and exportation of prohibited goods. The matter is dealt with in some detail in paragraphs 101-108 of the Report.

Under section 27 of the AAT Act any person Svhose interests are affected’ may apply for review of a decision. In Report No. 23 the Council recommended modification of section 27 so that the right to apply for review of decisions granting permission to import or export prohibited goods should be restricted to the applicant

for the permission. However, in cases where permission has been refused, the Council considered that any person whose interests are affected by the decision should be entitled to apply for review of that decision.

The Council was concerned that companies which are granted permission to import or export goods may, acting in reliance on that permission, enter into negotiations or contractual relationships with prospective buyers or sellers. The need for business certainty in such matters would be undermined if third parties were able to initiate proceedings challenging the merits of a decision to grant permission to an importer or exporter. The Council considered that the need for certainty was so vital in such cases that it should override the rights of third parties.

The argument relating to business certainty does not apply in relation to the determination of the duty payable on imported goods, where a number of procedures may apply. The owner of the goods has prime responsibility for entering goods

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correctly, but the Customs Service provides, in certain circumstances, a Tariff Classification Advice (TCA) as a service to partially relieve the owner of his responsibility in this regard. The Customs emphasises that a TCA is not meant to provide an assurance as to the rate of duty payable. However, it will consider itself

morally bound by TCAs issued if, for example, a TCA is issued and later considered to be incorrect, but has been acted on by the owner. A TCA has no legal basis and it represents a considered departmental opinion as to the correct tariff classification. In general, therefore, the TCA procedure does not provide an assurance of the correct

rate of duty in all cases.

In other circumstances, the Customs can vary a tariff classification which it has made. If, for instance, a competitor complains about a particular classification, the Council was advised that Customs will normally review the classification and may alter it.

It cannot, therefore, be said that once a tariff classification is made, that that classification is inviolable, as there are clearly circumstances in which changes can be, and are in fact, made in tariff classifications. Consequently, the same arguments of business certainty do not apply in the case of tariff classifications.

The Council sought the views of a small number of bodies on the matter, and received submissions from the Customs Agents Institute of Australia, the Customs Law Committee of the Law Council of Australia, Mr. E. J. Cooper and the Controller- General of the Australian Customs Service. ,

Submissions received from the Law Council, the Customs Agents Institute and Mr E. J. Cooper supported the view that any person who is aggrieved by a decision should have standing to seek a review of that decision. The Law Council suggests that it would be preferable for ‘direct economic interest’ to be expressly included as sufficient ground for standing in these cases. The Australian Customs Service, on the other hand,

favoured restricting standing to the owner of imported goods or his agent. None of the respondents provided any detailed argument on the matter. The Council can see no strong arguments against third parties having standing to challenge decisions relating to other importers which affect their interests. It would, therefore, be appropriate to apply section 27 of the AAT Act in its present form for

the purposes of deciding who has standing to challenge decisions on tariff classifications on imported goods; that is, any person ‘whose interests are affected’ should be able to apply for review of a decision, and the Council so recommends.

It is necessary to draw attention to Recommendation 4 of the Council’s Report No. 23 on Customs, where the Council set out a proposed procedure to replace the ‘Payment Under Protest’ procedure which presently applies for the purposes of challenging tariff classifications. The proposed procedure envisages that ‘an importer or his agent’ should be permitted 60 days in which to lodge a notice of dispute. If

the Council’s above recommendation is accepted it will be necessary to modify Recommendation 4 of Report No. 23 to extend the proposed notice of dispute procedure to ‘any person whose interests are affected’ by a tariff classification. Furthermore, to ensure that an importer is aware that a third party has challenged the classification of goods imported by the importer, the Collector should be required

to notify the importer immediately of the fact that the Collector has received a notice of dispute and the details of that dispute. The importer should be provided with an opportunity to make a submission to the Collector which could be taken into account by the Collector in reconsidering the correctness of the amount and rate of the duty.

In view of the proposed 60-day time limit in which the Collector is required to reconsider these matters, it would be necessary that the importer furnish any such submission which he or she wishes to make within 30 days of receipt of notification from the Collector.

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The Council has also considered whether it is necessary to recommend any reforms to ensure that an importer’s interests are adequately protected in the event that a third party commences review proceedings in the AAT in relation to a tariff classification dispute. The Council considers that the Collector, who will be the respondent in such proceedings, should be responsible for notifying the importer of the fact that review proceedings have commenced. The Council has noted that an importer would then be entitled to apply to the AAT to be joined as a party to the proceedings (sub-section 30(1A) of the AAT Act) and that, as a party to the proceedings, the importer would also be entitled to lodge an appeal to the Federal Court on a point of law if the importer were dissatisfied with the Tribunal’s decision (section 44 of the AAT Act).

Accordingly, in order to incorporate the above recommendations of the Council, Recommendation 4 of Report No. 23 should be modified as follows:

RECOMMENDATION 4: Reform o f Payment under Protest Procedure

The payment under protest procedure set out in section 167 of the Customs Act 1901 should be repealed and in its place a hiotice of dispute’ procedure embodying the following elements introduced:

(a) After the date of payment of any customs duty any person whose interests are affected should be permitted 60 days in which to lodge a notice of dispute in relation to that payment.

(b) The Comptroller-General should be empowered to grant in his discretion an extension of time within which to lodge a notice of dispute and the exercise of this discretion should be subject to review by the AAT.

(c) The notice of dispute (which should be directed to the place of business of the Australian Customs Service at which the payment was made) should:

(i) identify the relevant entry, and should either describe the relevant goods in sufficient detail to enable the Collector to make a decision or be accompanied by the goods themselves or a fair sample thereof; (ii) identify the owner where the notice is lodged by a person other than the

owner or his agent; (iii) include a statement of the grounds upon which the notice is made; and (iv) be signed by the person whose interests are affected by the specific customs duty in dispute.

(d) Upon receipt of the notice, the Collector should be required to:

(i) immediately inform the owner or his agent of the dispute where the notice is given by a third party and advise the owner or his agent that he or she has 30 days in which to make a submission to the Collector relating to the dispute; and

(ii) decide whether the amount and rate of the duty which was paid in respect of the relevant goods was correct, or whether another amount and rate should be substituted therefor and, within a period of 60 days from the date of receipt of the notice, to inform the owner or his agent, and if

necessary, the person who lodged the notice of that decision.

(e) If, at the expiry of that 60-day period, the relevant parties have not been furnished with a copy of the decision of the Collector referred to in the preceding paragraph, the legislation should deem a decision to have been made by the Collector affirming that the amount and rate of the duty which was paid in respect of the relevant goods was correct.

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(f) The person who lodged the notice of dispute or where that person is not the owner of the goods or his agent, the owner of the goods or his agent, should be entitled, within a period of 28 days from the date of receipt of the decision of the Collector, or from the date of the deemed decision, as the case may be, to make an application to the AAT for review of that decision, provided

that the Tribunal’s existing discretion to extend the period for making an application should apply.

(g) The jurisdiction of the AAT to hear a particular case should not be ousted by reason only of a defect in a notice of dispute applying to the goods in question.

Yours sincerely,

E. J. L. TUCKER (Chairman)

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LETTER 10

AUSTRALIA C A R D —CIVIL LIBERTIES AND DATA PROTECTION MECHANISMS—REVIEW OF ADMINISTRATIVE DECISIONS

On 6 January 1986 the Attorney-General’ s Department sought the urgent advice o f the Council on draft proposals relating to the introduction o f the Australia Card. A Joint Select Committee o f Parliament presented its report to the Parliament on the Australia Card proposal in May 1986.

10 January 1986

Dear Attorney-General, On 6 January 1986 your Department sought the views of the Council on a draft Cabinet Submission prepared by the Department of Health and setting out proposals relating to the introduction of the Australia Card in the areas of civil liberties and data protection mechanisms. In particular, the draft Submission deals with review of j administrative decisions. I am writing to give you the Council’s views on this aspect of the proposal.

The Australia Card Program is to be managed by the Health Insurance Commission I through its network of Medicare offices. Information on the Australia Card Register will also be used by a number of Government agencies. Decisions affecting individual interests will be made by various agencies on a number of matters including the issue and use of the Card and Number, the establishment and operation of the Register, access to the Register and correction of information contained therein. The draft Submission recognises the need for independent external review of such decisions.

The Department proposes that persons dissatisfied by decisions affecting them should in the first instance seek internal review of those decisions by the agencies which made those decisions. For persons dissatisfied after internal review there is proposed a further right of review by an independent external body. The Department’s draft proposal envisages the creation of a Data Protection Agency (DPA) whose functions would include that of the external review body. (The Council has noted that there

appears to be some overlap between the other functions suggested for the DPA and those proposed for the Human Rights and Equal Opportunity Commission. However the Council’s advice in this letter is confined to matters related to administrative review.) In the Council’s experience a system of internal review is generally able to resolve many disputes economically and expeditiously. It would support such a system in relation to decisions under the proposed Australia Card legislation. In its view, however, exercise of the right to obtain internal review should not be a precondition of access to external review unless there are circumstances in the particular area of jurisdiction which makes this course of action necessary or desirable. The draft Submission does

not indicate the existence of such circumstances, though this matter was not specifically addressed.

The Council does not agree with the proposal that the proposed DPA should be constituted as the external review body. It has two reasons for this view.

In the first place the Council has frequently and consistently expressed the opinion that in the absence of compelling reasons to the contrary jurisdiction to review

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administrative decisions on the merits should be vested in the Administrative Appeals Tribunal (AAT) rather than specialist tribunals. Both the Kerr and Bland reports were of the same view, and the Bland committee said that To permit a continuing proliferation of tribunals would be wasteful of resources, inimical to the efficient

functioning of government and calculated to cause public dissatisfaction’. No compelling or even substantial reason appears in the draft Submission to justify departure from this attitude in the present case. Insofar as the AAT does not at present

have the expertise needed to adjudicate on the kinds of issues likely to arise, that expertise can be provided as readily to the AAT as to the DPA. The AAT’s record demonstrates its capacity to absorb the expertise needed as each new area of jurisdiction is conferred upon it.

In the Council’s opinion the suggestion in the draft Submission that the AAT is unlikely to deal with appeals expeditiously is not adequately explained. The AAT is designed to provide authoritative and final adjudication of issues on their merits and its procedures necessarily allow time for the parties to be fully informed and to prepare

and present their cases adequately at Tribunal hearings. The draft Submission does not clearly indicate whether it is thought that in the Australia Card area these procedures can be abridged without detriment to the quality of review (and, if so, what special features make this possible); or whether it is envisaged that in this area

quality should be subordinated to expedition (and if so, why). That the Department adopts the latter position is suggested by the argument in the draft Submission that the AAT should not have jurisdiction because its ‘reputation as a thorough and precise review body would indicate that it is unlikely to deal with appeals expeditiously’.

However the implications for individual justice of a less thorough and precise standard are not considered.

The Department expects the volume of appeals to amount to about 8000 annually. This estimate is based on an assumption that the Australian experience will be similar to that of Sweden, but the validity of this assumption is not discussed. In view of the many differences, including the broad range of uses to which the identification

number is put in Sweden as compared with what is proposed for Australia, there is reason to believe that the experience of the two countries would not be fully comparable and that the figure of 8000 may be a substantial over estimate.

Whatever the volume of appeals may be, a substantial proportion can be expected to be resolved by a satisfactory system of internal review. The volume flowing through to external review can thus be expected to be greatly reduced. Furthermore experience indicates that the volume o f external appeals can be expected to decline from its initial

level following decisions on key issues by an authoritative body such as the AAT.

It should also be noted that in a significant proportion of cases dissatisfied parties can be expected to avail themselves of the informal and expeditious procedures of the Ombudsman’s office rather than initiate appeals to the external review authority.

Hence the information in the draft Submission does not persuade the Council that the volume of appeals to the AAT would be beyond its capacity given an appropriate increase in its resources. If experience were to prove otherwise consideration could be given to a two-tiered structure such as has been employed successfully in high-

volume jurisdictions such as Social Security and Veterans’ Affairs; but, as indicated above, the need for such action has not, in the Council’s view, been demonstrated.

The Council would, of course, expect that if the AAT were given jurisdiction in this area it would be provided with the resources necessary for this purpose. Given similar standards of decision-making, and hence similar procedures, the additional resources required by an existing body such as the AAT could be expected to be less

than those needed to establish a new and separate body.

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The second reason for the Council’s disagreement with the proposal to confer the external review function on the DPA is that it is proposed that the DPA will have substantial administrative functions, particularly in the area of data protection. The draft Submission indicates that it will ‘participate vigorously in the review, exchange, use and validity of data holdings’. Its proposed structure indicates that it is envisaged primarily as an administrative rather than an adjudicative body. Under the

Department’s proposal it would be responsible for adjudication in areas in which it is administratively involved. It would, as a review body, be neither truly external nor clearly independent. The conflict between its two roles is, in the Council’s opinion, inconsistent with the basic requirements of fair adjudication and would be unlikely to engender public confidence.

The Council notes that the draft Submission does not deal with the procedures for I conduct of reviews by the DPA other than to propose that the DPA have power to determine its own procedures and appeals policy and that ‘decisions on the various | areas will be categorised and made as appropriate by an individual executive officer

of the DPA, a panel of officers, an individual Commissioner of the DPA, or the full Commission of the DPA’. In particular no reference is made to public hearings, to the rights of parties to present their cases personally or to be represented, to an

applicant’s right of access to relevant documents, or to the mode of appointment and security of tenure of the persons who will have the responsibility of adjudication. In the Council’s opinion the draft Submission provides no grounds for confidence that the DPA, if established as proposed, would provide independent adjudication of the standard which has been accepted as necessary in other areas of Commonwealth administration.

The Council also notes that, as mentioned above, it is proposed that the DPA itself have certain administrative functions which appear capable of affecting the interests of individuals. However the draft Submission does not contain any proposals for external review of decisions of the DPA pursuant to those functions.

Finally the Council has noted the proposal in the draft Submission that ‘the » | provisions of the Freedom of Information Acts, Administrative Decisions (Judicial Review) Act and the Ombudsman Act would apply to Australia Card matters which would normally be within their jurisdiction or application’. The Council understands ; this to mean that no part of the Australia Card legislation would be excluded from

the operation of those Acts, and on this basis it supports this proposal.

The Council suggests that you may wish to make the Minister for Health aware of the advice submitted in this letter.

Yours sincerely,

E. J. L. TUCKER (Chairman)

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LETTER 11

A.C.T. SELF-GOVERNMENT—ADMINISTRATIVE REVIEW ASPECTS

The Council was invited to comment on proposals concerning administrative law which had been developed fo r consideration by the Implementation Steering Committee established by the Cabinet to oversee arrangements fo r the proposed A.C.T. Council.

Following the transmission o f this letter, the Council was informed that the administrative review measures proposed under self-government in the A.C.T. were to be the subject o f a Bill proposed fo r the 1986 Budget sittings. A s at 30 June 1986 it was unclear whether the self-government proposals were to proceed.

12 February 1986

Dear Attorney-General, The Administrative Review Council has recently been provided with papers prepared for the Implementation Steering Committee established by the Cabinet to oversee the

establishment of the proposed ACT Council. The papers discuss the application of administrative law measures under the proposed ACT Council. The Council has been invited to provide such comments as it is able to make within the time available.

The Implementation Steering Committee has not itself sought the views of the Administrative Review Council concerning the application of Commonwealth administrative law measures to the ACT Council Administration. The Administrative Review Council does, however, have an interest in the matter and, in submitting this

advice to you, it recommends that it be transmitted to your colleague the Minister for Territories for consideration by himself and the members of the Steering Committee. The Administrative Review Council understands that a sub-committee of the Cabinet is to consider the matter in the near future.

The proposals to which the Administrative Review Council addressed its comments in this letter are those set out in a discussion paper on administrative law prepared by officers of the Department of Territories. The matters in that paper on which the Council wishes to comment are those concerning the Administrative Appeals Tribunal, the Administrative Decisions (Judicial Review) Act, the Ombudsman and the Merit Protection and Review Agency. At the outset, however, the Administrative Review Council wishes to mention that it has had difficulty in commenting on the proposals

because of the lack of precision in the paper concerning the division of responsibility and authority between the various levels of the proposed new ACT Administration and their relationships with the Commonwealth Administration.

The Administrative Review Council also notes that there are competing considerations to be balanced in determining what the administrative law arrangements should be under the proposed ACT Council. On the one hand, there is the desire of the Commonwealth Government to grant to residents of the ACT a degree of autonomy over their own affairs. On the other hand, the residents of the ACT have enjoyed the

benefits of the administrative law reforms of the Commonwealth and it might be considered a retrograde step if those reforms were to be diluted in the ACT.

Administrative Appeals Tribunal

The paper notes that the Administrative Appeals Tribunal exercises jurisdiction in a number of areas in the ACT. Jurisdiction is conferred on the AAT either by ACT

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ordinance or by regulations made under an ordinance. The paper indicates that almost all of these jurisdictions involve decisions for which the ACT Council will ultimately become responsible. The paper concludes in relation to the AAT that there would seem to be little to be gained by the ACT Council if it were to establish its own system for review on the merits. Accordingly, the paper considers that the AAT is the proper review body for administrative decisions taken under laws of the ACT. The Administrative Review Council agrees with this view.

On the question of the mode of conferring jurisdiction on the AAT in relation to decisions taken under the laws of the ACT, the Administrative Review Council supports the approach set out in the discussion paper under which the definition of enactment in the AAT Act would be amended to include a law of the ACT Council.

In this way, particular laws of the ACT could provide for the making of applications to the AAT. However, as the Commonwealth Government would remain responsible for the provision of resources to the AAT and for oversight of its operations generally, arrangements would need to be made for consultation and co-ordination between the Commonwealth Government and ACT Council in relation to—

• proposals for conferring new ACT jurisdiction on the AAT; • proposals to modify the composition, procedures or powers of the AAT, pursuant to s. 25 of the AAT Act, for the purpose of its jurisdiction under particular laws of the ACT; • provision of personnel and other resources required by the AAT for the purposes

of its ACT jurisdiction; • selection of members as having particular knowledge or experience of matters falling within the ACT jurisdiction and, in particular, of the members of the

ACT Division of the AAT, if such a Division is established (you will recall that the Council advised you in its letter of 7 February 1985 that it saw merit in the creation of such a Division, as had been proposed by the President of the AAT); • any contributions to be required from the ACT Council to meet the costs

associated with the ACT jurisdiction of the AAT.

The Administrative Review Council considers it appropriate that its advice be sought before decisions are made in respect of the first two of the foregoing matters.

Administrative Decisions (Judicial Review) Act

The Administrative Review Council has some difficulty in coming to grips with what is proposed in the discussion paper concerning the Administrative Decisions (Judicial Review) Act. In particular, the Council has had difficulty in reconciling the two recommendations set out on page 5 of the paper.

The Council considers it appropriate that, upon the establishment of the ACT Council, the AD(JR) Act continue to apply according to its tenor. Thus the Act would continue to apply in relation to decisions of an administrative character made under Commonwealth laws, including existing ordinances of the ACT. Insofar as the legislation establishing the ACT Council provides for decisions under those laws and ordinances to be made by the ACT Council or by committees or officers of the Council, residents of the ACT would continue to have available to them the simplified means of redress provided for in the AD(JR) Act in relation to those decisions, notwithstanding the change in identity of the decision maker.

Where the ACT Council itself legislates on a particular matter and in that legislation provides for decisions of an administrative character to be made, it is the view of the Administrative Review Council that the AD(JR) Act should also apply in relation to

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those decisions, although it would be appropriate for the AD(JR) Act to cease to apply to such decisions should the ACT Council provide under its own laws for judicial review by the ACT Supreme Court. An amendment of the definition of ‘enactment’ in section 3 of the AD(JR) Act would be necessary if that Act were to apply in relation

to laws made by the ACT Council. Special provision will be necessary if the ACT Council is to be empowered to confer jurisdiction on the ACT Supreme Court.

Ombudsman

• The Administrative Review Council affirms the value of the Ombudsman jurisdiction to ACT residents and emphasises that in its view there should be no diminution in the extent and effectiveness of that jurisdiction as a result of the establishment of the ACT Council. The Administrative Review Council recognises the desirability of there

being separate identification of an Ombudsman for the ACT and would support the ACT Council having the power to provide for this by enactment. The Administrative Review Council also recognises the practical advantages of that jurisdiction being vested in the Commonwealth Ombudsman. Whatever arrangement the ACT Council might

ultimately adopt, the Administrative Review Council believes that in the interim the Commonwealth Ombudsman’s jurisdiction should continue in force unrestricted and that, if amendment of the Commonwealth legislation is necessary for this purpose, those amendments should be put in train.

The Administrative Review Council notes that, if the office of ACT Ombudsman is established and its jurisdiction conferred on the Commonwealth Ombudsman, it will be necessary to give attention to the reporting arrangements under sections 15, 16 and 17 of the Ombudsman Act. Decisions will be necessary as to the addressing of the reports, both under interim arrangements and in the longer term. It is not

possible for the Council to give more specific advice on this point at present, because of the uncertainty as to the proposed division of responsibility for administrative actions under the new arrangements.

Merit Protection and Review Agency

The discussion paper concludes that the ACT Council should have the option of invoking the appeal and review processes of the Merit Protection and Review Agency which now operates in relation to the Australian Public Service. The Administrative Review Council would expect that the operation of the MPRA in respect of the ACT

Council would be a matter that is the subject of detailed consultation with management and staff organisation representatives. The Administrative Review Council has not yet undertaken a study of the administrative review aspects of the operations of the MPRA (it expects to commence such a study later this year). Hence it is unable to express a firm view at this stage as to the proposal in the discussion paper. However

it does not support the proliferation of administrative review agencies, and sees the proposal as a means by which unnecessary proliferation may be avoided.

The comments previously made about the need for consultations to take place between the Commonwealth Government and the ACT Council in relation to the conferral of ACT jurisdiction on the AAT and in relation to the costs involved apply equally to any performance by the Ombudsman or the MPRA of functions in relation

to the ACT Council.

Yours sincerely,

E. J. L. TUCKER (Chairman)

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LETTER 12

CUSTOMS (PR O H IB IT E D IM PORTS) R EG U LA TIO N S—CUSTOMS (PROHIBITED EXPORTS) REGULATIONS—TRADE PRACTICES ACT 1974—ALLEGED INCONSISTENCY BETWEEN REVIEW OF DECISIONS ON IMPORT OR EXPORT OF PROHIBITED GOODS AND UNSAFE PRODUCTS LEGISLATION

In its Report No. 23, Review o f Customs and Excise Decisions: Stage Two, the Council recommended that decisions relating to the import or export o f prohibited goods should be subject to review by the AAT. The Office o f Consumer Affairs wrote to the Attorney- General’s Department on 17 December 1985 suggesting that there was a potential for inconsistency between the Customs (Prohibited Imports) Regulations and the Trade Practices Act 1974 as a result o f the Council’s recommendation. The matter was referred

to the Council for advice by the Attorney-General’ s Department and the Council’ s advice was provided on 15 March 1986.

13 March 1986

Dear Attorney-General,

Relationship Between Unsafe Products Legislation and A R C Report No. 23

On 23 January 1986 your Department wrote (Ref: M85/8820) to the Council’s Director of Research enclosing a minute from the Director of the Consumer Legislation Section in the Office of Consumer Affairs. The Department sought comments on questions raised by the Office about the relationship between existing and proposed legislation dealing with unsafe products on the one hand, and the Customs (Prohibited Imports) Regulations (‘the Imports Regulations’) and the Customs (Prohibited Exports) Regulations (‘the Exports Regulations’) on the other hand.

In its Report No. 23, Review o f Customs and Excise Decisions: Stage Two, the Council recommended that decisions relating to an application for permission to import or export a prohibited good (including decisions taken by the Minister under the Imports Regulations and the Exports Regulations) should be subject to review on the merits by the AAT (Recommendation 5). In its memorandum the Office of Consumer Affairs said that there was a potential for inconsistency to arise between such review decisions and the unsafe products legislation. The inconsistency could arise, the Office stated, because it was possible for a good to be an unsafe good by virtue of the provisions of the Trade Practices Act 1974, and therefore for certain dealings with the good to be prohibited under the Act, and at the same time for the import or export of the good to be allowed following a decision of the AAT made in the exercise of its jurisdiction to review decisions refusing to approve the import or export of the good. This set of circumstances was possible, the Office stated, because requests are sometimes made to Customs to have unsafe goods included in the Imports Regulations, and the Office gave examples of this having occurred.

In the first place the Council comments that the supposed inconsistency could not be said to arise out of the proposed provision for review of particular decisions. If there is an inconsistency at all, it arises out of the power of the Minister under

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the Imports Regulations and Exports Regulations to grant permission for the import or export of unsafe goods.

However, the Council does not consider that there is any necessary inconsistency between the unsafe goods legislation on the one hand and the Customs legislation on the other hand. The unsafe goods legislation and the Customs legislation have different purposes and operate independently of one another. Thus, section 62(1) of the Trade Practices Act is designed to protect consumers by prohibiting a corporation,

in trade or commerce, from supplying unsafe goods that are intended to be used, or are of a kind likely to be used, by a consumer. It would not be inconsistent with this provision (nor with the proposed new section 65C set out in the Trade Practices

Amendment Bill 1985) to import unsafe goods that were not intended to be used, or were not of a kind likely to be used, by a consumer. Nor would it be inconsistent with the existing or proposed Trade Practices provision to import unsafe goods that were intended to be used, or were of a kind likely to be used by a consumer if those goods were not supplied within the meaning of the Trade Practices Act. Hence, if

an unsafe good were to be made a prohibited import, a person who had obtained the necessary permission (whether granted by the Minister for Industry, Technology and Commerce at first instance or following a review by the AAT) could import the good without necessarily infringing the Trade Practices Act.

Yours sincerely,

E. J. L. TUCKER (Chairman)

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LETTER 13

A.R.C. REPORT NO. 23—REVIEW OF CUSTOMS AND EXCISE DECISIONS: STAGE TWO—EXPORT OF PROHIBITED GOODS

The Attorney-General wrote to the Council on 11 March 1986 seeking the Council’ s view on matters raised by the Minister o f Defence concerning the recommendations made by the Council in Report No. 23 as to review o f decisions concerning the export o f prohibited goods.

20 March 1986

Dear Attorney-General, On 11 March 1986 you sought the Council’s views on comments made in a letter sent to you by the Minister for Defence concerning the Council’s Report No. 23, Review o f Customs and Excise Decisions: Stage Two. The particular matters on which you sought the Council’s views are the Minister’s comments on the Council’s recommendations concerning the export of prohibited goods.

I note the support of the Minister for the proposal described in paragraph 89 of the report that the Minister should be empowered to issue a certificate which would have the effect of excluding a particular decision concerning the import or export of prohibited goods from review on the merits. I note also the Minister’s concern to ensure that the application of section 13 of the Administrative Decisions (Judicial Review) Act to decisions denying export or import of goods and excluding review on the merits would not necessitate the disclosure of sensitive information. You have not requested the Council’s comments on this matter but it seems appropriate to mention section

14 of the Act. That section provides that, if the Attorney-General certifies that the disclosure of certain information would be contrary to the public interest, the information is not required to be included in any statement given under section 13. The Attorney-General may so certify where, for example, the disclosure of the information would be contrary to the public interest by reason that it would prejudice the security, defence or international relations of Australia (s. 14(l)(a)).

The proposed mechanism for denying review on the merits of particular decisions by means of the issue of a ministerial certificate meets the Minister’s concern that the export of a specific item could be prohibited for foreign policy, defence or security reasons, or in compliance with the Government’s international obligations such as a UN-sponsored trade embargo. Recommendation 6 of the Council’s report envisages that certificates will be issued by the particular Minister within whose portfolio decisions are made to grant or refuse permission to import or export particular goods.

This proposal envisages that a certificate excluding a particular decision from review on the merits may be issued either for one reason alone or for a combination of reasons, provided the Minister is of the opinion that it is in the public interest that responsibility for the decision should remain with the Minister.

Yours sincerely,

E. J. L. TUCKER (Chairman)

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LETTER 14

CUSTOMS AND EXCISE LEGISLATION AMENDMENT BILL 1986—REVIEW OF DISCRETIONS BY AAT

This Bill was referred to the Council fo r advice by the Attorney-General’ s Department on 20 March 1986. The Council’ s letter o f advice o f 7 April 1986 is self explanatory as to the matters relating to review by the A A T contained in the Bill and the Principal Act.

7 April 1986

Dear Attorney-General, On 20 March 1986 the Courts and Administrative Law Branch of your Department forwarded to the Council a copy of the Customs and Excise Legislation Amendment Bill 1986. The Council was asked to consider whether certain discretions provided for in Part III of the Bill and other discretions provided for in Part XVA of the Customs Act 1901 should be subject to review by the Administrative Appeals Tribunal.

Part XVA of the Customs Act relates to the making by the Comptroller-General of Customs of Commercial Tariff Concession Orders. This Part (with the exception of sub-sections 269P(2A) and (2B)) was not dealt with by the Council in its Report No. 23, Review o f Customs and Excise Decisions: Stage Two. The reason for this was as follows. The Council had in its earlier Report on Review o f Import Control and

Customs By-Law Decisions dealt with the use of Customs by-laws under s. 271 of the Act and Ministerial determinations under s. 273 of the Act to reduce or eliminate the protective effect of the tariff where there were no Australian-made goods to compete

with the imported goods. The Council had recommended in that Report that decisions to grant, refuse or revoke one of these by-laws or Ministerial determinations should be reviewable by the Industries Assistance Commission. Following that Report a new

system for the granting of tariff concessions was introduced. The new system was given legal force when Part XVA was inserted into the Act with effect from 1 July 1983. Under the new system there is a system of internal review of tariff concession decisions (see second reading speech of Minister, Parliamentary Debates, House of

Representatives, 11 May 1983, p. 402) and review by the IAC (s. 269R). Although the scheme commented on by the Council in its report on Review o f Import Control and Customs By-Law Decisions was not the scheme that now operates under Part XVA of the Act, it had sufficient similarity to enable the Council to say in paragraph 6 of its later Report No. 23 that ‘by-law decisions (including decisions under Part XVA of the Act . . .)’ were dealt with in the earlier Report. Importantly, of course, the new Part XVA implements the recommendation made by the Council in the earlier Report that decisions in relation to the making or revoking of the by-laws concerned should be reviewable by the IAC.

In the light of the consideration given by the Council to review of tariff concession decisions in its Report on Review o f Import Control and Customs By-Law Decisions and, in particular, in the light of the discussion in that Report of the question of the appropriateness of review by the Administrative Appeals Tribunal, the Council considers that there is no necessity for it to examine further the questions of review

of those decisions under Part XVA of the Act. However, if any difficulty has arisen in applying its earlier recommendations to the current provisions of the Act, the Council would be pleased to give further advice on request.

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The· following comments are made on the Customs and Excise Legislation [mendment Bill 1986:

• A decision of the Minister for Arts, Heritage and Environment under proposed sub-section 203A(l) of the Customs Act (clause 11 of the Bill) in relation to the issuing of a notice under that sub-section is a preliminary decision which ! does not itself affect the rights or interests of individuals to a significant extent. A decision under the sub-section ought not to be reviewable on the merits.

• A decision of an officer under proposed sub-section 203A(2) of the Act (clause 11 of the Bill) to seize objects is a decision of a law enforcement nature and should not be subject to review on the merits (see Report No. 23, Review of Customs and Excise Decisions: Stage Two, paras 162-163). This is because, by virtue of sub-clause 27(2) of the Protection o f Movable Cultural Heritage Bill

1986, objects so seized are deemed to be seized under that Bill and there is a procedure in clause 37 of that Bill for recovery actions in a court in respect of : objects seized under that Bill.

• Under proposed sub-section 269B(8) of the Customs Act (clause 14 of the Customs and Excise Legislation Amendment Bill 1986) the Comptroller may be satisfied as to the lack of significant cross-elasticity of demand between works. i“ This somewhat byzantine provision is a parallel provision to sub-section 269B(4) t of the Act concerning the lack of a significant cross-elasticity of demand between j goods. The Comptroller’s satisfaction under sub-section 269B(4) is not subject to review on the merits because it is a preliminary matter to a decision to make I a commercial tariff concession order. The Council accordingly does not 1 recommend that the Comptroller’s satisfaction under proposed sub-section t j 269B(8) be subject to review on the merits.

• The other discretionary provisions proposed for insertion in the Act (clauses 15 and 16) relate to tariff concession decisions and, for the reasons outlined above concerning other tariff concession decisions under Part XVA, the Council recommends that these decisions be subject to review on the merits by the 1

Industries Assistance Commission exercising recommendatory rather than determinative power.

• There are no other decision making powers for which provision is made in the Bill.

Yours sincerely,

E. J. L. TUCKER (Chairman)

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LETTER 15

ELECTRICITY (AMENDMENT) ORDINANCE 1985 (A.C.T.)—PROHIBITION OR REGULATION OF ARTICLES OF ELECTRICAL EQUIPMENT

This matter was referred to the Council fo r advice following the objection o f the Senate Standing Committee on Regulations and Ordinances to the omission o f review provisions in relation to the prohibition and control under the Ordinance o f articles o f electrical equipment. The Council had given advice during the preparation o f amendments to

the trade practices legislation dealing with product safety and product information (see letter 6) and the query was raised whether the scheme to be set up in the A.C.T. pursuant to this Ordinance should reflect the provisions o f the trade practices legislation.

20 June 1986

Dear Attorney-General, On 22 April 1986 your Department wrote to the Council (Ref: JA-85-7952) seeking its views regarding an appropriate review mechanism in relation to the prohibition

and control of articles of electrical equipment under the Electricity Ordinance 1971 (A.C.T.). The provisions relating to the prohibition and control on safety grounds of dealings with articles were introduced into the Ordinance by the Electricity (Amendment) Ordinance 1985. Those provisions are now in force but the powers concerned have not been exercised. The Senate Standing Committee on Regulations

and Ordinances objected to the omission of review provisions from the Ordinance and an undertaking has been given to the Committee on behalf of the Minister for Territories that the Ordinance will be amended to insert procedures for review, consultation or scrutiny.

The Department of Territories has expressed the view that the provisions of the Ordinance should align with the provisions of the Trade Practices Act 1974 which now provides for a system of consumer product safety control in the new Division 1A (‘Product Safety and Product Information’). The new Division 1A provides for

conferences of interested parties to be convened at a supplier’s request by the Trade Practices Commission (the TPC’) where the Minister proposes to declare goods unsafe, permanently ban goods or require their recall or the public notification of defects in them. The conference procedure complies with natural justice procedures (s. 65 J(7))

and the Minister is obliged to have regard to the TPC’s recommendation following a conference (s. 65P(a)), but may act otherwise than in accordance with the recommendation, in which case reasons must be gazetted (s. 65P(b)). An exception to this procedure has been established for situations where it appears to the Minister

that goods create an imminent risk of death, serious illness or serious injury. In such cases, the Minister may certify that a notice declaring that the goods are unsafe or that they be recalled (s. 65L) or that other specified action be taken, be published without delay, and the conference procedure outlined above follows.

The Council did not consider it necessary to provide for review on the merits of decisions concerning product safety under the new Division 1A of the Trade Practices Act. This was principally because the adjudication processes under the conference procedure of the TPC will afford a supplier an opportunity of being heard by an

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appropriate body before decisions are made. The Council also took account of the fact that the Minister is required to have regard to the TPC’s recommendation following a conference, although he is not obliged to act in accordance with that recommendation (s. 65P). If the Minister acts otherwise than in accordance with the recommendation, his reasons for so acting are required to be published in the Gazette (s. 65P(b)). The Act in this way provides a mechanism of political accountability.

The Electricity Ordinance applies to articles of electrical equipment, some of which may also be dealt with pursuant to the trade practices legislation. Under the Ordinance, the Australian Capital Territory Electricity Authority is empowered to set up a safety registration scheme for electrical articles. In particular, it may make decisions under

section 32C to declare articles of electrical equipment to be prohibited articles, in which case a person who deals with such equipment is guilty to an offence; and under section 32D it may prescribe specified articles of electrical equipment, in which case

it must specify safety standards with which such articles must comply. The Council notes that, pursuant to section 32(3), declarations of compliance registered under corresponding laws of a State or Territory will apply automatically to articles manufactured in or imported into the Australian Capital Territory if such articles are prescribed under section 32D(1) of the Ordinance or under the Electricity Development Act 1945 (NSW), unless specifically htot prescribed’ in the A.C.T. (s. 32D(4)).

In the present instance, a conference procedure is not practicable. The Trade Practices Commission is not an appropriate body to conduct conferences concerning the sale of electrical articles in the Australian Capital Territory, and there is no equivalent body in the Territory to perform this function.

Even if a conference procedure were to be introduced, it would not have the same effect, in some respects, as the trade practices model. If, in accordance with the trade practices model, the Authority were to be required to publish in the Gazette its reasons for not implementing recommendations made by the convenor of the conference, that publication would not have the same effect as under the Trade Practices Act because the Authority is not politically accountable in the same way as the Minister under that Act.

The Council also notes that the conference procedure could militate against speedy and simple action in regard to articles prohibited elsewhere or against a prompt declaration that articles of electrical equipment in regard to which a declaration of compliance had been registered elsewhere are prescribed articles in the A.C.T.

In any event, the need for inquiry or consultative mechanisms in the Territory would not arise in many cases. The Council would expect that many decisions concerning consumer product safety control that are taken under the Ordinance would take into account investigations that had taken place and decisions that had been taken in other parts of Australia.

In these circumstances, the Council considers it appropriate that decisions taken under sections 32C and 32D should be subject to review on the merits by the Administrative Appeals Tribunal. The Council notes the advice of the Department that neither the Authority nor the Department would have any objection to a right of appeal to the AAT, and it is noted also that a number of other decisions which can be taken under the Ordinance are already subject to AAT review pursuant to section

32ZD e.g. decisions refusing to register or cancelling the registration of a person as an approved first seller, decisions refusing to register or suspending or cancelling the registration of a declaration of compliance and decisions refusing to approve or cancelling the approval of premises as a testing laboratory for the purposes of the Ordinance.

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Moreover, various decisions which may be taken under the Consumer Affairs Ordinance 1973 and which could have similar effect to decisions taken under sections 32C and 32D are reviewable by the AAT, e.g., where the Consumer Affairs Council has commenced an investigation of consumer goods, the Minister may prohibit the supply of those goods in order to prevent or reduce the risk of injury to a person, pending completion of the investigation (s. 15FB), and the Minister may make consumer product safety orders which prohibit or impose conditions on the supply of goods (s. 15FC). The Council considers it undesirable that the reviewability of

otherwise equivalent action should depend upon the particular legislative provisions authorising the action, and consistency in these circumstances would require that the decisions under sections 32C and 32D be reviewable by the AAT.

The Council considers such decisions prima facie appropriate for review on the merits. An important criterion for reviewability on the merits is that the rights or interests of individuals may be affected to a significant extent by decisions of the kind in question (ARC Eighth Annual Report 1983-84, para. 39) and it would appear that decisions taken under either section 32C or 32D could significantly affect the business affairs of persons dealing with the articles concerned.

It was suggested by the Acting Minister for Territories, in his letter to the Senate Standing Committee on Regulations and Ordinances, that such decisions might not be appropriate for review on the merits on the grounds that a decision based on considerations of public health or safety which needs to be made with speed and

certainty is not appropriate for such review. However, such an appeal right is not incompatible with the swift, decisive action required in a situation where there is a possibility of danger to the public. AAT review of decisions under the Ordinance would not jeopardise the certainty of a decision which has been made swiftly due to a

perceived risk to public health and safety. In an emergency situation, appropriate action could be taken by way of a prompt declaration by the Authority. The decision made by it could only be changed by the granting of a stay order by the AAT under sub­ section 41(2) of the Administrative Appeals Tribunal Act 1975. However, the AAT has

held that a stay order is not appropriate where the safety of persons or property could be endangered if the stay order were to be made, or where the public interest would not be adversely affected by refusing the order: Re Ramsay and Department o f Transport (1977) 2 ALD 97.

The kind of decision which could be made pursuant to the Ordinance in a situation of imminent public danger is to be distinguished from decisions which are not remediable and which are generally regarded as inappropriate for AAT review, such as a decision made in an emergency situation under quarantine laws. Moreover, the

AAT currently exercises several jurisdictions which have implications for public health and safety—e.g. Air Navigation Regulations, Dangerous Goods Ordinance 1984, Narcotic Drugs Act 1967, Therapeutic Goods Act 1966. Other categories of decisions previously identified by the Council (ARC Eighth Annual Report 1983-84, para. 41)

as inappropriate for AAT review, notwithstanding that they affect rights and interests to a significant extent, include decisions where the only possible remedy could not in practice be made effective retrospectively, and decisions which are irrevocable. The decisions able to be taken pursuant to the Ordinance would not appear to fall into

either of these categories.

Yours sincerely,

E. J. L. TUCKER (Chairman)

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APPENDIX 2

BIBLIOGRAPHY OF PUBLICATIONS RELATING TO ADMINISTRATIVE LAW AND PUBLIC ADMINISTRATION

ADMINISTRATIVE LAW AND REVIEW

Australian reforms

‘Inauguration of the Administrative Appeals Tribunal of Victoria’ (1985) 59 Australian Law Journal 696 CRADDOCK, Gerard ‘The new administrative law: you remain my obedient servant?’ (1985) 10 Legal

Service Bulletin 184 CURTIS, Lindsay ‘The impact of recent administrative law reform on public sector managers’ 55 (1985) Australian Accountant 18 GRIFFITHS, John

‘Administrative law and the administration of tertiary educational institutions’, unpublished paper delivered at the 1985 National Conference of the Australian Institute of Tertiary Educational Administrators, Brisbane, 31 August 1985 ‘Australian administrative law: institutions, reforms and impact’ (1985) 63 Public

Administration 455 SADLER, Robert ‘The new Victorian “administrative law”—or is it? Some fundamental considerations’ (1986) 60 Law Institute Journal 196 SHARPE, Jennifer M.

‘Acting under dictation and the Administrative Appeals Tribunal’s policy review powers: how tight is the fit?’ (1985) 15 Federal Law Review 109 VETERANS’ REVIEW BOARD VeRBosity, Vol 1 No 1, January 1985, and following

General

ALLAN, T. R. S. ‘Abuse of power and public interest immunity: justice, rights and truth’ (1985) 101 Law Quarterly Review 200 BAKER, Paul

‘Stop the charge—I want to get off’ (1985) 59 Law Institute Journal 313 BRAZIL, Pat ‘Lawyers in government service: the Commonwealth scene in 1985’ (1985) XII Canberra Bulletin o f Public Administration 159

BROWN, R. A. The constitutionality of service tribunals under the Defence Force Discipline Act 1982’ (1985) 59 Australian Law Journal 319 COUNCIL ON TRIBUNALS

The Annual Report o f the Council on Tribunals fo r 1984/85, Her Majesty’s Stationery Office, London, 1985

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DZIUBLA, Robert W. 'The impotent sword of Japanese justice: the doctrine of Shobunsei as a barrier to administrative litigation’ (1985) Cornell International Law Journal 37 GOLDRING, John

‘Public law and accountability of government’ (1985) 15 Federal Law Review 1 I GZELL, I. V. ‘Administrative law remedies’ (1985) 20 Taxation in Australia 358 ‘Objections and beyond!’, unpublished paper presented to the Taxation Institute

of Australia (S.A.) Northern Territory Convention, 4 June 1985 HUTCHINSON, A. C. ‘The rise and ruse of administrative law and scholarship’ (1985) 48 Modern Law j Review 293 LAW REFORM COMMISSION OF CANADA

The legal status o f the federal administration, The Commission, Ottawa, 1985 LOMAS, Owen Twenty-fifth Annual Report of the Council on Tribunals—an opportunity sadly missed’ (1985) 48 Modern Law Review 694 LUPTON, Keith M.

‘Legal professional privilege in administrative proceedings: Baker v Campbell’ (1985) 10 Sydney Law Review 614 MORGAN, David ‘The Broadcasting and Television Amendment Bill’ (1985) 5 Communications

Law Bulletin 33 NICHOLSON, R. D. ‘Administrative law: income taxation’ (1985) 13 Australian Business Law Review 94 ‘Administrative law: supply of business information to government’ (1985) 13

Australian Business Law Review 295 OPAS, P. Η. N. ‘Representation of parties before tribunals’ (1985) 59 Australian Law Journal 463 RICHARDSON, Jack (

‘Lawyers should make more use of administrative channels’, 1985 Sir Samuel 1 Griffith Memorial Lecture, reported at (1985) 20(5) Australian Law News 18 RUSSELL, David “Practical administrative law remedies’, unpublished paper presented to the 20th

Annual State Convention of the Taxation Institute of Australia (W.A.), 1985 SANTAMARIA, Joseph Taxation and the review of administration’ (1985) 55 Australian Accountant 35

Social security

DISNEY, Julian “Welfare rights: a contradiction in terms?’ (1985) 59 Australian Law Journal 529 HUGHES, R. W. ‘Social Security Appeals Tribunals: independence vs DSS member?’ (1985) 10

Legal Service Bulletin 280 The Social Security Appeals Tribunal in Queensland, 1981-85’ (1985) Social Security Journal 42

124

MOON, Gillian ‘Compensation and social security: do lawyers understand?’ (1985) 10 Legal Service Bulletin 181 SWEENEY, Deborah

‘Recovery of social security overpayments’ (1984) 7 University o f N.S.W. Law Journal 317 WELFARE RIGHTS CENTRE (CANBERRA) LTD. The Annotated Social Security Act 1947, 3rd ed, 1986

Immigration

FLICK, Geoffrey A. ‘Immigration appeals’ (1985) 59 Australian Law Journal 427 SORNARAJAH, M. ‘Deportation of aliens and immigrants from Australia’ (1985) 34 International

and Comparative Law Quarterly 498 VINCENZ1, L. ‘Aliens and judicial review of immigration law’ (1985) Public Law 93

JUDICIAL REVIEW

DOWNEY, P. J. ‘The game’s the thing’ (1985) New Zealand Law Journal 217 DREYFUS, Mark ‘Nursing home fee determinations: judicial supervision of departmental

procedure’ (1985) 15 Federal Law Review 89 ENRIGHT, Christopher Judicial review o f administrative action, Branxton Press, Sydney, 1985 FRIEND, L.

‘Judicial review, private rights and community law’ (1985) Public Law 21 GRIFFITH, J. A. G. ‘Judicial decision-making in public law’ (1985) Public Law 564 GRIFFITHS, John

The AD(JR) Act—the latest case law’, unpublished paper delivered at a seminar on administrative law organised by the Victorian Law Institute, Melbourne, 26 September 1985 HENNESSY, Nancy and John GOLDRING

‘Administrative character’ (1985) Australian Law Journal 659 JOHNSON, Graeme “Natural justice and legitimate expectations in Australia’ (1985) Federal Law Review 39

KEITH, K. J. ‘A Bill of Rights for New Zealand? Judicial review versus democracy’(1985) 11 New Zealand Universities Law Review 307 LEGAL RESEARCH FOUNDATION INC.

Judicial review o f administrative action in the 1980s—prospects and problems, papers presented at a seminar at the University of Auckland, 20-21 February 1986, to be published by Oxford University Press

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McFARLANE, Gavin ‘GCHQ: the royal prerogative and powers of review’ (1985) 129 Solicitors’ Journal I 141 SMITH, Loren A.

‘Judicialization: the twilight of administrative law’ (1985) Duke Law Journal 427 STARKE, J. G. ‘Recent cases: administrative law’ (1985) 59 Australian Law Journal 176 SWEENEY, C. A.

‘Judicial review of decisions in taxation matters: revenue note’ (1985) 59 Australian Law Journal 570 WADE, H. W. R. Trocedure and prerogative in public law’ (1985) 101 Law Quarterly Review 180 j WESLEY-SMITH, Peter

‘Judicial review of prerogative action’ (1985) 11 New Zealand Universities Law Review 323 I

FREEDOM OF INFORMATION

BAYNE, Peter TOI: the public interest in disclosure and non-disclosure’ (1985) 10 Legal Service Bulletin 147 ‘Freedom of information: recent developments’ (1985) 10 Legal Service Bulletin 45 CAVANOUGH, Tony

‘Freedom of information and official investigations’ (1985) 59 Law Institute Journal 230 DURIE, Robyn The Freedom of Information Act, the ABT and ABT 12 forms’ (1985) 5

Communications Law Bulletin 21 NORMAN, Peter J. ‘Access to corporate information via the FOI Act 1982 (Cth)’ (1985) Australian Current Law 36071

OMBUDSMAN

AUSTRALIAN GOVERNMENT PUBLISHING SERVICE Commonwealth Ombudsman and Defence Force Ombudsman, Annual Reports 1984-85 RICHARDSON, Jack E. and Kevin SAINSBURY

The Commonwealth Ombudsman and the Australian Taxation Office’ (1985) 20 Taxation in Australia 299 ROYAL AUSTRALIAN INSTITUTE OF PUBLIC ADMINISTRATION (RAIPA) The Ombudsman through the looking glass’, proceedings of a seminar at the

Australian National University on 7 September 1985 (1985), XII(4) Canberra Bulletin o f Public Administration

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APPENDIX 3

ADMINISTRATIVE APPEALS TRIBUNAL MEMBERSHIP

A s a t 3 0 J u n e 1 9 8 6 , t h e T r i b u n a l h a d t h e f o l l o w i n g m e m b e r s :

Australian Capital Territory

J u d g e s o f t h e F e d e r a l C o u r t

D e p u ty P r e s i d e n t s

S e n io r M e m b e r s

M e m b e r s

T h e H o n o u r a b l e M r J u s t i c e J. D . D a v i e s ( P r e s i d e n t )

T h e H o n o u r a b l e M r J u s t i c e J. F. G a l l o p

T h e H o n o u r a b l e M r J u s t i c e A . R . N e a v e s

D e p u t y P r e s i d e n t A . N . H a l l

D e p u t y P r e s i d e n t R . K . T o d d

M r J. O . B a l l a r d

M r E S m i t h , O .B .E .

M r J. D . H o r r i g a n

D r D . B. T r a v e r s

M r N . A t t w o o d , A .O .f

D r E . S t e p h e n s o n , A .O *

New South Wales

J u d g e s o f t h e F e d e r a l C o u r t

J u d g e o f t h e F a m i l y C o u r t

D e p u t y P r e s i d e n t s

S e n i o r M e m b e r s

M e m b e r s

T h e H o n o u r a b l e M r J u s t i c e T. R . M o r l i n g

T h e H o n o u r a b l e M r J u s t i c e B. A . B e a u m o n t

T h e H o n o u r a b l e M r J u s t i c e R . N . J . P u r v i s

D e p u t y P r e s i d e n t W . R . M c C o m a s

M r J u s t i c e D . G . S t e w a r t

D e p u t y P r e s i d e n t C . J. B a n n o n , Q .C .

M r B . J . M c M a h o n

M r W . A . G . E n r i g h t

S ir W i l l i a m P r e n t i c e , M .B .E .

D r R . A . H a y e s

D r A . P. R e n o u f , O .B .E .

D r D . J . H o w e l l

M r C . A . W o o d l e y

M is s M . S . M c L e l l a n d

M r s J . H . M c C l i n t o c k , A .M .

M r C . J. S te v e n s

M r . G . R . T a y lo r

D r H . D . B r o w n e

M r G . P . N i c h o l l s

M s G . F. S u t t o n

B r i g a d i e r J. H o o p e r , C .B .E ., R .L .*

M r T . R . R u s s e ll*

M r S . C r a w s h a w *

D r Μ . E . C . T h o r p e *

M s Μ . T. L e w is !

127

Victoria

J u d g e s o f t h e F e d e r a l C o u r t

D e p u t y P r e s i d e n t

S e n i o r M e m b e r s

M e m b e r s

Queensland

J u d g e s o f t h e F e d e r a l C o u r t

D e p u t y P r e s i d e n t

S e n i o r M e m b e r

M e m b e r s

Western Australia

J u d g e o f t h e F e d e r a l C o u r t

D e p u t y P r e s i d e n t

M e m b e r s

South Australia

J u d g e o f t h e F e d e r a l C o u r t

D e p u t y P r e s i d e n t

T h e H o n o u r a b l e M r J u s t i c e J . K . J e n k i n s o n

T h e H o n o u r a b l e M r J u s t i c e P . R . A . G r a y

D e p u t y P r e s i d e n t I. R . T h o m p s o n

M r s R . A . B a l m f o r d

M r J . R . D w y e r

M r s Η . E . H a l l o w e s

S i r E r n e s t C o a t e s , C .M .G .

M r R . A . S i n c l a i r

D r H . W . G a r l i c k , A .M .

M r L . J. C o h n

M r H . C . T r i n i c k

M r G . F. B r e w e r

M r J . H . W i l s o n

M s L . S . R o d o p o u l o s

D r D . M . S u t h e r l a n d

P r o f e s s o r R . W . W e b s te r

C o m m o d o r e B. G . G i b b s , A . M . , R . A . N . R et.*

M r A . A r g e n t *

M r s J . M a h e r *

D r J . B. M o r le y *

M r C . G . W o o d a r d

T h e H o n o u r a b l e M r J u s t i c e C . W . P i n c u s

T h e H o n o u r a b l e M r J u s t i c e J. E . J. S p e n d e r

D e p u t y P r e s i d e n t D . P . B r e e n

T h e H o n o u r a b l e J. B. K . W i l l i a m s , C .B .E .

D r N . C . D a v is , A .O .

M r W . A . D e M a r i a

M r s Η . M . P a v lin

D r J . F r a n c i s *

B r i g a d i e r T. R . G i b s o n , R .L .*

B r i g a d i e r I. R . W . B r u m f i e l d , C . B . E . , D .S .O ., R .L .*

T h e H o n o u r a b l e M r J u s t i c e J . L . T o o h e y , A .O .

D e p u t y P r e s i d e n t R . D . N i c h o l s o n

M r I. A . W i l k i n s

D r J. G . B illin g s

D r N . M a r i n o v i c h f

M a j o r - G e n e r a l K . J . T a y lo r, R .L .J

D r P. A . S t a e r f

T h e H o n o u r a b l e M r J u s t i c e F. R . F i s h e r

D e p u t y P r e s i d e n t R . A . L a y t o n

128

S e n io r M e m b e r

M e m b e rs

M r J . A . K i o s o g l o u s , M .B .E .

M r F. A . P a s c o e , A . M .

M r B. C . L o c k

D r J . T . B . L i n n

D r D . B. W i l l i a m s

M r R . B. R o g e r s *

D r D . D o w ie *

Tasmania

D e p u t y P r e s i d e n t

M e m b e r s

D e p u t y P r e s i d e n t R . C . J e n n i n g s , Q .C .

D r W . M c L a r e n T h o m s o n !

M r D . K e a r n e y , A . M . t

* A s s i g n e d t o V e t e r a n s ’ A p p e a l s D i v i s i o n o n l y

t A s s i g n e d t o V e t e r a n s ’ A p p e a l s D i v i s i o n a n d G e n e r a l A d m i n i s t r a t i v e D i v i s i o n

129

APPENDIX 4

ADMINISTRATIVE APPEALS TRIBUNAL JURISDICTION

D E C I S I O N S S U B J E C T T O R E V I E W

T h e f o l lo w in g lis t is a s u m m a r y o f t h e p a r t i c u l a r p r o v i s i o n s u n d e r w h i c h d e c i s i o n s m a y b e m a d e

t h a t a r e s u b j e c t t o r e v ie w b y t h e A A T a s a t 1 J u l y 1 9 8 6 . I t h a s b e e n s u p p l i e d b y t h e R e g is tra r.

I t s h o u l d b e n o t e d t h a t a s n e w j u r i s d i c t i o n s a r e v e s t e d i n t h e A A T f r o m t i m e t o t i m e it

is lik e ly t h a t f u r t h e r j u r i s d i c t i o n s h a v e b e e n v e s t e d s i n c e t h i s l is t w a s p r e p a r e d . A d v i c e o n th is

a s p e c t c a n b e o b t a i n e d f r o m t h e A A T r e g i s t r i e s .

C O N T E N T S

T h e lis t is a r r a n g e d a l p h a b e t i c a l l y b y s h o r t t i t l e o f e n a c t m e n t a n d g iv e s t h e f o llo w in g

i n f o r m a t i o n —

1. t h e p r i n c i p a l e n a c t m e n t u n d e r w h i c h t h e A A T h a s j u r i s d i c t i o n in b o l d ty p e ;

2 . t h e p r o v i s i o n ( s ) w h i c h v e s t ( s ) j u r i s d i c t i o n i n t h e A A T i t a l i c i s e d . T h e n u m b e r a n d y e a r

o f t h e e n a c t m e n t ( s ) w h i c h i n t r o d u c e d a n d a m e n d e d t h i s p r o v i s i o n ( s ) in b r a c k e t s ;

3 . t h e p r o v i s i o n ( s ) u n d e r w h i c h a r e v i e w a b l e d e c i s i o n m a y b e m a d e ;

4 . a b r i e f d e s c r i p t i o n o f t h e r e v i e w a b l e d e c i s i o n ( s ) ;

5. a n i n d i c a t i o n o f w h e t h e r t h e v e s t i n g p r o v i s i o n ( s ) is in o p e r a t i o n a t 1 J u l y 1 9 8 6 .

Administrative Appeals Tribunal Act 1975 Sections 36(3) and 36A(2)(b) (26 o f 1982) S e c t i o n s 3 6 ( 3 ) , 3 6 A ( 2 ) ( b )

C e r t i f i c a t i o n t h a t d i s c l o s u r e o f i n f o r m a t i o n , o r o f m a t t e r c o n t a i n e d i n a d o c u m e n t , o r th e

a n s w e r i n g o f a q u e s t i o n , w o u l d b e c o n t r a r y t o t h e p u b l i c i n t e r e s t

Air Navigation Regulations Administrative Appeals Tribunal Act 1975 Sched I Pr III (91 o f 1975; 58 o f 1977) R e g u l a t i o n 2 5 4

D e c i s i o n s r e f u s i n g , s u s p e n d i n g , v a r y i n g o r c a n c e ll i n g c e r t i f i c a t e s o r lic e n c e s , o t h e r w i s e th a n

u n d e r r e g 2 5 6 o r 2 5 7

Air Navigation (Aircraft Noise) Regulations Regulations 13(1) (188 o f 1984) R e g u l a t i o n s 6 , 1 0 (2 )

R e f u s a l t o i s s u e n o i s e c e r t i f i c a t e ; r e v o c a t i o n o f n o i s e c e r t i f i c a t e

Air Navigation (Charges) Act 1952 Section 5J(6) (107 o f 1984) S e c t i o n 5 B ( 7 )

C a n c e l l a t i o n o f c e r t i f i c a t e o f r e g i s t r a t i o n o f A u s t r a l i a n a i r c r a f t d u e t o n o n - p a y m e n t o f

s t a t u t o r y lie n , a f t e r r e - c o n s i d e r a t i o n b y S e c r e t a r y

130

Air Navigation (Charges) Regulations Regulation 6(5) (130 o f 1985) R e g u la ti o n 6 ( 4 )

R e je c t io n o r a p p r o v a l i n p a r t o n l y o f a c l a i m o f s e c u r i t y i n t e r e s t i n a n a i r c r a f t

Air Pollution Ordinance 1984 (A.CT.) Section 44 (59 o f 1984) S e c t i o n s 3 0 ( 3 ) , 31

S p e c i f i c a t i o n o f p e r i o d in w h i c h a p p r o v e d p r e v e n tiv e m e a s u r e s a r e t o b e c a r r i e d o u t ; d i r e c t i o n

b y A u t h o r i t y t o c a r r y o u t p r e v e n t i v e m e a s u r e s

Antarctic Marine Living Resources Conservation Act 1981 Section 23 (30 o f 1981) S e c t i o n s 9 , 11, 12

R e f u s a l t o g r a n t p e r m i t , s u s p e n s i o n o f p e r m i t a n d c a n c e l l a t i o n o f p e r m i t

Antarctic Treaty (Environment Protection) Act 1980 Section 28 (103 o f 1980) S e c t i o n s 9 , 10, 11, 12

R e f u s a l t o g r a n t o r t o r e n e w p e r m i t s t o d o a c t s w h i c h w o u l d o t h e r w i s e b e o f f e n c e s ; r e s t r i c t i o n s

o n p e r m i t s ; s u s p e n s i o n a n d r e v o c a t i o n o f p e r m i t s ; v a r i a t i o n a n d r e v o c a t i o n o f c o n d i t i o n s

Apple and Pear (Conditions of Exports) Regulations Regulation 15A (222 o f 1979; 58 o f 1986) R e g u l a t i o n s 5 ( 3 ), 6 ( 3 ) , 7 , 1 5 , 1 5 A A ( 3 )

R e f u s a l a n d r e v o c a t i o n o f e x p o r t l i c e n c e ; r e f u s a l t o g r a n t p e r m i t f o r e x p o r t t o lic e n s e e ;

s u s p e n s i o n a n d c a n c e l l a t i o n o f e x p o r t li c e n c e

Archives Act 1983 Section 43 (79 o f 1983) S e c t i o n 4 3

R e f u s a l t o g r a n t a c c e s s , o r p a r t i a l a c c e s s , t o a r e c o r d

Audit Act 1901 Section 70AC(4) (8 o f 1979) S e c t i o n 7 0 A C ( 1 ) D e t e r m i n a t i o n s o f l i a b i l i t y f o r l o s s o f o r d e f i c i e n c y i n p u b l i c m o n e y s o r d a m a g e o r lo s s

o f p u b l i c p r o p e r t y

Australian Capital Territory Taxation (Administration) Act 1969 Section 21 (61 o f 1981) Sections 76A(3), 76C(2) (48 o f 1986) S e c t i o n 2 0 , 7 4 ( 3 ) , 7 6 A ( 1 )

R e v o c a tio n o f a u t h o r i t y t o b a n k e r r e l a t i n g t o s t a m p d u t y o n c h e q u e s ; d e c i s i o n s o n o b j e c t i o n s

a g a i n s t a s s e s s m e n t s o f d u t y o r t a x , r e f u s a l t o i s s u e a n e x e m p t i o n c e r t i f i c a t e a n d d e c i s i o n s

b y t h e R e g i s t r a r t h a t r e g i s t r a t i o n o f a v e h i c l e is n o t t a x e x e m p t

131

Australian Citizenship Act 1948 Section 52A (129 o f 1984; 70 o f 1986) S e c t i o n s 13, 18 [ b u t n o t 1 8 (5 )], 2 1 (1 ), 2 3 ( 2 ) , 2 3 A A ( 2 ) , 2 3 A , 2 3 B , 2 3 D ( 1 ) , 2 3 D ( 1 A ) , 4 7

R e f u s a l o f a p p l i c a t i o n f o r A u s t r a l i a n c i t i z e n s h i p ; r e f u s a l t o r e g i s t e r d e c l a r a t i o n r e n o u n c i n g

A u s t r a l i a n c i t i z e n s h i p ; r e f u s a l t o r e g i s t e r d e c l a r a t i o n r e s u m i n g A u s t r a l i a n c i t i z e n s h i p ; o r d e r

d e p r i v i n g p e r s o n o r c h i l d r e n o f A u s t r a l i a n c i t i z e n s h ip ; r e f u s a l t o e x t e n d t i m e in w h ic h p e r s o n

m a y a p p l y t o r e s u m e c i t i z e n s h ip ; a m e n d m e n t o f c e r t i f i c a t e o f A u s t r a l i a n c i t i z e n s h ip ; d e c is io n

o f M i n i s t e r t h a t n o r e a s o n a b l e p r o s p e c t o f a c q u i r i n g c i t i z e n s h ip o f f o r e i g n c o u n t r y i f a p p l i e d

a t p a r t i c u l a r t i m e

Australian Citizenship Regulations Regulation 22(2) (351 o f 1984) R e g u l a t i o n s 5 ( 4 ) , 7 C ( 2 ) ( a )

R e f u s a l b y M i n i s t e r t o r e g i s t e r p e r s o n a s A u s t r a l i a n p r o t e c t e d p e r s o n ; a p p r o v a l b y M i n i s t e r

o f c a n c e l l a t i o n o f e n t r y in r e g i s t e r

Australian Film Commission Act 1975 Section 10(8) (61 o f 1981) S e c t i o n 10

R e q u i r e m e n t o f p r o p o r t i o n o f A u s t r a l i a n s h o r t f i lm s t o b e e x h i b i t e d

Australian Meat and Live-stock Corporation Act 1977 Sections 16E(2), 16N(2), 16Q(8), 16R(10), 16S(4) (46 o f 1982) Section 46A (57 o f 1984) Section 16J(12) (77 o f 1986) S e c t i o n s 1 6 E (2 ) , 1 6 H ( l ) ( b ) , 1 6 J ( 2 ) , 1 6 Q ( 2 ) , 1 6 R ( 7 ) ,1 6 S ( 1 ) , 3 0 J ( 7 ) , 3 0 K ( 2 )

R e f u s a l t o g r a n t a p p l i c a t i o n f o r l i c e n c e ; c a n c e l l a t i o n o r s u s p e n s i o n o f a l i c e n c e ; r e f u s a l to

g r a n t a p p l i c a t i o n f o r e x p o r t lic e n c e ; o r d e r s a n d d i r e c t i o n s t o b e c o m p l i e d w i t h b y a h o l d e r

o f a n e x p o r t l i c e n c e ; g r a n t o f a n e x t e n s i o n o f p e r i o d f o r s e e k i n g a r e n e w a l o f a n e x p o r t

lic e n c e ; s u s p e n s i o n o f a n e x p o r t l i c e n c e u n d e r S .1 6 R ; c a n c e l l a t i o n , n o n - r e n e w a l , s u s p e n s i o n

o r r e p r i m a n d o f t h e h o l d e r o f a n e x p o r t l i c e n c e u n d e r s. 1 6S ; r e f u s a l t o e n t e r p a r t i c u l a r s

o f a p e r s o n u p o n a r e g i s t e r ; r e m o v a l o f p a r t i c u l a r s ; d e c i s i o n t o t r a n s f e r o r c a n c e l o r r e q u i r e

t h e s u r r e n d e r o f a q u o t a

Australian Military Regulations Regulations 816A(2) (60 o f 1981) R e g u l a t i o n 8 1 6 A ( 2 )

A m o u n t o f c o m p e n s a t i o n t o b e m a d e f o r d a m a g e o r lo s s s u s t a i n e d b y a n o w n e r o r o c c u p i e r

o f l a n d

Australian National Railways Commission Act 1983 Section 76(6) (140 o f 1983) S e c t i o n 7 2 (2 )

D e c l a r a t i o n c l o s i n g a r o a d f o r a s p e c i f i e d p e r i o d

Australian Wine and Brandy Corporation (Export) Regulations Regulation 10 (156 o f 1981) R e g u l a t i o n s 5 (1 ), 7 ( 2 ) , 9 ( 2 ) , 9 ( 3 )

R e f u s a l t o g r a n t a l i c e n c e ; r e f u s a l t o g r a n t a c e r t i f i c a t e o f c o m p l i a n c e ; s u s p e n s i o n o r

c a n c e l l a t i o n o f a li c e n c e

132

Automatic Data Processing Equipment Bounty Act 1977 Section 22 (28 o f 1977) S e c t i o n s 5 ( 1 ) , 9 , 1 0 ( 1 ) , 1 2 ( 3 ) , 1 2 ( 4 ) , 1 2 ( 6 ) , 1 2 ( 7 ) , 1 2 ( 8 ) , 14

D e c i s i o n s o n e l i g i b i l i t y f o r b o u n t y , r e g i s t r a t i o n s o f p r e m i s e s a n d a m o u n t o f s e c u r i t y

Bank Account Debits Tax Administration Act 1982 .

Sections 25(3), 25B(2) (48 o f 1986) S e c t i o n s 2 2 , 2 5 (1 )

D e c i s i o n s o n o b j e c t i o n s a g a i n s t a s s e s s m e n t s o f t a x o r a g a i n s t p r e s c r i b e d d e c i s i o n s , ie, i s s u e

o r r e v o c a tio n o f a c e r t i f i c a t e o f e x e m p t i o n , s p e c i f i c a t i o n o f d a y o f is s u e o r e x p ir y o f c e r tif ic a te ,

r e f u n d o f a m o u n t s i n c o r r e c t l y p a i d , r e f u n d f o r t a x p a i d o n e x c l u d e d d e b i t s , r e f u s a l t o g r a n t

e x t e n s i o n o f t i m e f o r l o d g i n g o b j e c t i o n s

Barley Research Act 1980 Section 36 (168 o f 1980) S e c t i o n s 6 ( 5 ) , 7 ( 3 )

D e c i s i o n s o n r e l e a s e f r o m l i a b i l i t y t o p a y le v y ; r e m i s s i o n o f p e n a l t y f o r n o n - p a y m e n t

Biological Control Act 1984 Section 56(1) (139 o f 1984) S e c t i o n s 19, 2 0 , 2 6 , 2 8 , 2 9 , 3 0 , 3 1 , 3 3 , 5 3

D e c i s i o n s n o t t o h o l d v a r i o u s t y p e s o f i n q u i r y ; d e c i s i o n n o t t o p u b l i s h a n o t i c e o f p r o p o s e d

a g e n t o r g a n i s m ; d e c i s i o n t o m a k e a n e m e r g e n c y d e c l a r a t i o n ; r e v o c a t i o n o f a d e c l a r a t i o n ;

d e c l a r a t i o n o f t a r g e t o r g a n i s m s , a g e n t o r g a n i s m s a n d e x i s ti n g r e l e a s e d o r g a n i s m s w h e r e

i n c o n s i s t e n t w i t h v a r i o u s f i n d i n g s

Bookmakers Ordinance 1985 (A.C.T.) Section 50 (43 o f 1985) S e c t i o n s 2 5 , 2 9 ( 4 ) , 3 0 , 3 3

R e f u s a l t o g r a n t , s u s p e n s i o n o r c a n c e l l a t i o n o f s t a n d i n g l ic e n c e b y c o m m i t t e e ; d e t e r m i n a t i o n

w h e t h e r i n i t i a l o r a f t e r r e c o n s i d e r a t i o n b y R e g i s t r a r o f s t a n d i n g l i c e n c e f e e p a y a b l e w h e r e

r e c o r d s l o s t o r d e s t r o y e d

Bounty (Agricultural Tractors) Act 1966 Section 18Λ (30 o f 1977; 39 o f 1985) S e c t i o n s 6 ( 5 ), 6 ( 6 ) , 8 , 9 (1 ), 1 1 (3 ), 1 1 (4 ), 1 1 (5 ), 1 1 (6 ), 1 1 (8 ), 17

D e c i s i o n s o n f a c t o r y c o s t s , g o o d a n d m e r c h a n t a b l e q u a l i t y , a p p r o v a l o f p a y m e n t o f b o u n t y ,

r e g i s t r a t i o n o f p r e m i s e s a n d a m o u n t o f s e c u r i t y

Bounty (Agricultural Tractors and Equipment) Act 1985 Section 35(1) (134 o f 1985; 37 o f 1986) S e c t i o n s 1 4 , 1 6 ( 3 ) ( a ) , 1 6 ( 3 ) ( b ) , 1 7 ( 4 ) ( a ) , 1 7 ( 4 ) ( b ) , 1 8 ( 4 ), 2 0 ( 3 ) ( a ) , 2 0 ( 3 ) ( b ) , 2 0 ( 3 ) ( c ) , 2 1 , 2 3 ( 3 ) ,

2 3 ( 4 ) , 2 3 ( 8 ) , 2 3 ( 1 0 ) , 2 3 ( 1 2 ) , 25

D e c i s i o n s o n g o o d a n d m e r c h a n t a b l e q u a l i t y , a p p r o v a l o f p a y m e n t o f b o u n t y , a d d i t i o n a l

v a lu e , r e c o v e r y o f o v e r p a y m e n t s , r e g i s t r a t i o n a n d t r a n s f e r o f r e g i s t r a t i o n o f p r e m i s e s a n d

a m o u n t o f s e c u r i t y ; d e t e r m i n a t i o n o f e f f e c t i v e d a t e o f r e g i s t r a t i o n o f p r e m i s e s

133

Bounty (Bed Sheeting) Act 1977 Section 21 (29 o f 1977; 39 o f 1985) S e c t i o n s 9 , 1 0 , 1 1 ( 3 ) , 1 1 ( 4 ) , 1 1 ( 6 ) , 1 1 ( 7 ) , 1 1 ( 8 ) , 13

D e c i s i o n s o n g o o d a n d m e r c h a n t a b l e q u a l i t y , a p p r o v a l o f p a y m e n t o f b o u n t y , r e g i s t r a t i o n

o f p r e m i s e s a n d a m o u n t o f s e c u r i t y

Bounty (Berry Fruits) Act 1982 Section 23 (132 o f 1982; 39 o f 1985) S e c t i o n s 9 , 12, 1 3 (2 ), 1 3 (7 ), 15

D e c i s i o n s o n a p p r o v a l o f p a y m e n t o f b o u n t y , r e g i s t r a t i o n o f p r e m i s e s a n d a m o u n t o f s e c u r ity

Bounty (Books) Act 1969 Section 20A (109 o f 1978; 69 o f 1979; 39 o f 1985) S e c tio n s 3 A ( 2 ), 3 A ( 3 ) , 4 ( 2 ), 4 ( 2 A ) , 4 ( 3 ), 4 A A ( 2 ) , 4 A A ( 3 ) , 9 , 9 A , 11(3), 11(4), 11(5), 11(6), 11(7), 16

D e c is io n s o n s iz e o f b o o k , m a n u f a c t u r i n g c o s t c o m p o n e n t , p u b l i s h e r p a p e r c o s t , c o m p l i a n c e

w i t h A c t a n d R e g u l a t i o n s , a p p r o v a l o f p a y m e n t o f b o u n t y , r e g i s t r a t i o n o f p r e m i s e s a n d

a m o u n t o f s e c u r i t y

Bounty (Commercial Motor Vehicles) Act 1978 Section 22 (208 o f 1978; 39 o f 1985; 182 o f 1985; 37 o f 1986) S e c t i o n s 4 ( 4 ) , 5 , 8 ( 3 ) , 9 , 10, 1 2 (3 ), 1 2 (4 ), 1 2 ( 5 ), 1 2 (6 ), 1 2 (7 ), 14F , 1 4 H ( 3 ) ( a ) ( b ) , 1 4 J ( 4 ) ( a ) ( b ) ,

1 4 K ( 4 ), 1 4 L , 1 4 N ( 3 ) ( b ) [ o t h e r t h a n a d e c i s i o n m a d e u n d e r 1 4 N ( 8 ) ] , 1 4 N ( 4 ) , 1 4 N (1 4 ), 1 4 Q

D e c i s i o n s o n c o m p o n e n t s , g o o d a n d m e r c h a n t a b l e q u a l i t y , a p p r o v a l o f p a y m e n t o f b o u n t y ,

r e g i s t r a t i o n o f p r e m i s e s a n d a m o u n t o f s e c u r i t y v a r i a t i o n o f i n a d e q u a t e c l a i m a n d r e p a y m e n t

o f o v e r p a i d c l a i m , d e t e r m i n a t i o n o f e f f e c t i v e d a t e o f r e g i s t r a t i o n o f p r e m i s e s

Bounty (Computers) Act 1984 Section 32 (113 o f 1984; 39 o f 1985) S e c t i o n s 11, 1 3 ( 3 )( a ) , 1 3 ( 3 ) ( b ) , 1 4 ( 4 )( a ) , 1 4 ( 4 ) ( b ) , 1 5 (4 ), 1 7 ( 3 )( a ) , 1 7 ( 3 ) ( b ) , 1 7 ( 3 )( c ) , 18, 2 0 ( 3 ) ( b ) ,

20( 12), 22 D e c i s i o n s o n g o o d a n d m e r c h a n t a b l e q u a l i t y , a d d i t i o n a l v a lu e , a p p r o v a l o f p a y m e n t o f

b o u n t y , r e c o v e r y o f o v e r p a y m e n t s , r e g i s t r a t i o n o f p r e m i s e s a n d a m o u n t o f s e c u r i t y

Bounty (Electric Motors) Act 1984 Section 34 (112 o f 1984; 39 o f 1985) S e c t i o n s 13, 1 5 ( 3 ) ( a ) , 1 5 ( 3 ) ( b ) , 1 6 ( 4 )( a ) , 1 6 ( 4 ) ( b ) , 1 7 (4 ), ! 9 ( 3 ) ( a ) , 1 9 ( 3 ) ( b ) , 1 9 ( 3 )( c ) , 2 0 , 2 2 ( 3 ) ( b ) ,

2 2 ( 9 ) , 2 2 (1 1 ), 2 4

D e c i s i o n s o n g o o d a n d m e r c h a n t a b l e q u a l i t y , a d d i t i o n a l v a lu e , a p p r o v a l o f p a y m e n t o f

b o u n t y , r e c o v e r y o f o v e r p a y m e n t s , r e g i s t r a t i o n o f p r e m i s e s a n d a m o u n t o f s e c u r i t y

Bounty (High Alloy Steel Products) Act 1983 Section 23 (126 o f 'l983; 39 o f 1985) S e c t i o n s 8 ( l ) ( b ) , 1 1(3), 1 2 (2 ), 1 2 (3 ), 1 2 (4 ), 1 2 ( 7 ), 1 2 (8 ), 1 2 (9 ), 1 2 (1 0 ), 1 2(11), 14

D e c i s i o n s o n a p p r o v a l o f p a y m e n t o f b o u n t y , r e g i s t r a t i o n o f p r e m i s e s a n d a m o u n t o f s e c u r ity

Bounty (Injection-moulding Equipment) Act 1979 Section 22 (78 o f 1979; 77 o f 1983; 20 o f 1985; 39 o f 1985) S e c t i o n s 5 (1 ), 8 A ( 1 ), 8 A ( 8 ) , 9 , 10, 1 2 (3 ), 1 2 (4 ), 1 2 (5 ), 1 2 (6 ), 1 2 (7 ), 14, 1 4 J, 1 4 L ( 3 ) ( a ) , 1 4 L ( 3 ) ( b ) ,

134

1 4 M (4 )(a ), 1 4 M ( 4 ) ( b ) , 1 4 N ( 4 ) , 1 4 Q ( 3 ) ( a ) , ! 4 Q ( 3 ) ( b ) , 1 4 Q ( 3 ) ( c ) , 1 4 R , 1 4 T ( 3 ) ( b ) , 1 4 T (1 2 ), 14V

D e c i s i o n s o n a p p r o v a l o f p a y m e n t o f b o u n t y , r e c o v e r y o f o v e r p a y m e n t s , g o o d a n d

m e r c h a n t a b l e q u a l i t y , r e g i s t r a t i o n o f p r e m i s e s a n d a m o u n t o f s e c u r i t y

Bounty (Metal-working Machine Tools) Act 1978 Section 21 (154 o f 1978; 39 o f 1985) S e c tio n s 4 (1 ), 8 , 9 , 1 1 (3 ), 1 1 (4 ), 1 1 (5 ), 1 1 (6 ), 1 1 (7 ), 13

D e c i s i o n s o n f a c t o r y c o s t , g o o d a n d m e r c h a n t a b l e q u a l i t y , a p p r o v a l o f p a y m e n t o f b o u n t y ,

r e g i s t r a t i o n o f p r e m i s e s a n d a m o u n t o f s e c u r i t y

Bounty (Metal Working Machines and Robots) Act 1985 Section 40(1) (133 o f 1985; 37 o f 1986) S e c tio n s 4 (1 ), 19, 2 1 ( 3 )( a ) , 2 1 ( 3 ) ( b ) , 2 2 ( 4 ) ( a ) , 2 2 ( 4 ) ( b ) , 2 3 ( 4 ) , 2 5 ( 3 ) ( a ) , 2 5 ( 3 ) ( b ) , 2 5 ( 3 ) ( c ) , 2 6 , 2 8 ( 3 ),

2 8 ( 4 ), 2 8 ( 7 ) , 2 8 ( 8 ) , 2 8 (1 1 ), 2 8 ( 1 2 ) , 2 8 ( 1 3 ), 2 8 ( 1 5 ) , 3 0

D e c i s i o n s o n g o o d a n d m e r c h a n t a b l e q u a l i t y , a p p r o v a l o f p a y m e n t o f b o u n t y , a d d i t i o n a l

v a lu e , r e c o v e r y o f o v e r p a y m e n t s , r e g i s t r a t i o n a n d t r a n s f e r o f r e g i s t r a t i o n o f p r e m i s e s a n d

a m o u n t o f s e c u r ity ; d e c i s i o n o n w h e t h e r m o d i f i c a t i o n o f e q u i p m e n t w ill s u b s t a n t i a l l y i n c r e a s e

its c a p a c i t y a n d c a p a b i l i t y ; d e t e r m i n a t i o n o f e f f e c t i v e d a t e o f r e g i s t r a t i o n o f p r e m i s e s

Bounty (Paper) Act 1979 Section 22 (72 o f 1979; 39 o f 1985) S e c t i o n s 10, 11, 1 2 ( 3 ), 1 2 (4 ), 1 2 ( 6 ), 1 2 (7 ), 1 2 ( 8 ), 14

D e c i s i o n s o n g o o d a n d m e r c h a n t a b l e q u a l i t y , a p p r o v a l o f p a y m e n t o f b o u n t y , r e g i s t r a t i o n

o f p r e m i s e s a n d a m o u n t o f s e c u r i t y

Bounty (Penicillin) Act 1980 Section 24 (47 o f 1980; 39 o f 1985) S e c t i o n s 10, 11, 1 2 (3 ), 1 2 (4 ), 1 2 (6 ), 1 2 (7 ), 1 2 ( 8 ), 1 3 (3 ), 1 3 (4 ), 1 3 (7 ), 1 3 ( 8 ), 16

D e c i s i o n s o n g o o d a n d m e r c h a n t a b l e q u a l i t y , a p p r o v a l o f p a y m e n t o f b o u n t y , r e g i s t r a t i o n

o f p r e m i s e s a n d a m o u n t o f s e c u r i t y

Bounty (Printed Fabrics) Act 1981 Section 21 (102 o f 1981; 39 o f 1985) S e c t i o n s 2 (1 ), 3 (1 ), 9 , 10, 1 1 (3 ), 1 1 (4 ), 1 1 (5 ), 1 1 (6 ), 1 1 (7 ), 13

D e c i s i o n s o n g o o d a n d m e r c h a n t a b l e q u a l i t y , a p p r o v a l o f p a y m e n t o f b o u n t y , r e g i s t r a t i o n

o f p r e m i s e s a n d a m o u n t o f s e c u r i t y

Bounty (Room Air Conditioners) Act 1983 Section 21 (10 o f 1983) S e c t i o n s 4 (1 ), 1 0 (1 ), 1 1 (3 ), 1 1 (4 ), 1 1 (7 ), 1 1 (9 ), 1 1 (1 0 ), 13

D e c i s i o n s o n f a c t o r y c o s t , a p p r o v a l o f p a y m e n t o f b o u n t y , r e g i s t r a t i o n o f p r e m i s e s a n d

a m o u n t o f s e c u r i t y

Bounty (Ships) Act 1980 Section 20 (39 o f 1985; 76 o f 1985) S e c t i o n s 9 ( 3 ) ( a ) , 9 ( 3 ) ( b ) , 9 A ( 4 ) ( a ) , 9 A ( 4 ) ( b ) , 9 B ( 4 ) , 9 D ( 3 ) ( a ) , 9 D ( 3 ) ( b ) , 9 D ( 3 ) ( c ) , 9 E , 1 0(3), 1 0(7),

1 0 (9 ), 1 0 (1 0 ), 1 0 (1 2 ), 1 0 (1 3 ), 1 0 (1 5 ), 1 0 A ( 3 ) , 1 0 A ( 7 ) , 1 0 A ( 9 ), 1 0 A (1 0 ), 1 0 A (1 2 )

D e c i s i o n s o n a p p r o v a l o f p a y m e n t o f b o u n t y , r e c o v e r y o f o v e r p a y m e n t s , r e g i s t r a t i o n o f

p r e m i s e s , r e g i s t r a t i o n o f p e r s o n a n d a m o u n t o f s e c u r i t y

135

Bounty (Steel Mill Products) Act 1983 Section 24 (125 o f 1983; 39 o f 1985) S e c t i o n s 6 , 1 2 ( 3 ) , 1 3 ( 3 ) , 1 3 ( 4 ) , 1 3 ( 7 ) , 1 3 ( 8 ) , 1 3 ( 9 ) , 1 3 ( 1 0 ) , 1 3 ( 1 1 ) , 15

D e c i s i o n s o n s a l e s v a l u e o f p l a t e o r s t r i p , a p p r o v a l o f p a y m e n t o f b o u n t y , r e g i s t r a t i o n o f

p r e m i s e s a n d a m o u n t o f s e c u r i t y

Bounty (Textile Yarns) Act 1981 Section 21 (103 o f 1981; 39 o f 1985) S e c t i o n s 2 (1 ), 3 (1 ), 9 , 10, 1 1(3), 1 1 (4 ), 1 1 (5 ), 1 1(6), 13

D e c i s i o n s o n a p p r o v a l o f f a c t o r y , a d d i t i o n a l v a lu e , g o o d a n d m e r c h a n t a b l e q u a l i t y , a p p r o v a l

o f p a y m e n t o f b o u n t y , r e g i s t r a t i o n o f p r e m i s e s a n d a m o u n t o f s e c u r i t y

Bounty (Tractor Cabs) Act 1983 Section 20 (78 o f 1983; 39 o f 1985) S e c t i o n s 4 (1 ), 9 , 1 0 (3 ), 1 0 (4 ), 1 0 (7 ), 1 0 ( 9 ), 1 0 (1 0 ), 12

D e c i s i o n s o n f a c t o r y c o s t , a p p r o v a l o f p a y m e n t o f b o u n t y , r e g i s t r a t i o n o f p r e m i s e s a n d

a m o u n t o f s e c u r i t y

Bounty (Two-Stroke Engines) Act 1984 Sections 21 (66 o f 1984; 39 o f 1985) S e c t i o n s 4 (1 ), 1 0 ( 3 ) ( a ) , 1 0 ( 3 ) ( b ) , l l ( 3 ) ( b ) , 1 1 (7 ), 1 1 (9 ), 11(11), 13

D e c i s i o n s o n f a c t o r y c o s t , a p p r o v a l o f p a y m e n t o f b o u n t y , r e g i s t r a t i o n o f p r e m i s e s a n d

a m o u n t o f s e c u r i t y

Broadcasting Act 1942 Section 119A (160 o f 1977; 210 o f 1978; 113 o f 1981; 154 o f 1982; 66 o f 1985; 191 o f 1985) S e c t i o n s 8 5 , 8 6 , 8 6 ( 6 A ) , 8 7 ( 2 ) , 8 8 , 8 9 A , 9 0 J A , 9 2 F A A , 1 0 5 B , 110, 1 1 7 A ( 7 ), 1 1 9 (2 )

V a r io u s d e c i s i o n s , d e t e r m i n a t i o n s a n d d i r e c t i o n s

Business Franchise (Tobacco and Petroleum Products) Ordinance 1984 (A.C.T.) Section 37 (38 o f 1984) S e c t i o n s 4 ( 2 ) , 4 ( 3 ) , 4 ( 7 ) , 5 ( 2 ) , 5 ( 3 ) , 5 ( 7 ) , 3 3

D e t e r m i n a t i o n t h a t p e r s o n is n o t m e m b e r o f g r o u p o f w h o l e s a l e t o b a c c o m e r c h a n t s ;

d e t e r m i n a t i o n t h a t p e r s o n is n o t m e m b e r o f g r o u p o f p e t r o l e u m w h o l e s a l e r s ; r e - a s s e s s m e n t

o f li c e n c e fe e s

Canberra Sewerage and Water Supply Regulations (A.CT.) Regulation 117 (R 14 o f 1978; R 11 o f 1980; R 44 o f 1982) R e g u l a t i o n s 6 , 7 , 1 5 A B , 9 8 , 1 0 3 , 117

S u s p e n d i n g , c a n c e l l i n g o r r e f u s a l t o g r a n t p l u m b i n g a n d d r a i n a g e p e r m i t s ; r e q u i r e m e n t t h a t

o c c u p i e r c o n n e c t w a t e r c i r c u l a t i o n a p p a r a t u s ; r e f u s a l t o p e r m i t c o n n e c t i o n o f w a t e r p u m p i n g

a p p l i a n c e o r o n l y o n c e r t a i n c o n d i t i o n s

Canned Fruits Levy Act 1979 Section 12 Canned Fruits Levy Collection Act 1979 (162 o f 1979) S e c t i o n 5 (2 )

R e f u s a l t o i s s u e c e r t i f i c a t e t h a t c a n n e d f r u i t s b e d e s t r o y e d , a r e u n f i t f o r c o n s u m p t i o n o r

f o r d o m e s t i c r e q u i r e m e n t s

136

Canned Fruits Levy Collection Act 1979 Section 12 (162 o f 1979) S e c tio n 5 (4 )

R e m i s s i o n o f p a r t o n l y o f a p e n a l t y ; r e f u s a l t o r e m i t p e n a l t y

Children's Services Ordinance 1986 (A.CT.) Section 148 [ N o t y e t i n o p e r a t i o n ]

S e c tio n s 9 8 , 1 2 0 , 1 2 2 ( 2 ), 1 2 3 , 1 3 3 , 134

D e c is io n o f a M i n i s t e r — r e f u s i n g t o g r a n t o r g r a n t i n g s u b j e c t t o c o n d i t i o n s a lic e n c e t o p r o v id e

c h ild c a re , d e t e r m i n i n g t h e p e r i o d o f t h e l ic e n c e , v a r y i n g o r r e v o k in g a c o n d i t i o n o f a lic e n c e ,

c a n c e ll i n g , s u s p e n d i n g , v a r y i n g o r r e v o k i n g a l i c e n c e , d e c i s i o n o f D i r e c t o r — m a k i n g a

d e t e r m i n a t i o n a s t o p a y m e n t o f c h i l d c a r e e x p e n s e s , r e f u s i n g t o g r a n t o r g r a n t i n g s u b j e c t

t o c o n d i t i o n s c o n s e n t f o r c h i l d t o e n g a g e i n d a n g e r o u s e m p l o y m e n t , p r o h i b i t i n g o r s p e c if y in g

c o n d i t i o n s w i t h r e s p e c t t o e m p l o y m e n t o f a c h i l d

Chiropractors Registration Ordinance 1983 (A.CT) Section 56 (28 o f 1983) S e c t i o n s 2 3 (1 ), 3 2 , 5 6 ( l ) ( a ) , 5 6 ( l ) ( c ) , 5 6 ( l ) ( d ) , 5 6 ( l ) ( e ) , 5 6 ( 2 )

R e f u s a l t o t e r m i n a t e t h e s u s p e n s i o n o f a p e r s o n o r t o s e t a s id e a n o r d e r s u s p e n d i n g r e g i s t r a t i o n

o n h e a l t h g r o u n d s ; r e f u s a l t o p e r m i t a n e x t e n s i o n o f t h e p e r i o d d u r i n g w h i c h a n e x e c u t o r ,

a d m i n i s t r a t o r o r t r u s t e e m a y c a r r y o n t h e b u s i n e s s o f a d e c e a s e d c h i r o p r a c t o r ; r e f u s a l t o

a u t h o r i s e t h e r e g i s t r a t i o n , o r o r d e r t h e r e - r e g i s t r a t i o n , o f a p e r s o n ; c a n c e l l a t i o n o f t h e

r e g i s t r a t i o n o f a p e r s o n ; s u s p e n s i o n o f t h e r e g i s t r a t i o n o f a p e r s o n o t h e r w i s e t h a n u n d e r

s. 2 4 (2 ); r e p r i m a n d i n g a p e r s o n ; r e f u s a l t o g r a n t t e m p o r a r y r e g i s t r a t i o n t o a p e r s o n o r r e f u s in g

t o r e n e w a t e m p o r a r y r e g i s t r a t i o n

City Area Leases Ordinance 1936 (A.CT.) Sections 11B, 18B(7) (56 o f 1982) Section 20(5) (16 o f 1986) S e c t i o n s 11 A ( 9 ) , 1 8 B , 2 0

D e c i s i o n s d e t e r m i n i n g t h e c a p i t a l s u m t h a t t h e le a s e m i g h t b e e x p e c t e d t o h a v e r e a l i s e d o n

v a r i a t i o n o f p u r p o s e s f o r w h i c h t h e l a n d is l e a s e d ; d e c i s i o n s o n r e n t v a r i a t i o n s r e c o n s i d e r e d

b y t h e M i n i s t e r ; d e t e r m i n a t i o n o f v a l u e o f i m p r o v e m e n t s t o p r o p e r t y

Coal Excise Act 1949 Section 27A (19 o f 1981) S e c t i o n s 10, 12, 14, 15, 16, 17

D e t e r m i n a t i o n o f li c e n c e f e e a n d s e c u r i t y ; r e q u i r e m e n t o f f r e s h s e c u r i t y ; r e f u s a l t o g r a n t

o r r e n e w lic e n c e ; t r a n s f e r o r c a n c e l l a t i o n o f l i c e n c e

Commerce (Trade Descriptions) Act 1905 Section 15 (61 o f 1981; 48 o f 1982) S e c t i o n s 7 ( 3 ) , 1 0 , 1 1 (3 ), 13

P e r m i s s i o n f o r g o o d s o t h e r w i s e f o r f e i t a b l e t o b e d e l i v e r e d o r e x p o r t e d ; f o r f e i t u r e o f g o o d s

w i t h f a l s e t r a d e d e s c r i p t i o n ; p e r m i s s i o n f o r g o o d s o t h e r w i s e f o r f e i t a b l e t o b e d e liv e r e d ;

p r o h i b i t i o n o f e x p o r t o f g o o d s w i t h f a l s e t r a d e d e s c r i p t i o n s

Commonwealth Electoral Act 1918 Sections 121(1), 141(5) (144 o f 1983) S e c t i o n s 9 6 (1 ), 1 2 0 ( 6 ), 1 3 4 (1 ), 1 3 7 (6 ), 1 4 1 (2 ), 1 4 1 (4 ), P a r t X I

137

R e g i s t r a t i o n , c h a n g e o f r e g i s t r a t i o n a n d d e - r e g i s t r a t i o n o f a p o l i t i c a l p a r t y ; r e f u s a l t o be

t r e a t e d a s a n i t i n e r a n t e l e c t o r ; a d e c i s i o n m a d e b y t h e E l e c t o r a l O f f i c e r r e v i e w i n g c e r ta in

d e c i s i o n s m a d e b y a D i v i s i o n a l R e t u r n i n g O f f i c e r u n d e r ss 9 5 ( 1 ), 9 8 , 1 0 2 , 1 0 4 (1 ), 104(2),

113, 116, 117 a n d 1 85 a n d in r e l a t i o n t o s u c h o t h e r i n f o r m a t i o n a s t h e D i v i s i o n a l O f f ic e r

t h i n k s r e l e v a n t t o t h e r e v ie w o f t h e c l a i m o r o b j e c t i o n , a s t h e c a s e m a y b e

[ N o t e : s e c t i o n s r e n u m b e r e d b y S R 4 5 o f 1 9 8 4 ]

Compensation (Commonwealth Government Employees) Act 1971 Section 63 (74 o f 1981) S e c t i o n 63

A l l d e t e r m i n a t i o n s b y t h e C o m m i s s i o n e r g r a n t i n g , c a n c e l l i n g o r v a r y i n g c o m p e n s a t i o n

Complaints (Australian Federal Police) Act 1981 Section 28 (21 o f 1981; 62 o f 1983) S e c t i o n 2 8

O m b u d s m a n m a y r e c o m m e n d t h a t C o m m i s s i o n e r o f P o l i c e r e f e r s p e c i f i e d q u e s t i o n t o AAT

f o r a d v i s o r y o p i n i o n

Consumer Affairs Ordinance 1973 (A.CT.) Section 15FK (100 o f 1982) S e c t i o n s 1 5 F K ( 1 ), 1 5 F K ( 2 )

D e c i s i o n o f M i n i s t e r m a k i n g , v a r y i n g , r e v o k i n g o r a m e n d i n g a c o n s u m e r p r o d u c t s a f e ty

o r d e r ; d e c i s i o n b y t h e D i r e c t o r m a k i n g , v a r y i n g o r r e v o k in g a c o n s u m e r p r o d u c t s a f e t y o r d e r

Co-operative Societies Ordinance 1939 (A.CT.) Section 80A (4 o f 1985) S e c t i o n s 2 5 ( 2 ) , 3 7 A

R e f u s a l b y R e g i s t r a r t o c o n s e n t t o p r o p o s e d p u r c h a s e o r r e p a y m e n t o f s h a r e s ; r e f u s a l by

R e g is t r a r t o c o n s e n t t o p r o p o s e d i n v e s t m e n t in a c o r p o r a t i o n

Copyright Act 1968 Section 135(10) (19 o f 1979; 80 o f 1982) Section 203G(7) (154 o f 1980) S e c t i o n s 1 3 5 (6 ), 2 0 3 G ( 6 )

D e l i v e r y u p o n s e c u r i t y o f c o p i e s o f a w o r k l i a b l e t o b e f o r f e i t e d ; r e q u i r e m e n t t h a t b o d y

a d m i n i s t e r i n g c e n t r a l r e c o r d s a u t h o r i t y r e t u r n c o p y i n g r e c o r d s

Cotton Research Act 1982 Section 29 (146 o f 1982) S e c t i o n 7 (3 )

D e c i s i o n t o r e m i t w h o l e o r p a r t o f le v y

Credit Ordinance 1985 (A.C.T.) Section 262(2) (5 o f 1985) S e c t i o n s 161, 1 6 2 , 1 6 3 , 1 7 3 , 1 7 4 (3 )

1 3 8

V a r io u s d e c i s i o n s o f t h e C r e d i t T r i b u n a l a s f o l l o w s — g r a n t , r e f u s a l t o g r a n t , c a n c e l l a t i o n ,

s u s p e n s i o n o r r e m o v a l o f a s u s p e n s i o n o f a c r e d i t p r o v i d e r ’s o r a f i n a n c e b r o k e r ’s lic e n c e ;

i m p o s i t i o n , r e v o c a t i o n , v a r i a t i o n , n o n - r e v o c a t i o n o r n o n - v a r i a t i o n o f a c o n d i t i o n o r r e s t r i c t i o n

o n s u c h li c e n c e s ; g r a n t , r e f u s a l t o g r a n t o r i m p o s i t i o n o f a c o n d i t i o n o n t h e g r a n t o f a n

a u t h o r i t y t o c a r r y o n t h e b u s i n e s s o f a d e c e a s e d lic e n s e e ; t h e t a k i n g o f o r r e f u s a l t o t a k e

d i s c i p l i n a r y a c t i o n a g a i n s t a l i c e n s e e o r r e l a t e d p e r s o n

Customs Act 1901 Section 273GA (110 o f 1980; 157 o f 1981; 81 o f 1982; 108 o f 1982; 19 o f 1983; 72 o f 1984; 39 o f 1985; 175 o f 1985) S e c t i o n s 2 8 ( 2 ) , 2 8 ( 3 ) , 3 5 A , 119, 1 2 6 , 1 3 2 B , 1 3 2 C , 151 A , 1 6 1 B (4 ), 1 6 4 , 1 6 4 B , 1 6 7 ( e tc ), 2 6 9 N ( 4 ) ,

2 6 9 N ( 5 ) , P a r t s V, X I

V a r io u s d e c i s i o n s a n d d i r e c t i o n s

[ N o te : d e c i s i o n s u n d e r P a r t V A b e c o m e r e v i e w a b l e w h e n s. 6 6 o f S R 81 o f 1 9 8 2 is p r o c l a i m e d . ]

Customs Regulations Administrative Appeals Tribunal Act 1975 Sched I Pt XIII (91 o f 1975) and reg 138A(1) (126 o f 1985) R e g u l a t i o n s 1 2 8 B , 1 2 9 , 131 [ n o t 1 3 1 (7 )], 1 3 2 ( 2 ), 1 3 3 , 134

R e f u n d , r e b a t e o r r e m i s s io n o f d u t y b y C o l l e c t o r a n d v a r i o u s d e c i s i o n s i n r e l a t i o n t o d r a w b a c k

o f d u t y b y M i n i s t e r o r C o l l e c t o r

R e g u l a t i o n s 1 3 3 , 1 3 4 (8 )

A p p r o v a l o f p a y m e n t o f d r a w b a c k b y C o m p t r o l l e r

Customs (Cinematograph Films) Regulations Regulation 34(2) (38 o f 1983) R e f u s a l b y t h e M i n i s t e r t o a p p r o v e a n o r g a n i s a t i o n o r e v e n t; r e v o c a t i o n o f a p p r o v a l

Customs (Prohibited Import) Regulations Regulation 5(18A) (44 o f 1982) R e g u l a t i o n s 5 ( 5 ) , 5 (1 7 )

R e f u s a l t o g r a n t a n d r e v o c a t i o n o f l i c e n c e t o i m p o r t d r u g s

Customs Tariff Act 1982 Section 273H Customs Act 1901 (115 o f 1982) S e c t i o n 11

D i r e c t i o n o f t h e M i n i s t e r a s t o t h e v a l u e o f a p a r t , c o m p o n e n t o r i n g r e d i e n t o f a n y g o o d s

Customs Tariff (Coal Export Duty) Act 1975 Section 273J Customs Act 1901 (72 o f 1984) S e c t i o n s 4 , 7 , 8

E x e m p t i o n s f r o m d u t y ; d e c l a r a t i o n s a s t o n e w m i n e s a n d m a j o r n e w e x t e n s i o n s t o e x i s ti n g

m i n e s ; d e c i s i o n s a s t o a s h c o n t e n t o f c o k i n g c o a l

Customs Tariff (Stand-By Duty) Act 1985 Section 273JA(1) Customs Act 1901 (40 o f 1985) S e c t i o n s 4 (1 ), 1 0 ( l ) ( b ) , l l ( l ) ( b )

D e c i s i o n b y t h e M i n i s t e r t h a t h e is s a t i s f i e d o r n o t s a t i s f i e d o f v a r i o u s m a t t e r s

139

Dairy Industry Stabilization Act 1977 Section 24A (94 o f 1978; 64 o f 1983) S e c t i o n s 6 ( 2 ) , 11A

R e m is s io n o f p e n a l t y f o r n o n - p a y m e n t o f le v y ; d e t e r m i n a t i o n o f q u o t a o r re v ie w o f a v a r ia tio n

o f a q u o t a

Dairy Produce Act 1986 Section 118(3) (54 o f 1986) S e c t i o n s 6 3 ( 3 ) , 6 7 ( 2 ) , 1 1 8 (7 ), 118(9)

D e c i s i o n o f M i n i s t e r o n r e m i s s i o n o f p e n a l t y f o r n o n - p a y m e n t o f le v y ; r e c o n s i d e r a t i o n o f

d e c i s i o n s o f a u t h o r i s e d p e r s o n o n r e m i s s i o n o f p e n a l t y f o r n o n - p a y m e n t o f levy;

r e c o n s i d e r a t i o n o f d e c i s i o n o n g r a n t , r e n e w a l o r c a n c e l l a t i o n o f l i c e n c e ; r e c o n s i d e r a t i o n o f )

d e t e r m i n a t i o n o f g u a r a n t e e d r a t e o f m a r k e t s u p p o r t p a y m e n t ; r e c o n s i d e r a t i o n o f d e c is io n

o n e n t i t l e m e n t t o m a r k e t s u p p o r t p a y m e n t

Dairy Produce Levy (No. 1) Act 1986 Section 13 (55 o f 1986) S e c t i o n 9 (2 )

D e c i s i o n o n i s s u e o f c e r t i f i c a t e o f e x e m p t i o n f r o m le v y f o r u n s a l e a b l e , d e s t r o y e d o r e x p o r te d

p r o d u c t s

Dairy Produce Market Support Act 1985 Section 43(9) (51 o f 1985) S e c t i o n s 8 ( 3 ), 1 2 (2 ), 4 3 ( 2 ) , 4 3 ( 3 ) , 4 3 ( 5 ) , 4 3 ( 7 )

R e f u s a l b y M i n i s t e r t o r e m i t a p e n a l t y f o r n o n - p a y m e n t o f a m a r k e t s u p p o r t le v y ; r e f u s a l

b y A u s t r a l i a n D a i r y C o r p o r a t i o n t o g r a n t o r g r a n t i n g o f l i m i t e d m a r k e t s u p p o r t le v y ; r e f u s a l

b y M i n i s t e r o r A D C t o e x t e n d p e r i o d i n w h i c h t o s e e k r e - c o n s i d e r a t i o n

Dairy Products (Export Inspection Charge) Collection Act 1982 Section 10 (11 o f 1982) S e c t i o n 7 ( 2 )

R e f u s a l t o r e m i t p e n a l t y f o r n o n - p a y m e n t o f le v y

Dangerous Goods Ordinance 1984 (A.GT.) Items 26 [Act—s. 29A ] and 82 [Regulations— cl.274] o f Schedule (4 o f 1984) T h i s O r d i n a n c e m o d i f i e s t h e Dangerous Goods A ct 1975 ( N S W ) a n d t h e Dangerous Goods Regulation ( N S W ) i n t h e i r a p p l i c a t i o n t o t h e A . C . T .

A c t — s s . 8 , 1 0 , 1 7 , 1 9 , 2 1 , 2 7 , 2 8

Dangerous Goods Act 1975 ( N S W ) — v a r i o u s d e c i s i o n s o f t h e C h i e f I n s p e c t o r r e l a t i n g to

t h e is s u e , r e n e w a l, c a n c e l l a t i o n o r s u s p e n s i o n o f lic e n c e s o r p e r m i t s f o r t h e k e e p i n g , c a r r y in g ,

i m p o r t a t i o n , m a n u f a c t u r e o r s a le o f d a n g e r o u s g o o d s a n d e x p l o s iv e s

R e g u l a t i o n — e ls 2 1 , 3 9 ( 3 ) ( d ) , 4 6 ( 3 ), 5 2 , 5 3 , 5 9 , 6 1 , 6 3 , 6 5 , 2 2 5 ( 3 ), 2 3 5 ( 2 ) , 2 3 5 ( 4 ), 2 3 5 ( 5 ), 2 4 8 ( l) ( e ) ,

2 9 4 ( 3 )

D a n g e r o u s G o o d s R e g u l a t i o n ( N S W ) — v a r i o u s d e c i s i o n s o f t h e C h i e f I n s p e c t o r o r m e m b e r

o f t h e p o l i c e f o r c e

Defence Act 1903—Determination under Section 58B (Det 1 o f 1982, clause 12) C l a u s e 10

140

D e c i s i o n s p e c i f y i n g a n a m o u n t o f a d d i t i o n a l c o m p e n s a t i o n t o m e m b e r s o f D e f e n c e F o r c e

R e s e r v e

Defence Force Regulations Regulation 71(2) (131 o f 1985) R e g u l a t i o n 7 0 (1 )

O r d e r b y M i n i s t e r t h a t s a l a r y a n d a l l o w a n c e o f m e m b e r w h o d i e d w h i l e a b s e n t w i t h o u t le a v e

a n d h a d n o r e a s o n a b l e e x c u s e f o r a b s e n c e b e f o r f e i t e d

Defence Forces Retirement and Death Benefits Act 1973 Section 99 (33 o f 1976) S e c t i o n 9 9

A ll d e c i s i o n s o f t h e A u t h o r i t y

Dentists Registration Ordinance 1931 (A.CT.) Section 38B (47 o f 1981; 29 o f 1982) S e c tio n s 2 0 , 2 3 A C , 2 3 A D , 3 0

R e f u s a l t o r e g i s t e r o r r e - r e g i s t e r ; c a n c e l l a t i o n o f r e g i s t r a t i o n ; r e p r i m a n d i n g a p e r s o n ;

s u s p e n s i o n o f r e g i s t r a t i o n o t h e r w i s e t h a n u n d e r s. 3 1 (2 ); r e f u s a l t o g r a n t o r r e n e w s p e c i a l

r e g i s t r a t i o n ; r e f u s a l t o e x t e n d t i m e p r a c t i c e c a n c o n t i n u e t o a llo w a d m i n i s t r a t i o n o f e s t a t e

o f d e c e a s e d d e n t i s t

Designs Act 1906 Section 40K (42 o f 1981) S e c t i o n s 2 5 B, 2 7 B ( 2 ) , 2 7 C

D i r e c t i o n s a n d r e f u s a l t o g iv e d i r e c t i o n s t o c o - o w n e r s ; a p p l i c a t i o n f o r r e s t o r a t i o n o f t h e

r e g i s t r a t i o n o f a d e s i g n ; d i s m i s s a l a n d o t h e r d e c i s i o n s o f t h e R e g i s t r a r u n d e r S.27C

Diesel Fuel Taxation (Administration) Act 1957 Section 21A (63 o f 1980) S e c t i o n s 1 2 (2 ), 1 2 ( 3 A )

R e f u s a l t o c o n s e n t t o s a le o f d ie s e l f u e l p u r c h a s e d b y c e r t i f i c a t e h o l d e r a t lo w e r r a te ; e x te n s io n

o f t i m e f o r n o t i f i c a t i o n o f u s e o f f u e l

Distillation Act 1901 Section 82B (61 o f 1981) S e c t i o n s 2 0 , 2 2 , 2 3 , 2 4

R e f u s a l t o g r a n t o r r e n e w l i c e n c e t o d is til; c a n c e l l a t i o n o f lic e n c e ; r e q u i r e m e n t o f f r e s h s e c u r ity

Dried Fruits Export Control (Licences) Regulations Regulation 10A (331 o f 1980) R e g u l a t i o n s 5 ( 2 ), 5 ( 3 ) , 8 ( 2 ) , 8 ( 3 )

R e f u s a l t o g r a n t a l i c e n c e o r c e r t i f i c a t e ; c a n c e l l a t i o n o r s u s p e n s i o n o f a lic e n c e , r e v o c a t i o n

o f a c e r t i f i c a t e

Dried Vine Fruits Equalization Act 1978 Section 31 Dried Vine Fruits Equalization Levy Act 1978 (195 o f 1978) S e c t i o n s 1 1(5), 1 2 (3 ), 1 9 (3 )

R e le a s e f r o m l i a b i l i t y ; r e m i s s i o n o f p e n a l t y ; d i r e c t i o n o f n o f u r t h e r p a y m e n t s

141

Dried Vine Fruits Equalization Levy Act 1978 Section 31 <195 o f 1978) S e c t i o n 5 (2 )

F a i l u r e t o i s s u e c e r t i f i c a t e r e s u l t i n g i n i m p o s i t i o n o f le v y i n r e s p e c t o f c e r t a i n d r i e d fru its

Edible Oils (Export Inspection Charge) Collection Act 1982 Section 10 (13 o f 1982) S e c t i o n 7 ( 2 )

R e f u s a l t o r e m i t p e n a l t y f o r n o n - p a y m e n t o f le v y

Egg Industry Ordinance 1975 (A.CT.) Section 19 (43 o f 1979) S e c t i o n s 1 9 ( a ), 2 0 ( 2 )

R e f u s a l t o g r a n t , c a n c e l l a t i o n o r v a r i a t i o n o f li c e n c e o t h e r w i s e t h a n u n d e r s. 2 0 ; g iv in g or

r e f u s i n g t o g iv e a d i r e c t i o n v a r y i n g a l i c e n c e

Eggs (Export Inspection Charge) Collection Act 1982 Section 10 (15 o f 1982) S e c t i o n 7 (2 )

R e f u s a l t o r e m i t p e n a l t y f o r n o n - p a y m e n t o f le v y

Electoral and Referendum Regulations Regulation 40B (287 o f 1984) R e g u l a t i o n 4 0 A (6 )

D e c is io n o f D i v i s i o n a l R e tu r n i n g O f f i c e r c a n c e ll i n g r e g i s t r a t i o n o f a n e l e c t o r a s g e n e r a l p o s ta l

v o t e r a f t e r r e v ie w b y A u s t r a l i a n E l e c t o r a l O f f i c e r

Electricity Ordinance 1971 (A.CT.) Section 32ZD (20 o f 1985) S e c t i o n s 3 2 G ( 3 ) , 3 2 G ( 4 ) , 3 2.1(1), 3 2 .1 (3 ), 3 2 K ( 1 ) , 3 2 K ( 3 ) , 3 2 N ( 2 ) , 3 2 R , 3 2 Z C

V a r i o u s d e c i s i o n s o f t h e E l e c t r i c i t y A u t h o r i t y r e l a t i n g t o t h e s a l e , h i r e , i n s t a l l a t i o n a n d

c o n n e c t i o n o f a r t i c l e s o f e l e c t r i c a l e q u i p m e n t

Environment Protection (Sea Dumping) Act 1981 Section 24 (101 o f 1981) S e c t i o n s 19, 2 0 , 2 1 , 2 3

R e f u s a l t o g r a n t p e r m i t ; s u s p e n s i o n a n d r e v o c a t i o n o f p e r m i t ; i m p o s i t i o n o f a n d r e f u s a l

t o r e v o k e o r v a r y c o n d i t i o n s o n p e r m i t

Estate Duty Assessment Act 1914 Sections 27(3), 27B(2), (48 o f 1986) S e c t i o n s 2 4 , 2 7 (1 )

D e c i s i o n s o n o b j e c t i o n s a g a i n s t a s s e s s m e n t s o f d u t y ; r e f u s a l t o g r a n t e x t e n s i o n o f ti m e f o r

l o d g i n g o b j e c t i o n

1 4 2

Excise Act 1901 Section 162C (61 o f 1981; 108 o f 1982; 175 o f 1985) S e c tio n s 5 A , 4 0 , 4 3 , 5 9 A , 5 9 B , 6 0 , 6 1 E , 7 8 A , 1 5 4

R e f u s a l o f C o l l e c t o r t o p a y a r e b a t e ; d e m a n d f o r d u t y ; d e c l a r a t i o n o f a n a p p r o v e d p l a c e ;

g r a n t a n d c a n c e l l a t i o n o f l ic e n c e t o m a n u f a c t u r e ; q u o t a o r d e r s a n d v a r i a t i o n o f q u o t a o r d e r s ;

d e m a n d f o r p a y m e n t o f e x c is e w h e r e g o o d s n o t s a f e l y k e p t o r s a t i s f a c t o r i l y a c c o u n t e d f o r ;

d e c i s i o n s o f t h e C o l l e c t o r i n r e l a t i o n t o g r a n t o r r e v o c a t i o n o f p e r m i s s i o n f o r i n w a r d s d u t y

f r e e s h o p t o d e l i v e r g o o d s t o t r a v e l l e r s ; i m p o s i t i o n , r e v o c a t i o n , s u s p e n s i o n , v a r i a t i o n o r

c a n c e l l a t i o n o f s u s p e n s i o n o f c o n d i t i o n o n g r a n t o f p e r m i s s i o n

Excise Regulations Administrative Appeals Tribunal Act 1975 Sched 1 Pt X V III (91 o f 1975) reg 247(1) (127 o f 1985) R e g u l a t i o n s 5 8 , 7 6 , 7 7 [ n o t 7 7 ( 1 ) ] , 7 8 , 7 8 A , 7 8 B

R e f u n d o r r e m i s s i o n o f d u t y b y C o l l e c t o r a n d v a r i o u s d e c i s i o n s i n r e l a t i o n t o d r a w b a c k

o f d u t y b y M i n i s t e r o r C o l l e c t o r

R e g u l a t i o n s 7 8 , 7 8 A ( 8 )

A p p r o v a l o f p a y m e n t o f d r a w b a c k b y C o m p t r o l l e r

Export Control (Unprocessed Wood) Regulations Regulation 16(7) (79 o f 1986) R e g u la ti o n s 8, 9 , 1 1 (3 ), 1 1 (4 ), 1 2 (1 ), 15, 1 6 ( 3 ) ( a ) ( i i ) , 1 6 (4 )

D e c i s i o n o f M i n i s t e r t o g r a n t o r r e f u s e e x p o r t lic e n c e , s p e c i f i c a t i o n o f c o n d i t i o n s o r

r e s t r i c t i o n s o n l i c e n c e , s u r r e n d e r o f l i c e n c e i n e x c h a n g e f o r g r a n t o f a n o t h e r l ic e n c e ,

s p e c i f i c a t i o n o f c o n d i t i o n s o r r e s t r i c t i o n o n e x c h a n g e lic e n c e , c o n s e n t t o a s s i g n m e n t o f lic e n c e ,

r e v o c a t i o n o f l i c e n c e ; d e c i s i o n o f M i n i s t e r a f t e r r e - c o n s i d e r a t i o n o f d e c i s i o n o f d e l e g a t e o n

e x c h a n g e o r a s s i g n m e n t o f lic e n c e , e x t e n s i o n o f t i m e f o r r e q u e s t f o r r e - c o n s i d e r a t i o n

Export Expansion Grants Act 1978 Section 17(6) (162 o f 1978) S e c t i o n 17

D e c i s i o n s o f t h e B o a r d r e a c la im

Export Inspection (Charge Collection) Act 1985 Section 16(6) (27 o f 1985) S e c t i o n s 1 1 (2 ), 1 6 (4 )

R e f u s a l b y M i n i s t e r t o r e m i t w h o l e o r p a r t o f p e n a l t y f o r n o n - p a y m e n t o f a c h a r g e ; r e f u s a l

t o e x t e n d t i m e i n w h i c h t o s e e k r e - c o n s i d e r a t i o n

Export Market Development Grants Act 1974 Section 40A(6) (192 o f 1978) S e c t i o n s 6 ( 2 ) , 4 0 A

D e c i s i o n s o f t h e B o a r d re a c l a i m

First Home Owners Act 1983 Section 27(5) (46 o f 1983) S e c t i o n 2 7 ( 3 )

A ll d e c i s i o n s o f t h e S e c r e t a r y e x c e p t u n d e r s. 2 0

1 4 3

Fisheries Act 1952 Sections 12S(6) and 16A(6) (30 o f 1984; 29 o f 1985) S e c t i o n s 6 B , 9 (1 ), 9 ( 2 ), 9 ( 3 ) , 9 ( 3 A ) , 9 ( 4 ), 9 ( 4 A ) , 9 ( 4 B ) , 9 ( 5 ), 9 ( 5 A ) , 9 ( 5 B ) , 9 ( 6 ), 9 ( 7 ), 9 ( 8 A ) , 9 (8 B ),

9 A ( 3 A ) , 9 A ( 4 ) , 1 2 P ( 4 ) , 1 2 S (2 ), 1 2 S (4 ) , 1 6 A ( 2 )

V a r i o u s d e c i s i o n s r e c o n s i d e r e d b y J o i n t A u t h o r i t y u n d e r s. 1 2 8 (4 ) a s f o llo w s : r e f u s a l t o g r a n t

o r r e v o c a t i o n o f f i s h i n g ( s c i e n t i f i c ) p e r m i t ; i m p o s i t i o n , v a r i a t i o n o r r e v o c a t i o n o f c o n d i t i o n s

o n s u c h a p e r m i t ; r e f u s a l t o g r a n t , e n d o r s e o r t r a n s f e r a lic e n c e ; r e v o c a t i o n o f a n e n d o r s e m e n t ;

i m p o s i t i o n , v a r i a t i o n o r r e v o c a t i o n o f c o n d i t i o n s o n a l i c e n c e ; r e f u s a l t o r e m i t a l ic e n c e

f e e ; c a n c e l l a t i o n o r s u s p e n s i o n o f a l i c e n c e ; r e f u s a l t o e n d o r s e , s u s p e n s i o n o r c a n c e l l a t i o n

o f a n e n d o r s e m e n t b y J o i n t A u t h o r i t y ; r e f u s a l t o a l l o w a n e x t e n s i o n o f t i m e f o r

r e c o n s i d e r a t i o n b y J o i n t A u t h o r i t y

V a r io u s d e c i s i o n s o f t h e M i n i s t e r o r S e c r e t a r y a s fo llo w s : r e f u s a l t o g r a n t r e v o c a tio n o f f is h in g

( s c ie n tif ic ) p e r m i t ; i m p o s i t i o n , v a r i a t i o n o r r e v o c a t i o n o f c o n d i t i o n s o n s u c h a p e r m i t; r e f u s a l

t o g r a n t , e n d o r s e ( n o n - f o r e i g n b o a t ) o r t r a n s f e r a lic e n c e ; r e v o c a t i o n o f a n e n d o r s e m e n t ;

i m p o s i t i o n , v a r i a t i o n o r r e v o c a t i o n o f c o n d i t i o n s o n a l i c e n c e ; c a n c e l l a t i o n o r s u s p e n s i o n

o f a lic e n c e ; r e f u s a l b y M i n i s t e r o r S e c r e t a r y t o a llo w a n e x t e n s i o n o f t i m e f o r r e - c o n s i d e r a t i o n

FYeedom of Information Act 1982 Sections 51, 55, 59 (3 o f 1982) Section 58F (81 o f 1983) S e c t i o n s 2 9 , 5 1 (1 ), 5 4 (1 ), 5 9 (1 )

R e f u s a l t o g r a n t a c c e s s o r d e f e r r i n g t h e p r o v i s i o n o f a c c e s s t o a d o c u m e n t ; r e f u s a l t o a llo w

a f u r t h e r p e r i o d f o r m a k i n g a n a p p l i c a t i o n f o r i n t e r n a l r e v ie w ; q u e s t i o n s re c o n c l u s i v e

c e r t i f i c a t e s ; r e f u s a l t o a m e n d p e r s o n a l r e c o r d ; l i a b i l i t y t o p a y a c h a r g e in r e s p e c t o f a r e q u e s t

f o r a c c e s s t o a d o c u m e n t ; d e c i s i o n t h a t a d o c u m e n t is n o t e x e m p t u n d e r s. 3 3 A ( a p p l i c a t i o n

b y a S t a t e ) ; d e c i s i o n t h a t a d o c u m e n t is n o t e x e m p t u n d e r s. 4 3 ( a p p l i c a t i o n b y p e r s o n w h o

m a d e s u b m i s s i o n s )

Fringe Benefits Tax Assessment Act 1986 Sections 83(3), 85(2) (48 o f 1986) S e c t i o n s 8 0 , 8 3 ( 1 )

D e c i s i o n s o n o b j e c t i o n s a g a i n s t a s s e s s m e n t s o f t a x ; r e f u s a l t o g r a n t e x t e n s i o n o f t i m e f o r

l o d g i n g o b j e c t i o n

Gift Duty Assessment Act 1941 Sections 34(3), 34B(2) (48 o f 1986) S e c t i o n s 31, 3 4 (1 )

D e c i s i o n o n o b j e c t i o n s a g a i n s t a s s e s s m e n t o f d u t y ; r e f u s a l t o g r a n t e x t e n s i o n o f t i m e f o r

l o d g i n g o b j e c t i o n

Grain Legumes Levy Collection Act 1985 Section 14 (107 o f 1985) S e c t i o n 7 (4 )

R e f u s a l t o r e m i t o r r e m i s s i o n o f p a r t o n l y o f p e n a l t y f o r n o n - p a y m e n t o f g r a i n l e g u m e s le v y

Grape Research Levy Collection Act 1986 Section 14(1) (64 o f 1986) S e c t i o n 7 (3 )

D e c i s i o n t o r e f u s e t o r e m i t w h o l e o r p a r t o f p e n a l t y f o r n o n - p a y m e n t o f le v y

144

Great Barrier Reef Marine Park Regulations Regulation 22(6) (262 o f 1983; 169 o f 1985) R e g u la ti o n 2 2 ( 4 )

R e f u s a l t o g r a n t a n d s u s p e n s i o n o r r e v o c a t i o n o f a p e r m i s s i o n t o u s e i n a p a r t i c u l a r m a n n e r

o r e n t e r a z o n e , c a r r y o n a p r e s c r i b e d a c t i v i t y i n a n u n z o n e d a r e a , d i s c h a r g e o r d e p o s i t w a s t e

in t h e m a r i n e p a r k , a f t e r r e c o n s i d e r a t i o n b y A u t h o r i t y

Gun Licence Ordinance 1937 (A.CT.) Section 7P (3 o f 1979) S e c t i o n 7 P

R e f u s a l t o g r a n t o r r e n e w a g u n lic e n c e , a p i s t o l li c e n c e o r d e a l e r ’s l i c e n c e ; r e f u s a l t o a p p r o v e

a p i s t o l c lu b , c a n c e l l a t i o n o f a p p r o v a l ; r e f u s a l t o a p p r o v e p e r s o n s o r c a n c e l l a t i o n o f a p p r o v a l ;

p o l i c e o b j e c t i o n s t o l i c e n c e s

Hawkers Ordinance 1936 (A.CT.) Section 27A (5 o f 1978) S e c t i o n 2 7

R e f u s a l t o g r a n t o r v a r y a lic e n c e , c a n c e l l a t i o n o r s u s p e n s i o n o f a l i c e n c e ; r e f u s a l t o g r a n t

a p e r m i t , r e v o c a t i o n o f a p e r m i t o r i m p o s i t i o n o f c o n d i t i o n s

Health Authority Ordinance 1985 (A.CT.) Section 48 (69 o f 1985) S e c t i o n s 4 5 , 4 7

R e f u s a l t o a p p o i n t a s v i s i t i n g m e d i c a l o r d e n t a l o f f i c e r ; s u s p e n s i o n o r c a n c e l l a t i o n o f

a p p o i n t m e n t ; v a r i a t i o n o f c l i n i c a l p r i v i l e g e s

Health Insurance Act 1973 Section 5F (61 o f 1981; 118 o f 1981) Section 19 E (49 o f 1982) Section 38(6) (54 o f 1983)

Section 124R (167 o f 1985) S e c t i o n s 5 , 5 A , 5 B , 5 C , 5 D , 5 E , 1 9 B (8 ), 1 9 B ( 9 ) , 1 9 B (1 9 ), 2 3 J ( 1 ) , 2 4 ( 1 ), 2 4 ( 2 ) , 2 4 ( 5 ) , 2 9 (1 ), 2 9 ( 2 ) ,

2 9 A ( 1 ), 2 9 A ( 2 ) , 2 9 B ( 1 ) , 2 9 B ( 2 ) , 2 9 B ( 4 ) , 2 9 B ( 5 ) , 3 8 ( l ) ( b ) , 1 2 4 F (2 )

R e f u s a l b y S e c r e t a r y o f S o c i a l S e c u r i t y t o d e c l a r e a p e r s o n d i s a d v a n t a g e d , o r r e v o c a t i o n

o f s u c h a d e c l a r a t i o n ; v a r i o u s d e c i s i o n s r e l a t i n g t o t h e p e r i o d d u r i n g w h i c h a p r a c t i t i o n e r

is d i s q u a l i f i e d . V a r i o u s d e c i s i o n s a f f i r m e d o r v a r i e d b y t h e M i n i s t e r u n d e r s .3 8 ( 4 ) a s f o llo w s :

g r a n t o r v a r i a t i o n o f a c e r t i f i c a t e a p p r o v i n g i n p r i n c i p l e o f a p r i v a t e h o s p i t a l , o r a l t e r a t i o n s

o r a d d i t i o n s t o t h e p r e m i s e s o f a p r i v a t e h o s p i t a l ; a p p r o v a l o f p r e m i s e s w i t h o r w i t h o u t

c o n d i t i o n s a s a p r i v a t e h o s p i t a l ; r e v o c a t i o n o f a p p r o v a l o f p r e m i s e s a s a p r i v a t e h o s p i t a l ;

v a r i a t i o n o f c a t e g o r i s a t i o n o f p a r t i c u l a r p r i v a t e h o s p i t a l s ; v a r i a t i o n o f c o n d i t i o n s t o w h i c h

a n a p p r o v a l is s u b j e c t ; d e t e r m i n a t i o n u n d e r s .3 2 ( 4 ) o f t h e Health Legislation Amendment

Act 1983 o f t h e c a t e g o r y o f p r i v a t e h o s p i t a l t o w h i c h p r e m i s e s b e l o n g ; d e t e r m i n a t i o n o f

a M e d i c a r e P a r t i c i p a t i o n R e v ie w C o m m i t t e e t o d i s q u a l i f y , r e p r i m a n d , c o u n s e l o r t a k e n o

a c t i o n a g a i n s t a m e d i c a l p r a c t i t i o n e r

Home Deposit Assistance Act 1982 Section 49 (40 o f 1982) S e c t i o n 4 7

A l l d e c i s i o n s e x c e p t u n d e r s .3 4

145

Home Savings Grant Act 1976 Section 40 (183 o f 1976) S e c t i o n 3 9

A l l d e c i s i o n s o f t h e S e c r e t a r y

Honey Levy Collection Act 1962 Section 12A (80 o f 1982) S e c t i o n 8 ( 3 )

R e m i s s i o n o f p e n a l t y f o r n o n - p a y m e n t o f le v y

Immigration (Guardianship of Children) Act 1946 Section 11A(6) (65 o f 1985) S e c t i o n s 4 A A , 11, l l A ( 3 ) ( a ) ( i i ) , 11 A ( 4 )

D i r e c t i o n b y M i n i s t e r t h a t c h i l d b e M i n i s t e r ’s w a r d ; r e f u s a l t o e x e m p t c h i l d f r o m p r o v i s i o n s

o f A c t; r e f u s a l t o e x t e n d p e r i o d i n w h i c h t o s e e k r e - c o n s i d e r a t i o n

Income Tax Assessment Act 1936 Section 251K(5) (57 o f 1977) Sections 188A (3), 189(2) (48 o f 1986) S e c t i o n s 1 8 6 , 1 8 8 A ( 1 ), 2 5 1 K

C a n c e l l a t i o n o r s u s p e n s i o n s o f r e g i s t r a t i o n a s a t a x a g e n t ; d e c i s i o n s o n o b j e c t i o n s a g a i n s t

a s s e s s m e n t s o f t a x ; r e f u s a l t o g r a n t e x t e n s i o n o f t i m e f o r l o d g i n g o b j e c t i o n

Industrial Research and Development Incentives Act 1976 Section 41(6) (85 o f 1976) S e c t i o n 4 1 (4 )

D e c i s i o n s b y t h e B o a r d r e a p p l i c a t i o n f o r a c o m m e n c e m e n t g r a n t

Insurance Act 1973 Section 63(7) (31 o f 1977) S e c t i o n s 2 7 , 2 9 , 3 0 ( 2 ) , 3 0 ( 3 ) , 3 0 ( 4 ) , 3 0 ( 5 ) , 3 3 ( 3 ) , 3 6 (1 ), 3 6 ( 4 ) , 3 7 (1 ), 3 7 ( 2 ) , 4 1 ( 2 ), 4 6 (1 ), 5 1 ( l ) ( b ) ,

6 2 , 9 3 ( 3 ) , 1 0 5 (8 ), 1 0 5 (1 2 ), 1 0 5 (1 2 A ), 1 0 9 , 113

V a r i o u s d e c i s i o n s c o n f i r m e d o r v a r i e d b y t h e T r e a s u r e r o r C o m m i s s i o n e r u n d e r s .6 3 ( 4 )

Insurance Amendment Act 1983 Section 48(6) (129 o f 1983) S e c t i o n 4 8 (1 )

D i r e c t i o n s g iv e n t o a b o d y c o r p o r a t e w i t h r e s p e c t t o t h e c a r r y i n g o n o f it s i n s u r a n c e b u s i n e s s

Insurance (Agents and Brokers) Act 1984 Section 42 (75 o f 1984) S e c t i o n 4 2 (1 )

A n y d e c i s i o n o f a C o m m i s s i o n e r u n d e r t h e A c t e x c e p t u n d e r s .4 7

Insurance (Deposits) Act 1932 Section 17(2) (19 o f 1979) S e c t i o n 17(1)

146

D e c i s i o n s o f t h e T r e a s u r e r a s t o t h e n e t l i a b i l i t y o f p r e m i u m i n c o m e o f p e r s o n s c a r r y i n g

o n i n s u r a n c e b u s i n e s s ; v a l u e o f s e c u r i t i e s d e p o s i t e d ; a m o u n t o f d e p o s i t

Interim Forces Benefits Act 1947 Section 7AA (97 o f 1984) R e fe r t o P a r t 111B Repatriation Act 1920

Interstate Road Transport Act 1985 Section 51(6) (130 o f 1985— not yet in operation) S e c t i o n s 5 1 (2 ) [ o t h e r t h a n a d e c i s i o n o f a d e l e g a t e ] , 5 1 (4 )

R e c o n s i d e r a t i o n b y M i n i s t e r o f r e l e v a n t d e c i s i o n s , ie , d e c i s i o n o f R e g u l a t o r y A u t h o r i t y t o

r e g is te r m o t o r v e h ic le , s u s p e n d o r c a n c e l r e g i s t r a t i o n , r e f u s a l t o g r a n t o p e r a t o r s lic e n c e , r e f u s a l

t o r e v o k e d i s q u a l i f i c a t i o n , c a n c e l l a t i o n o f l i c e n c e o f a s s o c i a t e o f d i s q u a l i f i e d p e r s o n ,

c a n c e l l a t i o n o f o p e r a t o r s lic e n c e ; r e f u s a l t o a l l o w e x t e n s i o n o f t i m e f o r r e q u e s t f o r

r e c o n s i d e r a t i o n b y M i n i s t e r

Judges’ Pensions Act 1968 Section 17A (158 o f 1981) S e c t i o n s 6 ( 2 A A ) , 1 3 , 1 5(1), 1 5 (3 )

R e f u s a l o f A t t o r n e y - G e n e r a l t o c e r t i f y t h a t r e t i r e m e n t o f a J u d g e d u e t o p e r m a n e n t d i s a b il i t y

o r i n f i r m i t y ; e l i g i b i l i ty o f c h i l d r e n f o r o r p h a n ’s p e n s i o n a n d a p p o r t i o n m e n t ; r e f u s a l t o d i r e c t

t h a t p a y m e n t o f c h i l d r e n ’s p e n s i o n b e t o s p e c i f i e d p e r s o n o r t h a t p e n s i o n b e e x p e n d e d in

s p e c i f i e d m a n n e r

Lakes Ordinance 1976 (A.GT.) Section 51 (65 o f 1976) S e c t i o n s 1 4 (2 ), 2 6 , 3 4

D e t e r m i n a t i o n o f c o m p e n s a t i o n f o r d a m a g e ; r e v o c a t i o n o f a u t h o r i t y t o u s e a p o w e r b o a t ;

c a n c e l l a t i o n o f l i c e n c e t o s e ll o r h i r e g o o d s e t c i n a l a k e a r e a

Land Rent and Rates (Deferment and Remission) Ordinance 1970 (A.GT.) Sections 10(5), 21D (5 o f 1981) Section 21FB (70 o f 1976)

S e c t i o n 1 0 (2 ), 2 1 C , 2 1 F

D e c i s i o n t h a t p r e s c r i b e d g r o u n d f o r r e v o c a t i o n o f d e t e r m i n a t i o n s t o d e f e r r a t e s o f p e n s i o n e r

e x is ts ; r e f u s a l t o r e b a t e l a n d , s e w e r a g e a n d w a t e r r a t e s in c a s e s o f h a r d s h i p ; d e t e r m i n a t i o n

o f n o t i o n a l u n i m p r o v e d v a l u e o f p r e s c r i b e d l a n d

Land Valuation Ordinance 1936 (A.GT.) Section 7 (106 o f 1982) S e c t i o n 7

D e c is io n s o f t h e M i n i s t e r a f f i r m i n g o r v a r y i n g a r e c o m m e n d a t i o n o f t h e L a n d C o m m i s s i o n e r

c o n c e r n i n g t h e r e n t p a y a b l e u n d e r a C r o w n L e a s e

Leases Ordinance 1918 (A.GT.) Section 3AAA (107 o f 1982/ S e c t i o n s 3 A A A ( 7 ) ( a ) , 3 A A A ( 7 ) ( b )

D e c i s i o n s o f M i n i s t e r a f f i r m i n g o r v a r y i n g o f f e r t o g r a n t a l e a s e u p o n t h e e x p i r a t i o n o f ,

o r h is s u b s t i t u t i o n f o r , e x i s ti n g l e a s e ; d e t e r m i n a t i o n b y M i n i s t e r i n r e l a t i o n t o r e n t p a y a b l e

u n d e r le a s e

147

Leases (Special Purposes) Ordinance 1925 (A.CT.) Section 5B (42 o f 1981) Section 5BB(5) (17 Of 1986) S e c t i o n 5 A , 5 B B

R e - a p p r a i s e m e n t o f u n i m p r o v e d v a l u e o f l a n d ; d e t e r m i n a t i o n o f v a l u e o f i m p r o v e m e n t s to

p r o p e r t y

Legal Aid Ordinance 1971 (A.CT.) Section 91B (1 o f 1985) S e c t i o n 6 0 (1 )

R e m o v a l o f s t a t u t o r y o f f e r b y C o m m i s s i o n f o r m i s b e h a v i o u r , p h y s i c a l o r m e n t a l i n c a p a c i t y ,

i n e f f i c i e n c y o r i n c o m p e t e n c e

Life Insurance Act 1945 Section 138(8) (32 o f 1977; 143 o f 1983) S e c t i o n s 4 A ( 3 ) , 1 6 A ( 1 ), 1 9 (1 ), 2 0 , 2 3 A ( 2 ) , 3 9 ( 2 ) , 4 0 ( 8 ) , 4 0 ( 1 0 ), 4 0 (1 1 ), 4 7 , 5 2 ( 3 ) , 5 2 ( 4 ) , 5 2 ( 5 ) ,

5 8 (1 ), 5 8 ( 3 ) , 5 8 ( 4 )

V a r io u s d e c i s i o n s a n d d e t e r m i n a t i o n s c o n f i r m e d o r v a r ie d b y t h e C o m m i s s i o n e r u n d e r $.138(4)

Liquefied Petroleum Gas (Grants) Act 1980 Section 15 (37 o f 1980; 173 o f 1980; 97 o f 1982; 39 o f 1985) S e c t i o n s 6 ( l ) ( a ) , 6 ( l ) ( b ) , 6 ( l ) ( c ) , 6 ( 3 ) ( a ) , 6 ( 3 ) ( b ) , 6 ( 3 ) ( c ) , 6 ( 6 ), 6 ( 6 A ) ( a ) , 6 ( 6 A ) ( b ) , 7 ( l ) ( a ) , 7 ( l ) ( b ) ,

7 ( l ) ( c ) , 7 ( 4 ) , 7 ( 5 ) , 7 ( 6 A ) ( a ) , 7 ( 6 A ) ( b ) , 7 A ( 7 )

V a r io u s d e c i s i o n s a n d d e t e r m i n a t i o n s a n d r e f u s a l s t o d e t e r m i n e o r d e c i d e

Liquid Fuel Emergency Act 1984 Section 44(6) (5 o f 1984) S e c t i o n s 1 0 (3 ), 1 1 (3 ), 1 2 (2 ), 1 2 (6 ), 1 3 ( 3 ), 4 4 ( 2 )

V a r i o u s d e c i s i o n s

Live-stock Slaughter (Export Inspection Charge) Collection Act 1979 Section 10A(6) (65 o f 1985) S e c t i o n s 8 ( 3 ), 1 0 A ( 3 ) ( a ) ( ii) , 1 0 A (4 )

R e f u s a l t o r e m i t w h o l e o r p a r t o f p e n a l t y f o r n o n - p a y m e n t o f a c h a r g e ; r e f u s a l t o e x t e n d

p e r i o d i n w h i c h t o s e e k r e - c o n s i d e r a t i o n

Live-stock Slaughter Levy Collection Act 1964 Section 15A (80 o f 1982) S e c t i o n 9 (3 )

R e m i s s i o n o f p e n a l t y f o r n o n - p a y m e n t o f le v y

Loan (Drought Bonds) Act 1969 Section 26(3) (48 o f 1986) S e c t i o n s 19, 2 0 , 2 1 , 2 3 , 2 4 [ N o te : o n l y w h e r e n o t i c e h a s b e e n g i v e n u n d e r s .2 6 ( l) ]

F a i l u r e t o d e c l a r e t h a t s t o c k h a s b e c o m e r e d e e m a b l e

Loan (Income Equalization Deposits) Act 1976 Sections 22(3), 24(6) (173 o f 1984)

1 4 8

S e c tio n s 2 2 (1 ), 2 4 ( 5 )

D e c i s i o n s r e g a r d i n g p a y m e n t o f d e p o s i t o n g r o u n d s o f f i n a n c i a l d i f f i c u l t y

Long Service Leave (Building and Construction Industry) Ordinance 1981 (A.CT.) Section 59 (23 o f 1981) S e c t i o n s 3 6 ( 4 ) , 3 7 (1 ), 3 7 ( 4 ) , 3 8 ( 1 ), 4 1 , 4 8 , 5 2 , 5 5 , 6 3

V a r io u s d e c i s i o n s

Management and Investment Companies Act 1983 Section 47 (123 o f 1983) S e c t i o n 4 7

D e c i s i o n s t o r e v o k e o r t o r e f u s e t o r e n e w a m a n a g e m e n t a n d i n v e s t m e n t c o m p a n y li c e n c e

Marriage Act 1961 Section 34(1) (209 o f 1976) D iv . 1 P t I V , s e c t i o n 3 3

R e f u s a l t o r e g i s t e r a m i n i s t e r o f r e l i g i o n a s m a r r i a g e c e l e b r a n t ; r e m o v a l f r o m r e g i s t e r

Meat Chicken Levy Collection Act 1969 Section 10A (80 o f 1982) S e c t i o n 5 (2 )

R e m i s s i o n o f p e n a l t y f o r n o n - p a y m e n t o f le v y

Meat Export Charge Collection Act 1984 Section 12A (6) (65 o f 1985) S e c t i o n s 9 ( 2 ) , 1 2 A ( 3 ) ( a ) ( ii) , 1 2 A (4 )

R e f u s a l t o r e m i t w h o l e o r p a r t o f p e n a l t y f o r n o n - p a y m e n t o f a c h a r g e ; r e f u s a l t o e x t e n d

p e r i o d in w h i c h t o s e e k r e - c o n s i d e r a t i o n

Meat Orders Order 42.7 (Order 1 o f 1983) O r d e r 4 2 .4

R e c o n s i d e r a t i o n b y S e c r e t a r y o f a n y d e c i s i o n m a d e b y h i m u n d e r t h e O r d e r s

Meat Inspection (General Orders) Order 12 (Order 1 o f 1984) O r d e r 11.2

R e c o n s i d e r a t i o n b y S e c r e t a r y o f n o t i c e s u s p e n d i n g o p e r a t i o n s a t p r e m is e s , r e q u i r i n g r e m e d i a l

m e a s u r e s o r r e q u i r i n g c e s s a t i o n o f u s e o f p r e m i s e s o r v e h ic le u n t i l s p e c i f i e d m e a s u r e s t a k e n

Meat Inspection (New South Wales) Orders Order 156 (Order 2 o f 1984) O r d e r s 1 5 3 , 155

R e f u s a l t o g r a n t , o r t h e g r a n t s u b j e c t t o c o n d i t i o n o f , a n a p p r o v a l o f a l a b o r a t o r y , c o v e r i n g

o r d y e s o l u t i o n

149

Meat Inspection (Australian Capital Territory) Orders Order 88 (Order 3 o f 1984) O r d e r s 8 6 , 8 7

R e f u s a l t o g r a n t , o r t h e g r a n t s u b j e c t t o c o n d i t i o n o f , a n a p p r o v a l o f a l a b o r a t o r y , c o v e r in g

o r d y e s o l u t i o n

Medical Practitioners Registration Ordinance 1930 (A.CT.) Section 39C (48 o f 1981; 30 o f 1982; 13 o f 1984) S e c t i o n s 2 8 , 2 8 A , 2 9 A , 3 0 , 3 0 A , 3 8 A , 3 9 B A

R e f u s a l t o r e g is te r o r r e - r e g is te r ; c a n c e ll i n g t h e r e g i s t r a t i o n o f a p e r s o n ; r e p r i m a n d ; s u s p e n s io n

o f r e g i s t r a t i o n o t h e r w i s e t h a n u n d e r s .3 1 ( 2 ) ; r e f u s a l t o g r a n t o r r e v ie w s p e c i a l r e g i s t r a t i o n ;

r e f u s a l t o g r a n t o r r e n e w t e m p o r a r y r e g i s t r a t i o n ; r e f u s a l t o a p p r o v e o r w i t h d r a w a l o f a p p r o v a l

o f a q u a l i f i e d p e r s o n a s a m e d i c a l o f f i c e r ; s u s p e n s i o n o f r e g i s t r a t i o n o f m e d i c a l p r a c t i t i o n e r

o n h e a l t h g r o u n d s ; o r d e r r e s t r i c t i n g p e r f o r m a n c e o f m e d i c a l s e r v i c e s o n h e a l t h g r o u n d s ;

r e f u s a l t o e x t e n d p e r i o d d u r i n g w h i c h e x e c u t o r , a d m i n i s t r a t o r o r t r u s t e e m a y c a r r y o n t h e

b u s i n e s s o f d e c e a s e d m e d i c a l p r a c t i t i o n e r

Mental Health Ordinance 1983 (A.CT.) Section 69 (52 o f 1983) S e c t i o n s 6 9 ( a ) , 6 9 ( b ) , 6 9 ( c ) , 6 9 ( d ) , 6 9 ( e )

R e f u s a l t o g r a n t a l i c e n c e u n d e r P t V I I I o f t h e O r d i n a n c e r e l a t i n g t o t h e c o n t r o l o f p r i v a t e

h e a l t h f a c i l i ti e s ; c a n c e l l a t i o n o f a l i c e n c e u n d e r P t V I I I ; r e f u s a l t o r e s t o r e a li c e n c e u n d e r

P t . V I I I ; v a r i a t i o n o r r e v o c a t i o n , o r r e f u s a l u n d e r s . 6 3 ( l ) t o v a r y o r r e v o k e a c o n d i t i o n

s p e c i f i e d i n a l i c e n c e u n d e r P t V I I I ; m a k i n g o r r e f u s i n g u n d e r s . 6 3 ( l ) t o m a k e a l i c e n c e

u n d e r P t V I I I s u b j e c t t o a c o n d i t i o n

Migration Act 1958 Section 66E (61 o f 1981; 112 o f 1983) S e c t i o n s 12, 4 8

O r d e r o f d e p o r t a t i o n o f a n o n - c i t i z e n c o n v i c t e d o f c e r t a i n c r i m e s ; d i r e c t i o n t h a t a p e r s o n

is n o t t o a c t a s m i g r a t i o n a g e n t

Motor Traffic Ordinance 1936 (A.CT.) Sections 150B(8), 150C(5) (50 o f 1982) Section 164G (32 o f 1979) S e c t i o n s 1 5 0 B , 1 5 0 C , 1 6 4 E ( l ) ( a )

R e f u s a l b y R e g is t r a r t o g r a n t o r h i s c a n c e l l a t i o n o f a la b e l a l l o w i n g s p e c i f i c c la s s e s o f p e r s o n s

t o p a r k i n r e s t r i c t e d l o c a t i o n s ; r e f u s a l t o g iv e a n d r e v o c a t i o n o f c e r t i f i c a t e o f e x e m p t i o n

f r o m w e a r i n g a s e a t b e l t

Narcotic Drugs Act 1967 Section 14A (176 o f 1976) S e c t i o n s 9 , 10, 12, 13

R e f u s a l t o g r a n t o r r e v o c a t i o n o f l i c e n c e ; s p e c i f i c a t i o n o f p a r t i c u l a r c o n d i t i o n s o f lic e n c e ;

d i r e c t i o n s i n r e l a t i o n t o t h e h a n d l i n g a n d l a b e l l i n g o f d r u g s

National Health Act 1953 Section 105A B (60 o f 1979; 99 o f 1976; 189 o f 1978; 112 o f 1982; 54 o f 1983; 70 o f 1985) Section 105A A A (88 o f 1978; 131 o f 1980; 72 o f 1984) Section 105AAB(7) (139 o f 1983; refer also to SR 135 o f 1984)

150

S e c tio n s 13, 14, 2 0 , 3 9 A ( 1 ) , 3 9 ( A ) ( 2 ) , 3 9 A ( 3 ) , 3 9 A ( 4 ) , 4 0 A A ( 2 ) , 4 0 A A ( 3 ) , 4 0 A A ( 3 A ) , 4 0 A A ( 4 ) ,

4 0 A A ( 5 ) , 4 0 A A ( 6 ) , 4 0 A A ( 8 ) , 4 0 A A ( 1 0 ) , 4 0 A B A , 4 0 A B , 4 0 A D , 4 1 ( 2 ) , 4 3 A ( 4 ) , 4 4 , 4 5 A ,

6 8 ( 2 A )( c ) , 6 8 A ( b ) , 7 3 B , 7 3 B E , 7 3 B F ( 4 ) , 7 3 B F A ( 4 ) , 7 3 B F B ( 4 ) , 7 3 D ( 1 ) , 7 8 , 9 0 , 9 2 , 9 5 , 1 0 5 A A A ( 4 )

[ N o te : d e c is io n s u n d e r S .4 0 A F b e c o m e r e v i e w a b l e w h e n s .5 4 ( 3 ) o f S R 1 3 9 o f 1 9 8 3 is p r o c l a i m e d ]

V a r io u s d e c i s i o n s

National Health Regulations Regulation 12 (59 o f 1979) Section 105AAA(l)(c) National Health Act 1953 (72 o f 1984)

P t 11

D e c i s i o n s o n p a y m e n t o f a c c o m m o d a t i o n a l l o w a n c e s f o r p a t i e n t s a n d a p p r o v e d e s c o r t s w h o

liv e in i s o l a t e d a r e a s a n d a r e r e f e r r e d t o c o n s u l t i n g p h y s i c ia n s a t d i s t a n t t o w n s

National Occupational Health and Safety Commission Act 1985 Section 63(7) (35 o f 1985) S e c t i o n 6 3 (4 )

D e c i s i o n s o f t h e C o m m i s s i o n e r r e l a t i n g t o t h e d i s s e m i n a t i o n o r p u b l i c a t i o n o f i n f o r m a t i o n

National Parks and Wildlife Regulations Regulation 20D(8) (94 o f 1982) R e g u l a t i o n 2 0 D

D e c is io n o f D i r e c t o r u n d e r r e g u l a t i o n s n o t b e i n g a d e c is io n u n d e r r e g 8 B o r a d e e m e d d e c is io n

u n d e r s .4 3 ( 6 ) o f A A T A c t

Nature Conservation Ordinance 1980 (A.CT.) Section 74 (20 o f 1980; 22 o f 1982) S e c t i o n s 3 6 ( 2 ) , 3 8 ( 1 ), 3 9 ( 1 ), 4 8 , 4 9 , 5 3 , 5 6 ( 1 ), 5 6 ( 2 ) , 5 6 ( 3 ) , 5 7 (1 ), 6 2 ( 1 ) , 6 3 ( 1 ), 6 9

D e c i s i o n s o n t h e g r a n t , r e f u s a l t o g r a n t , g r a n t s u b j e c t t o c o n d i t i o n o r c a n c e l l a t i o n o f p e r m i t

o r lic e n c e ; r e f u s a l t o c o n s e n t t o r e l e a s e o f a c a p t i v e a n i m a l o r p r o h i b i t e d a c t i v i t i e s ; d i r e c t i o n s

o f C o n s e r v a t o r r e i n s e c t i c i d e s e tc a n d d i s e a s e d w i l d l i f e ; r e s t r i c t i o n o r p r o h i b i t i o n o f a c c e s s

t o r e s e r v e d a r e a ; r e f u s a l t o i s s u e c e r t i f i c a t e o f c o m p l i a n c e

Navigation Act 1912 Sections 424A and 424B (40 o f 1983— n o t y e t i n o p e r a t i o n ,) S e c t i o n s 2 6 7 B , 2 6 7 C , 2 6 7 D ( 5 ) , 2 6 7 K ( 1 ) , 2 6 7 Q , 2 6 7 R , 2 6 7 S ( 5 ) , 2 6 7 Y ( 1 )

R e f u s a l t o i s s u e o r c a n c e l l a t i o n o f v a r i o u s c e r t i f i c a t e s ; d i r e c t i o n re f o r e i g n s h i p s

Navigation (Orders) Regulations Regulation 3A (7) (399 o f 1982) R e g u l a t i o n 3 A ( 4 )

D e c i s i o n r e l a t i n g t o t h e is s u e , v a r i a t i o n , s u s p e n s i o n o r c a n c e l l a t i o n o f a c e r t i f i c a t e

Nitrogenous Fertilizers Subsidy Act 1966 Section 23A (114 o f 1977; 39 o f 1985) S e c t i o n s 5 ( 2 ) , 5 ( 2 A ) , 6 , 11, 13, 1 4(1), 1 6 (6 ), 1 6 (7 ), 2 2

D e c i s i o n s o n e l i g i b i l i t y f o r s u b s id y , r e g i s t r a t i o n o f p r e m i s e s a n d a m o u n t o f s e c u r i t y

151

Nurses Registration Ordinance 1933 (A.CT.) Section 42A (49 o f 1981) S e c t i o n 4 2 A

R e f u s a l t o r e g i s t e r , o r t o r e - r e g i s t e r ; r e f u s a l t o e n r o l p e r s o n a s a n u r s i n g a i d e ; r e m o v a l o f

n u r s e ’s n a m e f r o m R e g is t e r ; r e m o v a l o f n u r s e ’s a i d e ’s n a m e f r o m R o ll; c a u t i o n o r c e n s u r e

o f B o a r d ; s u s p e n s i o n o f r e g i s t r a t i o n ; r e f u s a l t o i s s u e o r t o r e n e w a t e m p o r a r y r e g i s t r a t i o n

Nursing Homes Assistance Act 1974 Section 11A(7) (139 o f 1983) S e c t i o n s 4 , 6 , 8 , 9 , 11, 1 1 A (2 )

V a r io u s d e c i s i o n s b y t h e M i n i s t e r c o n c e r n i n g a p p r o v a l o f a n u r s i n g h o m e a p p r o v e d o r v a r ie d

u n d e r s .l 1 A ( 4 )

Ombudsman Act 1976 Sections 10, 11 (181 o f 1976) T h e O m b u d s m a n m a y c e r t i f y t h a t u n r e a s o n a b l e d e l a y i n d e c i s i o n - m a k i n g h a v i n g o c c u r r e d ,

a d e c i s i o n s h a l l , f o r t h e p u r p o s e s o f e n a b l i n g a n a p p l i c a t i o n t o b e m a d e t o t h e A A T , b e

d e e m e d t o h a v e b e e n m a d e ; t h e O m b u d s m a n m a y r e f e r c e r t a i n q u e s t i o n s t o t h e A A T f o r

a n a d v i s o r y o p i n i o n

Optometrists Ordinance 1936 (A.CT.) Section 26 (50 o f 1981; 31 o f 1982) S e c t i o n s 16, 2 1 , 2 2 , 2 3 , 31

R e f u s a l t o r e g i s t e r o r r e s t o r e r e g i s t r a t i o n ; c a n c e l l a t i o n o r s u s p e n s i o n o f r e g i s t r a t i o n ; r e f u s a l

t o e x te n d t i m e p r a c t i c e c a n c o n t i n u e t o a llo w a d m i n i s t r a t i o n o f e s t a t e o f d e c e a s e d o p t o m e t r i s t ;

r e f u s a l t o g r a n t o r r e n e w s p e c i a l r e g i s t r a t i o n

Papua New Guinea (Staffing Assistance) Act 1973 Section 54 (69 o f 1976) S e c t i o n 5 4

A ll d e c i s i o n s o f t h e C o m m i s s i o n e r f o r S u p e r a n n u a t i o n m a d e u n d e r t h e A c t

Papua New Guinea Staffing Assistance (Superannuation) Regulations Regulation 8B (65 o f 1977) R e g u l a t i o n 8 B ( 4 )

A il d e c i s i o n s o f t h e C o m m i s s i o n e r m a d e u n d e r t h e R e g u l a t i o n s

Parliamentary Contributory Superannuation Act 1948 Section 25 (19 o f 1979; 37 o f 1981) S e c t i o n 25

A ll d e c i s i o n s o f t h e T r u s t m a d e u n d e r t h e A c t a n d R e g u l a t i o n s

Passports Act 1938 Section 11A(5) (168 o f 1984) S e c t i o n s 7 (1 ), 7 ( 3 ) ,7 A ( 1 ) , 7 A ( 2 ) , 7 A ( 5 ) , 7 B , 7 C ( 2 ) , 7 E ( l ) ( a ) , 7 E ( l ) ( b ) , 8 (1 ), 8 ( l B ) ( a ) , 8 ( l B ) ( b ) ,

8 ( 2 ), 9 ( 4 ) , 1 1 A (2 ), 1 1 A (4 )

V a r i o u s d i r e c t i o n s b y t h e M i n i s t e r ; d e c i s i o n b y t h e M i n i s t e r t o i s s u e o r r e f u s e t o i s s u e a

p a s s p o r t , c a n c e l a p a s s p o r t , c a n c e l t h e r e n e w a l o r e n d o r s e m e n t o f a p a s s p o r t , o r r e f u s a l

t o a llo w f u r t h e r p e r i o d f o r a p p l i c a t i o n t o M in is te r . R e v ie w b y t h e M i n i s t e r o f v a r i o u s d e c is io n s

a n d d i r e c t i o n s b y a p p r o v e d r e p r e s e n t a t i v e , a p p r o v e d s e n i o r o f f i c e r a n d a u t h o r i s e d o f f i c e r

152

Passport Regulations Regulation 14(5) (277 o f 1985) R e g u la ti o n s 4 , 5 ( 2 ) , 7 ( 2 ) , 9 , 1 0 , 1 1(2), 1 1 (3 ), 1 1 (4 ), 1 1 (5 ), 11(7)

V a r i o u s d e c i s i o n s o f t h e M i n i s t e r o r r e v i e w e d b y t h e M i n i s t e r a s f o l l o w s — d i r e c t i o n s t o a n

a u t h o r i s e d o f f i c e r ( r e r e g s 5 ( 2 ) , 7 (2 ) a n d 1 1 ); r e f u s a l t o e x t e n d p e r i o d o f v a l i d i t y o f A u s t r a l i a n

p a s s p o r t ; d e c i s i o n t o , o r n o t t o , i s s u e o r r e n e w a c e r t i f i c a t e o f i d e n t i t y ; d e c i s i o n t o , o r n o t

t o , is s u e o r r e n e w a d o c u m e n t o f i d e n t i t y f o r t r a v e l p u r p o s e s ; d e c i s i o n t o , o r n o t t o , e n d o r s e

a n A u s t r a l i a n p a s s p o r t ; r e f u s a l b y a p p r o v e d s e n i o r o f f i c e r t o g iv e w r i t t e n n o t i c e t h a t s p e c i a l

c i r c u m s t a n c e s e x is t s u c h t h a t e n d o r s e m e n t s h o u l d b e m a d e ; r e f u s a l t o g r a n t e x e m p t i o n f r o m

p a y m e n t o f f e e s ; r e f u s a l t o e x t e n d t i m e i n w h i c h t o a p p l y t o M i n i s t e r

Patent Attorney Regulations Administrative Appeals Tribunal Act 1975 Sched I Pt X X I V (91 o f 1975) R e g u l a t i o n 2 7

O r d e r t o r e m o v e n a m e o f p a t e n t a t t o r n e y f r o m R e g is te r

Patents Act 1952 Section 151 (162 o f 1976) Section 159C (19 o f 1979; 26 o f 1982) S e c t i o n s 4 7 E , 5 9 (1 ), 6 6 , 7 7 ( 4 ) , 8 2 , 9 8 , 1 0 6 (1 ), 1 5 4 , 1 5 9 C , 1 6 0 , P a r t X V

R e s t o r a t io n o f l a p s e d a p p l i c a t i o n f o r p a t e n t ; v a r i o u s e x te n s io n s o f t i m e ; d i r e c t i o n t h a t c o n s e n t

o f m o r t g a g e e o r l i c e n s e e t o a m e n d m e n t o f c o m p l e t e s p e c i f i c a t i o n s h a l l n o t b e n e c e s s a r y ;

r e s t o r a t i o n o f a p a t e n t ; a c c e p t a n c e o f o f f e r t o s u r r e n d e r p a t e n t ; d i r e c t i o n s t o c o - o w n e r s ;

g r a n t o f a l i c e n c e ; r e f u s a l t o r e g i s t e r a p a t e n t a t t o r n e y

[ N o te : d e c i s i o n s u n d e r s.131 b e c o m e r e v ie w a b le w h e n s.7 o f S R 9 2 o f 1 9 8 4 c o m e s i n t o o p e r a t i o n ]

Patents Regulations Regulation 92 (177 o f 1977) R e g u l a t i o n s 7 B ( 8 ) , 7 B ( 1 2 ) , 1 6 F ( 6 ) , 4 4 , 5 2

H e a r i n g b y C o m m i s s i o n e r o n n o t i c e o f o p p o s i t i o n t o r e s t o r a t i o n o f l a p s e d a p p l i c a t i o n ; g r a n t

o r d i s m i s s a l o f a p p l i c a t i o n f o r l ic e n c e w h e r e l a p s e d a p p l i c a t i o n s a r e r e s t o r e d ; d e t e r m i n a t i o n

o f a p p l i c a t i o n f o r r e s t o r a t i o n o f a p a t e n t w h i c h h a s c e a s e d ; d e t e r m i n a t i o n o f a p p l i c a t i o n

f o r lic e n c e

Pay-roll Tax Assessment Act 1941 Section 40B(3), 40D(2) (48 o f 1986) S e c t i o n s 3 9 , 4 0 B ( 1 )

D e c i s i o n s o n o b j e c t i o n s a g a i n s t a n y a s s e s s m e n t o r d e t e r m i n a t i o n o r d e c i s i o n b y w h i c h t a x

l i a b i l i t y is a f f e c t e d m a d e b y t h e C o m m i s s i o n e r ; r e f u s a l t o g r a n t e x t e n s i o n o f t i m e f o r l o d g i n g

o b j e c t i o n s

Pay-roll Tax (Territories) Assessment Act 1971 Sections 40B(3), 40D(2) (48 o f 1986) S e c t i o n s 3 9 , 4 0 B ( 1 )

D e c i s i o n s o n o b j e c t i o n s a g a i n s t a n y a s s e s s m e n t o r d e t e r m i n a t i o n o r d e c i s i o n b y w h i c h t a x

l i a b i l i t y is a f f e c t e d m a d e b y t h e C o m m i s s i o n e r ; r e f u s a l t o g r a n t e x t e n s i o n o f t i m e f o r l o d g i n g

o b j e c t i o n

Petroleum Products Subsidy Act (N.T.) Section 5(3A ) (N T Ord 13 o f 1978) S e c t i o n 5

D i r e c t i o n a s t o t r e a t m e n t o f g o o d s f o r p u r p o s e s o f a s c h e m e ; r e f u s a l o f r e g i s t r a t i o n a s a

d i s t r i b u t o r o f e l i g i b l e p e t r o l e u m p r o d u c t s

153

Petroleum (Submerged Lands) Act 1967 Section 152(7) (80 o f 1985) S e c tio n s 118(1 B ), 1 18(2), 118(3), 1 18(5), 1 1 8 (5 E ), 1 18(5J ) , 1 5 2 (2 ), 1 5 2 (7 ) + n u m e r o u s o t h e r d e c is io n s :

s e e s . l 5 2 ( l ) ( a ) o f ‘r e v i e w a b l e d e c i s i o n s ’

M i n i s t e r i a l d e c i s i o n s m a d e in t h e p e r f o r m a n c e o f D e s i g n a t e d A u t h o r i t y f u n c t i o n s w i t h re s p e c t

t o a r e a s a d j a c e n t t o C o m m o n w e a l t h d e s i g n a t e d t e r r i t o r i e s ; v a r i o u s m i n i s t e r i a l d e c is io n s

r e l a t i n g t o r e l e a s e o f i n f o r m a t i o n ; r e f u s a l b y M i n i s t e r t o e x t e n d p e r i o d i n w h i c h t o se e k

r e - c o n s i d e r a t i o n

Pharmacy Ordinance 1931 (A.CT.) Section 33 A (51 o f 1981; 32 o f 1982; 64 o f 1984) S e c t i o n s 2 4 , 3 0 , 3 2 , 3 2 A , 3 5 A

R e f u s a l t o a u t h o r i s e r e g i s t r a t i o n o r r e - r e g i s t r a t i o n ; r e f u s a l t o g r a n t o r r e n e w t e m p o r a r y

r e g i s t r a t i o n ; c a n c e l l a t i o n o f r e g i s t r a t i o n ( b u t n o t u n d e r s .2 6 ( 4 ) ) ; s u s p e n s i o n o f r e g i s t r a t i o n

( b u t n o t u n d e r s .3 3 ( 2 ) ) ; r e p r i m a n d i n g a p e r s o n ; r e f u s a l t o e x t e n d p e r i o d f o r c a r r y i n g o n

o f b u s i n e s s o f d e c e a s e d p h a r m a c i s t

Phosphate Fertilizers Subsidy Act 1963 Section 20A (66 o f 1977; 39 o f 1985) S e c t i o n s 7 , 10, 11(1), 1 3 (3 ), 1 3 (4 ), 1 3 ( 6 ), 1 3 (7 ), 19

D e c i s i o n s o n e l i g i b i l i t y f o r b o u n t y , r e g i s t r a t i o n o f p r e m i s e s a n d a m o u n t o f s e c u r i t y

Physiotherapists Registration Ordinance 1977 (A.CT.) Section 3 5 (60 o f 1977; 72 o f 1982) S e c t i o n s 14, 2 3 , 2 6 , 2 7 , 3 4

R e f u s a l o f c e r t i f i c a t e ; c a n c e ll a t i o n o f r e g i s t r a t i o n , s u s p e n s io n o f r e g i s t r a t i o n o t h e r t h a n u n d e r

s .2 9 ( 5 ) , r e p r i m a n d ; o r d e r n o t t o p e r f o r m s p e c i f i e d s e r v i c e s ; r e f u s a l t o e x t e n d p e r i o d f o r

e x e c u to r t o c o n t i n u e b u s in e s s ; r e f u s a l t o g r a n t o r r e n e w p r o v i s i o n a l o r t e m p o r a r y r e g i s t r a t i o n ;

r e f u s i n g t o r e g i s t e r o r r e - r e g i s te r , t o g r a n t o r r e v ie w p r o v i s i o n a l o r t e m p o r a r y o r s p e c i a l

r e g i s t r a t i o n

Plumbers, Drainers and Gasfilters Board Ordinance 1982 (ACT.) Section 44 (74 o f 1982) S e c t i o n 4 4

R e f u s a l t o i s s u e o r c a n c e l l a t i o n o f a c e r t i f i c a t e o f c o m p e t e n c y ; r e f u s a l t o i s s u e a lic e n c e ;

c a n c e l l i n g o r s u s p e n d i n g a lic e n c e , o t h e r t h a n u n d e r s .3 2

Poisons and Narcotic Drugs Ordinance 1978 (ACT.) Section 29J (19 o f 1981) Section 49 (38 o f 1978) S e c t i o n s 10, 2 9 J

A u t h o r i s a t i o n s t o h a v e in p o s s e s s io n a s u b s t a n c e f o r r e s e a r c h p u r p o s e s ; r e f u s a l t o g r a n t lic e n c e

t o m a n u f a c t u r e p s y c h o t r o p i c s u b s t a n c e , g r a n t s u b j e c t t o c o n d i t i o n s o r c a n c e l l a t i o n o f lic e n c e

Postal By-laws By-law 130(1) (Am d 2 o f 1981) By-law 222(7) (Am d 6 o f 1976) By-law 296(1) (Am d 3 o f 1977)

B y - la w s 1 2 9 (2 ), 2 2 2 , 2 9 6

A d e c is io n re r e g i s t r a t i o n o f a p u b l i c a t i o n ; r e t e n t i o n o f a r tic le s p o s t e d a b r o a d f o r t r a n s m i s s i o n

t o A u s t r a l i a ; d e c i s i o n re p a y m e n t o f c o m p e n s a t i o n f o r a r t i c l e s l o s t , d a m a g e d o r d e l a y e d

154

Poultry Industry Levy Collection Act 1965 Section 11A(1) (80 o f 1982) S e c tio n 8 (2 )

R e m i s s i o n o f p e n a l t y f o r n o n - p a y m e n t o f le v y

Prescribed Goods (General) Order (No. 2 of 1986) Order 117 (2 o f 1986) O r d e r 114

D e c i s i o n s u n d e r a n y o r d e r r e c o n s i d e r e d b y S e c r e t a r y

Protection of Movable Cultural Heritage Act 1986 Section 48 (11 o f 1986) S e c t i o n s 1 0 ( 5 )( a ) , 1 0 ( 5 ) ( b ) , 1 1 (2 ), 1 2 ( 3 )( a ) , 1 2 ( 3 ) ( b ) , 1 2 (5 ), 13(1)

R e f u s a l t o g r a n t o r i m p o s i t i o n o f c o n d i t i o n o f e x p o r t p e r m i t o r e x e m p t i o n c e r t i f i c a t e ;

s p e c i f i c a t i o n o f o p e r a t i v e p e r i o d f o r p e r m i t o r c e r t i f i c a t e ; v a r i a t i o n , r e v o c a t i o n o r s u b s e q u e n t

i m p o s i t i o n o f c o n d i t i o n s o f p e r m i t o r c e r t i f i c a t e ; v a r i a t i o n o f o p e r a t i v e p e r i o d o f p e r m i t

o r c e r t i f i c a t e ; r e v o c a t i o n o f p e r m i t o r c e r t i f i c a t e

Protection of the Sea (Civil Liability) Act 1981 Section 19 (31 o f 1981) S e c t i o n s 16, 1 7 (3 )

R e f u s a l t o i s s u e a n i n s u r a n c e c e r t i f i c a t e ; c a n c e l l a t i o n o f c e r t i f i c a t e

Public Health (Prohibited Drugs) Ordinance 1957 (A.GT.) Section 6B (23 o f 1978) S e c t i o n 6 A ( 1 )

R e f u s a l t o a u t h o r i s e p o s s e s s i o n o f p r o h i b i t e d d r u g f o r r e s e a r c h p u r p o s e s ; c o n d i t i o n s o r

r e s t r i c t i o n s o f a u t h o r i t y r e v o c a t i o n ; a m e n d m e n t o r v a r i a t i o n o f a n a u t h o r i t y

Public Lending Right Act 1985 Section 20(8) (200 o f 1985— not yet in operation) S e c t i o n 2 0 (5 )

D e c i s i o n s o f t h e C o m m i t t e e in r e l a t i o n t o a c l a i m t h a t h a s b e e n c o n f i r m e d , v a r i e d o r

s u b s t i t u t e d u p o n r e c o n s i d e r a t i o n

Quarantine (Animals) Regulations Regulation 86G (70 o f 1983; 313 o f 1985) R e g u l a t i o n s 8 6 B , 8 6 C , 8 6 F ( 8 )

R e f u s a l t o a p p r o v e o r r e v o k i n g a p p r o v a l o f p e r s o n a s r e c o g n i s e d e x p o r t e r ; r e f u s a l t o g r a n t

e x e m p t e x p o r t e r s t a t u s ; r e f u s a l t o w a iv e p a y m e n t o f w h o l e o r a n y p a r t o f fe e

Radiation Ordinance 1983 (A.GT.) Section 72 (58 o f 1983) S e c t i o n s 6 , 51, 5 4 , 6 8 , 7 2 ( b ) , 7 2 ( c ) , 7 2 ( d ) , 7 2 ( e ) , 7 2 ( f ) , 7 2 ( h ) , 72(1)

D e c l a r a t i o n b y R a d i a t i o n C o u n c i l t h a t r a d i o a c t i v e m a t e r i a l o r i r r a d i a t i n g a p p a r a t u s d o e s

n o t g iv e r i s e t o a r a d i a t i o n h a z a r d ; r e f u s a l t o g r a n t , g r a n t s u b j e c t t o c o n d i t i o n s , v a r i a t i o n

o f c o n d i t i o n s , r e f u s a l t o r e n e w o r c a n c e l l a t i o n o f l ic e n c e ; r e f u s a l t o r e g i s t e r o r r e n e w

r e g i s t r a t i o n o r c a n c e l l a t i o n o f r e g i s t r a t i o n o f i r r a d i a t i n g a p p a r a t u s : r e f u s a l t o a p p r o v e

a l t e r a t i o n s o r m o d i f i c a t i o n o f r e g i s t e r e d i r r a d i a t i n g a p p a r a t u s ; r e f u s a l t o m a k e o r r e v o c a t i o n

1 5 5

o f d e c l a r a t i o n t h a t m a t e r i a l is e x e m p t m a t e r i a l ; r e f u s a l t o g r a n t p e r m i t t o d i s p o s e of

r a d i o a c t i v e m a t e r i a l ; r e f u s a l t o a p p r o v e a p l a c e f o r p u r p o s e o f s t o r i n g r a d i o a c t i v e m a t e r ia l

Radiocommunications Act 1983 Section 86(6) (130 o f 1983) S e c t i o n s 10, l l ( 2 ) ( b ) , 1 2(1), 1 2 (3 ), 1 2 ( 6 ), 14, 2 1 (1 ), 2 1 ( 9 ), 2 4 , 2 5 , 2 6 ( 5 ) , 2 9 , 3 1 (1 ), 3 2 ( 2 ) , 3 3 , 3 4 (2 ),

3 5 , 3 8 , 6 5 ( 5 ) ( a ) , 6 5 ( 1 2 ) ( a ) , 8 6 ( 2 )

R e f u s a l t o g r a n t v a r i o u s p e r m i t s , l i c e n c e s a n d c e r t i f i c a t e s ; c a n c e l l a t i o n a n d r e v o c a t i o n o f

v a r i o u s c e r t i f i c a t e s a n d li c e n c e s ; p e r m i s s i o n t o s u p p l y a s u b - s t a n d a r d d e v ic e ; c o m p l i a n c e

s t a t e m e n t s a n d c o m p l i a n c e s t a t e m e n t c e r t i f i c a t e s ; c o n d i t i o n s t o w h i c h t r a n s m i t t e r lic e n c e

is s u b j e c t ; p e r m i t t e d u s e o f a t r a n s m i t t e r ; r e f u s a l t o g r a n t a n e x t e n s i o n o f t i m e

Rates Ordinance 1926 (A.GT.) Section 30 (21 o f 1977) S e c t i o n 2 9

V a r i a t i o n o r c o n f i r m a t i o n o f a d e t e r m i n a t i o n o f u n i m p r o v e d v a l u e

Registration of Deaths Abroad Act 1984 Section 27 (169 o f 1984) S e c t i o n s 12, 13, 1 9(1), 2 0 ( 1 ), 2 0 ( 3 ) , 2 1 (1 ), 2 1 ( 3 ), 2 2 ( 2 ) , 2 2 ( 3 )

D e c i s i o n t o r e g i s t e r o r r e f u s a l t o r e g i s t e r a d e a t h , r e f u s a l o f a p p l i c a t i o n f o r s e a r c h e s a n d

c o p i e s o f e n t r i e s i n i n d e x a n d R e g i s t e r ; d e c i s i o n s r e g a r d i n g c o r r e c t i o n o f e r r o r s i n R e g is te r

o r c e r t i f i c a t e ; d e c i s i o n t o c a n c e l r e g i s t r a t i o n o f d e a t h ; r e f u s a l o f a p p l i c a t i o n f o r c a n c e l l a t i o n

o f r e g i s t r a t i o n o f d e a t h

Roads and Public Places Ordinance 1937 (A.GT.) Section 15G (72 o f 1976) S e c t i o n 1 5 G

R e f u s a l t o g r a n t a p e r m i t , c a n c e l l a t i o n o f a p e r m i t , o r i m p o s i t i o n o f c o n d i t i o n

Sale of Motor Vehicles Ordinance 1977 (A.GT.) Section 57 (29 o f 1977) S e c t i o n s 4 8 ( 2 ) , 5 7

S p e c i f i c a t i o n o f a p e r i o d t o r e - a p p l y ; r e f u s a l o r r e v o c a t i o n o f a li c e n c e

Sales Tax Assessment Act (No. 1) 1930 Section 44B(5) (47 o f 1985) Sections 42A (3), 42C(2) (48 o f 1986) S e c t i o n s 1 1 ( 3 B ) , 1 1 ( 8 A ) , 11(11), 1 5 A ( 1 ), 1 5 A ( 5 ) , 1 6 (3 ), 4 0 ( 6 ) , 4 2 A ( 1 )

R e f u s a l t o r e g i s t e r a m a n u f a c t u r e r o r w h o l e s a l e m e r c h a n t ; d e c i s i o n r e q u i r i n g s e c u r i t y ,

r e q u i r e m e n t o f f r e s h o r a d d i t i o n a l s e c u r i t y ; d e c i s i o n p r o h i b i t i n g r e g i s t e r e d p e r s o n f r o m

q u o t i n g a c e r t i f i c a t e ; r e f u s a l t o i s s u e c e r t i f i c a t e ; r e v o c a t i o n o f r e g i s t r a t i o n ; d e c i s i o n s o n

o b j e c t i o n s a g a i n s t a s s e s s m e n t s o f t a x ; r e f u s a l t o g r a n t e x t e n s i o n o f t i m e f o r l o d g i n g o b j e c t i o n

[ N o te : p o w e r t o r e v ie w d e c i s i o n s r e l a t i n g t o r e m i s s i o n o f a d d i t i o n a l t a x l i m i t e d b y s .4 2 F ]

Sales Tax Assessment Act (No. 2) 1930 R e v ie w p r o v i s i o n s o f Sales Tax Assessment Act (No. 1) 1930 a p p l y , s u b j e c t t o n e c e s s a r y c h a n g e s , b y v i r t u e o f s. 1 2 ( 1 ) '

156

Sales Tax Assessment Act (No. 3) 1930 R e v ie w p r o v i s i o n s o f Sales Tax Assessment Act (No. 1) 1930 a p p l y , s u b j e c t t o n e c e s s a r y c h a n g e s ,

b y v i r t u e o f s . ! 2 ( l )

Sales Tax Assessment Act (No. 4) 1930 R e v ie w p r o v i s i o n s o f Sales Tax Assessment Act (No. 1) 1930 a p p l y , s u b j e c t t o n e c e s s a r y c h a n g e s ,

b y v i r t u e o f s ,1 2 ( l)

Sales Tax Assessment Act (No. 5) 1930 R e v ie w p r o v i s i o n s o f Sales Tax Assessment Act (No. 1) 1930 a p p l y , s u b j e c t t o n e c e s s a r y c h a n g e s ,

b y v i r t u e o f s ,1 2 ( l)

Sales Tax Assessment Act (No. 6) 1930 R e v ie w p r o v i s i o n s o f Sales Tax Assessment Act (No. 1) 1930 a p p l y , s u b j e c t t o n e c e s s a r y c h a n g e s ,

b y v i r t u e o f s . 1 2 ( 1 )

Sales Tax Assessment Act (No. 7) 1930 R e v ie w p r o v i s i o n s o f Sales Tax Assessment Act (No. 1) 1930 a p p l y , s u b j e c t t o n e c e s s a r y c h a n g e s ,

b y v i r t u e o f s ,1 2 ( l)

Sales Tax Assessment Act (No. 8) 1930 R e v ie w p r o v i s i o n s o f Sales Tax Assessment Act (No. 1) 1930 a p p l y , s u b j e c t t o n e c e s s a r y c h a n g e s ,

b y v i r t u e o f s .1 2 ( 1 )

Sales Tax Assessment Act (No. 9) 1930 R e v ie w p r o v i s i o n s o f Sales Tax Assessment Act (No. 1) 1930 a p p ly , s u b j e c t t o n e c e s s a r y c h a n g e s ,

b y v i r t u e o f s ,1 2 ( l)

Sales Tax Assessment Act (No. 10) 1985 R e v ie w p r o v i s i o n s o f Sales Tax Assessment Act (No. 1) 1930 a p p l y , s u b j e c t t o n e c e s s a r y c h a n g e s ,

b y v i r t u e o f s ,1 2 ( l)

Sales Tax Assessment Act (No. 11) 1985 R e v ie w p r o v i s i o n s o f Sales Tax Assessment Act (No. 1) 1930 a p p ly , s u b j e c t t o n e c e s s a r y c h a n g e s ,

b y v i r t u e o f s ,1 2 ( l )

Schools Authority Regulations (A.CT.) Regulation 61 (R 11 o f 1978) R e g u l a t i o n 61

D e c i s i o n s o f t h e A u t h o r i t y d e c l a r i n g a n e l e c t i o n t o b e v o id a n d d i r e c t i n g a n e w e l e c t i o n ;

r e f u s a l t o m a k e s u c h a d e c l a r a t i o n a n d d i r e c t i o n

Seamen’s War Pensions and Allowances Act 1940 Section 39 (97 o f 1984) [ N o te : re v ie w p r o v i s i o n s o f P a r t X o f Veterans’ Entitlements Act 1986 a p p l y , s u b j e c t t o n e c e s s a r y

c h a n g e s , b y v i r t u e o f s .4 0 a s s u b s t i t u t e d b y S R 2 8 o f 1986]

157

S e c t i o n s 6 , 1 2 (2 ), 13, 1 6 (1 ), 1 8 (3 ), 1 8 ( 6 ), 19, 2 0 , 2 1 , 2 2 A , 2 3 ( 3 ) , 2 7 ( 2 ) , 3 0 , 3 1 , 3 3 (1 ), 5 3 , 5 3 A , 55

V a r i o u s d e c i s i o n s o f t h e C o m m i s s i o n a f t e r r e v ie w b y t h e B o a r d ; a ll d e c i s i o n s o f a P e n s io n s

C o m m i t t e e a f t e r re v ie w b y t h e B o a r d

Sex Discrimination Act 1984 Section 45 (4 o f 1984) S e c t i o n 4 4

R e f u s a l t o g r a n t a n e x e m p t i o n o r f u r t h e r e x e m p t i o n f r o m t h e o p e r a t i o n o f a p r o v i s i o n in

D i v i s i o n s 1 o r 2 o f P a r t 11 o f t h e A c t ( in r e l a t i o n t o d i s c r i m i n a t i o n i n w o r k a n d in o th e r

a r e a s i n c l u d i n g e d u c a t i o n , p r o v i s i o n o f g o o d s a n d s e r v i c e s , a c c o m m o d a t i o n , l a n d , c lu b s

a n d t h e a d m i n i s t r a t i o n o f C o m m o n w e a l t h la w s a n d p r o g r a m s ) b y t h e H u m a n R ig h ts

C o m m i s s i o n

Shipping Registration Act 1981 Section 78 (8 o f 1981; 39 o f 1983; 16 o f 1984) S e c t i o n s 1 0 (2 ), 2 1 ( 5 ), 2 2 ( 1 ), 2 2 ( 4 ) , 2 2 ( 6 ) , 2 2 A ( 1 ) , 2 2 A ( 2 ) , 2 2 A ( 4 ) , 2 2 A ( 6 ) , 2 3 (1 ), 2 7 ( 3 ) , 5 8 ( 2 A ),

6 5 ( 4 ) , 8 7 (1 ), 8 8 ( 3 ) , 8 9 , 9 2 ( 4 )

D e t e r m i n a t i o n o f m e t h o d t o m e a s u r e l e n g t h o f s h i p ; v a r i o u s d e c i s i o n s r e g a r d i n g g r a n t o f

p r o v i s i o n a l c e r t i f i c a t e s , t h e i r p e r i o d o f e f f e c t w h e r e c e r t i f i c a t e l o s t , w h e n s h i p b e c o m e s e n title d

t o b e r e g i s t e r e d w h e n a b r o a d w h e n s h i p a l t e r e d ; r e f u s a l t o g r a n t t e m p o r a r y p a s s ; d is a llo w a n c e

o f p r o p o s e d n a m e ; r e f u s a l t o d e t e r m i n e t h a t f o r e i g n p r o v i s i o n s r e l a t i n g t o r e g i s t r a t i o n

s u f f i c i e n t l y c o r r e s p o n d ; r e f u s a l t o a c c e p t d o c u m e n t a s in c o m p l i a n c e ; r e f u s a l t o tr e a t

a p p l i c a t i o n u n d e r p r e v i o u s la w a s a p p l i c a t i o n u n d e r t h i s la w ; c l o s u r e o f r e g i s t r a t i o n ; e n tr y

o r a m e n d m e n t o f e n t r y in r e g i s t e r

Social Security Act 1947 Section 15A (61 o f 1981; 69 o f 1983) S e c t i o n s 14, 15, 1 5 A

A l l d e t e r m i n a t i o n s , d i r e c t i o n s , d e c i s i o n s a n d a p p r o v a l s r e e n t i t l e m e n t t o b e n e f i t s , p a y m e n t

a n d c a n c e l l a t i o n o f b e n e f i t s , o v e r p a y m e n t o f b e n e f i t s , o f a n o f f i c e r w h i c h h a v e b e e n re v ie w e d

b y t h e S o c i a l S e c u r i t y A p p e a l s T r i b u n a l ( o r i f t h e S e c r e t a r y h a s c e r t i f i e d t h a t a p r i n c i p l e

o f g e n e r a l a p p l i c a t i o n is in v o lv e d ) a n d a f f i r m e d , v a r ie d o r a n n u l l e d b y t h e S e c r e t a r y /D ir e c t o r -

G e n e r a l o n o r a f t e r 9 S e p t e m b e r 1 9 8 0

Spirits Act 1906 Section 20(2) (61 o f 1981) S e c t i o n 2 0 (1 )

R e f u s a l t o g r a n t lic e n c e t o m a k e o r s e ll m e t h y l a t e d s p i r i t s

States Grants (Petroleum Products) Act 1965 Section 5(3A) (12 o f 1978) S e c t i o n 5 ( 2 ) , 5 ( 3 ) ( a )

D i r e c t i o n b y M i n i s t e r a s t o t r e a t m e n t o f g o o d s a s m o t o r s p i r i t , p o w e r k e r o s e n e , a u t o m o t i v e

d i s t i l l a t e , a v i a t i o n g a s o l i n e o r a v i a t i o n t u r b i n e f u e l f o r p u r p o s e o f a s c h e m e in r e l a t i o n to

a S ta te ; r e f u s a l o f , o r r e v o c a tio n o f , r e g i s t r a t i o n a s a d i s t r i b u t o r o f e lig ib le p e t r o l e u m p r o d u c t s

u n d e r a s c h e m e

Statute Law (Miscellaneous Amendments) (Patents) Regulations Regulation 4 (49 o f 1983) R e g u l a t i o n 3 ( 6 )

D e c i s i o n r e l a t i n g t o t h e g r a n t o f a l i c e n c e t o m a k e , u s e , e x e r c is e a n d v e n d a n i n v e n t i o n t h e

s u b j e c t o f a n a p p l i c a t i o n u n d e r s .l 9 1 ( 3 ) o f t h e Statute Law (Miscellaneous Amendments) (No. 1) Act 1982

158

Student Assistance Act 1973 Section 30AF (72 o f 1984) S e c tio n 2 6

D e c i s i o n s r e v ie w e d b y a S t u d e n t A s s i s t a n c e R e v ie w T r i b u n a l

Subsidy (Grain Harvesters and Equipment) Act 1985 Section 35 (183 o f 1985) S e c tio n s 4 (1 ) [ ( b ) o f ‘i m p o r t e r ’] , 16, 1 8 ( 3 ) ( a ) , 1 8 ( 3 ) ( b ) , 1 9 ( 4 ) ( a ) , 1 9 ( 4 ) ( b ) , 2 0 ( 4 ) , 2 1 , 2 3 [ o t h e r

t h a n ( 9 )] , 25

D e c is io n o n w h e t h e r p e r s o n b e c a m e b e n e f i c i a l o w n e r o f e q u i p m e n t p r i o r t o l o d g i n g o f c l a i m

s o a s t o b e i m p o r t e r ; d e c l a r a t i o n t h a t e q u i p m e n t n o t o f g o o d a n d m e r c h a n t a b l e q u a l i t y ;

a p p r o v a l o r r e f u s a l o f p a y m e n t o f s u b s i d y o r a d d i t i o n a l a m o u n t o f s u b s i d y ; d e c i s i o n o n

s e r v i c e o f n o t i c e o f d e m a n d in r e l a t i o n t o o v e r p a y m e n t ; d e c i s i o n o n e f f e c t iv e d a t e o f

r e g i s t r a t i o n o f p r e m i s e s ; r e f u s a l t o r e g i s t e r p r e m i s e s ; t r a n s f e r o r c a n c e l l a t i o n o f r e g i s t r a t i o n

o f p r e m i s e s ; r e f u s a l t o t r a n s f e r r e g i s t r a t i o n o f p r e m i s e s ; r e q u i r e m e n t o f p r o v i s i o n o f s e c u r i t y

Superannuation Act 1976 Section 154(6) (17 o f 1978) S e c t i o n 1 5 4 (4 )

A l l d e c i s i o n s o f t h e C o m m i s s i o n e r o r h i s d e l e g a t e , o r t h e S u p e r a n n u a t i o n B o a r d o r it s

d e l e g a t e , u n d e r t h i s A c t o r t h e Superannuation A ct 1922 o r u n d e r r e g u l a t i o n s m a d e u n d e r

e i t h e r A c t c o n f i r m e d o r v a r i e d u n d e r s . 1 5 4 (4 ) ( N o t e : a d e c i s i o n o f t h e S u p e r a n n u a t i o n B o a r d

u n d e r s . 141 Superannuation Act 1922 n e e d n o t h a v e b e e n c o n f i r m e d o r v a r i e d u n d e r

s . 1 5 4 (4 )).

Surveyors Ordinance 1967 (A.GT.) Section 49A (19 o f 1977) S e c t i o n 4 9 A ( 2 )

D e c i s i o n s a s t o f e e s a n d c h a r g e s

Taxation Administration Act 1953 Section 14 Y (123 o f 1984) Sections 14HB(3), 14HD(2) (48 o f 1986) S e c t i o n s 1 4 G ( 2 ) , 1 4 H B ( 1 ) , 14T , 14U

R e f u s a l t o r e v o k e , o r v a r i a t i o n o f , d e p a r t u r e p r o h i b i t i o n o r d e r ; r e f u s a l t o i s s u e d e p a r t u r e

a u t h o r i s a t i o n c e r t i f i c a t e ; d e c i s i o n s o n o b j e c t i o n s a g a i n s t i s s u e o f t a x c l e a r a n c e c e r t i f i c a t e ;

r e f u s a l t o g r a n t e x t e n s i o n o f t i m e f o r l o d g i n g o b j e c t i o n

Taxation (Unpaid Company Tax) Assessment Act 1982 R e v ie w p r o v i s i o n s o f Income Tax Assessment A ct 1936 a p p l y , s u b j e c t t o n e c e s s a r y c h a n g e s ,

b y v i r t u e o f s . 4 ( l )

Telecommunications (General) By-laws By-law 32(3) (Am d No 18) By-law 45(4) (A m d No 6) B y - la w s 3 2 ( 1 ), 4 5

R e q u i r e m e n t t o r e n t a d d i t i o n a l s e r v i c e s d u e t o o v e r l o a d i n g ; n o t i c e t o a l t e r , r e m o v e o r

r e - e r e c t p o r t i o n o f a t e l e c o m m u n i c a t i o n s i n s t a l l a t i o n b e c a u s e o f i n t e r f e r e n c e

1 5 9

Therapeutic Goods Act 1966 Section 29A (80 o f 1982) S e c t i o n s 2 3 D ( 2 ) ( b ) , 2 3 D ( 5 ) , 2 3 E ( 5 ) ( a ) , 2 3 E ( 7 ) ( a ) , 2 3 E ( 7 ) ( b ) , 2 3 E ( 8 ) , 2 3 E ( 9 )

R e f u s a l t o a u t h o r i s e c o n t i n u e d m a n u f a c t u r e o r s u p p l y o f a b i o l o g i c a l p r o d u c t , r e v o c a tio n

o f a u t h o r i s a t i o n ; a f t e r g e n e r a l p r e v e n t a t i v e n o t i c e r e f u s a l t o a u t h o r i s e s u p p l y o f b a t c h or

b i o l o g i c a l p r o d u c t , o r t h e t a k i n g o f f u r t h e r s t e p s in p r o d u c t i o n , r e v o c a t i o n o f a u t h o r i t y ;

r e f u s a l t o r e v o k e g e n e r a l p r e v e n t a t i v e n o t i c e

Trade Marks Act 1955 Section 116 (163 o f 1976; 43 o f 1981) S e c t i o n s 7 0 ( 2 ) , 7 1 (1 ), 1 2 7 (1 ), 131(1)

R e m o v a l o f t r a d e m a r k f r o m R e g i s t e r o n n o n - c o m p l i a n c e o f c o n d i t i o n s f o r r e n e w a l o f

r e g i s t r a t i o n ; r e s t o r a t i o n o f t r a d e m a r k t o R e g is t e r a f t e r r e m o v a l o f n o n - p a y m e n t o f r e n e w a l

fe e ; r e f u s a l t o p e r m i t g o o d s o t h e r w i s e f o r f e i t a b l e t o b e d e liv e r e d s u b j e c t t o r e a s o n a b le s e c u rity

b e i n g g iv e n t h a t o f f e n d i n g m a r k s w i l l b e r e m o v e d o r s u i t a b l y a m e n d e d o r t h a t t h e g o o d s

w ill b e f o r t h w i t h r e - e x p o r t e d ; c o r r e c t i o n o f a p p l i c a t i o n f o r r e g i s t r a t i o n , e tc , o r c e r t i f i c a t e

o f r e g i s t r a t i o n f o r c l e r i c a l e r r o r s o r o b v i o u s m i s t a k e s ; r e f u s a l t o e x t e n d t i m e f o r d o i n g a n

a c t o r t a k i n g a s t e p

Trust Recoupment Tax Assessment Act 1985 R e v ie w p r o v i s i o n s o f Income Tax Assessment Act 1936 a p p l y , s u b j e c t t o n e c e s s a r y c h a n g e s ,

b y v i r t u e o f s . 4 ( l )

Unit Titles Ordinance 1970 (A.GT.) Section 16 (2 o f 1983) S e c t i o n 16

D e t e r m i n a t i o n o f M i n i s t e r in r e l a t i o n t o r e n t o f a s u b - d i v i s i o n

Veterans’ Entitlements Act 1986 Section 175 (27 o f 1986) S e c t i o n s 5 9 , 115, 135

D e c i s i o n s o n c l a i m f o r d i s a b i l i t y p e n s i o n , r e f u s a l t o i n c r e a s e r a t e o f d i s a b i l i t y p e n s i o n a f t e r

re v ie w o f B o a r d ; d e c i s i o n s o n c l a i m f o r s e r v i c e p e n s i o n , c a n c e l l a t i o n o f s e r v i c e p e n s i o n ,

r e d u c t i o n o r r e f u s a l t o i n c r e a s e r a t e o f s e r v i c e p e n s i o n a f t e r re v ie w b y C o m m i s s i o n ; d e c i s i o n s

o n a p p l i c a t i o n f o r a l l o w a n c e s a f t e r r e v ie w b y C o m m i s s i o n

Veterinary Surgeons Registration Ordinance 1965 (A.GT.) Section 28 (53 o f 1981; 14 o f 1984) S e c t i o n s 12, 2 0 , 2 3 ( 1 ), 2 3 ( 2 ) , 3 4

R e f u s a l t o a u t h o r i s e r e g i s t r a t i o n o r t o o r d e r r e - r e g i s t r a t i o n ; r e m o v a l o f n a m e f r o m R e g is te r ;

r e p r i m a n d ; s u s p e n s i o n o f r e g i s t r a t i o n o f a p e r s o n o t h e r w i s e t h a n u n d e r s. 2 2 ( 2 ); s u s p e n s i o n

o f r e g i s t r a t i o n o f v e t e r i n a r y s u r g e o n o n h e a l t h g r o u n d s ; o r d e r r e s t r i c t i n g p e r f o r m a n c e o f

v e t e r i n a r y s e r v i c e s o n h e a l t h g r o u n d s ; r e f u s a l t o e x t e n d p e r i o d d u r i n g w h i c h e x e c u to r ,

a d m i n i s t r a t o r o r t r u s t e e m a y c a r r y o n t h e b u s i n e s s o f d e c e a s e d v e t e r i n a r y s u r g e o n

Water Pollution Ordinance 1984 (A.GT.) Section 40 (65 o f 1984) S e c t i o n s 19, 2 0 , 2 1 , 2 2 , 2 3 , 2 4 , 2 5 , 2 7 , 2 8

V a r io u s d e c i s i o n s r e l a t i n g t o lic e n c e s ; r e f u s a l t o g r a n t a n a p p r o v a l ; a u t h o r i s a t i o n o f d i s c h a r g e

o f w a s te i n t o w a t e r s ; v a r i a t i o n o r r e v o c a t i o n o f a u t h o r i t y o r s u s p e n s i o n

160

Whale Protection Act 1980 Section 35 (92 o f 1980) S e c tio n s 11, 12, 15, 16, 17

R e f u s a l t o g r a n t o r t r a n s f e r p e r m i t ; s u s p e n s i o n , c a n c e l l a t i o n a n d c o n d i t i o n s i m p o s e d

Wildlife Protection (Regulation of Exports and Imports) Act 1982 Section 80 (149 o f 1982) S e c tio n s 1 0 (1 ), 1 1 ( 1 ), 1 1 ( 3 ), 1 2 ( 1 ) , 1 2 (3 ), 2 3 ( 5 ) , 2 4 ( 5 ) ( b ) , 2 4 ( 6 ) , 2 5 - 3 8 , 4 0 ( 5 ) , 4 0 ( 7 ) , 4 1 ( 4 ) , 4 1 ( 8 ) ,

4 2 ( 3 ), 4 3 ( 4 ) , 4 2 ( 5 ) , 4 2 ( 6 ) ( c ) , 4 3 ( 5 ) , 4 3 ( 6 ) , 4 3 ( 9 ) ( b ) , 4 4 ( 1 ) , 4 4 ( 2 ) , 4 4 ( 3 ) ( c ) , 4 6 ( 1 ) , 4 6 ( 2 ) , 4 6 ( 3 ) , 4 7 ,

4 9 ( 1 ), 4 9 ( 2 ) , 5 0 ( 1 ) , 5 0 ( 2 ) , 5 7 ( 5 ) , 8 0 (6 )

V a r i o u s d e c i s i o n s a n d d e c l a r a t i o n s r e l a t i n g t o t h e i m p o r t a n d e x p o r t o f c e r t a i n a n i m a l s ,

p l a n t s a n d o t h e r g o o d s

Wine Grapes Levy Collection Act 1979 Section 13 (66 o f 1979) S e c t i o n 5 (2 )

R e m i s s i o n o f p e n a l t i e s f o r n o n - p a y m e n t o f le v y

Wool Industry Act 1972 Section 42w'(50 o f 1980) S e c t i o n 4 2 N ( 5 )

D e c i s i o n s o n e l i g i b i l i t y o f p e r s o n f o r r e f u n d a n d a m o u n t o f r e f u n d

Wool Industry (Sampling Sites) Regulations Regulation 14 (102 o f 1979) R e g u l a t i o n 14

R e f u s a l t o r e g is te r , c a n c e l l a t i o n o f r e g i s t r a t i o n o f s a m p li n g site ; r e f u s a l t o a p p r o v e a m e n d m e n t

o f s t a t e m e n t o f m e t h o d s r e l a t i n g t o a r e g i s t e r e d s a m p l i n g s ite

Wool Tax (Administration) Act 1964 Sections 56C(3), 57(2) (48 o f 1980) S e c t i o n s 5 6 , 5 6 C ( 1 )

D e c i s i o n s o n o b j e c t i o n a g a i n s t a s s e s s m e n t s o f t a x ; r e f u s a l t o g r a n t e x t e n s i o n o f t i m e f o r

l o d g i n g o b j e c t i o n

161

APPENDIX 5

ADMINISTRATIVE APPEALS TRIBUNAL STATISTICS OF BUSINESS FOR THE YEAR ENDED 30 JUNE 1986

Rates of lodgments for review ( a ) Lodgments fo r review (by month)

Jul Aug Sep Oct N ov Dec Jan Feb Mar A pr May Jun Total

1 9 8 3 - 8 4 2 5 3 185 1 74 147 1 5 9 191 165 157 185 1 3 6 193 175 2120

1 9 8 4 - 8 5 173 195 1 16 1 69 1 4 5 9 9 151 1 04 1 3 6 185 2 1 7 11 9 1809

1 9 8 5 - 8 6 145 171 2 2 8 1 80 1 8 8 2 3 6 2 0 0 2 3 0 2 1 3 2 3 0 2 6 8 2 6 6 2555

( b ) Applications fo r extension o f time to apply fo r review

1 9 8 3 - 8 4 = 1 7 4 1 9 8 4 - 8 5 = 161 1 9 8 5 - 8 6 = 191

(c ) Applications to be made a party

1 9 8 3 - 8 4 = 10 1 9 8 4 - 8 5 = 12 1 9 8 5 - 8 6 = 51

( d ) Applications fo r stay o f decision reviewed

1 9 8 3 - 8 4 = 2 5 1 9 8 4 - 8 5 = 2 0 1 9 8 5 - 8 6 = 7 4

Place of lodgment of applications for review

Place 1983-84 1984-85 1985-86

S y d n e y 7 5 3 5 1 8 8 26

M e l b o u r n e 5 4 2 5 1 2 6 4 2

B r i s b a n e 2 5 0 1 78 2 8 2

A d e l a i d e 1 7 9 1 4 4 323

P e r t h 2 0 3 20 1 251

H o b a r t 53 55 99

D a r w i n 14 17 12

C a n b e r r a 1 2 6 1 84 120

2 1 2 0 1 8 0 9 2 5 5 5

Preliminary conferences

1983-84 1984-85 1985-86

3 6 8 8 2 7 8 3 3 2 3 3

162

Constitution of tribunal hearings

1983-84 1984-85 1985-86

P r e s i d e n t i a l M e m b e r a l o n e 2 4 3 2 6 4 294

P r e s i d e n t i a l M e m b e r p l u s t w o 1 47 2 2 3 262

S e n io r M e m b e r a l o n e 7 0 6 4 1 0 2 5 6

S e n io r M e m b e r p l u s t w o 1 96 3 4 6 3 1 3

M e m b e r a l o n e — 1 0 0 4 9

1 2 9 2 1 3 4 3 1 1 7 4

Venue for hearings

1983-84 1984-85 1985-86

C a n b e r r a 5 9 198 1 0 0

S y d n e y 6 1 8 561 4 9 5

M e l b o u r n e 3 1 0 3 1 7 2 5 4

B r i s b a n e 9 8 7 4 9 6

A d e l a i d e 101 9 0 8 2

P e r t h 7 0 8 4 1 07

H o b a r t 2 9 13 35

D a r w i n 7 6 5

1 2 9 2 1 3 4 3 1 1 7 4

Note: T h e T r i b u n a l f r e q u e n t l y s its i n r e g i o n a l c e n t r e s . S u c h s i t t i n g s h a v e b e e n i n c l u d e d in t h e

c a p i t a l c i t y f i g u r e s .

163

Range of jurisdiction

1984-85 1985-86

A C T R a t e s O r d i n a n c e 1 0 . 1 %

A i r N a v i g a t i o n R e g s 9 0 . 5 %

B o u n t y A c t s , s u b s i d i e s

C o m p e n s a t i o n

1 0 . 1 %

( C o m m o n w e a l t h e m p l o y e e s )

C u s t o m s , e x c is e , d ie s e l

2 9 8 1 7 .3 %

f u e l r e b a t e

D e f e n c e F o r c e R e t i r e m e n t

6 8 4 . 0 %

a n d D e a t h B e n e f i t s A c t 11 0 . 6 %

E x p o r t g r a n t s 2 6 1 .5 %

F r e e d o m o f i n f o r m a t i o n

H o m e s a v i n g s g r a n t s , h o m e

5 9 3 . 4 %

o w n e r s ’ a s s i s t a n c e

I s o l a t e d p a t i e n t t r a v e l a n d

a c c o m m o d a t i o n a s s i s t a n c e

13 0 . 8 %

s c h e m e 21 1 . 2 %

( I n c o m e ) T a x a g e n t s 13 0 . 8 %

I n s u r a n c e A c t 1 0 . 1 %

M i g r a t i o n A c t 31 1 .8 %

P a t e n t s A c t — —

P o s t a l B y - L a w s 2 7 1 .6 %

R e p a t r i a t i o n A c t 2 0 . 1 %

S o c i a l S e c u r i t y A c t 1 1 0 4 6 4 . 1 %

S u p e r a n n u a t i o n A c t 25 1 .4 %

V e t e r a n s ’ a p p e a l s — —

O t h e r 11

1721

0 . 6 %

( 1 4 ) 18 0 . 8 % ( 1 2 ) 8 4

( 1 2 ) 19 0 . 9 % ( 1 1 ) 16

( 1 4 ) 3 0 . 1 % ( 1 4 ) 4

(2 ) 3 0 5 1 4 .4 % (3 ) 1 89

(3 ) 57 2 . 7 % (5 ) 171

(1 1 ) 10 0 . 5 % (1 3 ) 16

(7 ) 33 1 .6 % (7 ) 35

(4 ) 2 1 0 9 . 9 % (4 ) 3 1 8

( 1 0 ) 21 1 .0 % (1 0 ) 2 5

(9 ) 3 8 6 1 8 .2 % (2 ) 168

(1 0 ) 37 1 .7 % (6 ) 6

(1 4 ) — — — 3

(5 ) 2 3 1 .1 % ( 8 ) 2 2

— 1 0 . 1 % ( 1 4 ) —

(6 ) 2 2 1 .0 % (9 ) 16

(1 3 ) 3 0 . 1 % (1 4 ) —

(1 ) 9 3 1 4 3 . 9 % (1 ) 5 6 6

(8 ) 2 2 1 .0 % (9 ) 27

— — — — 71

( I D 19

2 1 2 0

0 . 9 % (1 1 ) 7 2

1 8 0 9

4 . 6 % (6 ) 7 0 . 3 % (1 5 )

0 . 9 % (1 3 ) 2 0 0 . 8 % (1 2 )

0 . 2 % (1 5 ) 4 0 . 2 % ( 1 6 )

1 0 .5 % (3 ) 2 4 0 9 . 4 % (4 )

9 . 5 % (4 ) 1 36 5 . 3 % ( 5 )

0 . 9 % (1 3 ) 11 0 . 4 % (1 4 )

1 .9 % (9 ) 9 0 3 . 5 % (7 )

1 7 .6 % (2 ) 2 8 6 1 1 .2 % (3 )

1 .4 % ( I D 6 3 2 . 5 % ( 9 )

9 . 3 % (5 ) 6 6 2 . 6 % (8 )

0 . 3 % (1 4 ) 11 0 . 4 % ( 1 4 )

0 . 2 % ( 1 5 ) — — —

1 .2 % (1 2 ) 4 6 1 .8 % ( 1 0 )

— — 1 0 . 0 % (1 7 )

0 . 9 % (1 3 ) 16 0 . 6 % ( 1 3 )

3 1 . 3 % (1 ) 7 5 3 2 9 . 5 % ( 1 )

1 .5 % (1 0 ) 4 3 1 . 7 % ( 1 1 )

3 . 9 % (8 ) 6 6 3 2 6 . 0 % (2 )

4 . 0 % (7 ) 9 9 3 . 9 % (6 )

2 5 5 5

Note: F i g u r e s in b r a c k e t s i n e a c h c o l u m n i n d i c a t e t h e r a n k i n g o f j u r i s d i c t i o n s i n t e r m s o f v o l u m e .

Jurisdiction details 1 July 1985-30 June 1986

ACT Ordinances and Regulations Total

A i r a n d w a t e r p o l l u t i o n .....................................................................................................................

C i t y a r e a l e a s e s ...................................................................................................................................... 2

N a t u r e c o n s e r v a t i o n .......................................................................................................................... 1

R a t i n g — v a l u a t i o n ................................................................................................................................ 1

— d e f e r m e n t a n d r e m i s s i o n ........................................................................................ 4

R e n ta l d e t e r m i n a t i o n .............................................................................................................................

O t h e r ............................................................................................................................................................ 2 -------------------------

10

Bounties and subsidies B o u n t i e s ....................................................................................................................................................... 4

E x p o r t d e v e l o p m e n t a n d e x p a n s i o n ................................................................................ 9 0

I n d u s t r i a l r e s e a r c h a n d d e v e l o p m e n t s u b s i d i e s ......................................................... 2

O t h e r .................................................................................................................................................................. .................................

9 6

Customs and excise C u s t o m s — c l a s s i f i c a t i o n ......................................................................................................... 10 9

— o t h e r ........................................................................................................................................

D ie s e l f u e l r e b a t e ............................................................................................................................. 2 0

E x c i s e ............................................................................................................................................................ 6

P r o h i b i t e d i m p o r t s a n d e x p o r t s .............................................................................................. 1

O t h e r ................................................................................................................................................................. .................................

1 3 6

Employment and retirement benefits D R F D B ................................................................................................................................................... 11

E m p l o y e e s ’ c o m p e n s a t i o n ...................................................................................................... 2 4 0

S u p e r a n n u a t i o n .................................................................................................................................. 4 3

O t h e r .................................................................................................................................................................

2 9 4

Environment G r e a t B a r r i e r R e e f M a r i n e P a r k ................................................................................................

N a t i o n a l p a r k s a n d w i l d l i f e ...................................................................................................... 2

W i l d l i f e p r o t e c t i o n .................................................................................................................................

O t h e r ................................................................................................................................................................. .................................

2

Health M e d i c a l a n d h o s p i t a l b e n e f i t o r g a n i s a t i o n s ......................................................................

M e d i c a l p r a c t i t i o n e r s ............................................................................................................................

N u r s i n g h o m e s .................................................................................................................................. 13

P h a r m a c i s t s ............................................................................................................................................. 2

P r i v a t e h o s p i t a l s .................................................................................................................................. 8

O t h e r ............................................................................................................................................................ 3

2 6

165

Immigration and citizenship A u s t r a l i a n c i t i z e n s h i p .................................................................................................................... 9

M i g r a t i o n — d e p o r t a t i o n o f c r i m i n a l s ............................................................................. 4 6

— o t h e r .....................................................................................................................................

P a s s p o r t s .................................................................................................................................................... 2

O t h e r ................................................................................................................................................................. ................................

57

Information Archives Act 1983 ............................................................................................................................. 5

Freedom o f Information Act 1982 ............................................................................... 2 8 6

O t h e r ................................................................................................................................................................. .................................

291

Ombudsman O p i n i o n ............................................................................................................................................................

Patents trademarks and designs ............................................................................................................ 1

1

Personal and professional qualifications A i r n a v i g a t i o n ..................................................................................................................................... 2 0

C u s t o m s a g e n t s .................................................................................................................................. 1

I n s u r a n c e a g e n t s a n d b r o k e r s .........................................................................................................

M a r i t i m e n a v i g a t i o n ............................................................................................................................

P a t e n t a t t o r n e y ...........................................................................................................................................

T a x a g e n t s .............................................................................................................................................. I I

O t h e r ................................................................................................................................................................. .................................

32

Postal L o s s , d a m a g e a n d d e l a y

R e g i s t r a t i o n ............................

16

16

Primary industry A u s t r a l i a n m e a t a n d l i v e - s t o c k ......................................................................................................

F i s h e r i e s ................................................................................................................................................... 2 6

O t h e r ................................................................................................................................................................. .................................

2 6

Regulation o f business B r o a d c a s t i n g a n d t e l e v i s i o n

I n s u r a n c e ..........................................

L if e i n s u r a n c e ...............................

O t h e r ...................................................

Social welfare H o m e o w n e r s ’ a s s i s t a n c e ............................................................................................................ 6 3

I P T A A S ................................................................................................................................................... 6 6

S o c i a l s e c u r i t y .................................................................................................................................. 7 5 3

S t u d e n t s ' a s s i s t a n c e ....................................................................................................................... 11

V e t e r a n s ’ e n t i t l e m e n t s .............................................................................................................. 6 6 3

O t h e r ................................................................................................................................................................. .................................

1 5 5 6

166

Applications undetermined

at 30.6.84 at 30.6.85 at 30.6.86

D e f e r r e d a t p a r t i e s ’ r e q u e s t 12 81 62

A w a i t i n g d i s m i s s a l o r d i r e c t i o n

t o t a k e o u t o f l is t 8 0 5 4 17

I n p r e p a r a t i o n ( m a i n l y a w a i t i n g

s .3 7 d o c u m e n t s ) 31 6 152 173

S e t d o w n f o r h e a r i n g o r

p r e l i m i n a r y c o n f e r e n c e 1 0 5 9 5 7 4 1515

P a r t h e a r d 102 167 35

F l e a r d a n d a w a i t i n g d e c i s i o n 181 158 163

A w a i t i n g r e h e a r i n g 8 3 3

O t h e r 5 5 0 63

T O T A L 1763 1 2 3 9 2031

Appeals to the Federal Court of Australia from decisions of the Administrative Appeals Tribunal

78/79 79/80 80/81 81/82 82/83 83/84 84/85 85/86

D i s c o n t i n u e d 1 4 1 5 8 4 11 7

S t r u c k o u t — — 1 3 — 1 — —

D i s m i s s e d 9 4 6 7 16 16 3 0 14

A l l o w e d — — — 1 1 2 3 11

A l l o w e d a n d r e m i t t e d

t o A A T 1 1 2 5 2 9 7 11

T o ta l 11 9 10 21 2 7 3 2 5 2 46

C a s e s t a t e d — — — - 2 — — 3

Note: W h e r e a m a t t e r h a s b e e n f u r t h e r a p p e a l e d t o t h e F u ll C o u r t o n l y t h e r e s u l t o f F u ll C o u r t

d e c i s i o n is c o u n t e d f o r t h e p u r p o s e o f t h e s e s t a t i s t i c s .

168

APPENDIX 6

ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 STATISTICS FOR 1985

(Figures in Tables 1-5 below are based on statistics supplied to the Attorney-General’s Department by government departments and authorities.)

Table 1: Requests for statements of reasons pursuant to section 13

Pending at Complied Complied Pending at

commencement with in with in end o f

Department/Authority o f period Received (1984) fu ll part Refused Withdrawn Finalised period

A b o r i g i n a l A f f a i r s

A b o r i g i n a l D e v e l o p m e n t

C o m m i s s i o n

A r t s , H e r i t a g e a n d

E n v i r o n m e n t

A t t o r n e y - G e n e r a l ’s

A u s t r a l i a n A r c h i v e s

A u s t r a l i a n B r o a d c a s t i n g

T r i b u n a l

A u s t r a l i a n B u r e a u o f

S t a t i s t i c s

A u s t r a l i a n C a p i t a l T e r r i t o r y

S c h o o l s A u t h o r i t y

A u s t r a l i a n C u s t o m s S e r v ic e *

A u s t r a l i a n G o v e r n m e n t

R e t i r e m e n t B e n e f i t s O f f i c e

A u s t r a l i a n N a t i o n a l G a l l e r y

A u s t r a l i a n N a t i o n a l P a r k s

& W i l d l i f e

0 7 (8 ) 7

0 1 (0 ) 0

0 15 (1 4 ) 15

3 2 6 (3 1 ) 2 6

0 8 (3 ) 6

0 6 (2 ) 6

0 4 6 ( 3 0 ) 4 3

0 3 4 ( 1 6 ) 3 4

4 2 3 ( 5 9 ) t 7

3 2 9 ( - ) 3 2

0 1 (1 ) 1

0 1 (3 ) 1

0

0

0 0 0

0

0

0 0

0 0

0

0

0 0 0

0

0

0

15

0 0

0

0 7 0

0 1 0

0 15 0

1 2 7 2

0 6 2

0 6 0

0 4 3 3

0 3 4 0

1 2 3 4

0 3 2 0

0 1 0

0 1 0

A u s t r a l i a n P o s t a l

C o m m i s s i o n

A u s t r a l i a n T a x a t i o n O f f i c e

A u s t r a l i a n T e l e c o m m u n i ­

c a t i o n s C o m m i s s i o n

A v i a t i o n

C o m m o n w e a l t h B a n k o f

A u s t r a l i a

C o m m o n w e a l t h B a n k i n g

C o p o r a t i o n P r o m o t i o n s

A p p e a l B o a r d

C o m m u n i t y S e r v ic e s

D e f e n c e (1)

E d u c a t i o n

E m p l o y m e n t a n d I n d u s t r i a l

R e la ti o n s

E x p o r t D e v e l o p m e n t G r a n t s

B o a r d

F i n a n c e

F o r e i g n A f f a i r s

H e a l t h

H o u s i n g a n d C o n s t r u c t i o n

I m m i g r a t i o n & E t h n i c A f f a i r s (2 )

I n d u s t r y , T e c h n o l o g y & C o m m e r c e

L o c a l G o v e r n m e n t a n d A d m i n . S e r v ic e s

N a t i o n a l C a p i t a l D e v e l o p m e n t C o m m i s s i o n

P r i m a r y I n d u s t r y (3 )

P r i m e M i n i s t e r a n d C a b i n e t

P u b l i c S e r v ic e B o a r d (4 )

R e s e r v e B a n k o f A u s t r a l i a

R e s o u r c e s a n d E n e r g y

S c ie n c e

S o c i a l S e c u r i t y

S p e c i a l M i n i s t e r o f S t a t e

S p o r t , R e c r e a t i o n a n d T o u r i s m

S u p e r a n n u a t i o n F u n d I n v e s t m e n t T r u s t

1 2 0 (2 6 ) 21

2 4 168 ( 1 2 1 ) 107

4 1 22 ( 3 0 7 ) 11 2

5 129 (1 3 5 ) 124

0 1 (0 ) 1

0 21 (0 ) 19

0 3 0 ( - ) 2 8

3 8 4 ( 2 1 8 ) 85

0 6 6 ( 3 8 ) 61

3 6 5 ( 1 0 5 ) 4 7

1 6 ( 1 4 ) 7

0 3 (2 0 )

1 4 (1 9 )

7 8 6 (9 4 )

1 5 2 (5 6 )

0 1 1 6 (8 9 )

13 • 23 (5 9 ) t

1 57 (7 8 )

0 4 (2 )

0 2 6 (2 4 )

2 8 (8 )

2 2 9 4 ( 9 0 7 )

0 8 (4 )

0 14 ( 3 4 )

0 3 4 ( 2 2 )

8 3 2 (3 0 )

2 19 (2 1 )

1 4 (3 )

0 1 ( — )

f i g u r e s f o r t h e f o l l o w i n g a g e n c i e s h a v e b e e n i n c l u d e d i n t h o s e f o r t h e r e l e v a n t p r i m a r y d e p a r t m e n t a s f o l l o w s :

M i n i s t e r o f S t a t e ’

“E d u c a t i o n ’

Key (a ) d e n o t e s n u m b e r o f r e q u e s t s r e f u s e d b e c a u s e t h e i n f o r m a t i o n w a s s u p p l i e d i n c o n f i d e n c e

( b ) d e n o t e s n u m b e r o f r e q u e s t s r e f u s e d b e c a u s e t h e i n f o r m a t i o n w a s a t r a d e s e c r e t

(c) d e n o t e s n u m b e r o f r e q u e s t s r e f u s e d b e c a u s e t h e i n f o r m a t i o n w a s p r o v i d e d in

c o m p l i a n c e w i t h a s t a t u t o r y d u t y

(d ) d e n o t e s n u m b e r o f r e q u e s t s r e f u s e d b e c a u s e t h e i n f o r m a t i o n w a s s u b j e c t t o a

s t a t u t o r y s e c r e c y p r o v i s i o n

(e) d e n o t e s n u m b e r o f r e q u e s t s r e f u s e d i n r e l i a n c e o n A - G ’s c e r t i f i c a t e t h a t i n f o r m a t i o n

i n v o l v e s s e c u r i t y , d e f e n c e , o r i n t e r n a t i o n a l r e l a t i o n s

( 0 d e n o t e s n u m b e r o f r e q u e s t s r e f u s e d in r e l i a n c e o n A - G ’s c e r t i f i c a t e t h a t i n f o r m a t i o n in v o lv e s

c a b i n e t m a t t e r s

(g) d e n o t e s n u m b e r o f r e q u e s t s r e f u s e d i n r e l i a n c e o n A - G ’s c e r t i f i c a t e t h a t t h e

i n f o r m a t i o n i n v o l v e s a n o t h e r g r o u n d

( h ) d e n o t e s n u m b e r o f r e q u e s t s r e f u s e d b e c a u s e t h e d e c i s i o n is n o t s u b j e c t t o s e c t i o n 13

(i) d e n o t e s n u m b e r o f r e q u e s t s r e f u s e d b e c a u s e a s t a t e m e n t o f r e a s o n s a l r e a d y g i v e n

G ) d e n o t e s n u m b e r o f r e q u e s t s r e f u s e d b e c a u s e t h e r e q u e s t w a s o u t o f t i m e

( k ) d e n o t e s n u m b e r o f r e q u e s t s r e f u s e d b e c a u s e t h e a p p l i c a n t is n o t a p e r s o n a g g r i e v e d

(l) d e n o t e s n u m b e r o f r e q u e s t s r e f u s e d b e c a u s e t h e r e q u e s t is n o t i n a p r o p e r f o r m

Table 2: Refusals of requests for statements of reasons

Department/A uthority (a) (b) (c) (d) (e) (f) (g) (h) d) (j) (k) (/)

A b o r i g i n a l D e v e l o p m e n t

C o m m i s s i o n 0 0 0 0 0 0 0 1 0 0 0 0

A u s t r a l i a n C u s t o m s S e r v i c e 0 0 0 0 0 0 0 10 1 0 4 0

A u s t r a l i a n T a x a t i o n O f f i c e 0 0 0 0 0 0 0 16 0 7 0 0

A u s t r a l i a n T e l e c o m m u n i ­

c a t i o n s C o m m i s s i o n 0 0 0 0 0 0 0 4 0 0 2 0

A v i a t i o n 0 0 0 0 0 0 0 0 0 1 3 0

C o m m o n w e a l t h B a n k i n g

C o r p ( P .A .B .) 0 0 0 0 0 0 0 0 0 1 0 0

E d u c a t i o n 0 0 0 0 0 0 0 1 0 0 0 0

E m p l o y m e n t a n d I n d u s t r i a l

R e l a t i o n s 0 0 0 0 0 0 0 10 0 4 0 3

H e a l t h 0 0 0 0 0 0 0 0 3 0 0 1

H o u s i n g a n d C o n s t r u c t i o n 0 0 0 0 0 0 0 0 0 0 4 0

I m m i g r a t i o n a n d E t h n i c

A f f a i r s , 0 0 0 0 0 0 0 13 0 0 0 0

I n d u s t r y , T e c h n o l o g y &

C o m m e r c e 0 0 0 0 0 0 0 16 0 0 0 0

L o c a l G o v e r n m e n t & A d m i n .

S e r v ic e s 0 0 0 0 0 0 0 3 0 1 0 0

N a t i o n a l C a p i t a l

D e v e l o p m e n t C o m m i s s i o n 0 0 0 0 0 0 0 1 0 0 0 0

P r i m a r y I n d u s t r y 0 0 0 0 0 0 0 0 0 0 0 1

P u b l i c S e r v i c e B o a r d 0 0 0 0 0 0 0 3 0 0 0 0

S o c i a l S e c u r i t y 0 0 0 0 0 0 0 0 0 0 1 0

T e r r i t o r i e s 0 0 0 0 0 0 0 8 0 1 0 0

V e t e r a n s ’ A f f a i r s 0 0 0 0 0 0 0 0 0 1 0 0

T o ta ls 0 0 0 0 0 0 0 8 6 4 16 14 5

173

Table 3: Resources involved in responses for statements of reasons

- 1 4 d a y s d e n o t e s n u m b e r o f r e q u e s t s f i n a l i s e d w i t h i n 14 d a y s o f t h e d a t e t h e r e q u e s t w a s r e c e i v e d .

1 5 - 2 8 d a y s d e n o t e s n u m b e r o f r e q u e s t s f i n a l i s e d m o r e t h a n 14 d a y s a f t e r , b u t w i t h i n 2 8 d a y s o f t h e d a t e t h e r e q u e s t w a s r e c e i v e d .

2 9 - 4 2 d a y s d e n o t e s n u m b e r o f r e q u e s t s f i n a l i s e d m o r e t h a n 2 8 d a y s a f t e r , b u t w i t h i n 4 2 d a y s o f t h e d a t e t h e r e q u e s t w a s r e c e i v e d .

4 3 - 5 6 d a y s d e n o t e s n u m b e r o f r e q u e s t s f i n a l i s e d m o r e t h a n 4 2 d a y s a f t e r , b u t w i t h i n 5 6 d a y s o f t h e d a t e t h e r e q u e s t w a s r e c e i v e d .

5 7 + d a y s d e n o t e s n u m b e r o f r e q u e s t s f i n a l i s e d m o r e t h a n 5 6 d a y s a f t e r t h e d a t e t h e r e q u e s t w a s r e c e i v e d .

Department /Authority -14 15-28 29-42 43-56

days days days days

57+ Writing

days responses

(sta ff hours)

Other work

a ff hours)

Total

s ta ff hours used

Average s ta ff hours per request

5 .3 0 3 5 .5 5 5 .0 7

0 . 0 0 6 .0 0 6 . 0 0

8 .0 0 2 4 . 0 0 1 .6 0

9 .1 0 1 9 3 .5 5 7 . 4 4

1 2 .0 0 1 9 .0 0 3 .1 6

9 .0 0 3 3 .0 0 5 . 5 0

0 . 0 0 1 7 9 .0 0 4 . 1 6

5 1 .0 0 1 1 0 .0 0 3 .2 3

n o i n f o r m a t i o n s u p p l i e d

2 2 .3 1 8 0 .3 8 2 .5 1

0 . 0 0 1 .0 0 1 .0 0

0 . 0 0 2 . 0 0 2 . 0 0

0 . 0 0 1 5 1 .0 0 7 . 1 9

4 1 8 .1 5 1 9 5 1 .0 5 1 4 .8 9

7 8 .0 0 653 .0 0 5.53

A b o r i g i n a l A f f a i r s

A b o r i g i n a l D e v e l o p m e n t

C o m m i s s i o n

A r t s , H e r i t a g e a n d

E n v i r o n m e n t

A t t o r n e y - G e n e r a l ’s

A u s t r a l i a n A r c h iv e s

A u s t r a l i a n B r o a d c a s t i n g

T r i b u n a l

A u s t r a l i a n B u r e a u o f

S t a t i s t i c s

A u s t r a l i a n C a p i t a l T e r r i t o r y

S c h o o l s A u t h o r i t y

A u s t r a l i a n C u s t o m s S e r v ic e

A u s t r a l i a n G o v e r n m e n t

R e t i r e m e n t B e n e f i t s O f f i c e

A u s t r a l i a n N a t i o n a l G a l l e r y

A u s t r a l i a n N a t i o n a l P a r k s

& W i l d l i f e

A u s t r a l i a n P o s t a l

C o m m i s s i o n

A u s t r a l i a n T a x a t i o n O f f i c e

A u s t r a l i a n T e l e c o m m u n i ­

c a t i o n s C o m m i s s i o n

3 4 0 0 0 3 0 .2 5

0 1 0 0 0 6 . 0 0

11 4 0 0 0 1 6 .0 0

4 12 4 1 5 1 8 4 .4 5

4 2 0 0 0 7 .0 0

2 4 0 0 0 2 4 .0 0

15 2 7 1 0 0 1 7 9 .0 0

1 3 0 1 2 0 5 9 .0 0

2 9 9 1 1

8 14 4 4 2 5 8 .0 7

0 1 0 0 0 1 .0 0

1 0 0 0 0 2 . 0 0

3 13 4 1 0 1 5 1 .0 0

15 3 4 3 6 5 41 1 5 3 2 .5 0

4 8 61 7 2 0 ' 5 7 5 .0 0

A v i a t i o n 51 63 7 7 0 3 0 3 .0 0

C o m m o n w e a l t h B a n k o f

A u s t r a l i a 0 1 0 0 0 5 .0 0

C o m m o n w e a l t h B a n k i n g

C o r p o r a t i o n ( P .A .B .) 19 1 0 0 0 3 4 .0 0

C o m m u n i t y S e r v ic e s 11 12 2 0 3 2 1 5 .0 0

D e f e n c e 3 4 41 7 1 2 1 2 0 .5 0

E d u c a t i o n 15 3 2 10 2 3 4 1 8 .0 0

E m p l o y m e n t a n d I n d u s t r i a l

R e la ti o n s 3 0 31 3 0 0 8 7 .0 0

E x p o r t D e v e l o p m e n t G r a n t s

B o a r d 0 4 2 1 0 3 3 .3 0

F i n a n c e 2 1 0 0 0 7 .0 0

F o r e ig n A f f a i r s 0 2 2 0 0 5 0 .0 0

H e a l t h 31 4 3 4 3 4 2 4 1 .0 0

H o u s i n g & C o n s t r u c t i o n 11 3 4 5 3 0 8 9 .0 0

I m m i g r a t i o n & E t h n i c

A f f a i r s 2 2 2 8 23 9 2 2 2 0 2 .0 0

I n d u s t r y , T e c h n o l o g y &

C o m m e r c e 2 16 11 4 2 1 9 0 .0 0

L o c a l G o v e r n m e n t a n d

A d m i n . S e r v ic e s 2 3 2 2 3 3 0 1 2 0 .0 0

N a t i o n a l C a p i t a l D e v e l o p ­

m e n t C o m m i s s i o n 0 3 1 0 0

P r i m a r y I n d u s t r y 5 10 8 0 0 9 7 .0 0

P r i m e M i n i s t e r a n d C a b i n e t 2 8 0 0 0 2 0 .3 0

P u b l i c S e r v ic e B o a r d 193 9 0 6 4 1 2 2 7 .0 0

R e s e r v e B a n k o f A u s t r a l i a 0 6 0 0 0 1 9 1 .0 0

R e s o u r c e s a n d E n e r g y 8 6 0 0 0 1 4 .0 0

S c ie n c e 8 23 2 0 0 1 1 6 .0 0

S o c i a l S e c u r i t y 2 2 0 7 3 4 4 2 5 .0 0

S p e c i a l M i n i s t e r o f S t a t e 12 7 1 0 0 6 5 .5 0

S p o r t , R e c r e a t i o n a n d

T o u r i s m 2 2 1 0 0 1 0 .0 0

S u p e r a n n u a t i o n F u n d I n v e s t ­

m e n t T r u s t 1 0 0 0 0 1 .0 0

9 7 .0 0 4 0 0 . 0 0

1 3 .0 0 1 8 .0 0

2 5 .0 0 5 9 .0 0

0 .0 0 2 1 5 .0 0

4 7 . 0 0 1 6 7 .5 0

1 0 6 .0 0 5 2 4 .0 0

3 9 .0 0 1 2 6 .0 0

2 7 .0 0 6 0 .3 0

4 . 0 0 1 1 .0 0

2 5 .0 0 7 5 .0 0

2 0 4 .0 0 4 4 5 .0 0

0 . 0 0 8 9 .0 0

0 . 0 0 2 0 2 .0 0

0 .0 0 1 9 0 .0 0

3 7 .0 0 1 5 7 .0 0

n o i n f o r m a t i o n s u p p l i e d

1 6 .0 0 1 1 3 .0 0

0 .0 0 2 0 .3 0

2 0 .0 0 2 4 7 .0 0

1 7 .0 0 2 0 8 .0 0

8 .0 0 2 2 .0 0

5 9 .0 0 1 7 5 .0 0

0 . 0 0 4 2 5 . 0 0

8 .5 0 7 4 .4 0

0 . 0 0 1 0 .0 0

1 .0 0 2 .0 0

3 .1 2

1 8 .0 0

2 .9 5

7 .6 7

1 .9 7

8 .4 5

1 .9 6

8 .6 1

3 .6 6

1 8 .7 5

5 .2 3

1 .6 7

1 .9 4

5 .4 2

3 .0 7

4 .9 1

2 .0 3

0 .8 4

3 4 .6 6

1 .5 7

5 .3 0

1 1 .8 0

3 .7 2

2.00

2.00

9 . 3 0 3 7 .3 0 1 .3 8

0 . 0 0 6 . 0 0 2 . 0 0

0 . 0 0 1 4 .0 0 7 . 0 0

0 . 0 0 3 4 0 .0 0 2 1 .2 5

3 .3 0 7 . 0 0 3 . 5 0

8 3 .0 0 2 8 4 . 0 0 5 .0 7

1 4 6 3 .1 6 8 1 6 4 .3 3 4 .6 7 ( 1 )

f o r e x c l u d i n g w i t h d r a w n c a s e s f r o m t h e s t a t i s t i c s is t h a t

(1) T h e a v e r a g e s t a f f h o u r s p e r r e q u e s t h a s b e e n o b t a i n e d b y d i v i d i n g t h e t o t a l s t a f f h o u r s u s e d ( 8 1 6 4 .3 3 ) b y t h e t o t a l n u m b e r o f c a s e s i n v o l v e d ( 1 7 4 6 ).

Key ( a ) d e n o t e s n u m b e r o f p a r t i a l c o m p l i a n c e s b e c a u s e i n f o r m a t i o n w a s s u p p l i e d in

c o n f i d e n c e .

( b ) d e n o t e s n u m b e r o f p a r t i a l c o m p l i a n c e s b e c a u s e i n f o r m a t i o n w a s a t r a d e s e c r e t.

(c) d e n o t e s n u m b e r o f p a r t i a l c o m n l i a n c e s b e c a u s e i n f o r m a t i o n w a s p r o v i d e d in

c o m p l i a n c e w i t h a s t a t u t o r y d u t y .

( d ) d e n o t e s n u m b e r o f p a r t i a l c o m p l i a n c e s b e c a u s e i n f o r m a t i o n w a s s u b j e c t t o a

s t a t u t o r y s e c r e c y p r o v i s i o n .

(e ) d e n o t e s n u m b e r o f p a r t i a l c o m p l i a n c e s i n r e l i a n c e o n A - G ’s c e r t i f i c a t e t h a t

i n f o r m a t i o n i n v o l v e s s e c u r i t y , d e f e n c e , o r i n t e r n a t i o n a l r e l a t i o n s

( 0 d e n o t e s n u m b e r o f p a r t i a l c o m p l i a n c e s in r e l i a n c e o n A - G ’s c e r t i f i c a t e t h a t

i n f o r m a t i o n i n v o l v e s c a b i n e t m a t t e r s .

(g ) d e n o t e s n u m b e r o f p a r t i a l c o m p l i a n c e s in r e l i a n c e o n A - G ’s c e r t i f i c a t e t h a t t h e

i n f o r m a t i o n i n v o l v e s a n o t h e r g r o u n d .

Table 4: Request for statements of reasons partially complied with

Department /Authority (a) (b) (c) (d) (e) (f)

A u s tr a l i a n T a x a t i o n O f f i c e 0 0 0 0 0 0 1

H e a l t h 3 0 0 0 0 0 0

I m m i g r a t i o n a n d E t h n i c

A f f a i r s 5 6 0 0 0 0 0 0

I n d u s t r y , T e c h n o l o g y &

C o m m e r c e 0 0 0 0 0 0 2

T r e a s u r y 2 0 0 0 0 0 0

T o ta ls 61 0 0 0 0 0 3

Note: T h e D e p a r t m e n t o f I m m i g r a t i o n & E t h n i c A f f a i r s f i g u r e o f 5 6 is a n estimate b a s e d o n

t h e i n f o r m a t i o n s u p p l i e d b y t h e D e p a r t m e n t . T h e D e p a r t m e n t w a s u n a b l e t o c l a r i f y

it s f ig u r e s .

177

Table 5: Applications to the Federal Court of Australia for an order of review

Pending at Pending at

commencement conclusion o f

Department/Authority o f period Received (1984) Granted Refused Withdrawn Finalised period

A b o r i g i n a l A f f a i r s 0 1 (3 ) 0 0

A b o r i g i n a l L a n d C o m m i s s i o n e r 0 2 ( - ) 0 0

A d m i n i s t r a t i v e A p p e a l s T r i b u n a l 0 I ( - ) 0 0

A r t s , H e r i t a g e & E n v i r o n m e n t 1 2 (4 ) 0 0

A t t o r n e y - G e n e r a l ’s 6 2 4 (2 4 ) 5 12

A u s t r a l i a n B r o a d c a s t i n g C o r p o r a t i o n 0 3 ( - ) 2 0

A u s t r a l i a n B r o a d c a s t i n g T r i b u n a l * 1 13 (7 ) 4 8

A u s t r a l i a n E l e c t o r a l C o m m i s s i o n 0 1 (2 ) 0 0

A u s t r a l i a n F e d e r a l P o l i c e

A u s t r a l i a n F e d e r a l P o l i c e P r o m o t i o n s A p p e a l

0 2 (4 ) 0 1

B o a r d 1 0 (1 ) 0 0

A u s t r a l i a n M e a t a n d L iv e s t o c k C o r p 0 1 ( - ) 0 0

A u s t r a l i a n P o s t a l C o m m i s s i o n 2 2 (1 ) 0 3

A u s t r a l i a n T a x a t i o n O f f i c e 2 8 3 8 (4 8 ) 4 9

A u s t r a l i a n T e l e c o m m u n i c a t i o n s C o m m i s s i o n

A u s t r a l i a n T e l e c o m m u n i c a t i o n s C o m m i s s i o n

4 6 (2 ) 2 1

( P r o m o t i o n s A p p e a l B o a r d ) 0 1 ( - ) 0 1

A v i a t i o n 1 1 (1 ) 0 0

C o m m o n w e a l t h E m p l o y e e s C o m p e n s a t i o n 3 1 (4 ) 0 1

C o m m u n i t y S e r v ic e s 0 2 (0 ) 0 0

D e f e n c e 0 2 (2 ) 0 0

E d u c a t i o n 2 3 (3 ) 1 2

E x p o r t D e v e l o p m e n t G r a n t s B o a r d 0 1 ( - ) 0 0

F i n a n c e 0 1 (0 ) 0 0

F o r e i g n A f f a i r s 3 0 (3 ) 0 0

H e a l t h 10 8 (1 6 ) 2 5

H o u s i n g a n d C o n s t r u c t i o n 0 1 (0 ) 0 0

H u m a n R i g h t s C o m m i s s i o n 0 2 ( - ) 0 0

I m m i g r a t i o n a n d E t h n i c A f f a i r s 2 0 8 0 (4 5 ) 9 33

I n d u s t r y , T e c h n o l o g y a n d C o m m e r c e 2 4 41 (3 5 ) 3 16

0 0

0 0

0 0

3 3

7 2 4

1 3

1 13

1 1

0 1

0 0

1 1

1 4

2 4 3 7

6 9

0 1

1 1

3 4

0 0

I I

0 3

0 0

0 0

3 3

1 8

0 0

0 0

21 6 3

13 3 2

1 2 1 0

6 0 1 0

1

1 0 0

2 9

1

0 1 0 2

1 2 1 1 0

10 1 2

3 7 3 3