Administrative Law

A D M I N
R VV VW
30th anniversary issue
Admin Review is the administrative law bulletin

of the Administrative Review Council.
This special edition of Admin Review marks the Council’s 30th anniversary.
It contains the text of presentations made at the Council’s 30th anniversary
seminar, ‘The Future of Administrative Law and the Challenges that Lie
Ahead’, held in September 2006, as well as articles written especially for the
anniversary.
More information about the work of the Council is available from the
Council’s website <www.ag.gov.au/arc> and the Council’s Secretariat
(ph. 02 6250 5800).
Administrative Review Council No. 58

Robert Garran Offices May 2007
National Circuit ISSN 0814 - 1231
BARTON ACT 2600
Punya Oe`Weet /IX/2007

Admin Review is an administrative law bulletin concerned with informing government,
private organisations and individuals about developments in Commonwealth
administrative law and procedure. It is produced under the auspices of the Administrative
Review Council, but the views expressed in it are those of the editors or writers and not
necessarily the views of the Council or any of its members or the members of its committees.
Although every care is taken in the preparation of the bulletin, no liability is accepted in
respect of matters published in it. The purpose of the bulletin is to provide general
information, not legal advice. Readers should carefully check the detail of the legislation,
cases and other material discussed in the bulletin.
Punya Oe`Weet /IX/2007
Administrative Review Council – 30th Anniversary Issue
Contents
The Administrative Review Council: future challenges

Jillian Segal AM and Professor Robin Creyke.................................................................2
The 30th anniversary: a congratulatory note

The Hon. Philip Ruddock MP........................................................................................11
The 30th anniversary: a judicial perspective

The Hon. Sir Anthony Mason AC KBE.........................................................................13
The 30th anniversary: future challenges for administrative review

Dr Peter Shergold AC....................................................................................................20
The 30th anniversary: an administrative perspective

Robert Cornall AO.........................................................................................................26
The 30th anniversary: an international perspective

The Right Hon. Lord Newton of Braintree OBE DL.....................................................32
The 30th anniversary: challenges for administrative law—a consumer

perspective
Peter Kell........................................................................................................................38
The 30th anniversary: what business needs from the law and decision
makers
Katie Lahey.....................................................................................................................48
The 30th anniversary: judicial review in Western Australia

The Hon. Chief Justice Wayne Martin...........................................................................54
An endnote: the beginnings

Margaret Harrison-Smith..............................................................................................74
Review and status of Council reports..............................................................................79
1
The Administrative Review Council: future challenges
Jillian Segal AM and Professor Robin Creyke*
Anniversaries provide opportunities not only for celebration but also for
serious reflection.1 The Administrative Review Council took the occasion of
its 30th anniversary to publish this special edition of Admin Review,
incorporating articles by those who spoke at the 30th anniversary seminar
in September 2006. Each author was asked to reflect on future challenges
for the Council. We are grateful that so many eminent people contributed
not only to this issue of Admin Review but also to helping the Council refine
its focus on future challenges.
The purpose of this introductory article is to provide an overview of the

comments of our contributing authors and, where relevant, consider the
Council’s initial response to suggested future challenges. Before
considering these challenges, however, it is pertinent to note the particular
features and strengths of the Administrative Review Council, which was
established in 1976—the first such body in Australia.2 The intention was
that the Council would have a central role in the government
accountability framework by ensuring, as far as possible, that government
decisions that affected people were subject to some form of external
supervision or review, by monitoring the law and procedures governing
government agencies, regulators and similar decision-making bodies, and
by encouraging use of the Commonwealth Administrative Appeals
Tribunal, the novel tribunal with government-wide powers that had also
been set up following the Kerr Committee report.3
These functions, which were set out in statute, reflected the Kerr
Committee’s view that the Council’s roles were ‘fundamental to the
*
On behalf of the members of the Administrative Review Council. Jillian Segal
is the current President of the Council; Robin Creyke has been a part-time
member of the Council since 1999.
1
As noted by Dr Peter Shergold, Secretary, Department of the Prime Minister
and Cabinet, in his contribution to this issue.
2
Administrative Appeals Tribunal Act 1975 (Cth) Part V.
3
ibid. s 51. Commonwealth Administrative Review Committee (Kerr
Committee) 1971, Report, Parliamentary Paper 144, Commonwealth of
Australia, Canberra.
2
proposed system of administrative review’.4 Among these roles were being

‘the advisory body on legislation necessary to facilitate the introduction of
the suggested system of administrative law and on the taking of the
detailed steps to bring these recommendations, if they commend
themselves to the Government, into effect’.5
To this end, the Council’s membership includes key players in the

administrative law system. The ex officio members are the President of the
Administrative Appeals Tribunal, the Commonwealth Ombudsman and
the President of the Australian Law Reform Commission. Other members
‘include those with experience at a high level in industry, commerce,
public administration and legal practitioners and academics with a
substantial background in administrative law’.6
Since its establishment the Council has faithfully and effectively performed
its allotted tasks. In its 30-year history it has produced 47 reports for the
Attorney-General—on matters as diverse as import control and customs
by-law decisions (report no. 3, 1979), Australian Broadcasting Tribunal
procedures (report no. 12, 1981), land use in the ACT (report no. 14, 1981),
the constitution of the Administrative Appeals Tribunal (report no. 29,
1987), access to administrative review by Australia’s ethnic communities
(report no. 34, 1991), government business enterprises and administrative
law (report no. 38, 1995), and the scope of judicial review (report no. 47,
2006). In addition, the Council makes submissions to parliamentary
committees and other bodies, advises government on a range of
administrative law matters, and provides input into government legislative
proposals that have administrative law implications.
The Council’s strengths lie in the quality and diversity of its membership
and its Secretariat. These are demonstrated by the wisdom and utility of its
recommendations, its independence from government and the respect paid
to its recommendations by government, and the fact that it shoulders a
considerable workload despite constrained resources.
This view of the Council’s effectiveness is flatteringly echoed by all

contributors to this issue. Sir Anthony Mason, a member of the original
Kerr Committee, notes in his contribution to this issue:
My assessment of the ARC is equally favourable. The Council’s

performance has conformed closely to the expectations held of it.
4
ibid. recommendation 32.
5
ibid. recommendations 12–14, 18, 20, 25, 28, 30–32.
6
Administrative Appeals Tribunal Act 1975 (Cth) s 49.
3
It has continued to monitor the system as a whole, to identify

issues that need to be addressed, to propose consideration of
reforms that might be made, and to work in a cooperative way
with other institutions of government. The Council’s constant
and informed oversight of the system has played a very
important role in the success of the system. Its reports have been
responsible for a number of improvements. The strength of the
ARC lies in its varied membership. It reflects the perspectives of
the stakeholders in the system, enabling the ARC to bring to bear
a balanced viewpoint. It is of vital importance that the ARC be
adequately resourced so that it can continue its good work.7
A feature of the statutory remit of the Council is its flexibility. This has
enabled the Council to be responsive to the significant changes in the last
30 years in the way government operates. That has been essential.
Otherwise, despite the Kerr Committee’s recommendation that the Council
be a ‘permanent’ body,8 as the Council achieved the statutory objectives
initially set for it, it might have been seen as having outlived its useful role.
Indeed, there was a view prevalent in the 1990s, with the advent of
contracting out and the downsizing of government, that administrative law
generally was becoming outmoded.9
This view—that administrative law was no longer of frontline interest for

government—resulted in a 1997 Senate inquiry into the continuing utility
of the Administrative Review Council.10 However, faced with evidence
from many organisations that ‘the ARC had been generally effective in
performing its functions’11 and that the Council was ‘generally held in high
regard’12, the Senate Committee rejected suggestions of the Council’s
demise, instead recommending that the Council remain as ‘a separate and
permanent body’ provided it is ‘making a significant contribution towards
an affordable and cost-effective system of administrative decision-making
and review’.13
7
See p 15.
8
Kerr Committee report recommendation 28(a).
9
That was reflected in a 1996 conference ‘Administrative Law: setting the pace
or being left behind?’ run by the Australian Institute of Administrative Law,
which had sessions entitled ‘Is there a place for administrative law in
government business enterprises?’ and ‘Can administrative law come to grips
with tendering and contracting by public sector agencies?’
10
Senate Legal and Constitutional Committee 1997, Report on the Role and
Function of the Administrative Review Council, SLCC, Canberra.
11
ibid. [1.23]
12
ibid. [1.29]
13
4
Indeed, among the specific recommendations of the Senate Committee

were that the functions the Council performed (particularly its focus on
improving primary decision making) be spelt out in legislation14 and that
the ‘Government give an undertaking to respond to all Administrative
Review Council project reports within twelve months of their delivery’.15 In
summary, the inquiry affirmed the continued importance of the Council
and supported an expansion of its terms of reference.
That expansion has occurred. From the initial, relatively narrow focus on
the heartland of administrative law—merits review and tribunals, judicial
review and courts, ombudsmen and inquiries, rights of access to and
protection of privacy—the Council’s interests have shifted. Council reports
have since examined administrative law aspects of primary decision
making, internal review,16 preparing statements17 and standards of conduct
for tribunal members,18 as well as developing benchmarks that should
apply to regulatory bodies that manage the government services now
supplied by private sector providers.
The Council’s 47 reports have not only considered a diverse range of topics
but have also varied in form. Some have provided specific
recommendations—for example, a citizenship review and appeals system
(report no. 7), the structure and form of social security appeals (report
no. 21), review of decisions under industry research and development
legislation (report no. 31), the jurisdictional hurdles posed by the
Administrative Decisions (Judicial Review) Act 1977 (report no. 32), what
decisions of government business enterprises should be subject to
administrative law remedies (report no. 38), and what decisions of the
Commissioner of Patents should be subject to merits review (report no. 43).
Others have sought to set out a framework of principles (for example, for
judicial review) to guide government drafters and decision makers. This
special issue of Admin Review summarises the topics covered by these
reports and the general response of government where relevant.
14
15
16
Administrative Review Council 2000, Internal Review of Agency Decision Making,
Report no. 44, ARC, Canberra.
17
Administrative Review Council 2000, Practical Guidelines for Preparing
Statements of Reasons, ARC, Canberra, rev. November 2002.
18
Administrative Review Council 2001, A Guide to Standards of Conduct for
Tribunal Members, ARC, Canberra.
5
As Lord Newton of Braintree, Chairman of the UK Council on Tribunals,

notes when detailing the many similarities between the Administrative
Review Council and the British Council on Tribunals, the combination of
independent advice, effective consultation and facilitation, and the ability
to develop and articulate general principles on different administrative law
topics could amount to the Council on Tribunals being ‘the hub of the
wheel of administrative justice’.19 The same could be said of the
Administrative Review Council: specific recommendations of the Council
have influenced not only federal administrative law but also state
administrative law, as illustrated in Justice Martin’s update on changes to
judicial review in Western Australia, as published in this issue of Admin
Review.20 The article by the Council’s Executive Director, Margaret
Harrison-Smith, notes the mutual influences the Administrative Review
Council and the UK Council on Tribunals have had on each other and that
the Council on Tribunals is to be reconstituted as the Administrative Justice
and Tribunals Council with a charter similar to that of the Administrative
Review Council.21
In addition to its role in providing advice and guidance to government, as

specified in its statutory remit, the Administrative Review Council also
facilitates the training of members of authorities of the Commonwealth and
other individuals in exercising administrative discretions or making
administrative decisions and promotes knowledge about the
Commonwealth administrative law system.22 In recent years, through a
series of guideline reports and other publications, the Council has placed
particular emphasis on this educative function. This, perhaps, adds to its
role as an advice and resource ‘hub’.
The importance of this work is consistent with the current government

focus on improved training in public sector standards. Decision makers are
expected to have the skills to operate effectively and to know the principles
underlying their powers. This allows them to perform their tasks according
to the law, to safeguard their decisions from judicial intrusion, and to make
sure their decisions are of the highest possible ethical standard.
In 2004 the Council published Legal Training for Primary Decision Makers: a
curriculum guideline to provide a blueprint for training materials for officers
across government. There is anecdotal evidence that the guideline is being
19
See p 36.
20
See p 58.
21
See p 80.
22
Administrative Appeals Tribunal Act 1975 (Cth) s 51.
6
used by a range of agencies. The Council is also working on a series of

practical guides for decision makers, in areas such as lawful decision
making, fact finding, statements of reasons,23 making decisions that are
fair, and managing challenges to decisions.
Additionally, the Council has sought to anticipate the needs of the

administrative community in harnessing its educative role, as exemplified
by publication of The Scope of Judicial Review (report no. 47) in June 2006.
This report canvasses some of the legal and policy questions associated
with the scope of judicial review, the aim being to provide signposts in
what is an undoubtedly a dynamic and complex area. The report is a
useful complement to the Council’s 1999 guideline publication What
Decisions should be Subject to Merits Review?
In producing such a broad range of publications, the Council has sought to

encourage good decision making and appropriate review mechanisms for
a broad spectrum of decision makers. As the Attorney-General notes, the
ability ‘to produce “easy to read” practical materials as well as publications
with in-depth analysis of complex legal issues’ is in no small measure due
to the ‘diversity and combined expertise of [the Council’s] members’,
including its ex officio members.24 We are indeed fortunate to have such
talented and committed councillors who give readily of their time. As
mentioned, to meet the challenges and continue to attract high-calibre
members, it will be important to maintain an adequately resourced
Secretariat that can continue to produce high-quality work.
Many of the contributors to this 30th anniversary issue have said that the
main challenges ahead lie in ensuring that administrative law continues to
reflect the fundamental values of our administrative system—lawfulness,
fairness, rationality and transparency—as adapted to new and developing
contexts.
Some clarity about these new contexts is emerging. The first is the use of
technology. The Council’s foresaw the use of expert computer systems by
government agencies and anticipated government decision makers’ need
for guidance.
23
The Council has already issued Practical Guidelines for Preparing Statements of
Reasons. The guidelines take into account changes in the law relating to the
content of statements of reasons consequent on the decision of the High Court
in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1.
24
See p 12.
7
The advantage of expert systems for administrative decision making is that

they are cost-effective, efficient and accurate. Nevertheless, although they
have the potential to improve decision making, they can do so effectively
only if the database that maps the steps taken by decision makers is
programmed to be consistent with administrative law rules and principles.
In addition, although the decision-making process can be mapped by a
database, where judgment or discretion is required individual officers
must be involved. This need to find the balance between an automated
process and individual judgment was the focus of the Council’s project
dealing with expert systems.
The project culminated in Automated Assistance in Administrative Decision

Making, published in November 2004.25 Until publication of that report the
questions raised by the use of expert systems in such a context had not
been considered in Australia or elsewhere. Nor was guidance available on
the role of expert systems in administrative decision making and the
administrative law and practical pitfalls to be avoided.
The report contains 27 best-practice principles directed at ensuring that

decisions made with the assistance of an automated system are consistent
with the administrative law values identified by the Council—lawfulness,
fairness, rationality, openness and efficiency. The principles deal with
factors such as the design, maintenance and continuing use of expert
systems. Importantly, the Council’s report makes a distinction between
administrative decisions for which the decision maker is required to
exercise discretion and those for which no discretion is exercisable once the
facts are established. In either case, decisions made by or with the
assistance of expert systems remain subject to the same administrative law
rules and principles that safeguard the quality of administrative decisions
made in the absence of expert systems.
In addition to the 27 principles, the report recommended the creation of an

independent advisory body to provide advice to government on the
operation of expert systems in administrative decision making. The
Automated Assistance in Administrative Decision Making Advisory
Working Group was formed in November 2005.
The Group has 16 members, drawn from Australian government agencies

that have experience of or an interest in the use of automated systems for
administrative decision making. The involvement of the Australian
25
Administrative Review Council 2004, Automated Assistance in Administrative
Decision Making, Report no. 46, ARC, Canberra.
8
Government Information Office in hosting the Advisory Working Group

means that the Group has access to a range of information technology
forums across government, and its wide membership encourages
consistency in the use of expert systems. The Council’s work in this area
and the resultant Advisory Working Group are in the vanguard in this
field: the Group is the first body to advise on the administrative law
aspects of expert systems in this country—probably in the world.
The second changing context foreseen by the Council concerns the impact
of globalisation. This question of administrative review working
internationally is highlighted by Robert Cornall26 as a continuing challenge.
Again, the Council has prepared itself for working more globally and has
already provided advice on a merits review framework in the area of
therapeutic goods. Pursuant to a treaty made under the Trans Tasman
Mutual Recognition Agreement, Australia and New Zealand have agreed
to establish a joint agency to regulate therapeutic goods, with
administrative review of the agency’s decisions being performed by a
panel made up of members from both countries.
Among other contexts highlighted by contributors to this issue are the

changing role of government and, indeed, the public service (Dr Peter
Shergold27 and Robert Cornall28), an increase in self-regulation and
outsourcing (Peter Kell29 and Robert Cornall30), a strong industry push to
reduce the amount of government-imposed regulation (Robert Cornall31,
Dr Peter Shergold32 and Katie Lahey33), and the changing community
expectations of the role of government and the protections government
provides to its citizens (Robert Cornall34).
These themes highlight the need for the Administrative Review Council to
be proactive in its focus in order to provide guidance—whether that be
specific recommendations or general principles—to enable government,
government agencies and public servants to respond appropriately to the
new challenges.
26
See p 30.
27
See p 23.
28
See p 30.
29
See p 42.
30
See p 30.
31
See p 30.
32
See p 23.
33
See p 52.
34
See p 30.
9
The pressure from business to minimise the ‘deadweight of regulation’35

has prompted governments, both state and territory and federal, to make
efforts to reduce the quantum of regulation and improve their own
assessment process for new regulation. The Administrative Review
Council has already commenced work on a new reference, where it will
consider, in the context of decisions in areas of complex business
regulation, the most effective and efficient administrative accountability
mechanisms. This will involve the Council in reviewing possible
adaptations to merits review processes, the expansion or adaptation of
other mechanisms for administrative review that might particularly suit
complex business regulation, and the possible development of a
framework of guideline principles in the area.
The Council is also working on a project dealing with the coercive

information-gathering powers of a number of important government
agencies and whether a useful set of guidelines can be developed. Such a
project reflects the confluence of a number of competing values relating to
regulation—regulators and others properly exercising wide administrative
discretion and powers; administrative protections being available to
individuals and corporates, such as appropriate notice and legal
professional privilege; and regulators being as effective and efficient as is
reasonably possible.
Dr Shergold’s identification of the personalising or focusing of government

programs on specific communities and Peter Kell’s discussion of
administrative processes involved in self-regulation raise very interesting
questions for the administrative law values of consistency, equality and
fairness. Perhaps the interpretation of these values themselves will need to
be reviewed through the changing lens of community expectations or, as
Robert Cornall puts it, ‘The way the Australian community defines “a fair
go” will change over time and administrative review will need to adjust to
that change’.36 The Council has not yet considered its approach to these
challenges but, given its history, structure and performance to date, there is
every likelihood that Council reports or guidance will follow.
As Justice Brennan, the first President of the Administrative Review

Council, noted in his foreword to the Council’s first annual report in
relation to the system of administrative review in 1976, at the time of the
establishment of the Council and the Administrative Appeals Tribunal:
35
See p 23.
36
See p 30.
10
A monitor of the system is essential and the Council will fulfil

that function. It should not be thought that the new system will
be static … Nice adjustments will have to be made between the
purposive orderliness of the bureaucracy and the expectations of
the citizen whose interests are affected.37
As the ‘monitor’ of the system of administrative law in this country,

balancing the rights of the citizen with the machinery of government, the
Administrative Review Council is not only a vital part of the
administrative justice system: it also needs to be thinking ahead, to help
those in government adapt to change while adhering to the agreed
principles of administrative law. The Council looks forward to the task.
37
Administrative Review Council 1977, Annual Report 1976–77, ARC, Canberra,
Foreword.
11
The 30th anniversary: a congratulatory note
The Hon. Philip Ruddock MP

Commonwealth Attorney-General
I would like to congratulate the Administrative Review Council on its 30th

anniversary. In doing so, I would also like to acknowledge the
contributions of the 90 members who have served on the Council since its
beginning in 1976.
Throughout its history, the Council’s membership has included respected

members of the senior public service, the legal profession, the business,
industrial relations and welfare sectors, leading academics, and defence
representatives.
The Council has been enriched by the diversity and combined expertise of
its members, all of whom I congratulate for their part in the Council’s
30-year history. In that time, the Council has produced 47 reports on a
wide range of administrative law topics.
It is an impressive record, and there are no signs of slowing down. In fact,

when the Council launched its 47th report—The Scope of Judicial Review—in
Sydney earlier in 2006 I was pleased to have had the opportunity to
participate. I understand that the Council’s 48th report, on the coercive
information-gathering powers of Commonwealth agencies, is also nearing
completion. Also on the ARC’s drawing board is a series of best-practice
guideline publications in conjunction with the Department of Immigration
and Multicultural Affairs [now the Department of Immigration and
Citizenship]. For use by all government agencies, the publications will be
supplemented by materials of particular relevance to DIMA. That the
Council can produce ‘easy to read’ practical materials as well as
publications with in-depth analysis of complex legal issues only adds to its
value.
The ARC’s future

The discussion stimulated by the ARC’s 30th anniversary provides some
fascinating insights into likely issues and challenges for administrative law
12
in the future from five key perspectives, including an international update

on developments in the United Kingdom.
I have recently provided the Council with terms of reference for a further
report—number 49. The report will consider the relationship between
administrative law and business regulation.
As you may know, the Government is committed to reducing red tape. I

anticipate that this latest project will offer invaluable guidance on
improving the efficiency of business regulation, while maintaining
appropriate safeguards for administrative review and protecting
individual rights.
This issue—the tension between administrative efficiency and

administrative review—is not new. It was highlighted by the Kerr
Committee in 1971 and is just as important today. As the ARC embarks on
its business regulation project, this balance is likely to again be a central
issue.
The reason I make this point is to note that, while this seminar has largely
focused upon the future, administrative law’s past is equally important.
While new challenges will arise in the future, the fundamental values of
our administrative law system will remain.
The challenge—and it is a challenge that I have no doubt that the ARC will
continue to meet—will be to adapt the values and principles that have been
espoused in the past to new contexts.
Over the past 30 years the ARC has promoted the values of lawfulness,
fairness, rationality, openness and transparency, and efficiency in many
different contexts. These range from judicial review to social security,
taxation, migration, environmental decisions, contracting out of
government services, and the use of computer technology in decision
making. In the next 30 years the ARC will probably revisit some areas and
will also branch into new ones. I am sure that the Council will keep pace
with our changing society.
The implementation of the administrative law package, including the ARC,

in the 1970s was a very significant point in Australia’s legal history. And in
2006 the Council plays just as important a role as it did in 1976. With such a
well-entrenched and respected place in our administrative law system, I
have no doubt that the ARC will continue to provide valuable
contributions to the future of administrative law.
13
Once again, congratulations, ARC, on reaching this 30-year milestone. It is

a great achievement.
14
The 30th anniversary: a judicial perspective
The Hon. Sir Anthony Mason AC KBE
The title given to my remarks, ‘Perspective of the judiciary’ is, I confess, a

false trade description. It is now 11 years since I was an Australian judge,
and the Australian judiciary has not authorised me to speak on its behalf. I
can speak, however, in my capacity as a non-permanent judge of the Hong
Kong Court of Final Appeal, though it will come as a surprise to the
organisers of the seminar to learn that they have invited me to speak in
that capacity.
An advantage—or is it a disadvantage?—of being an octogenarian is that

one’s recollection extends into the distant reaches of the past, a realm
unknown to most inhabitants of today’s world. Lawyers are an exception
to this generalisation, accustomed, as they are, to respect precedent and
tradition and to acquaint themselves with the historical origins of the
institutions, principles and doctrines of the law.
So my recollections of the Kerr Committee, whose recommendations

constitute the architecture of the modern system of Australian
administrative law, and my expectations of its future development, will be
of interest at least to administrative lawyers. And, as is always the case
with expectations, you need to know whether they have been realised or
disappointed.
The Kerr Committee recommendations

The Kerr Committee’s recommendations resulted in four fundamental
reforms:
 the introduction of ‘merits’ review of administrative decisions,

involving the establishment of the Administrative Appeals Tribunal,
this being a distinctive element of Australian administrative law
 the classification of the grounds of judicial review by means of the

Administrative Decisions (Judicial Review) Act 1975 (Cth)
 the establishment of the Parliamentary Ombudsman—inelegantly

styled ‘the Council for Grievances’ in the report
15
 the setting up of the Administrative Review Council, whose

anniversary we celebrate today, with a continuing monitoring role.
An incidental and very important reform was the introduction of a

requirement for a statement of facts and reasons for the making of an
administrative decision at the option of the party affected by the decision.
The creation of this obligation, denied by the common law at that time,1
along with the subsequent enactment of the Freedom of Information Act 1982
(Cth), was an advance in arming the citizen with effective remedies in the
field of administrative justice.
It must be acknowledged, however, that the Freedom of Information Act,

which was not an element in the Kerr Committee agenda, has proved to be
a substantial disappointment. All too often, government and government
agencies have been able to successfully resist applications for the provision
of information. The majority decision of the High Court in
McKinnon v Secretary of the Treasury Department2 confirms the point. The
strong emphasis on open government, so evident in Australia in the 1970s
through to the early 1990s, has given way to renewed emphasis on
confidentiality, an emphasis which has been reinforced in the face of the
new threat of terrorism. The notion that public servants will be deterred
from communicating freely and directly with Ministers or will not make a
written record of such communications for fear that they will become
subject to public scrutiny, which was discounted in cases following
Conway v Rimmer,3 seems to be enjoying a political and bureaucratic
reincarnation. When I was Commonwealth Solicitor-General no public
servant of my acquaintance would have refrained from giving frank and
fearless advice because that advice might be subjected to public scrutiny.
It is worth recalling what has been said in the United Kingdom about the
claim for privilege based on freedom and candour of communication with,
and within, the public service in the context of disclosure in court
proceedings. Lord Radcliffe, who had considerable experience in working
with government in World War II and later in public inquiries, said,
‘I should myself have supposed Crown servants to be made of sterner
stuff’ and went on to criticise the tendency to suppress ‘everything
however commonplace that has passed between one civil servant and
another’.4
1
Public Service Board of NSW v Osmond (1986) 156 CLR 656.
2
6 September 2006, 2006HCA45.
3
(1968) AC910.
4
Glasgow Corporation v Central Land Board (1956) SC 1 at 20.
16
And Lord Keith said:
The notion that any competent or conscientious public servant

would be inhibited in the candour of his writings by
consideration of the off-chance that they might have to be
produced in litigation is in my opinion grotesque. To represent
that the possibility of it might significantly impair the public
service is even more so.5
The Ombudsman
Of the major reforms, the Ombudsman has been perhaps the most
successful; indeed, more successful than I expected. Ombudsmen have
succeeded in dealing expeditiously and effectively with a very large
number of complaints at very low cost. The reasons for that success lie in
three factors. First, the requirement that the Ombudsman report directly to
Parliament makes him directly responsible to Parliament and gives
Parliament a specific role in administrative review, a role which conforms
to Parliament’s historic function in monitoring the actions of the executive
government and its agencies. Second, those who have been appointed to
the office have been persons of very considerable ability. Third, the
influence of the Ombudsman’s activities on the performance of the public
service and of government agencies has been most beneficial. It has
resulted in a growing understanding that public power is to be exercised
for the benefit of the people, that decisions must take account of the
interests of stakeholders in accordance with the requirements of due
process, and that they must be adequately explained.
In this respect the Ombudsman’s office has a distinct advantage because it

is not cast in the role of an adversary of government. It works with
government departments in investigating complaints, although it may
ultimately find fault with what a department has done. Ombudsmen have
shown that it is possible to maintain good working relations with
government departments without compromising independent decision
making.
The Administrative Review Council

My assessment of the ARC is equally favourable. The Council’s
performance has conformed closely to the expectations held of it. It has
continued to monitor the system as a whole, to identify issues that need to
5
Burmah Oil Co Ltd v Bank of England (1960) AC 1090.
17
be addressed, to propose consideration of reforms that might be made, and

to work in a cooperative way with other institutions of government. The
Council’s constant and informed oversight of the system has played a very
important role in the success of the system. Its reports have been
responsible for a number of improvements. The strength of the ARC lies in
its varied membership. It reflects the perspectives of the stakeholders in the
system, enabling the ARC to bring to bear a balanced viewpoint. It is of
vital importance that the ARC be adequately resourced so that it can
continue its good work.
The Administrative Appeals Tribunal

The introduction of merits review—that is, the function of determining
whether the decision under review was the correct or preferable decision—
attracted more resistance that any other element in the Kerr Committee
recommendations. We did give consideration to recommending the
establishment of a system of administrative courts similar to the French
system, only to reject it because we thought it would be too radical in the
light of our culture and traditions. Hence the decision to support merits
review and the AAT. Although it has a wide-ranging jurisdiction, the AAT
co-exists with other specialist tribunals which have been set up for various
reasons. The Kerr Committee had hoped that the AAT would supersede
other specialist tribunals, but that did not come about.
The AAT has not been free from controversy. In the beginning, it was
suggested that the AAT lacked democratic legitimacy, because the
decision-making function was left by Parliament to the decision maker.
This criticism, which had no substance, seems to have abated. A second
criticism, still current in some quarters, is that the AAT is too court-like.
This is not surprising as the Tribunal was intended to operate in a court-
like manner. This criticism was discussed by the ARC in its 1995 report
no. 39, Better Decisions, in which the ARC considered the criticism to be
exaggerated. I agree with this view so long as it is clearly understood that
the Tribunal is at liberty to adopt such procedures as are best fitted to meet
the needs of the case in hand.
Associated with this criticism was the view that the composition of the
AAT was too heavily weighted in favour of lawyers. The problem here is
that it is a definite advantage for members to have legal qualifications or
experience. No doubt non-lawyers can make a valuable contribution to the
AAT, but the reputation and standing of the AAT depend to a significant
degree on its work being dealt with in a way that meets the lawyer-like
18
expectations held of it by the legal community. That means that it is

desirable that Tribunal membership reflects a significant proportion of
lawyers, as it does at the present time. Nevertheless this question of
Tribunal membership will continue to be an issue in the future.
Another criticism made some years ago was that AAT decisions were
inconsistent. Inconsistent decision making generates strong perceptions of
injustice and lack of competence. Fortunately, the AAT addressed this
problem so that it seems no longer to be a matter of significant concern. It
is, however, a matter which requires constant attention.
In proposing the establishment of the AAT to conduct merits review, we

had in mind that the AAT would exercise a general jurisdiction with a
standard procedure. Such an approach had obvious attractions for
practitioners adapting to a new regime. But political and other pressures,
sometimes justified, resulted in the establishment or retention of specialist
tribunals. Generally speaking, these tribunals are so constituted that they
can and should adopt procedures which are appropriate to the cases with
which they deal, even to particular cases which come before them. It is, of
course, necessary that, subject to any relevant statutory provision, tribunals
comply with the requirements of procedural fairness. Here, the courts, in
engaging in judicial review, need to be mindful that the requirements of
procedural fairness may vary from case to case and that they should not
needlessly stultify a tribunal’s power to adopt what is an appropriate
procedure for the case before it. The flexibility which is necessary to enable
a tribunal to tailor the procedure to the case will not be forthcoming if the
court model is followed too closely.
In the controversies which arose over immigration decisions, it was at one

time suggested that merits review and AAT review amounted to a wasteful
duplication of resources. This controversy arose out of a perception that,
under the guise of judicial review, judges were engaging in merits review.
This controversy appears to have subsided, with the consequence that it
seems to be accepted that both methods of review can co-exist.
Despite criticism of particular decisions, it is generally accepted that the

AAT has done well. It is, however, of the utmost importance that the
quality of membership be maintained and that the temptation to appoint as
members unqualified and inexperienced persons be firmly resisted.
19
Judicial review
Some years after the introduction of the Administrative Decisions (Judicial
Review) Act it could be said that the Act had clarified judicial review by
identifying and circumventing the technicalities associated with the
prerogative writs. I doubt that such a statement would now be correct.
Judicial review has become increasingly complex. This development was
probably to be expected in the light of the volume of cases which have
come forward. What was not predictable, however, was the increasing
emphasis which has been placed on jurisdictional issues in tribunals in
recent decisions. In Craig v South Australia6 the High Court held that all
errors of law by a tribunal go to the existence of jurisdiction while many
errors of law by a court occur within jurisdiction. This conclusion naturally
entails the consequence that tribunals may be subjected to more intensive
judicial scrutiny than lower courts. In turn, this intensive judicial scrutiny
reinforces the court-like characteristics of tribunals.
The emphasis on jurisdictional error has resulted in the development of a

complex jurisprudence which can result in difficulties for tribunals.
Bhardwaj7 is a case in point. There, the Immigration Review Tribunal,
through an administrative error, failed to discharge its statutory duty of
hearing the appeal because its attention was not drawn to the appellant’s
communication that he was ill. Being informed of the communication, the
Tribunal set down a new date for hearing and, on that hearing, set aside its
earlier dismissal of the appeal and reinstated the appellant’s student visa,
which had been cancelled by the [immigration] department. The Tribunal
acted properly in setting aside its earlier decision, which was invalid. The
High Court suggested that the AAT had not only a power but also a duty
to do so. Just how far this principle goes remains to be ascertained. The
practical problems are identified in the subsequent Federal Court decision
Re Thomas Edwards and Secretary, Department of Health & Ageing.8
A comparison between the scope of judicial review available in Australia

and in other common law jurisdictions reveals that the scope of judicial
review is much more limited in Australia. There are various reasons for the
difference. One is the availability of merits review in Australia. Another is
the strong influence of the constitutional separation of powers doctrine in
6
(1995) 184 CLR 163.
7
Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597.
8
(2006) AATA 227, 9 February 2006; see also J McMillan 2006, Administrative
Tribunals in Australia—future directions, <www.ombudsman.gov.au> under
‘research/speeches’.
20
Australian jurisprudence, whereas in other jurisdictions the rule of law is

the more dominating influence. A third factor is the absence of an
entrenched or statute-based bill of rights in Australia. In other jurisdictions
the protection of human rights and fundamental freedoms has resulted in
an expansion in the scope of review and an intensified standard of review,
involving, amongst other things, the concept of proportionality and a
greater use of the concept of legitimate expectations.
One criticism which should be made of judicial review in Australia—and it

is strong criticism—is the tendency to enact privative clauses. The effect of
a privative clause is to deny to a citizen access to the courts for the
determination of his substantive rights. Absent entrenched or statute-based
fundamental rights, there is no obstacle to the enactment of privative
clauses, other than s 75(v) of the Constitution. This meant that legislation
was enacted, forcing judicial review of migration decisions into the High
Court, thereby investing the Court with a burdensome jurisdiction, ill-
suited to its status in the hierarchy of courts. It cannot be emphasised too
strongly that judicial review of administrative decisions, with its capacity
to attract publicity, brings a focus to the accountability of the elected
government and its agencies in relation to the very decision-making
processes of government and its agencies which lie at the core of
democratic government.
Concluding comments
The Australian constitutional separation of powers is unquestionably an
obstacle to principled reform of Australian administrative law. As things
stand, courts are not entrusted with merits review, yet courts cannot be
denied judicial review pursuant to s 75(v) of the Constitution. So the
combination of merits review and judicial review seems inevitable under
existing constitutional arrangements. An alternative—not as satisfactory—
would be to provide for expanded judicial review along the lines of judicial
review in England, but there is no sign of this happening and, in any event,
current constitutional thinking may well be resistant to such a
development.
The reforms of the 1970s enhanced Australian administrative processes by

improving the quality of decision making, ensuring procedural fairness,
and instilling a culture of reasoned decision making with an emphasis on
the need for justification. However, the cost of the system, to both
government and the parties, but especially the parties, is a matter of
21
continuing concern. At the end of the day, though, securing administrative

justice is worth the cost.
22
The 30th anniversary: future challenges for

administrative review
Dr Peter Shergold AC
Secretary, Department of the Prime Minister and Cabinet
Anniversaries are important; they provide a rare opportunity to reflect on

the achievements of the past. So it is as we mark the occasion of the 30th
anniversary of the Administrative Review Council.
There is much to extol in the history of the organisation and the manner in
which it has provided oversight of Australia’s system of administrative
review and advice to the Attorney-General on strategic matters.
Thankfully, a generation since its establishment, the ARC continues to have
an active presence. There are strong signs of institutional vigour: consider,
as evidence, the ARC’s work on automated assistance in decision making
and on the wielding of coercive powers by public sector agencies and its
practical guidance to government decision makers on procedural fairness.
Maintaining the ARC’s ability to remain relevant has not been easy. The
structure of government and delivery of public services has evolved
considerably in recent decades. The corporatisation, privatisation and
contracting out of government functions and service delivery have posed
substantial challenges to processes of administrative oversight and review.
Born in days when there was a sharper distinction between the public and
private sectors, the ARC has necessarily had to respond to an increasingly
complex environment in which the implementation of government has
become far more ‘distributed’.
Thankfully, there is no evidence that the soothing hand of bureaucratic

inertia has yet settled on the furrowed brow of the Council. Indeed, rather
than basking in past accomplishments, the ARC intends to celebrate its
birthday by seizing the opportunity to look to the years ahead. My
comments seek to contribute to this admirable goal. Whilst I lay no great
claim to foresight, I am keen to hazard my informed predictions on three
new challenges that lie ahead. They are related, perhaps in unexpected
ways.
23
The first development—and this is a matter of affirmation rather than

prediction—is suspicion of legislative enactment. There is an increasing
mood across virtually all jurisdictions that the deadweight of regulation
needs to be lessened. Industry organisations, led by the Business Council
of Australia, are advocating the benefits of reducing the red tape which
imposes heavy costs on economic development. They seek to lower the
impositions of regulatory delay and uncertainty by quietening the impulse
to solve every public policy question through legislation.
Nor should it be thought that it is only entrepreneurial activity that feels

constrained by the regulatory control of planning, investment and
development. A range of other institutions—from universities to general
practitioners to community organisations—are rising up against the
burden of government-imposed reporting and monitoring.
Earlier in 2006 the report of the Taskforce on Reducing the Regulatory

Burden on Business1, oversighted by Gary Banks, suggested how the
regulatory impost might be reduced across a wide range of sectors and
business activities. The Commonwealth Government has accepted the
great majority of the Taskforce’s 178 recommendations.
The states and territories face similar pressures. At the Council of

Australian Governments in February 2006 it was agreed that there would
be a concerted cross-jurisdictional effort to ensure best-practice regulation
making, to reduce the stock of legislation and to lessen duplication. The
goal is to ensure that business can operate within a single stream of
regulation and nationally consistent (or ‘harmonised’) legislation.
The Australian Public Service has responsibility for implementing this new
regime at the Commonwealth level. It will require new approaches.
Departments, as they prepare new policy initiatives on behalf of their
ministers, will need to identify the costs as well as the benefits of measures.
The case for regulatory action will have to be more persuasive than in the
past.
One consequence of these changes is that the Cabinet gate-keeping process

is getting tougher. For the last year submissions have been required to
demonstrate that agencies have planned to manage the risks associated
with policy delivery. Major IT and infrastructure projects will now be
scrutinised as they proceed through a process of ‘gateway’ review. And, in
the latest move, departments will also need to apply a business cost
1
Rethinking Regulation, Commonwealth of Australia, Canberra, January.
24
calculator to new proposals. The object is to ensure that government

decisions are taken in full knowledge of the scale of the regulatory costs
that are likely to accompany implementation. This process will be driven
by a strengthened, reoriented and renamed Office of Best Practice
Regulation. The goal is to assess the net benefits of new policies.
Overall, there will be a substantially strengthened regulation-making

framework. The Productivity Commission will undertake annual reviews
of the cumulative stock of regulation with the goal of reducing it. And
assessment of the continued flow of new regulation will apply not only to
government departments but also to the proposals of boards, statutory
authorities and regulators.
A key challenge is for the Australian Public Service to get its own house in
order. The paradoxical dilemma is a commonplace of bureaucracy: the
effort to reduce red tape externally actually sees processes prescribed
which have the potential to increase the amount of red-tape internally. This
remains an ever-present danger. There needs to be a concerted effort
within the APS to reduce reporting that is of limited value.
With that in mind, agencies are now looking to review existing

administrative requirements with the intention of streamlining
arrangements and reducing costs. This is likely to include providing
greater flexibility within the operational rules that govern the Budget
process. It will almost certainly involve reducing the frequency or scale of
reporting requirements across a range of government activities.
To help achieve these outcomes the Management Advisory Committee is

working on the development of an implementation framework which will
ensure a continuing reduction of red tape within the Commonwealth
Government. It will be designed in the full and certain knowledge that
regulatory intervention inevitably creeps back into bureaucratic process
unless it is actively prevented. The challenge, of course, is to strike the right
balance: what may bear down on me as an unnecessary encumbrance may
appear to someone else as a mechanism for ensuring sufficient
transparency to support the processes of administrative review.
The Administrative Review Council intends, as part of its future work

program, to examine the effective and efficient application of
administrative law principles to areas of complex and specific business
regulation. It is apparent, from my preceding remarks, that such a review
would be timely and influential.
25
The second development on the horizon is the growing emergence of

policy intended to influence citizens’ behaviour. In Australia, as in many
developed democracies in the English-speaking world, there has been an
increasing mood to look to market solutions to problems of public policy.
Yet the challenges that now confront governments, whether they are
traditional ones such as preventative health or more recent ones such as
restoring community respect, often generate interventions that directly
involve the government in areas of personal responsibility.
The irony is obvious. It involves moving responsibility from government to

family and community and then, through government, seeking to
influence the manner in which families and communities wield that
responsibility. The motivation is equally apparent. The impacts of personal
choice (such as smoking, poor diet and inadequate physical exercise) are
increasingly affecting government expenditure (on diseases such as cancer,
heart disease and diabetes). The detrimental influence of passive welfare
and the breakdown of social rules result in significant costs.
Consequently, there is an emerging consensus that such matters are the

appropriate object of government policy, although there is fierce political
contest on the balance of information, incentives and punitive sanctions
that comprise the best response.
It is becoming accepted that many important government priorities depend

on getting people to act differently. It involves changing their behaviour if
not their attitudes, preferably by persuasion but if necessary by enforcing
compliance. It is apparent that such interventions—designed to build and
sustain positive social norms—can be significantly more cost-effective than
traditional service delivery.
This is true not just in the areas of health, education, welfare, crime and the
environment but also in the domain of values. What values—as opposed to
functional curricula—should be taught in schools? What values should be
expected of migrants or of those who seek citizenship in order to preserve
social harmony? How can people be persuaded to attach higher value to
saving money or conserving water or reducing energy consumption? What
can be done to improve the public expression of values, such as good
manners, courtesy and tolerance, so as to combat the antisocial behaviours
that impinge on the freedoms of others?
Such questions can rarely be answered by market mechanisms alone. To

modify behaviours can often address the causes, which otherwise would
cost government far more if exhibited in the effects of ill-health, social
26
dysfunction or welfare dependence. Until now behaviour change has often

been achieved by regulatory intervention (such as placing restrictions on
water use or placing health warnings on cigarette packets). In the future
there is more likely to be an emphasis on persuasion. Conditionality will
increasingly be attached to government transfer payments.
The traditional public service organisation provides an admirable way of

undertaking functional tasks, ensures that services are delivered fairly,
ethically and reasonably efficiently, and articulates clear lines of authority
and accountability that make administrative review relatively
straightforward. Yet it becomes ever more apparent that the old structures
of officialdom—hierarchical, vertically stove-piped and internal to
government—are poorly designed to address new challenges.
The big issues that confront governments today—climate change, water

availability, moving people from welfare to work, countering terrorism,
addressing indigenous disadvantage—are ill-suited to such structures.
Crossing bureaucratic demarcations, they require whole-of-government
approaches with more flexible approaches to taking, funding and
delivering decisions. But policy that is designed to influence citizens’
behaviour, to promote mutual obligation or inculcate civic responsibility, is
more challenging again. Policy which seeks to motivate and reward
socially beneficial outcomes requires administrative approaches that go
beyond the bureaucratic horizontalism associated with effectively
coordinated policy development and seamless service delivery. It requires
a unity of public purpose designed and implemented between
governments, public and private organisations, social enterprises and not-
for-profit advocacy groups. Influencing public behaviour will involve
building more effective relationships between citizens and government.
Public administration will increasingly be built upon partnerships.
This bold assertion leads to the third development which this contribution
anticipates: that the form and delivery of government programs will
increasingly be modified and adapted in response to the needs of
particular communities. Public administration will be ‘personalised’. If this
is correct—and I hope it is—this has significant consequences for many
aspects of public administration, from financial appropriation to auditing,
scrutiny and review.
The focus on local communities is already evident in the approach to

service in the United Kingdom and lies at the heart of the new approaches
to Indigenous affairs which are being trialled in this country. The aim is
27
not only to negotiate shared responsibility agreements with remote

Aboriginal and Torres Strait Islander communities on the basis of
discretionary funding but, more broadly, to modify the structure of
national programs in response to locally determined priorities. To do so
will require coordination of the delivery of services from a range of
agencies and, where appropriate, greater flexibility in the application of the
administrative program guidelines. The twin objectives are to influence
Indigenous behaviour (by providing incentives for self-responsibility) and
to allow communities greater control (by negotiating government
programs that respond to their own priorities).
These new approaches are driven by a growing recognition that

governments can’t do things alone. There need to be better informed
relationships between the users of government services and the service
providers. There need to be far greater engagement and participation from
citizens than in the traditional means of delivering government services.
But such ‘co-production’ will present challenges to administrative review
that go beyond those presented by contracted delivery.
Public services are traditionally very good at designing national programs

and establishing a panoply of rules, guidelines and conditions to ensure
that the programs are delivered efficiently and ethically. On matters of
important routine—such as the scrutiny of tax reforms, the delivery of
income support, the issuing of passports and visas, the provision of
drought relief and the processing of health claims—bureaucracy generally
works well. Administrative review is relatively straightforward.
The growing convergence of the public and private sectors, delivery of

government through third parties and whole-of-government approaches
have already tested our understanding of administrative review. It will
become significantly more complex if, as I hope, the manner in which
health, education, employment and family programs are delivered can be
modified at the local level. Indeed, e-government presents the possibility of
tailoring transactions to the individual.
Consider the challenging questions that are emerging in Indigenous policy,

where the new approaches are already being trialled. Will it be ‘fair’ if
some schools are allowed to access Indigenous tutoring outside the
‘national’ guidelines? Will it be ‘just’ if some CDEP [Community
Development Employment Projects] schemes are allowed to undertake
community work while others are restricted to labour market programs?
How can one ensure that the same standard of service delivery is provided
28
to all citizens without insisting that the same program provide it? Is it
appropriate to reward certain types of self-reliant behaviour at the expense
of those who continue to rely on ‘sit-down’ money?
I foresee a greater willingness to delegate decision making to the local

level. However, a key challenge is that the power relations between
governments and communities are asymmetrical, presenting difficult
questions as to the authenticity of the outcomes negotiated. Similarly,
providing community organisations with control over decision making on
government programs will raise complex questions about accountability
for public funds.
In a world of finite public resources the advantages of tailored flexibility,

negotiated at the community level, are likely to raise interesting challenges
to administrative review. So, too, a world in which there is less dependence
on regulatory intervention but concomitantly more on interventions
designed to modify citizens’ behaviour. Such challenges, and many others
that I have not addressed or foreseen, will face the Administrative Review
Council in the next 30 years.
Thankfully, on the basis of the last 30 years, it is likely that they will be met
successfully.
29
The 30th anniversary: an administrative perspective
Robert Cornall AO
Secretary, Attorney-General’s Department
On 15 December 1976 the then Attorney-General, Bob Ellicott, opened the

first meeting of the Administrative Review Council with these words:
‘[This] is an historical occasion. The group is small, but the event is
considerably significant. This is a body which … has brought together a
number of people with diverse experience and with considerable
expertise’. The same observation could be made 30 years on.
It is a pleasure to have this opportunity to put forward six issues I think we

will have to grapple with in the future from an administrator’s perspective.
Electronic decision making

The first issue is to gauge the impact that computerisation, expert systems
and global electronic networking will have on the process of making
decisions and administrative review.
The Administrative Review Council has already taken the first step in this
direction by publishing its well-received report Automated Assistance in
Administrative Decision Making.
The process of producing that report would disabuse a keen observer of

any notion that the ARC is an insular Canberra think-tank. One Friday
afternoon, Council members arrived en masse at Centrelink in North
Ringwood, much to the bemusement of staff and clients. They spread
quickly around the office and, working in small groups, interrogated
computer operators in depth about the procedures they went through to
derive decisions from the automated system they were developing at that
time.
Given the rapid rate of computer development, it is impossible to predict

where technology will take us, but a few points can be asserted with some
confidence.
30
First, more and more decisions will be made through automated systems.
At the last count, eight Australian government agencies were using
automated systems in administrative decision making.
Second, provided the systems are well designed and regularly audited,
automated decisions will generally be accepted as fair.
Finally, the ARC and government policy makers will need to take care, in
designing both the automated systems and the legislation under which
they operate, to make proper provision for review of those aspects of the
automated decisions that involve the exercise of judgment or discretion.
Globalisation
The next issue is globalisation.
There is no doubt we are now living in a global village. The barriers of

distance and national borders are daily becoming less and less significant.
The Attorney-General’s Department and other departments are actively
expanding Australia’s international markets for goods and services and
negotiating free-trade agreements to break down barriers that still exist. In
this context, the question is how will administrative review operate
internationally?
An early indication may be seen in the regulation of therapeutic goods

under the Trans Tasman Mutual Recognition Agreement. In a treaty made
under that Agreement in 2003 Australia and New Zealand agreed to set up
a joint agency to regulate therapeutic goods. The agency’s decisions—
which affect the ability to market therapeutic goods in both countries—are
subject to administrative review. The treaty provides for tribunal members
in both jurisdictions to be drawn from a Merits Review Panel established
by the Australian and the New Zealand ministers.
The early thinking in relation to therapeutic goods was that there would
not be administrative review. One reason for this approach was that
administrative review was seen as too difficult, particularly since New
Zealand does not have a tribunal equivalent to the Administrative Appeals
Tribunal. It is a feather in the ARC’s cap that its persistence was a major
factor in the development of a bilateral international regime for
administrative review in this important area.
31
The nature of the Australian Public Service

The third issue is the future make up of the Australian Public Service and
the impact that will have on our established processes for reviewing
administrative decisions.
The public service is increasingly made up of a mix of permanent officers,

non-ongoing staff and contractors. Many traditional public service
functions are outsourced altogether.
The problem this poses was well articulated by the ARC in its 1998 report
The Contracting Out of Government Services. The Council noted that
contracting out ‘has the potential to result in a loss of the benefits which
the administrative law system provides for individuals’.1 The report
contained 30 recommendations to address the problem.
A significant improvement was made last year when the Ombudsman Act
1976 was changed,2 giving the Ombudsman jurisdiction to investigate the
actions of ‘Commonwealth service providers’3 as if those actions had been
taken by the relevant department or agency. That extended authority will
be particularly relevant to immigration oversight and Welfare to Work
programs.
Nonetheless, the issue is still with us. The government will have to be
constantly on guard to see that reforms designed to improve the efficiency
of government services do not come at the expense of diminished access to
administrative review.
Another, but less obvious, human resource problem relates to the average
length of service and its implications for staff training. Along with other
big employers, the Australian Public Service is finding that its staff are
becoming more mobile and less likely to stay in one place for very long.
This changing employment demographic raises questions about staff’s
preparation to make sound administrative decisions. Will they have had
enough time in the job to learn how to do so? It highlights the need to have
good training programs that get staff up to an acceptable level of
performance very quickly.
1
Administrative Review Council 1998, The Contracting Out of Government
Services, ARC, Canberra, p vii.
2
Migration And Ombudsman Legislation Amendment Act 2005, No. 141, 2005,
Schedule 2.
3
Ombudsman Act 1976 s 3BA.
32
An Administrative Review Tribunal

Next I want to comment on the question of a combined Administrative
Review Tribunal. The ARC had urged the formation of a single tribunal to
replace a number of existing federal merits review tribunals in its Better
Decisions report.4 In his second reading speech on the Administrative
Review Tribunal Bill in June 2000, Attorney-General Daryl Williams noted
that the government had accepted that recommendation.
The Bill was not passed by Parliament. However, in my view, it is likely

that a similar proposal will be brought forward again at some stage in the
future because it makes good sense for all the reasons previously
advanced. The success of the Victorian Civil and Administrative Tribunal
also supports that opinion.
As before, the aim would be to establish one tribunal with centralised

administration and accommodation, a common registry and common
procedures (to the maximum extent practicable).
A redeveloped Administrative Review Tribunal could sit in separate

divisions with different levels of appointment and member remuneration
and entitlements. It would also be important for a single tribunal to have
sufficient flexibility in its separate divisions to bring appropriate levels of
procedure and decision making to the review of different sorts of
In other words, simple and quick processes should apply in cases where
that is appropriate, with lengthier and more complicated procedures
applying to matters that justify more detailed consideration. This will be
necessary to meet any concern that applicants could use a complex review
process in some unmeritorious matters simply to create delay in
implementing administrative decisions.
Legislation
The fifth point is to do with the volume of legislation passed and
regulations made each year. The rate at which new laws are made is not
expected to decrease much in the foreseeable future, even though some
improvements will be made by concerted attacks on red tape. This is in
large part due to community expectations that the government will
4
Administrative Review Council 1995, Better Decisions: review of Commonwealth
merits review tribunals, ARC, Canberra.
33
legislate to regulate or outlaw most unfortunate events or

unpleasantnesses that arise in the ordinary course of daily life.
The British Prime Minister, Tony Blair, has sharply criticised this
community expectation. He has called it ‘a wholly disproportionate
attitude to the risks we should expect to see as a normal part of life’,
resulting in ‘a plethora of rules, guidelines, responses to “scandals” of one
nature or another that ends up having utterly perverse consequences’.5
However, while it is desirable to get out of what Richard Humphry—a

member of the Banks red tape review taskforce—has called a ‘regulate first,
ask questions later culture’, that will take some time to achieve. So there
will be no shortage of new legislation and regulation over the next few
years, which will present continual challenges for effective administrative
review.
The nature of democracy

The final point deals largely with the same issue but from a different
perspective. It concerns the nature of our democracy.
Administrative review is really about ensuring that everyone gets a fair go.
It is about establishing an acceptable balance between the executive arm of
government and individual rights and ensuring that the judiciary and
administrative tribunals have the authority to enforce that balance.
However, the way the Australian community defines ‘a fair go’ will change
over time, and administrative review will need to adjust to that change. For
example, people may come to accept automated decisions as fair and not
be inclined to challenge them.
Right now, however, we are towards the other end of the complaint
spectrum. Robert Hughes believes we have developed ‘a culture of
complaint’ and was sufficiently concerned to write a book about it.6
Other commentators have observed that Australians are now much more
likely to complain or insist on what they see as their entitlements than they
were 10 years ago. My observation in my former role of dealing with
complaints against Victorian solicitors is that many complainants ‘want
5
Blair, A 2005, ‘Full Text: Tony Blair’s speech on compensation culture’, Speech
to the Institute of Public Policy Research, Guardian Unlimited, 26 May,
<http://politics.guardian.co.uk/speeches/story/0,11126,1493151,00.html>.
6
Robert Hughes 1993, Culture of Complaint, Oxford University Press, New York.
34
justice’ but that ‘justice’, when expressed in this way, is a very personalised
concept. It usually means the outcome that suits them the best.
These community attitudes indicate that citizens have very high

expectations of their right to have official decisions reviewed and, they
certainly hope, to get a more favourable outcome from the reviewer. A
challenge for administrators will be to ensure that future policy proposals
strike the appropriate balance between the exercise of proper authority by
official decision makers and an individual’s right to merits review.
Conclusion
Given the nature of our open democracy, the steady passage of new laws,
and our strong expectation that we will receive a fair go, administrative
law and administrative review will grow and prosper in Australia over the
next 30 years. However, my perspective on these issues as an administrator
could be quite different to the perspective of a judge, a tribunal member, an
academic, a person in business or a member of the community affected by
an administrative decision.
This message was highlighted by Justice Kirby’s comment, at the ARC’s

25th anniversary celebration, that Prime Minister Bob Hawke and the head
of his department, Sir Geoffrey Yeend, used to watch the television
program Yes Minister together on Monday nights. Justice Kirby observed,
‘They both laughed. But in different places’.7
7
Administrative Review Council 2002, Record of 25th Anniversary Proceedings,
ARC, Canberra, p 57.
35
The 30th anniversary: an international perspective
The Right Hon. Lord Newton of Braintree OBE DL

Chairman, The UK Council on Tribunals
Noting that my contribution has been given the title ‘An international
perspective’, it should first be acknowledged that the contents will not
match the label. Instead, this paper offers some thoughts about issues and
challenges from a British angle, particularly that of the Council on
Tribunals—itself now approaching its 50th anniversary.
Before elaborating, something should be said of the Council on Tribunals

and its connections with the Administrative Review Council.
It may be going too far to say that the British Council on Tribunals and the
Australian Administrative Review Council are sister organisations, but
they certainly have quite a lot in common—more, in fact, than I had myself
fully appreciated until recently.
The British Council on Tribunals was created in 1959,1 following the

publication, in July 1957, of the report of a Committee which had been
asked to look at the working of tribunals and inquiries established under
statute for the purpose of ministers’ functions. The Committee was chaired
by Sir Oliver Franks and has been known ever since as the Franks
Committee.
The Franks report was a significant development in the history of British

administrative justice, establishing the principles of ‘openness, fairness and
impartiality’ as watchwords for how tribunals ought to operate. The
Council was given a very broad remit, which is, broadly speaking, to
‘oversee the constitution and working of tribunals’ with a view to ensuring
that these principles of openness, fairness and impartiality were applied in
practice.
So far as the Administrative Review Council is concerned, for its early

history I am indebted to Professor Dennis Pearce and the lecture he gave
on the occasion of the ARC’s 25th anniversary proceedings in 2001.2 What
is clear from that—and even clearer from the earlier contributions today—
is that the 1971 report of the Commonwealth Administrative Review
1
Took office on 3 December 1958. First meeting on 14 January 1959.
36
Committee, the Kerr Committee, was at least as seminal in Australia as was

Franks in Britain.
Professor Pearce observed, ‘The Kerr Committee was clearly influenced in

its recommendation for the establishment of an ARC by the experience in
the United Kingdom of the Council on Tribunals’. And, although the two
organisations have somewhat different remits—reflecting the differing
contexts in which they arose—there is undoubtedly a commonality of spirit
in their approach to their work.
I note that the Hon. Attorney-General is reported to have said at the ARC’s
first meeting that ‘It is important that this Council be seen by the public as
the expert body designed to be a watchdog for the citizen, to ensure our
system is as effective and as significant in its protection of the citizen as it
can be’. Those are words which could have been uttered by many members
of the Council on Tribunals about their own organisation over the years.
What is also clear from Dennis Pearce’s account is that our two
organisations have had a variety of problems in common over the years.
Both organisations have limited resources—a part-time membership and a
small secretariat—which means that we must make careful strategic
choices about where best to focus our energies. Indeed, we have both
experienced times when secretariat staffing has fallen to a level that made
it difficult for us to continue to function effectively.
Our relationship with government has also at times been a sensitive issue
for both of us. Sometimes we have felt that government has not paid
sufficient attention to our advice. And, as small organisations operating at
arm’s length from government, we have been anxious to preserve the
appearance, as well as the reality, of an appropriate degree of
independence from the government departments that sponsor us, appoint
us and pay for us.
We have both been concerned to find ways to ensure that the voice of the
‘user’ of the administrative justice system is heard in our deliberations,
whether through the balance of the membership or through other forms of
engagement or consultation—something which seems to have been very
well developed here.
2
Administrative Review Council 2002, Record of 25th Anniversary Proceedings,
ARC, Canberra; Pearce, D 2001, ‘Administrative Review Council 25th
anniversary presentation’, 6 December, p 17.
37
For all those and other reasons, I think many of us feel that there are
particular synergies between the British and Australian administrative
justice scenes that make it particularly worthwhile to keep up to date with
developments in the other’s jurisdiction and look for lessons that might be
useful at home.
Another experience we have in common is being ourselves the subject of

review. The ARC was reviewed by a select committee in 1996–97. The
Council on Tribunals was subject to a Cabinet Office quinquennial review
program in 1991 and 1997. Then, most significantly, it was reviewed again
in 2001 as part of the wide-ranging Review of Tribunals undertaken by Sir
Andrew Leggatt at the request of the then Lord Chancellor, Lord Irvine of
Lairg.
Sir Andrew visited Australia in connection with his review and was clearly
both impressed and influenced by the work of the ARC—a rather neat
return of the compliment paid by the influence here of the British
experience some 30 years earlier.
It would not be appropriate here to describe in detail the many

recommendations of the resulting Leggatt report. It was, however, the most
important since Franks and led to the creation, earlier this year, of a
Tribunal Service within the Department for Constitutional Affairs. It
provides unified administration to the largest tribunals, thus bringing our
structure somewhat closer to the model of Australia’s Administrative
Appeals Tribunal, though with the significant difference that, for
constitutional reasons, Australia’s AAT is seen as part of the executive
whereas the British is seen as part of the system of justice.
The review also led to government plans to enable the Council to evolve
into an Administrative Justice and Tribunals Council with a wider remit, to
‘review the relationships between the various components of the system (in
particular ombudsmen, tribunals and the courts)’ in order to ensure that
the system as a whole satisfactorily reflects the needs of users. This change
is awaiting legislation to be passed by Parliament, but a Bill has been
published in draft, and the Council has been developing its work in a way
which will equip it to fulfil the intended wider remit. This will no doubt
give it even more in common with the ARC.
Turning now to the future, rather than attempting to talk about the
challenges in Australia, this part of the discussion will talk a little about the
challenges we face in Britain, the issues we at the Council want to focus on,
and the kind of organisation we should aspire to be.
38
Two major themes emerged from the Leggatt report that did not feature so
prominently in Franks. First was the emphasis on the needs of users: the
Leggatt report was in fact entitled Tribunals for Users.
Although, as noted, the Council has always had the needs of users of the
system in mind, Leggatt emphasised the need to put the needs of users at
the heart of the system and at the forefront of the Council’s work. In
response to this the Council has been making changes to its working
methods. A User Issues committee of the Council was set up last year and
that committee organised a series of workshops around the country for
organisations that support the users of different tribunals. The main aim of
these workshops was to consult on the abovementioned changes to
government policy in relation to tribunals in order to provide feedback to
the government. The workshops were also a deliberate attempt by the
Council to work in a different way, to raise its profile in the advice sector,
and to forge new relationships.
The second major theme to emerge from Leggatt was that of independence.
Before the Tribunals Service was created, some of the largest tribunals were
part of the departments whose decisions were the subject of the appeals the
tribunals were hearing. Leggatt took the view that where such
arrangements existed ‘every appeal is an away game’ for the user. It is, I
may say, a view I have shared ever since I was the minister responsible for
the social security appeal system some 20 years ago, and we made some
initial moves to enhance that system’s independence.
The manifest independence of the judiciary—in particular, the

arrangements for judicial appointments—has been another significant
element of the independence theme. At the time Leggatt was writing, major
reform of the judicial appointments system was under way. It led
ultimately to the creation this year of the Judicial Appointments
Commission, which now makes most tribunal appointments. Its remit is to
select candidates for appointment to judicial office on merit, independently
of government, through fair and open competition using the principles of
openness, fairness and merit.
New themes for the Council to address also emerged from the
government’s response to the Leggatt report. Government accepted the
need for structural changes but wished to set them in the context of a
wider strategy that it summarised as ‘proportionate dispute resolution’. It
sought ways to help people avoid problems and legal disputes in the first
place, to improve and simplify the decision-making processes that result in
39
tribunal hearings, and to promote the development of a range of tailored

dispute resolution services that avoid ‘the expense and formality of courts
and tribunals where this is not necessary’. From discussions with the
Commonwealth Ombudsman and others, it seems that this effort is
relevant to Australia too.
The Council is only just beginning to tackle what is potentially a very big
agenda. The ombudsmen and complaint handlers themselves are
encouraging the Council to think more about their role in the
administrative justice landscape. Some argue that the boundaries between
complaints and justiciable disputes are not always clear cut and that the
‘ombudsman model’ may be better fitted to some of the disputes to which
the traditional ‘tribunal model’ is currently applied.
Some ombudsmen are also critically commenting on where the ‘boundaries

of the administrative justice landscape’ ought to be drawn. The position
with regard to public sector ombudsmen seems clear enough; however,
many feel that there should be a place for those in the private sector who
are nevertheless part of the statutory arrangements for underpinning
confidence in a particular industry. The same issues also seem alive in
Australia.
As to the kind of organisation the Council should be, Sir Andrew Leggatt
proposed in his report that the Council on Tribunals should become ‘the
hub of the wheel’ of administrative justice. Although it wasn’t wholly clear
what he meant by this, we frankly rather liked the phrase and have often
repeated it.
The Council sees its facilitative role as increasingly important. It aims to

bring together the interested community and has put a significant amount
of its energy in recent years into conferences, workshops and events. The
Council’s recently launched electronic magazine also provides a forum for
news and the exchange of views. In that respect it is perhaps seeking to
catch up with the ARC, which has been producing Admin Review for some
years.
In addition, the Council has been developing the way in which our
relationship with government operates. To an important extent, the current
relationship is best described as ‘collaborative’. The Council was very
supportive of the creation of the Tribunals Service. I sat on the
government’s Programme Board to oversee the implementation process,
while several members of the Council also sat on implementation boards
for some of the transferring tribunals. The Council saw this as contributing
40
to its function of providing advice to government, but in a rather more

hands-on way than has historically been the case—recognising that
‘independence’ does not necessarily mean standing back and making
comment from a distance and that influence can often be most effectively
achieved by constructive engagement as policies and processes are in their
formative stages.
The Council has adopted a collaborative approach with other organisations

too, working in partnership with the Judicial Studies Board, the Disability
Rights Commission, and currently with the British and Irish Ombudsman
Association on various projects. It seems that this pattern is set to continue;
partnership working of this kind is an excellent way to get things done and
will become increasingly important in the Council’s intended wider role.
Another feature of work in recent years which will also be increasingly

important is an emphasis on developing and articulating general
principles. Several years ago the Council published a framework of
standards for tribunals; more recently it updated its generic guidance on
the drafting of procedural rules. This is another trend which is set to
continue, and the Council expects to be seeking principles that can help
fulfil its wider remit and ensure its advice is consistent and soundly based.
It is already contributing to the work of the British and Irish Ombudsman
Association on the principles of good complaint handling.
Whether or not this amounts to becoming ‘the hub of the wheel of

administrative justice’, it at least gives a flavour of how the Council’s
approach to its task is evolving in its British context.
I have been around long enough in government, and now in related areas
of public service, to know that there is almost never an area in which
institutions, processes and approaches can simply be picked up from one
country, culture or jurisdiction and transplanted to another. But it is clear
that these matters are much under discussion here in Australia, just as they
are in the UK. ‘Administrative justice’, however defined in detail, is a topic
that is not going to go quiet in either country. The interest of our citizens in
what historically was called ‘the redress of grievances’—in the terminology
used here earlier, ‘having a fair go’—will continue to grow.
I hope these reflections from the United Kingdom will have been of at least
some interest. They certainly come with renewed congratulations to the
ARC on its past 30 years and the warmest good wishes for its future—in
which I hope that one feature will be the continued strengthening of the
relationship between your Council and ours.
41
The 30th anniversary: challenges for administrative law

—a consumer perspective
Peter Kell*
Chief Executive Officer, CHOICE
Administrative law has a key role to play in enhancing and protecting

consumer rights. In this context the role of the Administrative Review
Council is critical in ensuring that our system of administrative law
develops in ways that keep it up to date with community expectations
about the role of government.
Choice—the Australian Consumers’ Association—engages with

administrative law at a number of levels, and as such we are very
interested in the review and reform of administrative law.
There is a wide range of ways in which one could approach the topic of
consumers’ interest in administrative review. I propose to identify a
number of distinct ways in which consumers relate to government which
are relevant for a consideration of administrative law issues. At one level,
there is the interplay of individual consumer rights and obligations vis-à-
vis government. Second, administrative law may also affect consumer
rights in relation to other actors in the marketplace, particularly the
suppliers of consumer goods and services. Third, it may also be relevant to
the collective rights of consumers in the development of effective market
regulation and good public policy. In the spirit of this seminar, my aim is
to identify some of the future challenges for administrative law in each of
these areas.
Consumers and government

What is the scope of administrative law in relation to consumer’s interests?
According to the ARC, administrative review plays two roles:
 It improves the quality, efficiency and effectiveness of

government decision making.
*
I am grateful for research information and suggestions from Gordon Renouf of
Choice, Jenny Lovric of the National Pro Bono Resource Centre, and
Jill Anderson.
42
 It enables the individuals to test the lawfulness and the

merits of decisions which affect them.1
These two roles identified here by the ARC play out in different ways
according to the particular relationship between consumers and
government that I have just mentioned.
Individual decisions
Perhaps most obviously, consumers are individually subject to specific

agency decisions about their entitlements and obligations in relation to
matters such as social security and taxation.
Complaints resolution
Consumers are entitled to use processes established by government to

assist them in asserting their rights or resolving disputes. Examples are a
consumer’s right to take certain matters involving commercial parties to
tribunals such as the Superannuation Complaints Tribunal or to complain
to bodies such as the Private Health Insurance Ombudsman.
Consumers and regulatory agencies

Consumers also expect that particular government agencies will protect
their general or specific interest in the fair and efficient operation of
markets. This gives rise to questions of whether government regulatory
agencies are operating effectively and the role that administrative law may
play in enabling consumers to monitor, hold accountable and/or influence
such agencies.
Consumers and policy making

Finally, administrative law has a potential role to play in promoting
democracy through facilitating consumer participation in government
policy-making processes. This article focuses on the first two areas
mentioned—consumers and government and individual decisions.
1
Administrative Review Council, Overview,
<http://www.ag.gov.au/agd/WWW/arcHome.nsf/Page/Overview_Details_Over
view>, viewed 9 September 2006.
43
Review of decisions about individual entitlements and obligations
A primary focus of administrative review is to enable citizens (and others)

to seek review of government agency decisions which directly affect them.
Future challenges include developing effective responses to the well-

recognised questions around access to administrative review and
improving the response to systemic issues that can be identified from
individual cases.
Key features of modern administrative law in Australia include the

Ombudsman, the right to merits review of many agency decisions, often by
specialist tribunals, streamlined judicial review processes, and freedom of
information provisions. These innovations, introduced in the 1970s,
unquestionably increased access to justice in significant ways.
However, there remain a number of barriers to effective access to many

administrative processes, including the tribunals within the merits review
system. The importance of increasing access to the administrative review
system has been noted by many commentators, including the Sackville
Committee’s in its comprehensive review of access to justice in 1994.2 The
rationale for the creation of informal schemes such as the Social Security
Appeals Tribunal, as well as the Administrative Appeals Tribunal, was that
they would be consumer friendly, non-adversarial, accessible, and free or
cheap.
It is important to regularly test whether administrative law bodies meet

these objectives. Does the AAT still fit this description? Do we see an
inevitable creep towards formalism or legalism? Do the structures and
processes for providing information and advice to consumers in fact meet
the access needs of all classes of potential users in roughly equal ways? 3
After all, consumers want not only a remedy but a remedy they can
realistically pursue. Potential barriers include:
2
Access to Justice Advisory Committee (Sackville Committee) 1994, Access to
Justice: an action plan, Commonwealth of Australia, Canberra.
3
It is of some concern, for example, that there were only three applications to
the SSAT in the Northern Territory in 2004–05 from Indigenous clients of
Centrelink: Senate Finance and Public Administration Legislation Committee
2005, ‘Supplementary Estimates, Department of Human Services; Answer
HS45 to Questions on Notice’, 1 November,
<http://wopared.aph.gov.au/Senate/committee/fapa_ctte/estimates/sup_0506/h
uman/hs45.pdf>.
44
 finding out about the availability of a remedy in the first place
 cost and fee waiver procedures
 access to advice and assistance4
 legal technicalities5
 the style of proceedings and the rooms in which they are

conducted.6
A second issue that relates to individual entitlements arises when

government decides that a particular function will be transferred from
public to private operation. Sometimes this involves the private operator
being engaged to perform the service on behalf of the government; the Job
Network is an example of such an arrangement. In other cases what was
formerly a government activity is fully privatised; at the state level
electricity supply is an important example. This is a policy phenomenon
which has become increasingly common around the world. It shows little
sign of slowing, so it will continue to throw up challenges.
In relation to both forms of privatisation there is a danger that consumers

could lose administrative law rights, including a right to merits review,
where applicable, as a result. Appropriate responses are available where
the legislature is willing to implement them.
Under the former arrangement the ARC’s 1998 report The Contracting Out
of Government Services recommended that, where the government contracts
out a function, administrative law remedies (including the Ombudsman,
freedom of information and merits review) should not be lost. This is an
important issue for consumers, as in most cases it is irrelevant to them
whether the government or a contractor is providing what is basically a
governmental or essential service; this is especially so if it is a monopolistic
environment or a market where competition is limited. Consumers want to
be able to access the service and to do something if it goes wrong,
irrespective of the provider’s underlying ownership structure.
4
Current access is patchy and varies across jurisdictions and across the country.
5
For example, overly technical pleadings in tribunal matters can interfere with
the required flexibility for applicants when completing their applications and
stating grounds of review.
6
The NSW Welfare Rights Centre reports that its clients have most success in
cases conducted in informal rooms, with all participants sitting around a table.
45
In the latter case, privatisation arrangements have often required the

privatised business to subject their retail operations to an appropriate
complaints resolution scheme. Whether or not a particular scheme
provides adequate consumer review rights depends on the particular
industry and market practices. Questions about which kinds of review and
complaint rights should apply to what kinds of government, government-
like and former government businesses will continue to arise regularly, as
more services are contracted out.
Effective complaint resolution and proper market conduct
I now turn to the role of government in regulating aspects of the

relationship between consumers and other market participants. This raises
the question of how administrative law affects these relationships and the
attendant emerging challenges.
A particular question is how administrative law impacts on the role of

industry self-regulation. One of the more interesting developments in
recent years has been the growth in self-regulation and co-regulation
across many parts of the economy. Self-regulation requires industry
participants to regulate the behaviour of members of their own industry or
sector. Co-regulation requires industry to play a significant role alongside
government agencies regulating members’ conduct, usually within a
framework set by legislation or a regulatory instrument.7
In Australia there is a growing use of self-regulatory and co-regulatory

mechanisms to govern market conduct. It is not in my brief to present a
detailed overview of the drivers of this trend. Rather, what I want to argue
is that, while most of us are familiar with developments in self-regulation
and co-regulation, there is generally less appreciation of the interaction
between these forms of regulation and administrative law and the
implications of that interaction for consumers and businesses.
The interaction between self-regulation and administrative law is growing,

and is increasingly complex. It is also uneven across different self-
regulatory schemes. This interaction highlights opportunities and
challenges for consumers and businesses, as well as policy makers. It is an
area that would very much benefit from a focused review.
7
For example, the financial services industry complaints resolution schemes
discussed below.
46
A common type of self- or co-regulation is the industry code that sets out
rules for market conduct and thereby governs interaction between firms
and consumers. Such codes may set standards for information disclosure,
product features and service quality. The other major area of self- or
co-regulation is industry-based complaints handling or dispute resolution
schemes, often referred to as alternative dispute resolution schemes.
One of the interesting features of the modern regulatory landscape is that

there is no clear distinction between, on one hand, government-established
complaints handling bodies such as the courts and tribunals and
government-established and -operated ombudsman schemes established
and operated by government and, on the other hand, the essentially private
mechanisms offered by ‘industry-based’ complaints resolution schemes.
These alternative dispute resolution schemes include bodies such as the
Banking and Financial Services Ombudsman, the Financial Industry
Complaints Service, and the Telecommunications Industry Ombudsman.
The financial services sector illustrates the point well. The Superannuation
Complaints Tribunal is a government agency that handles complaints from
consumers about their superannuation. Decisions may be appealed to the
Federal Court. In contrast, the Banking and Financial Services Ombudsman
is independent of government and has no statutory basis. However, it
operates under the framework for dispute resolution set out under the
Corporations Act, along with six other finance sector complaints resolution
schemes, including the Financial Industry Complaints Service. Under the
Corporations Act, all financial services firms must belong to a complaints
resolution scheme approved by the Australian Securities and Investments
Commission. No particular schemes are specified in the legislation: it is for
industry participants to submit an industry scheme for approval. ASIC has
the administrative power to approve schemes against certain standards.
This arrangement works well in many parts of the finance sector, although
it should be recognised as the result of many years of policy development
involving industry, consumers and government.
This arrangement, in other words, involves an important administrative

decision by ASIC in relation to an industry-based regulatory body whose
primary function is to deal with consumers. ASIC’s discretion to approve
such schemes is subject to administrative review.
On the other hand, other complaints resolution arrangements operate

outside any regulatory framework. The new scheme in relation to so-called
reverse mortgages is one example. Interestingly, several of the schemes,
47
including the Financial Industry Complaints Service, operated in this way

for several years before being approved by ASIC under the Corporations
Act requirements.
Why have I painted this picture? Should we care about the

different arrangements?
The first issue is that there is a lot at stake for consumers. Alternative
dispute resolutions schemes are now a very significant source of access to
justice: in 2004–05 alone the Banking and Financial Services Ombudsman
and the Telecommunications Industry Ombudsman handled more than
150 000 complaints made by consumers against companies operating in
those industries. While the Superannuation Complaints Tribunal does not
deal with numbers of this order, it does cover matters where the
consumer’s life savings are at stake. Most of these complainants would
previously have had nowhere to go, as these classes of complaints could
not access the courts and consumer claims tribunals.
There is also much at stake for regulatory agencies. Regulators, in their role
as bodies to whom consumers make complaints about market conduct,
increasingly rely on these dispute resolution schemes for the referral of
individual complaints. Thus the alternative dispute resolution schemes—
whether private or statutory—have become important elements of the
administrative decision making that occurs within regulatory agencies.
But perhaps from the consumer’s point of view these distinctions are
unimportant. After all, is there any a priori reason why consumer dispute
resolution schemes should operate within government or outside
government? As long as the complaints handler provides an accessible,
independent and high-quality service, all is well.
However, the operation of these schemes varies depending on whether the

dispute resolution mechanism is a creature of government, recognised in a
co-regulatory scheme or completely independent of government. There
may be differing standards, remedies and approaches within these
schemes, which may have both positive and negative implications for
consumers and business. For example, the Superannuation Complaints
Tribunal is subject to parliamentary scrutiny; the Financial Industry
Complaints Service, which deals with very similar complaints, is not. On
the other hand, unlike the SCT, FICS is required to undergo an
independent review every three years as a condition of its ASIC approval.
48
Questions should be asked. Are the complaints schemes of consistent

quality to allow regulatory agencies to confidently refer consumer
complainants to such bodies in all cases? Who should review the
operations of these schemes? And what is the feedback to the regulator
about these complaints—are systemic issues identified and reported or
not?
The different structures for dispute resolution schemes also matter because
these dispute resolution schemes may be subject to judicial review on the
basis of administrative law principles. A full discussion of this question is
beyond the scope of this paper, but the recent Masu8 decision—where a
financial planning firm sought review of a decision by the Financial
Industry Complaints Service—raises some interesting issues. This decision
found that the outcomes of these private schemes are judicially reviewable
for breach of procedural fairness and on jurisdictional grounds.
Not surprisingly, it has been the more powerful parties who have sought
external review to date or, more generally, have sought formal appeal
within the schemes. This gives rise to a tension between accessible, cost-
effective and timely decisions that are comprehensible by consumers and
those that could withstand administrative law principles and reasoning.
Alternatively, from an industry perspective, administrative law oversight,
or the threat of it, may promote greater attention to procedural fairness by
alternative dispute resolution schemes.
ASIC’s approval role for such schemes is also open to administrative

review. The Australian Competition and Consumer Commission faces a
similar issue in authorising codes that might otherwise be anti-competitive.
This is another example of the growing interrelationship between
administrative law, self-regulation and consumer outcomes.
As mentioned, ASIC does not set up alternative dispute resolution

schemes, but instead awaits proposals from industry, which are then
assessed against the standards set out in a policy statement.9 The approval
process itself is interesting. What role should third parties have in
providing input into this process? From a consumer perspective this is
critical, as the approval of any sub-standard schemes directly affects their
interests.
8
Masu Financial Management Pty Ltd v Financial Industry Complaints Service
Limited No 1 [2004] NSWSC 826.
9
Policy Statement 139.
49
If ASIC rejects this scheme for approval, then the scheme or industry group
can appeal to the Administrative Appeals Tribunal. The first such appeal is
currently being considered.10 In this case, an industry self-regulatory
complaints resolution scheme uses administrative law mechanisms to
make a complaint about the regulator. This is an example of the growing
interaction between private consumer dispute resolution schemes,
regulatory agencies, and administrative review bodies.
The Australian Competition and Consumer Commission also faces

challenges in this area. It is called upon to consider applications for
authorisation of prima facie anti-competitive conduct through the
establishment of industry codes. The ACCC formally seeks views on these
applications. From time to time Choice makes submissions in response to
authorisation applications. In the case of the recent application for
authorisation of a revised Medicines Australia Code (regulating the
marketing of pharmaceuticals), the ACCC authorised it subject to some
additional requirements concerning transparency and information
disclosure (the substance of these requirements is not the focus of my
comments). Medicines Australia has sought review of this decision in the
Australian Competition Tribunal.
Given the significance of such a code for the way that drugs are promoted
to consumers, organisations like Choice would be interested in having a
say in this review process. The relevant questions are how this would
occur and, more importantly, how it should occur. Is this possible without
becoming involved in expensive legal work and technical fights over
standing?
These questions illustrate the point that, for consumers, the interaction
between self-regulation and administrative law is increasingly important
both at an individual level and for broader policy reasons. The same could
be said for businesses as well.
After all, one of the key debates of our time is how to get the balance right
between regulatory responses to market failure and social problems in
such a way that regulation does not unjustifiably undermine the efficiency
of markets in allocating resources. It is therefore reasonable to ask how
administrative law can help to ensure that self-regulatory and co-
regulatory structures can both be effective in improving market conduct
and facilitate industry competition and efficiency.
10
Timeshare Association v ASIC (V2004/700).
50
A key rationale for the above regulatory approaches is that they are faster,
quicker and cheaper than black letter law. As discussed, it is often industry
participants that are undermining that rationale by seeking additional
review processes. If these processes become difficult to use, require
resources not available to most consumers or consumer groups, and are
one-sided in that they provide rights of review only to the applicants, they
will both undermine consumer rights and increase regulatory costs.
Conclusion
The interaction between citizens and consumers and their governments
continues to evolve, and expectations of government services and rights
accordingly change over time. Administrative law should evolve to deal
with this changing climate, and the Administrative Review Council has a
critical role to play in considering how and where changes should take
place. This article has tried to highlight the importance of underpinning
principles such as accessibility in a changing environment and the
importance of regularly testing these core ideas against contemporary
trends.
The article has also sought to highlight the increasing interaction between
administrative law and other regulatory structures, in particular self-
regulation. This development has very significant implications for
consumers, both for their ability to assert rights and obtain remedies and
for their ability to influence regulatory and policy developments in
constructive ways. Obviously it has similar implications for businesses in
the economy. While there have been reviews of self-regulation in recent
years, its relationship with administrative law has not been coherently
considered. Given that the move towards self-regulatory and co-regulatory
structures of various sorts seems to be increasing, it is perhaps time that
this issue was more actively examined.
51
The 30th anniversary: what business needs from the

law and decision makers
Katie Lahey
Chief Executive, Business Council of Australia
The ARC’s 30th anniversary celebration presents a valuable opportunity to

talk about what business needs from the law and decision makers.
The Business Council of Australia represents Australia’s top 100 businesses.

We are particularly interested in the way that regulations are drafted and
administered because regulation can have a large cost impact on business
and the economic prosperity of our nation as a whole.
In March 2005 the BCA released its Business Regulation Action Plan, which
highlighted the following:
 Poorly drafted and poorly administered regulation can impose

very large costs on the economy.
 The aggregate cost to our economy of ‘red tape’ is overwhelming.

The OECD has estimated that the direct compliance cost of regulation
for just small and medium-sized Australian businesses in 1998 was
more than $17 billion. So, regulatory overload—or, as we have termed
it, ‘regulatory obesity’—is a very real issue, and I expect is costing
business by 2006 well in excess of $20 billion per annum.
It may be argued that we have a very successful economy, with record low
unemployment and relatively low interest rates. However, we cannot
afford to be complacent. Instead, the BCA believes we must continue to
review and improve our regulatory administrative processes. We would
like to move from regulatory obesity to a more slimline regulatory regime.
It is essential that the business regulatory environment is efficient and does

not impose undue compliance and cost burdens on business. Costs and
benefits must be weighed up when new regulations are imposed. The
Prime Minister highlighted this issue earlier this year:
Regulation can help support business activities. It sets standards

for corporate governance, helps ensure our safety and security,
52
guards our freedom and choices and protects our environment.

However, over-regulation or inappropriate regulation acts to
impede economic growth. It limits the scope for innovation,
undermines entrepreneurial drive and reduces productivity and
competition.1
The BCA is therefore supportive of efforts being made to assess, review

and improve the implementation and administration of business
regulation and welcomes this opportunity to contribute to the debate about
what business needs from the law and decision makers.
So what is the underlying cause of our regulatory overload?
There are a variety of reasons for the problems encountered by business

with administration and implementation of regulation.
In an increasingly risk averse society, and because of a few relatively recent

high-profile corporate collapses in Australia and overseas, regulation
makers and administrators have reacted in a number of adverse ways.
Some have responded to minimise their own risk of future exposure and to
allay community concern. As a result, regulators are:
 regulating more
 adopting a strict application of the law through heavy-handedness

and undue legalism
 adopting a compliance focus rather than applying the spirit of the

law
 reducing the transparency of some decisions to avoid risk

exposure
 avoiding proper dialogue and consultation with those being

regulated.
These reactions from our regulators, though understandable in an

increasingly risk averse society, are imposing undue burdens and costs on
business.
1
The Hon. John Howard MP, Prime Minister of Australia, and The Hon.
Peter Costello MP, Treasurer, 2005, Taskforce on Reducing the Regulatory Burden
on Business, Joint media release, 12 October.
53
While it is clear there will always be rogue individuals or unintended

corporate mistakes, regulation must be directed at the 99 per cent of honest
businesses and individuals who are striving to comply with and adhere to
our laws.
In order to operate effectively and efficiently, business needs a number of

things from the law and the regulators. They are the ‘4 Cs’:
 clarity
 consistency
 certainty
 consultation with regulators.
Some of the goals of the 4 Cs may appear to be mutually exclusive, but

business needs regulators to clearly articulate the policy objectives while
ensuring that the application of those laws meets those objectives. We
expect our regulatory system to be able to be the best in the world and,
therefore, be capable of delivering the best outcomes for business and the
community. We apply the term ‘world’s best practice’ to our businesses,
our sporting teams, our cultural icons—why not our regulators?
Starting with clarity: laws should be clear, should only be applied where
the benefits outweigh the costs, and should only be imposed where
regulation is the best method of achieving the policy outcome. In turn, this
raises the question whether laws can be clear or efficient when there has
been an explosion in the amount of regulation imposed on business. For
example:
 There are now over 1400 regulators in this country.
 More pages of legislation have been passed by the Commonwealth

Parliament in the 14 years since 1990 than were passed by Parliament
since the beginning of Federation.
 Red tape is growing three times faster than Australia’s economic

growth rate.
 Federal and state governments have added more than 30 000 pages
of new laws and regulations a year.
54
This regulatory obesity raises two related questions. First, who is

monitoring the drafting, efficiency and costs of the regulations? Second,
how can businesses keep up? When there is such an explosion in
compliance costs and complexity, crucial business resources are being
diverted away from more productive areas of the economy.
The second C is consistency. As a result of our federal system and a lack of

coordination between regulators, there is increasing overlap and
duplication in the regulatory environment. Two examples follow. The first
example concerns the railway system:
 An operator of an interstate train in Australia may have to deal

with six access regulators, seven rail safety regulators with nine
different pieces of legislation, three transport accident investigators, 15
pieces of legislation covering occupational health and safety, and 75
pieces of legislation with powers over environmental management.
 Under these laws and agencies, Australia has seven rail safety
regulators for a population of around 20 million people. In contrast,
the United States, with a population of 285 million people, has one rail
safety regulator. As a result Australia, with a land mass the size of a
continent, has no truly national rail system.
If the over-regulation of our rail system is the sublime example, in contrast

is the truly ridiculous example of the lack of consistency in regulation:
 David Morgan, CEO of Westpac, has highlighted the simple but

bizarre example of first aid kits. First aid kits in Westpac branches are
required to have differing contents depending on which state they are
in. A first aid kit in New South Wales has to have dressing tape
2.5 centimetres wide; in Western Australia it has to be 1.25 centimetres.
In Victoria, 60 millilitres of eye wash is a requirement; in Queensland it
is 250 millilitres; and in South Australia you don’t need it at all.
This may seem laughable, but in reality it adds real costs to business
because Westpac cannot bulk-buy and standardise its first aid kits.
The third C is certainty. Regulators must also provide certainty in the

application of laws so that the stated policy objectives are met. Perverse
outcomes can result if there is a lack of certainty and laws are applied
strictly, regardless of the outcome.
55
One example is the Saturday morning cake stall, which has largely
disappeared from our streets. This cornerstone of community fundraising,
which once supported our kindergartens, churches and footy clubs, has
slowly been squeezed out by regulation.
Driven by concern for our wellbeing, governments have placed so many

restrictions on how food can be sold on street stalls that many community
organisations have simply given up. The City of Yarra commented that the
public expects the local cake stall to meet the same food-handling
requirements as restaurants and cafes. But surely we are smart enough to
know the difference between a professional business and our neighbour’s
kitchen and take our chances. Food hygiene is important, but so is the
ability of communities to pull together and raise money for local activities.
Over-regulating cake stalls may seem a minor problem, remote from

Australia’s future economic prosperity, but this is part of the regulatory
burden which we must all challenge or these perverse outcomes will
remain.
The final C is consultation. Business has highlighted that some regulators

are unwilling to engage with business through dialogue about proposed
new laws or compliance with the regulatory regime. Some BCA member
companies have indicated, for example, that the Australian Prudential
Regulation Authority is likely to only use the written-submission model for
input by business on new regulation development and, in general, has
demonstrated little appetite for dialogue.
Gary Banks, Chairman of the Productivity Commission, put it very clearly

in a speech in May 2006:
Regulation without consultation is like a shot in the dark. Yet a

recent government survey found that only one-quarter of
regulatory agencies consult outside government when
developing regulations … This smacks of ‘government knows
best’ and has been a major cause of some of the most costly
regulatory decisions.2
How can regulators develop new, innovative approaches to administration

of regulation if they are not listening to and consulting with business? The
2
Banks, G (Chairman, Regulation Taskforce and Productivity Commission)
2006, ‘Reducing the regulatory burden: the way forward’, Inaugural public
lecture, Monash Centre for Regulatory Studies, University Law Chambers,
Melbourne, 17 May.
56
BCA believes that regulators need to increase the trusted ties with business
through a positive dialogue between the regulator and the regulated.
Business should be able to feel comfortable approaching regulators with an
issue, or seeking advice on compliance, without fearing that recrimination
or penalties may be imposed.
Further, in order to increase trust and dialogue, it is essential that

regulators have the appropriate experience and understanding of the
business environment. This means:
 Regulators must be adequately funded and staffed with

appropriate experts.
 Staff must be well trained and understand how business operates.
In conclusion, the BCA believes we need to be constantly vigilant about

regulation and its administration and implementation.
Australia cannot, in an increasingly competitive global environment, afford

to be complacent, especially when our competitors, such as the United
Kingdom and the Netherlands, are undertaking significant regulatory
reform. The BCA is of the view that the first developed nation to seriously
reduce its business regulatory burden will have a significant economic
advantage. We are optimistic that Australia could reap that advantage with
the government’s recent review of business red tape.3
The government’s commitment to action and real reform could see a

significant reduction in the $17 billion regulatory burden. Of course, there
have been red tape reviews in the past, but this one promises to be
different because it is considering systemic change, rather than simple
quick fixes. The BCA is optimistic that our 4 Cs will be considered and
reflected in the outcome.
It is not often an article on business red tape can finish on an optimistic

note, but this one does. Congratulations again to the Administrative
Review Council for the important role it plays in the continual oversight of
the business regulatory environment in Australia.
3
Taskforce on Reducing the Regulatory Burden on Business 2006, Rethinking
Regulation, Commonwealth of Australia, Canberra, 7 April.
57
The 30th anniversary: judicial review in Western

Australia
The Hon. Chief Justice Wayne Martin*

Supreme Court of Western Australia
There have been significant reforms in Western Australia over the last two
decades in the area of administrative law, one of the earliest being the
Freedom of Information Act 1992 and most recently the establishment of the
State Administrative Tribunal under the State Administrative Tribunal Act
2004. At the same time, there is another very significant development in
train—the enactment of legislation dealing with judicial review. In moving
the third reading of the State Administrative Tribunal (Conferral of
Jurisdiction) Amendment and Repeal Bill 2003, the Attorney-General for
Western Australia, the Hon. Jim McGinty, commented:
The Government intends that administrative law be substantially

overhauled during this term of government. This is the first of
many initiatives we will be taking in this area. We will be
bringing in legislation … to implement the second leg of that
reform, which is the judicial review of administrative decisions
legislation, that will hopefully significantly simplify these historic
prerogative writs that are usually used as the means of effecting
judicial review …1
That legislation was recently provided to me as a substantially developed

draft for my comment. It is clear from its content that it has substantially
adopted the recommendations of the Law Reform Commission of Western
Australia report no. 95, Judicial Review of Administrative Decisions (2002). As
appears from that report,2 although at the time of its release I was no
longer Chairman of the Commission, I had enjoyed some significant degree
of involvement in the development of the report and its recommendations.
*
Wayne Martin was President of the Administrative Review Council from 2001
to 2005 and a member from 1997 to 2000. He acknowledges his indebtedness to
Dr Philip Jamieson for his very considerable assistance in the preparation of
this paper.
1
At <http://www.parliament.wa.gov.au/hansard/hans35.nsf/NFS/
ec40a4d04c9dbc4948256d8d002d4f01?OpenDocument&highlight=0,judicial
%20review>, viewed 5 September 2006.
2
In the acknowledgments section.
58
Underlining the report’s recommendations was the proposition that the

reform should substantially follow the provisions of the Commonwealth’s
Administrative Decisions (Judicial Review) Act 1977 (recommendation 7,
p 26).3 This certainly reflects the impact which that legislation has had as a
legislative model in the field of administrative law. It has already been
substantially adopted4 in the Australian Capital Territory5, Queensland6
and Tasmania.7 While the Judicial Review Bill implements the
recommendation of the Commission in substantially following the ADJR
Act, it is not at present proposed in Western Australia to adopt a provision
in terms of s 16 of the Judicial Review Act 1991 (Qld), that where a provision
appears to express the same idea as a provision of the ADJR Act but in
different words (because of different legislative drafting practice), the ideas
are not taken to be different merely because of that difference in
expression.
Substantive reforms
The ADJR Act implemented reforms of both a substantive and a procedural
nature. One of the first issues for the Commission in developing its report
was to consider whether its recommendations supporting the substantial
adoption of the ADJR Act should encompass its reform of the substantive
law as well as its merely procedural elements. Adopting its reform of the
substantive law effectively codifies the grounds of review.
3
See also recommendation 8, that the grounds of review (to be specified in the
proposed Act) should follow as closely as possible the terminology used in the
ADJR Act (p 27) (being implemented by clauses 17–19); and
recommendation 22, that the powers of the court in conducting judicial review
under the remedy proposed should be the same as those conferred on the
Federal Court conducting a review pursuant to the terms of the ADJR Act
(p 34) (being implemented in clause 26). Related to this is recommendation 27,
that jurisdiction to conduct judicial review proceedings should be vested in the
Supreme Court of Western Australia (p 36) (being implemented in clause 16).
4
A comparative discussion of the statutory developments in Queensland,
Tasmania, Victoria and the Australian Capital Territory, with reference to the
ADJR Act, appears in Aronson, M et al. 2004, Judicial Review of Administrative
Action, 3rd edn, Lawbook Company, Sydney, pp 19ff.
5
Administrative Decisions (Judicial Review) Act 1989.
6
Judicial Review Act 1991.
7
Judicial Review Act 2000.
59
The charge has been laid that this codification has stultified the
development of the common law.8 At the time of its report, the
Commission noted that an argument against statutory specification of the
grounds of review might be that such codification might stifle the
development of the law (p. 23). However, the Commission pointed to the
generality of the language which has been used in the ADJR Act and, in
particular, by way of example, to the statutory ground of review ‘that a
breach of the rules of natural justice has occurred’ (s 5(1)(a)). It noted that,
as the Act does not define what the rules of natural justice are, their ambit
and content are left to be filled by the general law as enunciated by the
courts from time to time. In the Commission’s view this suggested ample
scope for judicial development of the substantive law relating to natural
justice within the statutory ground of review.
The charge appears to be that this ample scope for ongoing development in
the common law identified by the Commission has not, however, been
explored as a consequence of a focus upon—perhaps a fascination with—
the ADJR Act. In similar vein, Dr Caron Beaton-Wells has recently noted
that the catch-all grounds under s 5(1)(j) (‘that the decision was contrary to
law’) and under s 5(1)(e) and 5(2)(j) (‘any other exercise of power in a way
that constitutes abuse of the power’) ‘have hardly been used’. 9
Noting the development of the common law in England, Justice Kirby in

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant
S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural
Affairs10 concluded:
To some extent the development of the common law of judicial

review in Australia was retarded by the enactment of the ADJR
Act in 1977. That Act sought to codify the grounds of review in
the federal context. The effects of the ADJR Act were
overwhelmingly beneficial and review of federal administrative
action was more commonly pursued under that Act than had
8
See discussion of Justice Kirby’s charge in Aronson, MI 2005, ‘Is the ADJR Act
hampering the development of Australian administrative law?’ Australian
Journal of Administrative Law, vol. 12, no. 2, pp 79–97 at 80–1, 91ff; Griffiths, J
2005, ‘Commentary on Professor Aronson’s article “Is the ADJR Act hampering
the development of Australian administrative law?”’ Australian Journal of
Administrative Law, vol. 18, no. 2, pp 98–102; Beaton-Wells, C 2005, ‘Australia’s
ADJR Act: reform or repeal?’ Paper presented at Administrative Law Forum,
Canberra, 30 June – 1 July, pp 18–19.
9
Beaton-Wells, C 2005, op. cit., p 17.
10
(2003) 198 ALR 59; (2003) 77 ALJR 1165; [2003] HCA 30 at pars 157, 166.
60
been the case under the earlier common law. However, in areas
where the ADJR Act or the common law are, for whatever reason,
inapplicable or no longer available, the rules governing the
provision of the constitutional writs, and their relationship to the
larger common law developments in administrative review,
assume a greater significance. (para 157)
And, after reviewing developments in administrative law in the United

Kingdom, his Honour went on:
The common law in Australia might have developed along

similar lines. However, it was at about the time of Lord
Wilberforce’s exposition in Tameside [1977] AC 1014] that the
ADJR Act was enacted in relation to federal administrative
decisions. The somewhat arrested development of Australian
common law doctrine that followed reflects the large impact of
the federal legislation on the direction and content of Australian
administrative law more generally. (para 166)
The Commission made two recommendations which it hoped would

remove any such possibility of stultification in the Western Australian
context.
The first recommendation was to include in the judicial review legislation

statutory provision for a ground of review intended to embrace any
development in the non-statutory grounds of review (recommendation 9,
p 27). This recommendation does not appear to be explicitly addressed in
the Bill. Section 5(1)(j) of the ADJR Act (‘that the decision was otherwise
contrary to law’), which is replicated in the Bill, is arguably broad enough
to have already had the desired result but has failed to save the ADJR Act
from the charge of stultification.
However, the second recommendation of the Commission was to include a

provision for the granting of any remedy that would have been available if
the reforms that not been instituted (recommendation 6, p 25). The Bill
adopts this recommendation through a provision in the clause which
abolishes the prerogative writs other than habeas corpus (see below),
providing that an order for review may be granted on any ground that
would have justified the grant of prerogative relief.
This may address any potential for stultification in Western Australia.

However, more fundamentally, Professor Aronson has responded to the
charge—rightly, in my view—arguing that it is not valid to retard a
61
statutory scheme for fear that its success might retard the common law. 11
The debate between statutory codifiers and common lawyers is, of course,
not new. It has occurred in many legal contexts—the sale of goods,
criminal law and corporations law, to mention just some. Administrative
law does not appear to offer any exceptional or unique features to the
arguments.
There are three substantial arguments, noted by the Commission, 12 in

favour of extending the proposed reforms beyond mere procedure to
embrace the substantive law governing judicial review:
 It removes deficiencies in the existing law, the example provided

by the Commission being the requirement that the relevant error of
law be demonstrated by reference only to the face of ‘the record’ for
the purposes of some forms of relief.13
 There is a general educative and instructive benefit of statutory

prescription in providing both decision makers and persons affected
by administrative decisions with a clear statement of the grounds
which might be relied upon to seek a review of administrative
decisions. As Kirby J observed in S20, this has probably been a factor in
the explosion of judicial review in the Federal Courts.14
 The adoption of the substantive law reforms of the ADJR Act

facilitates harmonisation of state and Commonwealth law, one
consequence of which is to pick up in a state context the substantial
body of jurisprudence which has already been and continues to be
developed under the ADJR Act. Such harmonisation offers the
opportunity to provide greater clarity in the operation of the legislation
and reduce the necessity for protracted litigation to obtain that clarity.
While there has been debate, perhaps somewhat enervated, about

repealing the ADJR Act,15 on the whole, the legislation continues to be
supported,16 albeit with growing calls for recognition and reform of its
jurisdictional shortcomings, some of which are addressed in the Western
Australian Bill, as I report below.
11
Aronson, MI 2005, op. cit. p 92.
12
At pp 22–23.
13
Procedural and remedial simplifications are discussed in, for example, Beaton-
Wells, C 2005, op. cit., pp 13–16.
14
Discussed in, for example, ibid., p 16, referring to the educative benefits of
codification.
15
ibid., esp. p 25.
62
A right to reasons
One of the most significant and enduring17 of the reforms arising from the
ADJR Act has been the conferral of a right to reasons. At the time of the
Commission’s report, there was in Western Australia no common law
duty18 or general statutory obligation on an administrative decision maker
to give reasons when she or he made a decision. Section 21 of the State
Administrative Tribunal Act 2004 now entitles a person to request the maker
of a decision reviewable by the Tribunal to provide a written statement of
the reasons for the decision. The Tribunal has jurisdiction to review a
significant range of decisions on their merits. Complementing such a
reform in the context of judicial review, recommendation 28 of the
Commission was to adopt and reiterate its recommendations in its 1986
report19 with respect to the creation of a general entitlement to reasons for
decisions and as to the classes and categories of decisions to which the
obligation to provide reasons ought not to apply (p 37). This is being
implemented in the Judicial Review Bill.20
The requirement that the decision be ‘under an enactment’

There has been longstanding criticism of the limitation of the operation of
the ADJR Act to ‘decisions under an enactment’.21 The common law is not
so restricted.22 It has been rightly commented that it is difficult to justify
this restriction.23 Indeed, the Administrative Review Council has
consistently suggested reform in this area. In 1989, in Review of the
Administrative Decisions (Judicial Review) Act: the ambit of the Act (Report
no. 32), the ARC included a recommendation that the ambit of the Act be
extended to certain non-statutory decisions made by Commonwealth
officers, being decisions ‘under a non-statutory scheme or program the
16
On which, see, Aronson, MI 2005, op. cit., esp. pp 90–1; Beaton-Wells, C 2005,
op. cit., pp 13ff; Griffiths, J 2005, op. cit., pp 100–1; Robertson, A 2003, ‘The
administrative law jurisdiction of the Federal Court: is the ADJ(JR) Act still
important?’ Australian Bar Review, vol. 24, p 89 at 101.
17
See Robertson, A 2003, op. cit., esp. p 101.
18
Public Service Board of New South Wales v Osmond (1986) 159 CLR 656.
19
Law Reform Commission of Western Australia 1986, Judicial Review of
Administrative Decisions: procedural aspects and the right to reasons, Project no.
26(II), LRCWA, Perth.
20
Note recommendation 29, that the obligation to provide reasons under the
proposed legislation would not apply to entities which have an independent
statutory obligation to provide reasons (p 38) (which is broadly implemented
in clause 27(a)), and see ADJR Act s 13(11).
63
funds for which are authorised by an appropriation made by the

Parliament for the purpose of that scheme or program’. 24 It repeated that
recommendation in its 1998 report The Contracting Out of Government
Services (Report no. 42).25 This reform was embodied in the Judicial Review
Act 1991 (Qld).26
While the Commission considered that the removal of any jurisdictional

limitation with reference to decisions under an enactment might open the
application of judicial review uncomfortably wide,27 it endorsed the ARC’s
approach, reflected in the Queensland legislation, recommending that the
ambit of the statutory remedy should extend to decisions or conduct of an
administrative character made under or pursuant to Western Australian
legislation or to decisions of officers or employees of the state or a local
government authority involving public funds (recommendation 10, p 28).
It has been suggested that the ARC has been over-anxious in its concerns
about removing any jurisdictional limitation with reference to decisions
under an enactment; that fears about thereby exposing to judicial review
matters such as purchasing, staffing and property management decisions
ignore that the ADJR Act is premised on the applicant identifying an excess
of power and in such cases ‘decision-makers unconstrained by statute are
rarely likely to exceed their power, unless it be in breach of a duty to
21
Recently espoused in, for example, Aronson, M 2005, op. cit. pp 79–97; Beaton-
Wells, C 2005, op. cit., pp 7ff. Horan, C 2003, ‘Judicial review of non-statutory
executive powers’, Federal Law Review, vol. 31, no. 3, pp 551–72, discusses
alternative possibilities federally for review of decisions of non-statutory
executive powers. On the constitutional writs, see further Jackson, D 2004,
‘Development of judicial review in Australia over the last 10 years: the growth
of the constitutional writs’, Australian Journal of Administrative Law, vol. 12,
no. 1, pp 22–9; Williams, G 2004, ‘Commentary on “The growth of
constitutional writs”’, Australian Journal of Administrative Law, vol. 12, no. 1,
pp 30–4.
22
Examples appear in Aronson, MI 2005, op. cit., pp 84–5.
23
ibid., p 84.
24
At 40–1. A Commonwealth-funded scheme not established by or under an
enactment is not subject to the ADJR Act: Ex-Christmas Islanders Association
Inc v Attorney-General [2005] FCA 1867; Barnett v Minister for Housing and Aged
Care and/or Minister for Community Services and Health (1991) 31 FCR 400.
25
At para. 6.43.
26
See ss 4 and 9.
27
At p 28 (fn 123).
64
accord natural justice, and even there the duty is not likely to have much
content’.28
The approach taken in the Judicial Review Bill goes further than that
recommended by the Commission, removing any jurisdictional limitation
with reference to decisions under an enactment and requiring merely that
the decision be that of an administrative character of an officer, employee
or consultant engaged by the state, a minister of the state, a local
government, or a judicial officer. Thus, in Western Australia, the approach
taken will define the ambit of the Act by reference to the identity of the
decision maker, rather than the source of the power. Upon reflection, it
seems unnecessarily restrictive to require that a non-statutory decision
involve the expenditure of public funds to be reviewable under the statute,
and the Bill does not impose such a restriction.
Decisions of an administrative character

The restriction of the ADJR Act to decisions ‘of an administrative character’
has also been the subject of repeated criticism over the life of the Act. It is
true that the generality of expression used in the imposition of this
restriction has very occasionally given rise to litigious controversy. It is also
true that the consequence of the restriction is to consign those who wish to
challenge decisions of a legislative or judicial character for want of
jurisdiction to prerogative or equitable remedies, with their less
satisfactory procedures.
However, removal of this restriction would be a significant departure from

the scope of the federal legislation, detracting significantly from the
ambition of federal–state harmony. It would require the grounds of review
to be carefully reviewed to assess the extent to which they were
appropriately available in the review of decisions of a legislative or judicial
character. This was not a course recommended by the Commission; nor is
this approach taken in the Bill, which is restricted to decisions of an
administrative character.
Privatisation of decision making

The common law of judicial review addresses control of government
activity, leaving, as a matter of policy, commercial activity to be regulated
in a different environment. Increasingly, however, government functions
28
Aronson, M. et al. 2004, op. cit., p 79.
65
have been hybridised, with the result, recognised by the Commission, that
conflicting policy considerations arise in considering whether such
activities should be subject to judicial review:
On the one hand, the availability of the statutory remedy in

respect of such agencies could be said to put them at a significant
commercial disadvantage in their competitive activities by
subjecting them to a possible burden to which their private
enterprise competitors are not subject. On the other hand, some
GBEs [government business enterprises] provide services in
monopoly or near monopoly conditions, in circumstances in
which the non-provision of those services can have very
important consequences for an individual. In certain
circumstances, such individuals should have access to the courts
if the agency acts unlawfully.29
These conflicting considerations have been recognised by the ARC. In its

1995 report Government Business Enterprises and Commonwealth
Administrative Law (Report no. 38),30 the ARC concluded that
Commonwealth administrative law statutes should ordinarily apply to
bodies that are government-controlled, including government business
enterprises, although GBEs should be exempt from the operation of those
statutes in relation to their commercial activities undertaken in a market
where there is real competition. While the Commission was of the view
that it would not be desirable to state a single or inflexible rule in relation
to the applicability of the statutory remedy to such bodies,31 it suggested
that the preferable approach would be to consider particular enterprises
for exclusion from the operation of the Act by way of a schedule to the Act,
on a case-by-case basis.32
Because the Bill defines its ambit of operation by reference to the identity
of the decision maker, rather than the source of the power to make the
decision, the effect is to encompass decision making by officers of GBEs.
The Bill will extend to decisions of state government bodies (and their
officers, employees and consultants), defined in clause 3 to include bodies
(whether or not incorporated) and offices established for a public purpose
by a written law, as well as bodies and offices established by the Governor
or a minister. Exemptions of particular bodies can then be specified in a
schedule to the Act where appropriate.
29
At pp 29–30.
30
At para 4.29.
31
At p 30.
32
ibid.
66
While the Western Australian approach will be broader than that yet taken
in any other jurisdiction, it does not address the situation of private sector
bodies exercising public functions.33 This possible area of extension of
judicial review was highlighted by the decision of the High Court in NEAT
Domestic Trading Pty Ltd v AWB Ltd,34 handed down the year after the
Commission’s report. While Professor Allars has commented that ‘given
the unusual statutory scheme considered in NEAT, it may prove to be an
isolated authority, quickly forgotten’,35 the decision has also been described
as having ‘the alarming consequence that the Commonwealth may
successfully insulate itself from legal, and even political, accountability’.36
Reflecting considerations not dissimilar to those expressed by the
33
See discussion of the issues in, for example, Finkelstein, R 2006, ‘Crossing the
intersection: how courts are navigating the “public” and “private” in judicial
review’, AIAL Forum, vol. 48, April, pp 1–11. To be contrasted with the exercise
of a ‘private’ power by a public body: see Griffith University v Tang (2005) 213
ALR 724 and the associated body of literature; for example, Gangemi, M 2005,
‘Griffith University v Tang: review of university decisions made “under an
enactment”’, Sydney Law Review, vol. 27, no. 3, pp 567–77; Hill, G 2005, ‘Griffith
University v Tang: comparison with NEAT Domestic, and the relevance of
constitutional factors’, AIAL Forum, vol. 47, December, pp 6–16; Mantziaris, C
& McDonald, L 2006, ‘Federal judicial review jurisdiction after Griffith
University v Tang’, Public Law Review, vol. 17, no. 1, pp 22–48; Stewart, D 2005,
‘Griffith University v Tang, “under an enactment” and limiting access to judicial
review’, Federal Law Review, vol. 33, no. 3, pp 526–53; Stewart, D 2005, ‘Non-
statutory review of private decisions by public bodies’, AIAL Forum, vol. 47,
December, pp 17–32; Will, M 2005, ‘Judicial review of statutory authorities’
AIAL Forum, vol. 47, December, pp 1–5.
34
(2003) 198 ALR 179. There is an extensive body of literature on this decision:
see, for example, Buckland, A & Higgisson, J 2004, ‘Judicial review of decisions
by private bodies’, AIAL Forum, vol. 42, July, pp 37–47; Conde, C 2005,
‘Accountability for the exercise of “public” power: a defence of NEAT
Domestic’, AIAL Forum, vol. 46, July, pp 1–14; Hill, G 2004, ‘The Administrative
Decisions (Judicial Review) Act and “under an enactment”: can NEAT Domestic
be reconciled with Glasson?’, Australian Journal of Administrative Law, vol. 11,
no. 3, pp 135–50; Mantziaris, C 2003, ‘A “wrong turn” on the public/private
distinction: NEAT Domestic Trading Pty Ltd v AWB Ltd’, Public Law Review, vol.
14, no. 4, pp 197–201. A more general analysis appears in Gageler, S 2005, ‘The
legitimate scope of judicial review: the prequel’, Australian Bar Review, vol. 26,
no. 3, pp 303–12.
35
Allars, M 2005, ‘Public administration in private hands’, Australian Journal of
Administrative Law, vol. 12, no. 2, pp 126–47 at 145.
36
Arora, N 2004, ‘Not so neat: non-statutory corporations and the reach of the
Administrative Decisions (Judicial Review) Act 1977’, Federal Law Review, vol. 32,
no.1, pp 141–61 at 160.
67
Commission in the context of GBEs, the ARC concluded in its recent report
The Scope of Judicial Review that a decision made by a private body but
given statutory effect ought in principle to be subject to judicial review,
although specific activities could be excluded from review on a case-by-
case basis if it was probable that the availability of public law remedies
would thwart the proper delivery of services.37
Although it is not reflected in the current draft of the Bill, I consider there
may be some merit in considering, by analogy to the approach taken by the
ARC, whether judicial review should include review of a decision of an
administrative character made by a person other than an officer of the state
where both the following criteria apply:
 The decision is given authoritative effect for the purposes of a

decision made by an officer of the state.
 Review of the latter decision could not, in the absence of review of

the former decision, lead to the latter decision being set aside by the
court.38
As proposed by the ARC, specific activities could be excluded from review

on a case-by-case basis if it was probable that the availability of public law
remedies would thwart the proper delivery of services.
Professor Aronson’s resolution of the difficulties flowing from increasing

government outsourcing and privatisation of government functions would
be to replace ‘decisions under an enactment’ with ‘decisions, conduct, acts
or omissions in breach of Commonwealth law imposing restraints on or
requirements for the exercise of public power’.39 A similar recommendation
has been made by Dr Caron Beaton-Wells.40 It is an approach consistent
with developing trends in the United Kingdom, suggesting a focus on the
nature of the power being exercised rather than on its derivation or the
status of the person exercising it.41 It is also consistent with the approach
adopted in South Africa’s Promotion of Administrative Justice Act 2000.42
Despite the eminence of these views, I would not favour that approach in
37
At para 3.10.
38
ibid.
39
Aronson, MI 2005, op. cit., p 89.
40
Beaton-Wells, C 2005, op. cit. esp. at p 6.
41
Recognised, for example, by Beaton-Wells, C 2003, ‘Administrative law in
South Africa: no longer a “dismal science”’, Public Law Review, vol. 14, no. 2,
pp 85–108 at 97–8.
42
See 1(1), with its emphasis on public powers and public functions.
68
the Judicial Review Bill. In my view, the notion of ‘public power’

unnecessarily raises ambiguities sufficiently addressed by a more
mechanistic approach. Those ambiguities and uncertainties would be likely
to produce more contentious litigation concerning the ambit of the Act
than is presently justified by the relative rarity of reposing governmental
decisions in private hands.
Vice-regal exclusion
Under the ADJR Act, decisions of the Governor-General are not open to
review.43 Again, the ARC has suggested reform in this area, in 1989
recommending the removal of this limitation,44 a reform now embodied in
the Judicial Review Act 1991 (Qld)45 and the Judicial Review Act 2000 (Tas).46
Nor does vice-regal immunity still exist at common law.47 Given this
‘anomaly’48 in the ADJR Act, the Commission suggested that it probably
reflected what was perceived to be the law prior to the decision of the High
Court in FAI Insurances Ltd v Winneke.49 Of course, that is no longer the
general law of Australia, as enunciated by the High Court in that decision.
The Commission added the following observation in a state context:
The non-applicability of the statutory remedy in a state context to

the decisions of the Governor would overlook the fact that
decisions of the Governor made on matters of administration are,
by constitutional convention, made upon the advice of the
responsible Minister. This convention means that such decisions
of the Governor are, in a very real and practical sense, regarded
as the decision of the responsible Minister. (p 28)
The Commission recommended that the statutory remedy apply to the

decisions of the Governor and that, in relation to requests for reasons for
such a decision, or proceedings for judicial review, the appropriate
respondent should be the minister responsible for the relevant area of
administration (recommendation 11, p 28). The Judicial Review Bill has
given effect to both elements of this recommendation.
43
Under s 3 (definition of ‘decision to which this Act applies’).
44
Administrative Review Council 1989, Review of the Administrative Decisions
(Judicial Review) Act: the ambit of the Act, Report no. 32, ARC, Canberra, ch. 5.
45
See s 53.
46
See s 41.
47
The authorities are set out in Aronson, MI 2005, op. cit. p 83 (fn 42).
48
As described by Aronson, ibid., p 83.
49
(1982) 151 CLR 342. See also, for example, Beaton-Wells, C 2005, op. cit., p 9.
69
Decisions must be final in nature

In its 2006 report The Scope of Judicial Review (Report no. 47) the ARC
referred to the ‘vexed question’50 of whether judicial review should extend
to the preliminary steps and conduct leading to the making of a final
decision. The ARC summed up the competing concerns succinctly:
If every step in the administrative process is separately

reviewable, there is a danger that efficient decision making will
be hampered and fragmented. On the other hand, the integrity of
the administrative process can hinge on whether the preliminary
steps in that process have been undertaken lawfully. (para 5.2.7)
To some extent, the ADJR Act makes provision addressing the necessary
balance. It provides for an application for an order of review in respect of
both a ‘decision’ (s 5) and ‘conduct for the purpose of making a decision’
(s 6). However, the majority approach of the High Court in Australian
Broadcasting Tribunal v Bond:51
 adopting a narrow meaning of ‘decision’ as extending only to a

final or operative and determinative, substantive determination, unless
‘the statute provides for the making of a finding or ruling on a point so
that the decision, though an intermediate decision, might accurately be
described as a decision under an enactment’
and
 emphasising that ‘conduct’ ‘looks to the way in which the

proceedings have been conducted … rather than decisions made along
the way with a view to the making of a final determination’
left many intermediate decisions as neither ‘decisions’ nor ‘conduct’ and

unreviewable under the ADJR Act.
The ARC, in its report The Scope of Judicial Review, refers to ‘the difficulty of
applying these concepts in a complex statutory setting where numerous
steps are involved in making and implementing a decision’.52 It did not
consider the solution to be to attempt to develop some detailed principle
about steps in the administrative process amenable to judicial review.53 The
Commission similarly saw risks in any attempt to modify the concept of
50
At para 5.2.7.
51
(1990) 170 CLR 321.
52
At para 5.2.7.
53
At para 5.2.7.
70
‘decision’ under the ADJR Act to resolve these difficulties. 54 Rather, both
perceived the best resolution to lie in the exercise by the court of its
discretion to dismiss an application and thereby ensure that proceedings
are not initiated prematurely or for a spurious or ulterior reason.55 In
particular, it has been suggested that s 14 of the Judicial Review Act 1991
(Qld), which is also being implemented in the Judicial Review Bill 2006,
‘addresses more directly the real mischief the High Court had in mind’. 56
Section 14 provides that where the reviewable matter has been made or
engaged in by a tribunal, authority or person in the course of a proceeding
and:
(c) the court considers that it is desirable to dismiss the

application in order to avoid interference with the due and
orderly conduct of the initial proceeding because, in all the
circumstances, the balance of convenience (including the interests
of the applicant, another party or another person, the public
interest and the consequences of delay in the initial proceeding)
so requires;
the court must dismiss the application if it is satisfied, having

regard to the interests of justice, that it should do so.
The Commission went further in its recommendations. Motivated by the

concern that much of the damage associated with an adverse decision
made by a decision maker arises at an earlier stage of the process than the
final decision, it suggested that if ‘conduct’ was statutorily defined to
include recommendatory decisions made as necessary steps towards the
making of a final decision then the potential applicant’s interests may be
protected before the final decision is made, although it noted that this
would only be practical if the discretion to refuse relief is included in the
reforms. 57 Its recommendation to this effect (recommendation 12) has not
been given effect in the Bill. However, such a development is not pressing.
Indeed, the ARC, in its report The Scope of Judicial Review, cites a number of
cases where there has been judicial review under the ADJR Act in respect
54
At p 29; cf Aronson, M 2005, op. cit., p 84.
55
Administrative Review Council 2006, The Scope of Judicial Review, Report no. 47,
ARC, Canberra, para 5.2.7; Law Reform Commission of Western Australia
2002, Judicial Review of Administrative Decisions, Report no. 95, LRCWA, Perth,
p 29.
56
Aronson, M et al. 2004, op. cit., p 20.
57
At p 29.
71
of statutory steps occurring before the culmination of the administrative

process.58
Time for commencement of proceedings

The ADJR Act makes general provision for application for an order for
review to be brought within 28 days of the decision being furnished to the
applicant.59 The Commission did not support this approach.60 It was
strongly of the view that the period of 28 days specified under the
Commonwealth and Queensland Acts is too short and generally has the
consequence of necessitating applications for extension of time, which
consume limited judicial resources.61 The Commission recognised that
while the specification of strict limitation periods for the commencement of
proceedings has the capacity to create injustice, delay in the
commencement of proceedings can equally be a source of injustice. It
considered that the best balance between these competing considerations
was not to impose an arbitrary and inflexible time limit but to prescribe a
merely presumptive time limit capable of judicial extension in an
appropriate case.
It recommended that proceedings for judicial review be commenced as

soon as reasonably practicable and in any event within six months of
notification of the decision under review, with the proviso that the court
may extend that period if satisfied that such an extension would not be
likely to cause substantial hardship to any person or substantially
prejudice the rights of any person or be detrimental to good administration
(recommendation 15, p 31).62 Conversely, it recommended that if the
proceedings are not commenced as soon as reasonably practicable there
should be power in the court to dismiss the proceedings, even if brought
58
At para 5.2.7 (fn 113).
59
Section 11(3).
60
Though cf recommendation 30 in respect of the time within which an
application should be made for reasons: ‘Any request for a statement of
reasons should be made within 28 days of notification of the decision, but there
should be a power in the court to extend that time in an appropriate case’ (the
basis for the distinction is discussed at p 38) (being implemented in clauses
28(3) and (4)); and see ADJR Act s 13(2).
61
At p 31.
62
Law Reform Commission (Ireland) 2004, Report on Judicial Review Procedure,
LRC 71, LRCI, Dublin, pars 2.36–2.45, recommended that a six-month time
limit apply in all matters of conventional review, with the possibility of
extension where good reason exists.
72
within six months, if the court is satisfied that the delay in commencement
of proceedings would be likely to cause substantial hardship to any person
or substantially prejudice the rights of any person or be detrimental to
good administration (recommendation 16, pp 31–2).
These recommendations have been implemented in the Bill.
Standing to commence proceedings

The Commission gave particular consideration to the comprehensive
review of the law relating to standing to commence proceedings by the
Australian Law Reform Commission in its report Standing in Public Interest
Litigation.63 It saw considerable force in the arguments advanced by the
ALRC to the effect that limiting the right to commence proceedings to
persons whose interests are affected might produce an unsatisfactory
constraint upon review. The Commission gave the example of an
administrative decision which affects the entire community but does not
affect any person or group of persons within that community to any
greater extent than any other. It noted that in such a case that decision can
be placed effectively beyond legal challenge unless the Attorney-General is
prepared to grant his or her fiat to enable proceedings to be brought in his
or her name (a relator action). The Commission agreed with the ALRC’s
view that the availability of a relator action is not an adequate protection of
the public interest in the lawfulness of administrative action which may
have a profound effect upon the community as a whole, particularly in
circumstances where it is a decision of the government that is being
challenged, with a consequent political inhibition upon the grant of the
necessary fiat.64
The Commission recommended a ‘small departure’ from the language of

the ADJR Act, to the effect that, although a person’s interests are not
affected by the conduct or decision under review, he or she should have
the power to commence or continue proceedings under the proposed
statutory remedy with the leave of the court, to be granted if the court is
63
Australian Law Reform Commission 1985, Standing in Public Interest Litigation,
Report no. 27, ALRC, Sydney. The period under the Promotion of Administrative
Justice Act 2000 (South Africa) is 180 days: discussed in Beaton-Wells, C 2003,
‘Administrative law in South Africa: no longer a “dismal science”’, Public Law
Review, vol. 14, no. 2, pp 85–108 at 104.
64
The Commission noted at p 32 that this was also consistent with the
recommendation of the (English) Law Commission (1994, Administrative Law:
judicial review and statutory appeals, Report no. 226, LC, London, para 5.20).
73
satisfied that it is in the public interest for the proceedings to be

commenced or continued (recommendation 18, p 32) Rather than attempt
to specify in the legislation the aspects of the public interest which might
justify the grant of such leave, the Commission favoured leaving the issue
in the general discretion of the court (p 32).
This recommendation has been given effect in the Bill.
Discretionary refusal of relief

In its 1986 report Review of the Administrative Decisions (Judicial Review)
Act 1977: stage 165 the ARC recommended that the Federal Court be given a
general discretion in appropriate circumstances to refuse relief and to
dismiss proceedings prior to their conclusion. Although not implemented
at the Commonwealth level, this has been embodied in the Judicial Review
Act 1991 (Qld) s 48. The Commission also supported such a discretion as a
means of preventing the use of judicial review as a ‘tactic of frustration’ in
a decision-making process and limiting the potential for meddling by an
applicant with an insufficient interest in a decision (p 35). It suggested that
‘appropriate circumstances’ could, for example, include where there are
other avenues of redress available to the applicant (p 35).
This recommendation has been implemented in the Bill.
The Commission also supported the recommendation made in a number of

jurisdictions that there be an express power to refuse relief in the event that
the only ground established is one of form or technicality that has not
resulted in substantial prejudice to the applicant for review.66
This recommendation has been implemented in the Bill.
Costs
Other than in respect of intervention in proceedings by the
Attorney- General,67 the ADJR Act makes no provision as to costs. The
65
Report no. 26, ARC, Canberra.
66
Referring to Peter Bayne 1999, Judicial Review in Victoria, Victorian Attorney-
General’s Law Reform Advisory Council Expert Report no. 5, Melbourne,
recommendation 25, and Manitoba Law Reform Commission 1987,
Administrative Law: judicial review of administrative action, Report no. 69(II),
MLRC, Winnipeg, recommendation 41.
67
ADJR Act s 18.
74
Commission was of the view that established principles relating to costs

should apply equally to proceedings for judicial review, although with
some refinement in recognition of the public aspect of such litigation.68 It
was attracted to the approach adopted in Queensland.69 In particular, s
49(1)(e) of the Judicial Review Act 1991 (Qld) provides that on a costs
application the court may order that each party is to bear only their own
costs of the proceeding, regardless of its outcome. In the second reading
speech on the Queensland legislation, the Hon. DM Wells MP observed
that s 49 ‘will assist less wealthy parties who have a meritorious case but
are afraid of losing the application and therefore paying the legal costs of
both parties to the proceeding’.70 The Commission’s recommendation
(recommendation 26, p 35) that the legislation should contain provisions
relating to the costs of proceedings which are essentially the same as those
adopted in the Judicial Review Act 1991 (Qld) (p 35) is being implemented in
the Bill.
However, it is interesting to note that the Queensland Legal, Constitutional

and Administrative Review Committee, in its 2005 discussion paper The
Accessibility of Administrative Justice, concluded that s 49 orders have rarely
been made and, when made, the approach of the Supreme Court has been
to construe the provision narrowly. 71
Abolition of prerogative writs

As in Tasmania72 (but unlike the approach adopted in Queensland, where
the older common law procedures have survived, albeit subject to
procedural reforms), it is proposed in Western Australia to give effect to
recommendation 3 (p. 25) of the Commission to abolish the writs of
mandamus, certiorari, prohibition and quo warranto (although not the writ
of habeas corpus).
68
At p 37.
69
Which was also supported by Peter Bayne 1999, op. cit., recommendation 26.
70
Hansard, 26 November 1991, p 3138, available at
<http://parlinfo.parliament.qld.gov.au/isysnative/XFxXRUJTRVJWRVJcSEFOX
0lTWVM2REJcMTk5MVw5MTExMjZoYS5wZGY=/911126ha.pdf#xml=http://p
arlinfo.parliament.qld.gov.au:80/isysquery/irleb95/2/hilite>, viewed
29 September 2006.
71
Queensland Legal, Constitutional and Administrative Review Committee 2005,
The Accessibility of Administrative Justice, Discussion paper, QLCARC, Brisbane,
para 7.2.3.
72
Section 43.
75
This recommendation proved to be one of the more controversial aspects of

the Commission’s report and has been the subject of criticism by
commentators on the ground that abolition of the prerogative writs could
conceivably leave persons without remedy. There may well be some force
in that criticism. The Act will identify by way of schedule the class of
decisions not ‘decisions to which the Act applies’. In respect of such
decisions, judicial review under the Act will of course not be available.
With the abolition of the prerogative remedies other than habeas corpus,
persons aggrieved by such decisions would need to seek the equitable
remedies of injunction and declaration in order to obtain judicial review.
This may be undesirable. Perhaps a better approach would be to retain the
availability of prerogative remedies in respect of decisions to which the Act
does not apply.
Interim relief and interlocutory procedures

The Commission considered there was no good reason why the general
powers of the court with respect to the preservation and protection of the
rights and interests of parties to litigation by way of interim orders should
not extend to proceedings for judicial review under the statute
(recommendation 20, p 33). This recommendation has not been given
express recognition in the Bill but is arguably available in the inherent
jurisdiction of the court.
The Commission similarly considered that there was no good reason why
the usual interlocutory procedures such as interrogatories and discovery
should not apply with respect to applications for judicial review
(recommendation 21, p 33). The Bill makes no specific provision in respect
of either of these recommendations but probably does not need to.
Declaratory and injunctive relief

The Commission recommended (recommendation 4) that there be included
a statutory provision requiring the court to refuse declaratory or injunctive
relief unless satisfied that the proceedings could not have been brought by
way of the statutory remedy or that bringing the proceedings by way of the
statutory remedy would not have been a reasonable course to follow (p 25).
This issue is addressed in the Bill by giving the court a power to dismiss
proceedings brought otherwise than by way of application under the Act,
but without reversing the onus in relation to the exercise of that power in
the manner recommended by the Commission.
76
The Commission also recommended (recommendation 5) that the

procedures for invoking declaratory and injunctive relief be reformed to
conform as closely as possible to the procedures applying to the statutory
remedy (p 25). This is not specifically addressed in the Bill, perhaps
because of a reasonable view that it is best achieved by rules of court
dealing with the procedure for the grant of equitable relief in
administrative law cases.
The State Administrative Tribunal

At the time of the Commission’s report, the creation of the State
Administrative Tribunal had been announced but the necessary legislation
had not been enacted. In that context, the Commission addressed the
question of whether the proposed new tribunal should be subject to any
statutory process of judicial review. The competing considerations were
expressed by the Commission in the following terms:
On the one hand, SAT should be subject to the same legal

obligations as any other administrative body. On the other hand,
it would be undesirable for any general statutory remedy to cut
across any specific mechanism for judicial review created by the
SAT Act itself—such as that recommended by the taskforce on
the establishment of SAT, namely, a right of appeal to the
Supreme Court on questions of law, subject to the grant of leave
of the Court.
The legislation creating the tribunal has conferred a right of appeal

corresponding to the recommendations of the taskforce—that is, a right of
appeal on questions of law, subject to the grant of the leave of the court.
The Commission’s view was that, provided its recommendations in respect

of the conferral of a discretionary power upon the court to refuse or
entertain an application for relief are adopted, the possibility of problems
arising from overlapping remedies (that is, judicial review and appeal)
would be greatly reduced. In the Commission’s view, the conferral of a
right of appeal would be sufficient in many cases to justify the exercise of a
discretion to dismiss an application for judicial review.
The Commission’s expectations in this regard have been vindicated by a

recent decision of the Western Australian Court of Appeal dealing with an
application for the grant of a prerogative relief against the State
77
Administrative Tribunal.73 In that case, the court74 held that the State
Administrative Tribunal was to be regarded as an ‘anomalous Tribunal
analogous to a Court’ for the purposes of the application of the doctrine of
jurisdictional error enunciated in Craig v State of South Australia.75
Accordingly, the court held that, although the tribunal had made a number
of errors of law because it had jurisdiction to determine questions of law,
they were not errors of a kind which justified the grant of certiorari.
However, more significantly for present purposes, the court went on to
hold that, even if grounds for certiorari had been made out, the court
would nevertheless have exercised its discretion to refuse relief because of
an unexplained failure to exercise the avenue of appeal provided by the
State Administrative Tribunal Act.
Summary
Until recently Western Australia could fairly be described as lagging
behind in the reform and development of administrative law. Although
legislation creating an ombudsman and providing freedom of information
was enacted at about the same time as other jurisdictions, notwithstanding
many reports and recommendations over many years there had been no
substantive change to the arrangements for either merits review or judicial
review.
The creation of the State Administrative Tribunal on 1 January 2005 has

provided Western Australia with arrangements for merits review which are
at least as satisfactory as in any other jurisdiction, being comparable with
those which exist in Victoria and federally. If and when the Judicial Review
Bill is enacted, the arrangements for judicial review in Western Australia
will be at least as advanced as in any other comparable jurisdiction,
including notably Queensland and Tasmania. And Western Australia will
be the only non-federal jurisdiction to have fully developed and advanced
mechanisms for both merits and judicial review. Further, its judicial review
legislation will in many respects copy, but in some respects advance from,
the Commonwealth legislation.
Although the final terms of the proposed Bill have not yet been publicly
exposed, assuming the Bill proceeds largely in the form of its current draft,
it will represent a significant improvement in the avenues available to the
73
Re Carey; Ex parte Exclude Holdings Pty Ltd & Ors [2006] WASCA 219.
74
(Of which this author was a member.)
75
(1995) 184 CLR 163.
78
people of Western Australia to obtain reasons for and judicial review of

79
An endnote: the beginnings
Margaret Harrison-Smith*
I am pleased to have the opportunity to contribute to this special 30th

anniversary issue of Admin Review. In doing so, I like to think I am
representing in some part the dozen or so former directors and over 70
other officers who in the past 30 years have constituted the Administrative
Review Council Secretariat and contributed to the work of the Council. As
I am sure many former Secretariat officers would agree, to work with the
Council is a singular and fulfilling experience that provides a unique
perspective on the workings of government.
The Administrative Review Committee

Celebration of the Council’s 30th anniversary would not be complete
without some consideration of the Council’s beginnings. These lie, as is
noted elsewhere in this special issue, with the Administrative Review
Committee, established by the Gorton Government in 1968. Chaired by the
Hon. Mr Justice John Kerr CMG, the Committee is often referred to as the
Kerr Committee. (It is very pleasing to have as a contributor to this special
issue another member of the Committee, Sir Anthony Mason, who was at
that time a judge of the Supreme Court of New South Wales.)
The Government provided the Committee with the following terms of

reference:
 to consider what jurisdiction (if any) to review

administrative decisions made under Commonwealth law
should be exercised by the proposed Commonwealth
Superior Court, by some other Federal Court or by some
other Court exercising federal jurisdiction 1
 to consider the procedures whereby review is to be

obtained
*
Margaret Harrison-Smith is Executive Director of the Administrative Review
Council. She thanks Attorney-General’s Department Graduate
Robert Gascoigne for his assistance in the preparation of this article.
1
As amended by the Attorney-General in 1970.
80
 to consider the desirability of introducing legislation

along the lines of the United Kingdom Tribunal and Inquiries
Act 1958
 to report to the Government the conclusions of the

Committee.2
The inspiration for the Administrative Review Council came from the
Committee’s study of the United Kingdom’s Tribunals and Inquiries Act.
That Act established a Council on Tribunals for the following purpose:
To keep under review and to report on the constitution and

working of certain scheduled tribunals; to consider and report on
such particular matters as may be referred to the Council under
the Act with respect to tribunals other than courts whether or not
specified in the schedule; and to consider and report on such
matters as may be referred or as the Council may determine to be
of special importance, with respect to administrative procedures
involving or which may involve the holding by or on behalf of a
Minister of a statutory inquiry.
The Kerr Committee recommended the introduction of a permanent

Administrative Review Council with functions similar to those of the UK
Council. In view of its proposal to establish a general administrative
review tribunal, the Committee also recommended other important
permanent functions for the Australian Council, relating to the decisions
that should be subject to administrative review, either in a specialist
tribunal or in the proposed general review tribunal.3
The Committee recommended the establishment of the Council as the first

step in implementing its proposed reforms.4
The legislative beginnings

The legislative birth of the Administrative Review Council was not as
smooth as the workings of the Kerr Committee, although ultimately it was
impressively bipartisan.
On 6 March 1975 the then Attorney-General, the Hon. Keppel Enderby MP,
introduced the Administrative Appeals Tribunal Bill 1975 (Cth) into the
2
Administrative Review Committee 1971, Report, Parliamentary Paper no. 44,
Commonwealth of Australia, Canberra, p 1.
3
Kerr Committee report, pp 81, 83.
4
ibid., p 103.
81
House of Representatives. The Bill did not, however, establish the

Administrative Review Council. Rather, in his second reading speech the
Attorney-General announced that he hoped to ‘consult with other
departments on the basis of the detailed recommendations in the Bland
Committee report, to determine what matters should be the subject of
appeals to the Tribunal’.5
Debate on the Bill was deferred, to resume on 14 May 1975. At that time, a
relatively new member of Parliament, John Howard MP, who had
delivered his first speech some seven months before, proposed a number of
amendments to the Bill on behalf of the Opposition. Among these was an
amendment to establish the Administrative Review Council. Introduced by
Mr Howard on 22 May 1975, the amendment called specifically for the
creation of a council consisting of ‘The President, the Ombudsman, the
Chairman of the Australian Law Reform Commission, a senior
administrative official and a Parliamentary draftsman’.6
During committee debate on the Bill, Robert Ellicott MP supported

Mr Howard’s proposal for the creation of the Council, arguing also for a
‘small number of research staff to service [the Council]’.7 As Solicitor-
General, Mr Ellicott had been a member of the Administrative Review
Committee. He later became Commonwealth Attorney-General.
Attorney-General Enderby accepted the need for the Council but

questioned whether the proposed amendment would permit appointment
to the Council of suitably qualified academics.8 The Government
accordingly proposed a further amendment to the Bill to enable the
admission of academic members.
The Bill received Royal Assent on 28 August 1975, and the Act commenced
on 1 July 1976. The Council had its first meeting on 15 December 1976. The
5
Commonwealth Parliamentary Debates (House), 6 March 1975, p 1188. The final
report of the Committee on Administrative Discretions, named the Bland
Committee after its chairperson, Sir Henry Bland. The report contained a
thorough analysis of the existing framework for administrative review. Among
other things, it identified the discretionary powers that should be subject to
tribunal review. (Bland, Sir Henry 1973, Report of the Committee on
Administrative Discretions, Parl. Paper 316/1973, Australian Government
Publishing Service, Canberra.)
6
ibid., 22 May 1975, p 2743.
7
ibid.
8
ibid., p 2744.
82
passage of time is reflected in the fact that the Council will have its 225th
meeting later this year.
Further amendments to the functions of the Council

As noted by the Council’s President, Jillian Segal, and Professor Robin
Creyke, in their contribution to this anniversary issue, in 1997 there was a
Senate inquiry into the continuing utility of the Administrative Review
Council.9 The only significant legislative amendments to the functions
envisaged for the Council by the Kerr Committee and implemented in 1975
by the Parliament followed on from that inquiry. Consistent with the
findings of the inquiry, the changes were expansive rather than limiting of
the Council’s powers.
The amendments were included in the Administrative Appeals Tribunal Act

1975 (Cth) by the Law and Justice Legislation Amendment Act 1999 (Cth). They
confirmed the Council’s role of keeping administrative law under review.
They also clarified the Council’s role of inquiring into and consulting on
the adequacy of the procedures used by primary decision makers, as well
as tribunals and other bodies engaged in the review of administrative
decisions.
As noted elsewhere in this issue, in recent years the Council has used the
gamut of its powers to provide expert advice on many aspects of
Australia’s administrative system.
Full circle
To conclude, I return to the beginnings, to the influence of the UK Council
on Tribunals on the establishment—if not the shape and constitution—of
the Administrative Review Council. As Lord Newton suggests in his
contribution to this issue, there are longstanding historical links between
the two Councils.
History has come full circle. In May 2000 the British Government
commissioned an independent review of the tribunals system, chaired by
Sir Andrew Leggatt, to consider ‘the administrative justice system as a
whole’. The report, Tribunals for Users, was submitted to the Lord
Chancellor in March 2001.
9
Senate Legal and Constitutional Legislation Committee 1997, Report on the Role
and Function of the Administrative Review Council, SLCLC, Canberra.
83
The Leggatt report made a number of recommendations, most of them

directed at improving the services tribunal users receive. As Lord Newton
notes in his contribution, Sir Andrew Leggatt saw the UK Council as
central to British administrative law, recommending that it be given a
higher profile and a broader remit. His report expressed the hope that, in
the longer term, the Council:
like the Administrative Review Council in Australia … should be

made responsible for upholding the system of administrative
justice and keeping it under review, for monitoring
developments in administrative law, and for making
recommendations to the Lord Chancellor about improvements
that might be made to the system.10
The UK Department for Constitutional Affairs subsequently consulted

widely on the report, in July 2004 releasing a White Paper entitled
Transforming Public Services: complaints, redress and tribunals. The
Department agreed with the view expressed in the Leggatt report
concerning the Council on Tribunals.11 Provisions to reconstitute the
Council on Tribunals as the Administrative Justice and Tribunals Council
are included in clause 44 of the Tribunals, Courts and Enforcement Bill
2006. The Council on Tribunals will be abolished under clause 45 of the
Bill.12
Concluding comment
This historical analysis confirms that the Administrative Review Council
was established to provide strong and independent advice to government
on the Australian administrative system. The perception of the Council
reflected in the excerpt from the Leggatt report that I include above
suggests that, so far, the Council has been doing so successfully.
I am confident that future officers of the Council’s Secretariat will continue

to be rewarded with the breadth of experience and the fulfilment enjoyed
by their predecessors during the last 30 years.
10
Leggatt, Sir A 2001, Tribunals for Users: one system, one service—report of the
Review of Tribunals, <http://www.tribunals-review.org.uk/leggatthtm/leg-
00.htm>, para 178.
11
Department for Constitutional Affairs 2004, Transforming Public Services:
complaints, redress and tribunals, White Paper, Cm 6243, HMSO, London,
para 11.5.
12
At the time of writing, the Bill had been passed by the House of Lords and was
before the House of Commons.
84
Review and status of Council reports
The Administrative Review Council determined that on the occasion of its

30th anniversary it would provide a historical review of Council reports.
Report no. 47, The Scope of Judicial Review, 2006

The Council’s report on the scope of judicial review was transmitted to the
Government on 3 May 2006 and tabled in the Parliament on 9 May 2006.
The report addresses the constitutional and policy considerations relevant

to the scope of judicial review and, in particular, notes the essential role of
judicial review in maintaining the rule of law and safeguarding individual
rights. The report considers when it is appropriate to seek to reduce the
scope or practical availability of judicial review, and the Council’s
conclusions are summarised in a succinct framework of indicative
principles.
The report begins by outlining the constitutional and legislative basis for
judicial review in the Commonwealth administrative law system, the
grounds for seeking judicial review and the rationale for providing judicial
review. The public law values that underlie judicial review are the rule of
law, safeguarding of individual rights, accountability, and consistency and
certainty in the administration of legislation.
The report then goes on to consider a number of justifications for limiting

the scope of judicial review that were put forward during the Council’s
project or have been used in the past to justify reducing the scope of
judicial review. Examples are avoiding fragmentation of criminal
proceedings, urgent decisions, decisions involving matters of policy,
decisions where there is a need for certainty, and where review is sought
on the grounds of unreasonableness. The report considers whether and in
what circumstances these reasons justify removing or limiting the scope of
judicial review.
In general, the Council considers that the rule of law and the provision of
remedies for redressing unlawful government action or inaction are
paramount values in Australian society and under the Australian
Constitution. A strong justification is needed to reduce judicial review in
such a way as to allow conduct to proceed without the availability of any
85
kind of remedy. The Council recognises, however, that in some

circumstances judicial review may be limited, since in some circumstances
the public law values that underlie judicial review can be advanced by
other means and at times other important legal and governmental values
may conflict with the values underlying judicial review.
The conclusions summarised in the framework of indicative principles

provide practical guidance for governments, policy officers and legislative
drafters in the consideration of review mechanisms to be incorporated in
legislation. The framework is intended to complement another of the
Council’s publications, What Decisions are Subject to Merits Review?
Government response
The Council notes that this report does not contain any formal
recommendations; rather, it presents a framework of indicative principles
for practical guidance.
Report no. 46, Automated Assistance in Administrative Decision

Making, 2004
The Council’s report on automated assistance in administrative decision
making was transmitted to the Government on 12 November 2004 and
tabled in the Parliament on 7 December 2004.
The report was preceded by an issues paper. In addition, a forum was held
on 12 November 2003 to further consider the uses of expert systems. The
forum was attended by approximately 60 people from a broad range of
interest groups, including government, business and community
organisations. Although the primary focus of the Council’s issues paper
was rules-based systems, in the report the Council broadened its focus to
other forms of expert systems used in administrative decision making.
Setting out best-practice guidelines for the use of expert computer systems
by government agencies in administrative decision making, the report
focused on the sorts of administrative decisions best suited to the use of
expert computer systems, the advantages and disadvantages of using
expert systems in administrative decision making, best-practice principles
for developing and operating expert systems in administrative decision
making, and the need for expert systems used in administrative decision
making to comply with the administrative law values of lawfulness,
fairness, rationality, transparency and efficiency.
86
The report identified 27 best-practice principles the Council considered

would ensure that decision making done with the assistance of expert
systems would be consistent with administrative law values.
Government response
During 2005–06 the advisory panel the Council proposed was established
as the Automated Assistance in Administrative Decision Making Working
Group. This Group developed the Automated Assistance in Administrative
Decision Making Better Practice Guide in February 2007, to assist Australian
government agencies in the successful deployment of automated systems.
Report no. 45, Report on the Council of Australian Tribunals,

2002
The Council’s report on the Council of Australian Tribunals was
transmitted to the Government on 29 October 2002 and tabled in the
Parliament on 10 December 2002.
On 12 June 2001 the Council had written to the Attorney-General to

propose a model for a new association, the Council of Australian Tribunals,
or COAT. In progressing the proposal, the Council consulted extensively
and convened a meeting of Commonwealth, state and territory tribunal
heads on 3 October 2001. The report contains the original constitution of
COAT, the Memorandum of Objects of State and Territory Chapters, and
the minutes of the inaugural COAT meeting, held on 6 June 2002.
The Council’s proposal was considered at the Australian Institute of

Judicial Administration Tribunals Conference in Melbourne on 6 June 2002,
and it was decided to expand the organisation to include New Zealand
tribunals. The Council as established is thus known as the Council of
Australasian Tribunals, or COAT.
Report no. 44, Internal Review of Agency Decision Making, 2000

The Council’s report on agency decision making was transmitted to the
Government on 29 November 2000 and tabled in the Parliament on
28 March 2001.
The Council examined aspects of internal review (merits review within an

agency) with a view to offering practical assistance to Commonwealth
agencies. Because agencies differ greatly in terms of their size and nature
87
and the number and sorts of decisions they review internally, the report
did not recommend a single model; rather, it provided a framework for
agencies to design new internal review regimes and review existing
practices. There were no recommendations to government.
The report put forward a framework to assist agencies in reviewing

existing internal review practices. It provided guidance on matters such as
which decisions should be subject to review, the independence of internal
review officers, the accessibility of internal review regimes, the process and
practice of internal review, and management and support for internal
review systems. The standards in the report were formulated on the basis
of research and analysis carried out during the project.
The final chapter of the report was a best-practice guide and was also
published separately as a short booklet, Internal Review of Agency Decision
Making: a best-practice guide.
Report no. 43, Administrative Review of Patents Decisions, 1998

The Council’s report on review of patents decisions was transmitted to the
Government on 16 October 1998 and tabled in the Parliament on
9 February 1999.
The report was preceded by an issues paper. The central question

canvassed in the report was the appropriateness of the arrangements for
review of decisions by the Commissioner of Patents. Some decisions were
reviewable by the Administrative Appeals Tribunal; others by the Federal
Court; and some were not the subject of review at all.
This report made recommendations that can be summarised as favouring

merits review by the Administrative Appeals Tribunal for most of the
decisions of the Patents Commissioner.
Report no. 42, The Contracting Out of Government Services,

1998
The Council’s report on the contracting out of government services was
transmitted to the Government on 25 August 1998 and tabled in the
Parliament on 2 November 1998.
The report, which was preceded by an issues paper and a discussion paper,
noted that when government provided a service directly to the public a
88
recipient of that service who was dissatisfied with some aspect of its
delivery might have one or more administrative law remedies available.
Among those remedies might have been the right to information under the
freedom of information legislation, the right to complain to the
Ombudsman, and the right to have a decision reviewed by the Federal
Court or a tribunal. When that service was contracted out to the private
sector, however, service recipients’ access to administrative law remedies
could be lost in the process.
The report considered how existing systems of governmental, financial and

parliamentary accountability could be modified to take account of the
increasing use of private contractors to perform activities and provide
services on behalf of government. It discussed the difficulties some
recipients of contracted-out services can have in seeking remedies for
defects in those services—for example, because the recipient is ill or frail,
has language difficulties or has limited mobility.
The Council made recommendations relating to the preparation of

contracts and the application of both private and administrative law in
situations where services are provided by private contractors.
Government response
The report contains a number of recommendations that fall within the

portfolio responsibility of three Commonwealth departments: the
Department of Finance and Administration, the Department of the Prime
Minister and Cabinet, and the Attorney-General’s Department. Further,
several recommendations relate to matters that have also been the subject
of consideration by other bodies—in particular, the Joint Committee of
Public Accounts and Audit, including in its report Contract Management in
the Australian Public Service.1
The Council understands that the Government is not in a position to settle

its response to the recommendations made in Report no. 42 until it has also
settled its response to overlapping recommendations made by other bodies
and that no time frame for release of a response has been provided.
Amendments to the Ombudsman Act 1976, passed by Parliament in

November 2005, enable the Ombudsman to investigate complaints about
government contractors providing goods and services to the public on
behalf of a government agency. The Act now provides that action taken by
1
Report no. 379, October 2000.
89
Australian government contractors and subcontractors in the exercise of a

power or the performance of a function for or on behalf of an agency under
a contract with that agency is taken for the purposes of the Ombudsman
Act to be action by the agency.
Legislation to create a separate office of the Postal Industry Ombudsman

within the Office of the Commonwealth Ombudsman was passed by
Parliament on 29 March 2006; the office commenced operations in October
2006. The jurisdiction of the Postal Industry Ombudsman extends to
private sector postal operators who register to participate in the scheme.
Report no. 41, Appeals from the Administrative Appeals Tribunal

to the Federal Court, 1997
The Council’s report on appeals from the Administrative Appeals Tribunal
to the Federal Court was transmitted to the Government on 29 September
1997 and tabled in the Parliament on 3 December 1997.
The report, which was preceded by a discussion paper, noted that appeals
from the Administrative Appeals Tribunal to the Federal Court were
limited to appeals on a ‘question of law’, within the meaning of s 44 of the
Administrative Appeals Tribunal Act 1975. In its report the Council
recommended that the scope of review under s 44 remain unchanged. It
also recommended, however, that the Federal Court’s powers be expanded
slightly, to give it discretion to receive evidence and to make findings of
fact where there had been an error of law—provided the Court’s findings
were not inconsistent with those of the Tribunal.
Government response
The Administrative Appeals Tribunal Amendment Act 2005 includes items

enabling the Federal Court to make findings of fact when hearing appeals
from the Tribunal and to receive evidence for this purpose. The Court’s
findings must be not inconsistent with the findings of fact made by the
Tribunal, other than findings of the Tribunal that were made as the result
of an error of law. The Act also confers these powers on the Federal
Magistrates Court in matters that have been transferred to it from the
Federal Court.
90
Report no. 40, Open Government: a review of the federal

Freedom of Information Act 1982, 1995
The Council’s report on the Freedom of Information Act was transmitted to
the Government in early 1996 and tabled in the Parliament on 24 January
1996.
was prepared in collaboration with the Australian Law Reform
Commission and makes recommendations designed to improve the
public’s access to government-held information. The Council was
concerned to ensure the Act was operating to give full effect to the
Australian people’s right of access to government-held information. In
particular, recommendations were made to ensure that the Act was
interpreted in a way that gives proper effect to its objectives.
The report contained 106 recommendations, including a recommendation

to establish a Freedom of Information Commissioner to monitor the
administration of the Freedom of Information Act. Other recommendations
concern application of the exemption provisions of the Act, clarifying the
grounds on which access to a document can reasonably be denied, and
providing guidance on how to apply the public interest considerations.
Government response
On 14 March 2006 the Commonwealth Ombudsman issued Scrutinising

Government: administration of the Freedom of Information Act 1981 in
Australian government agencies, the report of an own-motion investigation
that had been initiated in the interest of focusing attention on good practice
and areas requiring improvement. The Ombudsman found that there was
an uneven culture of support for freedom of information among Australian
government agencies and that the Freedom of Information Act worked
well in facilitating public access to personal information but not so well in
providing access to policy-related information. The report referred
explicitly to the Administrative Review Council – Australian Law Reform
Commission report and supported the recommendation for the
establishment of a statutory Freedom of Information Commissioner.
91
Report no. 39, Better Decisions: review of Commonwealth

merits review tribunals, 1995
The Council’s report on merits review tribunals was transmitted to the
Government on 14 September 1995 and tabled in the Parliament on
28 September 1995.
The report, which was preceded by a discussion paper and a

supplementary discussion paper, makes recommendations for improving
people’s awareness of their review rights and establishing simple and
accessible review tribunal processes, including access to interpretation
services. There were 102 recommendations. The first 86 deal with matters
of general application to all tribunals, regardless of the structure of the
review tribunal system; they cover such matters as the objectives of the
merits review system, review tribunal processes, tribunal membership,
access, information and awareness, and administration and management.
The last 16 recommendations concern the structure of the review tribunal

system and the relationship between its constituent parts. They include a
recommendation for the establishment of an integrated review tribunal
body—the Administrative Review Tribunal.
Government response
The Government introduced the Administrative Review Tribunal Bill on

28 June 2000 and the Administrative Review Tribunal (Consequential and
Transitional Provisions) Bill on 12 October 2000. The former Bill provided
for an independent multi-divisional merits review tribunal replacing four
merits review tribunals—the Administrative Appeals Tribunal, the Social
Security Appeals Tribunal, the Migration Review Tribunal and the Refugee
Review Tribunal.
The Senate rejected both Bills on 26 February 2001, and the Government
stated that it did not intend to reintroduce the Bills during the life of that
Parliament. Instead, the Government committed itself to reforming the
individual tribunals in order to achieve legislative and administrative
efficiencies.
The Administrative Appeals Tribunal Amendment Act 2005 commenced on

16 May 2005. The Act includes amendments to allow for more efficient
conduct of reviews—such as enabling the President of the Tribunal to
authorise ordinary members to exercise powers currently conferred only
on presidential and/or senior members, removing restrictions contained in
92
the Administrative Appeals Tribunal Act and other legislation on how the
Tribunal is to be constituted for the purposes of a particular hearing, and
expanding the range of alternative dispute resolution processes available to
the Tribunal.
Administrative efficiencies have been achieved through the co-location of

the Migration and Refugee Review Tribunals in Sydney and Melbourne. It
is noted here that, for the first time, in 2005–06 these Tribunals published a
joint annual report.
Report no. 38, Government Business Enterprises and

Commonwealth Administrative Law, 1995
The Council’s report on government business enterprises and
Commonwealth administrative law was transmitted to the Government on
23 February 1995 and tabled in the Parliament on 30 March 1995.
Rather than setting out specific recommendations, the report, which was
preceded by a discussion paper, set out general principles to assist the
Government in determining how the Commonwealth’s administrative law
package should apply to government business enterprises. The report set
out:
 criteria for identifying a GBE—for the purpose of applying

Commonwealth administrative law statutes to GBEs
 the current application of Commonwealth administrative law

statutes to GBEs
 principles for determining the application of the administrative

law package to GBEs.
The Council considered that Commonwealth administrative law statutes

should ordinarily apply to bodies that are government controlled,
including GBEs. It also considered that, in relation to their commercial
activities, undertaken in a market where there is real competition, GBEs
should be exempt from the operation of those statutes.
93
Report no. 37, Administrative Review and Funding Decisions: a

case study of community services programs, 1994
The Council’s case study report was transmitted to the Government on
8 July 1994 and tabled in the Parliament on 20 September 1994.
The report, which was preceded by an issues paper, made

37 recommendations for improving access to review of decisions made by
Commonwealth-funded service providers. The various programs and
funding arrangements were divided into those that the Commonwealth
funds—individuals and direct service provision programs and funded
service provider programs—and Commonwealth–state arrangements. The
Council recognised that, because of the different funding mechanisms and
the different parties involved in the various programs administered by
Commonwealth departments, the nature of the appropriate review
mechanisms might differ. The Council examined the most suitable form of
review for the different types of programs and sought to draw out general
review principles.
Report no. 36, Environmental Decisions and the Administrative

Appeals Tribunal, 1994
The Council’s report on environmental decisions and the Administrative
Appeals Tribunal was transmitted to the Government on 15 June 1994 and
tabled in the Parliament on 20 September 1994.
In the report, which was preceded by a discussion paper, the Council made
nine recommendations for reform. They were not as broad in scope as the
preliminary views expressed in the discussion paper. Among the reasons
for this were the views expressed during the consultation process and the
intervening reform of the Administrative Appeals Tribunal’s practices and
procedures. That reform had occurred as part of implementation of the
outcomes a review of the AAT, which did much to prevent the problems
that had previously been encountered in AAT proceedings.
The Council’s recommendations were related to the general nature and

structure of AAT review of environmental decisions and were principally
targeted at reducing the potential for cost and delay in AAT proceedings.
The Council considered it important that merits review of environmental

decisions:
 provide review of all aspects of substantive decisions
94
 be structured so that review is able to be carried out in the most

timely and cost-effective manner
 not repeat public consultation and not intervene in the primary

decision-making process while that process is ongoing.
The proposed reform of the nature of AAT review of environmental

decisions had two aspects:
 defining the scope of AAT review of environmental decisions
 providing for special AAT powers and procedures for

environmental matters, so that the cost and length of AAT review of
environmental decisions are minimised.
Report no. 35, Rule Making by Commonwealth Agencies, 1992

The Council’s report on rule making by Commonwealth agencies was
transmitted to the Government on 26 March 1992 and tabled in the
Parliament on 6 May 1992.
The report, which was preceded by an issues paper, provided guidance on

what matters were appropriate for inclusion in Acts and those that should
be included in delegated legislation. The Council made
31 recommendations concerning procedures that could be applied in
respect of instruments that were of a legislative character. The main
elements of the recommendations related to:
 better guidance on matters that are appropriate for inclusion in

Acts and those that should be included in delegated legislation
 improved practices to ensure high-quality drafting for all

Commonwealth rules and mandatory consultation with the
community before the making of important rules
 improved procedures for parliamentary scrutiny and control,

applying to all rules, and the sunsetting of rules on a 10-year, rotating
basis
 the establishment of a legislative instruments register in which all

rules should be published, with rules being unenforceable if not
published in this way
95
 special adaptations of those general procedures for rules of court

and rules made under intergovernmental schemes for nationally
uniform regulations.
Government response
The Legislative Instruments Act 2003 received Royal Assent on 17 December

2003 and commenced operation on 1 January 2005. The Act represented the
fulfilment of the fourth attempt by successive governments to implement
the substance of the Council’s report after Bills introduced in 1994, 1996
and 1998. It incorporates most of the main recommendations in the
Council’s report, with the creation of an authoritative legislative
instruments register—the Federal Register of Legislative Instruments—that
is accessible to the public electronically and the sunsetting of most
legislative instruments after 10 years.
In accordance with s 59 of the Act, the operation of the Act will be

reviewed in early 2008.
Report no. 34, Access to Administrative Review by Members of

Australia’s Ethnic Communities, 1991
The Council’s report on ethnic communities’ access to administrative
review was transmitted to the Government on 14 July 1991 and tabled in
the Parliament on 6 May 1992.
In the report the Council made recommendations aimed at ensuring that

people—particularly people of non–English speaking background—have
more effective access to review of decisions made by Commonwealth
agencies. The results of a survey conducted for the purposes of the report
showed widespread ignorance of the existence of administrative review
agencies and a limited understanding of the concept of administrative
review and the fact that a person may complain about, or appeal against, a
government decision. A subsequent survey showed that the aims of
intervention activities carried out in order to educate this sector of the
Australian community had been substantially met.
Report no. 33, Review of the Administrative Decisions (Judicial

Review) Act: statements of reasons for decisions, 1991
The Council’s report on its review of the Administrative Decisions (Judicial
Review) Act and the need for statements of reasons was transmitted to the
96
Government on 14 February 1991 and tabled in the Parliament on 20 June

1991.
The report, which was preceded by a discussion paper, contained

26 recommendations. Consistent with the view that the requirements of
justice can be met only by ensuring that in every case where judicial review
is available under the Act there is also an entitlement to reasons, the
Council recommended that Schedule 2 (which exempts classes of decisions
set out in the schedule from the requirement to give reasons) be repealed.
Acknowledging, however, the need to prevent disclosure of information

that should not in the public interest be disclosed in statements of reasons
for decisions, the Council made recommendations aimed at bolstering the
provisions of s 13A of the Act. It also acknowledged that there could be
compelling reasons why a class of decisions is not amenable to review
under the Act and identified classes of decisions fitting this category. The
Council recommended that such classes of decisions be excluded from the
scope of the Act as a whole.
Report no. 32, Review of the Administrative Decisions (Judicial

Review) Act: the ambit of the Act, 1989
The Council’s report on the ambit of the Administrative Decisions (Judicial
Review) Act was transmitted to the Government on 17 March 1989 and
tabled in the Parliament on 8 June 1989.
The report, which was preceded by a discussion paper, contained

17 recommendations, including recommendations that the ambit of the Act
be extended to certain non-statutory decisions made by officers of the
Commonwealth, that many decisions referred to in Schedule 1 to the Act
(concerning exclusions from the Act) be repealed, and that decisions of
magistrates in committal proceedings be included in that schedule.
The Council also recommended that the Federal Court have a discretion to
refuse relief or grant an application under the Act if it was satisfied that to
do so would be in the interests of justice or if it was satisfied that the
decision under review, or conduct engaged in for the making of that
decision, was not justiciable.
97
Report no. 31, Review of Decisions under Industry Research

and Development Legislation, 1988
The Council’s report on decisions made under industry research and
development legislation was transmitted to the Government in November
1988 and tabled in the Parliament on 13 December 1988.
The report, which was preceded by a discussion paper, examined

discretionary powers of the Industry Research and Development Board
under the Industry Research and Development Act 1986 and discretionary
powers of the Management and Investment Companies Licensing Board
under the Management and Investment Companies Act 1983 and the Income
Tax Assessment Act 1936. The Council made 14 recommendations, most of
which are directed at particular decisions being made subject to review by
the Administrative Appeals Tribunal.
Report no. 30, Access to Administrative Review: provision of

legal and financial assistance in administrative law matters,
1988
The Council’s report on provision of legal and financial assistance was
transmitted to the Government on 2 May 1988 and tabled in the Parliament
on 11 October 1988.
In the report the Council made seven recommendations, covering the

following areas:
 the operation of s 69 of the Administrative Appeals Tribunal Act as

a special-case provider of assistance
 notification and advice about legal and financial assistance

schemes
 the initiation of applications by state or territory legal aid

authorities
 provision of financial assistance other than legal assistance
 revision of guidelines relating to assistance in public-interest and

test cases
 consistency in eligibility requirements for assistance
98
 consideration of the recommendations.
Report no. 29, Constitution of the Administrative Appeals

Tribunal, 1987
The Council’s report on the constitution of the Administrative Appeals
Tribunal was transmitted to the Government on 10 September 1987 and
tabled in the Parliament on 9 December 1987.
The report, which was preceded by an issues paper, dealt with five
principal matters and contained recommendations for reform in the
following areas:
 the number of members appropriate for constituting the

Administrative Appeals Tribunal for particular cases
 the appropriate expertise and experience of Tribunal members in

determining particular cases
 the divisional structure of the Tribunal
 rules in legislation other than the Administrative Appeals Tribunal

Act 1975 that specify the way the Tribunal is to be constituted to hear
cases under that legislation
 how the contribution of all members to the work of the Tribunal

can be made more effective.
Report no. 28, Review of Customs and Excise Decisions: stage

three—anti dumping and countervailing duty decisions,
1987
The Council’s stage three report on its review of customs and excise
decisions was transmitted to the Government on 6 February 1987 and
tabled in the Parliament on 3 June 1987.
The report, which was preceded by a discussion paper, contained eight

recommendations:
 that specified duty decisions be subject to review on the merits
 that the issue of ministerial certificates to exclude review on the

merits be open in specified situations
99
 that specified sections of the anti-dumping legislation be repealed
 that a decision by the Minister in respect of an undertaking not be

subject to merits review
 that specified preliminary decisions be reviewable only on the

merits, in the context of the review of the final decision that subsumes
them
 that facultative, transitional and internal administrative decisions

not be subject to merits review
 that decisions relating to the imposition, or non-imposition, of

securities in respect of duties payable not be subject to merits review
 that anti-dumping and countervailing duty decisions

recommended for review on the merits be reviewable by the
Administrative Appeals Tribunal.
Report no. 27, Access to Administrative Review: stage one—

notification of decisions and rights of review, 1986
The Council’s report on access to administrative review was transmitted to
the Government on 11 September 1986 and tabled in the Parliament on
3 June 1987.
The report, which set out the Council’s views on notification of

administrative decisions and rights of review in respect of those decisions,
contained five recommendations, the fifth being for a code of practice for
administrators in relation to notification of decisions and rights of review.
The Council recommended that the code be endorsed by the Government
and that it be followed by all government agencies. The code identified the
persons who ought to be notified of decisions and of rights of review
attaching to those decisions. It also laid down principles concerning:
 the form of notices
 the content of notices
 the staging of notices in areas where decisions are reviewable on

their merits by a person or body before any appeal to the
Administrative Appeals Tribunal
100
 the use of plain English in notices.
Report no. 26, Review of Administrative Decisions (Judicial

Review) Act: stage one, 1986
The Council’s report on review of the Administrative Decisions (Judicial
Review) Act was transmitted to the Government on 13 August 1986 and
tabled in the Parliament on 25 November 1986.
constituted the first stage of a major examination of the operation of the
Administrative Decisions (Judicial Review) Act 1977. It provided advice in
relation to claims that the Act was being abused in some areas. The
fundamental question was whether experience of the operation of the Act
had demonstrated that, in the course of achieving its primary aims, the Act
had left public authorities open to unwarranted litigation.
The Council did not consider that increased use of the legislation generally
or under specific legislation or the mere fact of applications for an order of
review being refused indicated that the Act was being abused. It found
little evidence of the Act being used to delay or frustrate Commonwealth
administration or to gain a tactical advantage, rather than to establish a
genuine legal right or interest. The Council recommended amendments to
the Act by which the Federal Court’s powers could be extended and
clarified to enable it to stay or to refuse to grant applications for review in
appropriate cases.
Report no. 25, Review of Migration Decisions, 1985

The Council’s report on review of migration decisions was transmitted to
the Government on 24 December 1985and tabled in the Parliament on
21 August 1986.
The Council considered that there was a need for a system of external
review on the merits to be available in respect of many migration decisions.
Among the proposals for reform recommended by the Council were the
following:
 the structuring of discretionary powers in the migration area,

where appropriate, by the embodiment in legislative form of
identifiable principles and criteria
101
 the provision of outlines of reasons for decisions by primary

decision makers
 the establishment of a two-tier system of merits review,

comprising immigration adjudicators at the first level and the
Administrative Appeals Tribunal at the second level, with review by
adjudicators being a prerequisite to Tribunal review in most cases
 decisions taken personally by the Minister to be subject to review

by the Tribunal, without prior review by adjudicators.
The Council also specified the classes of decisions it considered should be

subject to review, in accordance with the proposed two-tier structure of
merits review.

four—censorship, 1985
The Council’s report on customs and excise decisions and censorship was
transmitted to the Government on 5 September 1985 and tabled in the
The report contained five recommendations, the primary ones being:
 that decisions of the Film and Censorship Board, currently subject

to review by the Cinematograph Films Board of Review, continue to be
subject to review by that Board
 that decisions taken by the Attorney-General under r 40(2) of the

Customs (Cinematograph Films) Regulations and under r 4A(2) of the
Customs (Prohibited Imports) Regulations be subject to review by the
Administrative Appeals Tribunal, subject to a power in the
Attorney-General to issue a certificate that would have the effect of
excluding review in particular cases.

two, 1985
The Council’s stage two report on its review of customs and excise
decisions was transmitted to the Government on 28 June 1985 and tabled in
the Parliament on 13 November 1985.
102
The report, which was preceded by a discussion paper, put forward the
following main recommendations:
 that the right of appeal to a court of competent jurisdiction in

disputes as to duty, which existed as an alternative to Administrative
Appeals Tribunal review, be abolished
 that the jurisdiction of the Minister for Health to review certain

decisions of the Secretary of the Department of Health be transferred to
the Administrative Appeals Tribunal
 that the procedure for payment under protest be abolished and be

replaced by a ‘notice of dispute’ procedure
 that decisions relating to an application for permission to import or

export a prohibited good be subject to review by the Administrative
Appeals Tribunal, subject to a power in the Minister to issue a
certificate that 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 be subject to review by
the Administrative Appeals Tribunal
 that most decisions of a law enforcement nature made under the

customs legislation not be subject to review by the Tribunal.
Report no. 22, The Relationship between the Ombudsman and

the Administrative Appeals Tribunal, 1985
The Council’s report on the relationship between the Ombudsman and the
Administrative Appeals Tribunal was transmitted to the Government on
2 January 1985 and tabled in the Parliament on 21 May 1985.
The report, which was preceded by a discussion paper, was divided into
three parts. The first concerned the legislative interrelationship between the
Ombudsman and the Administrative Appeals Tribunal and compared the
two bodies’ nature, functions, scope, review procedures and remedies. The
second part discussed whether it was desirable for the Ombudsman and
the Tribunal to have overlapping jurisdictions. Third, the Council
examined options for reform, with a view to improving the relationship
between the two bodies.
103
The Council made four recommendations in the report:
 that s 6(3) of the Ombudsman Act 1976 be amended so as to require

the Ombudsman to have regard to specified factors when exercising
the discretion under that subsection not to investigate
 that provision be made in the respective legislation for mutual

referral of cases, with the consent of the complainant or applicant
 that, in addition to the process in s 11 of the Ombudsman Act for

the principal officer of an agency, on the recommendation of the
Ombudsman, to refer a question to the Tribunal for an advisory
opinion, there be a power in the Ombudsman to refer a question
directly to the Tribunal for such an opinion
 that the words ‘conferred by an enactment’ be removed from

s 11(1) of the Ombudsman Act, so that action taken pursuant to a
prerogative or non-statutory power is not excluded from being the
subject of an advisory opinion of the Administrative Appeals Tribunal.
Report no. 21, The Structure and Form of Social Security

Appeals, 1984
The Council’s report on the structure and form of social security appeals
was transmitted to the Government on 12 April 1984 and tabled in the
Parliament on 3 October 1984.
In its 1980 report Social Security Appeals the Council had noted that it did
not favour a two-tier external review structure for social security appeals.
However, in the light of changes to the operation of Social Security
Appeals Tribunals and other developments, the Attorney-General and the
Minster for Social Security asked the Council to give further consideration
to whether a two-tier external review system would be appropriate.
The Council came to the conclusion that a two-tier review structure was in
fact the most appropriate review mechanism for social security appeals
and made 20 recommendations for reform. It recommended the
improvement of the existing two-tier structure of external review, to
consist of a single national tribunal—the Social Security Appeals Tribunal,
rather than the existing tribunals—with the Administrative Appeals
Tribunal providing review as the second tier.
104
The most significant improvement recommended in relation to the system

of review was that the Social Security Appeals Tribunal be given a
legislative foundation and granted determinative powers. This would
enhance the Tribunal’s actual and perceived independence, provide greater
legitimacy and permanence, and augment the Tribunal’s status and
authority. Insofar as a legislative basis might introduce an undesirably
formal element into the Tribunal’s operations, this could be dealt with by
including an objectives provision in the legislation, to emphasise that the
Tribunal was intended to provide an informal, speedy and economical
avenue for review of decisions.
Among other important recommendations pertaining to the system of

review provided by the Tribunal were that conditions apply to the
membership and constitution of the Tribunal, that various provisions be
made in relation to the powers of the Tribunal and the conduct of
proceedings, and that internal review not be a prerequisite to seeking
external review.
Minor changes were recommended to improve the system of review

provided by the Administrative Appeals Tribunal. The Council also
recommended that a national survey of the needs of social security
claimants be conducted. Additionally, it continued to support its earlier
recommendations in relation to internal review by review officers.
Two Council members dissented from a majority recommendation that

panels of the Social Security Appeals Tribunal contain a public service
officer and that Tribunal hearings generally be conducted in private.
Report no. 20, Review of Pension Decisions under Repatriation

Legislation, 1983
The Council’s report on pensions decisions under repatriation legislation
was transmitted to the Government on 16 September 1983 and tabled in the
Parliament on 16 November 1983.
The report contains 21 recommendations, the primary one being that the
repatriation jurisdiction currently vested in the Repatriation Review
Tribunal be absorbed into the Administrative Appeals Tribunal’s
jurisdiction.
105
Report no. 19, Rights of Review under the Migration Act 1958
and Related Legislation: interim report on the Constitution
of the Administrative Appeals Tribunal, 1983
The Council’s report on the Administrative Appeals Tribunal and rights of
review under the Migration Act and related legislation was transmitted to
the Government on 4 August 1983 and tabled in the Parliament on
15 September 1983.
The report set out two options for reform: to remove the prescription on
the Administrative Appeals Tribunal’s constitution or to allow the Tribunal
in its Migration Act jurisdiction to be constituted by a presidential member.
There was only one recommendation—that the second option be adopted.
The Council saw this as an immediate and short-term solution to a
pressing problem.
Report no. 18, Compensation (Commonwealth Government

Employees) Act 1971 Amendments, 1983
The Council’s report on compensation for Commonwealth government
employees was transmitted to the Government on 27 June 1983 and tabled
in the Parliament on 3 November 1983.
In its report the Council identified several problems with the operation of
the Compensation (Commonwealth Government Employees) Act 1971, one of
which was that in proceedings before the Administrative Appeals Tribunal
the Commissioner for Employees’ Compensation did not appear as
respondent. The Council felt that, in the circumstances, the benefits likely
to be derived from the direct involvement of the Commissioner
outweighed the disadvantages. The Council recommended that:
 the Act be amended to provide that the Commissioner should

determine a claim within 60 days of the lodgment of a claim
 the Commissioner be deemed to have made a determination

adverse to the claimant if a claim had not been determined on the
expiration of the prescribed time limit
 the Commissioner be the respondent in proceedings for the review

of the Commissioner’s determinations.
The Council further recommended that if the Commissioner were made

the respondent then ss 65(6), 65(7) and 65(8) of the Act, which modify the
106
Administrative Appeals Tribunal Act 1975, would be unnecessary and should

be repealed.
Report no. 17, Review of Taxation Decisions by Boards of

Review, 1983
The Council’s report on taxation decisions by boards of review was
transmitted to the Government on 6 June 1983 and tabled in the Parliament
on 15 September 1983.
The report was preceded by a discussion paper. The main recommendation

was that the existing review jurisdiction of the boards of review be vested
in the Administrative Appeals Tribunal. Other recommendations flowed
from this main recommendation:
 that the legislative provision permitting a taxpayer to ask the

Commissioner of Taxation to refer their objection to a board of review
be amended to substitute the Administrative Appeals Tribunal for the
board
 that provision be made for s 28 of the Administrative Appeals

Tribunal Act 1975 not to apply in relation to review by the Tribunal of
decisions then reviewable by boards of review
 that s 37 of the Administrative Appeals Tribunal Act be amended

in relation to taxation decisions, to provide that the Commissioner of
Taxation should lodge with the Tribunal the statement and documents
mentioned in that section at the time the case was referred to the
Tribunal
 that the Commissioner be authorised to grant, in the

Commissioner’s 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 Tribunal
 that provision be made for a taxpayer seeking a review of a

decision to be limited to the grounds stated in their objection, unless
the Tribunal otherwise orders
107
 that s 41 of the Administrative Appeals Tribunal Act not apply to

taxation decisions when the Tribunal is vested with the jurisdiction of
boards of review.
Report no. 16, Review of Decisions under the Broadcasting and

Television Act 1942, 1982
The Council’s report on decisions made under the Broadcasting and
Television Act was transmitted to the Government on 11 June 1982 and
tabled in the Parliament on 27 October 1982.
The report’s main recommendations were as follows:
 that jurisdiction be conferred on the Administrative Appeals

Tribunal to review most substantive decisions of the Australian
Broadcasting Tribunal and to review a decision of the ABT not to hold
a public inquiry or to reach a decision without first holding a public
inquiry
 that such review be available only if the leave of the AAT President
is first obtained
 that specified decisions of the Minister be subject to determinative

review by the AAT (other specified decisions of the Minister were
recommended for recommendatory review by the AAT)
 that ss 119(2) and 119(3) of the Australian Broadcasting and

Television Act be repealed.
Report no. 15, Australian Federal Police Act 1979: sections 38 &
39, 1982
The Council’s report on ss 38 and 39 of the Australian Federal Police Act
was transmitted to the Government on 11 February 1982 and tabled on
21 October 1982.
The Council recommended the adoption of Commonwealth Employment

(Retirement and Redeployment) Act 1979 provisions for the Australian Federal
Police and the reshaping of the Promotions Appeals Board. It also
recommended that there be review of decisions made under ss 38 and 39 of
the Australian Federal Police Act and that the appropriate body to conduct
such a review was the Promotions Appeals Board.
108
Report no. 14, Land Use in the A.C.T., 1981

The Council’s report on land use in the Australian Capital Territory was
transmitted to the Government on 16 November 1981 and tabled on
21 October 1982.
The report contained 12 recommendations, including:
 that jurisdiction be conferred on the Administrative Appeals

Tribunal to perform the review functions then exercised by the Design
and Siting Review Committee, the Building Review Committee and the
Valuation Review Board and those performed by the Supreme Court of
the ACT under s 28(4) of the City Area Leases Ordinance 1936
 that certain decisions under the City Area Leases Ordinance and
the Building Ordinance 1972 that were not subject to review be
reviewable by the Administrative Appeals Tribunal
 that third-party rights of review in respect of certain decisions be

available
 that decision making with respect to applications under ss 10 and

11A of the City Area Leases Ordinance remain with the Department of
Territories but that the statutory role of the National Capital
Development Commission be recognised by a statutory requirement of
consultation between the Department and the Commission.
Report no. 13, Commonwealth Employees’ Compensation

Tribunal, 1981
The Council’s report on the Commonwealth Employees’ Compensation
Tribunal was transmitted to the Government on 8 May 1981 and tabled in
the Parliament on 2 June 1981.
The report discussed subjects such as primary decision making by the

Commissioner for Employees’ Compensation, the review process,
incorporation of the Commonwealth Employees’ Compensation Tribunal
in the Administrative Appeals Tribunal and modifications to AAT
procedures. Only three recommendations were made:
 that there be a maximum 60-day time limit for the Commissioner

for Employees’ Compensation to make a decision
109
 that the Commonwealth Employees’ Compensation Tribunal be

incorporated in the Administrative Appeals Tribunal
 that the then existing alternative appeal rights to prescribed state

courts be abolished.
Report no. 12, Australian Broadcasting Tribunal Procedures,

1981
The Council’s report on Australian Broadcasting Tribunal procedures was
transmitted to the Government on 25 February 1981 and tabled in the
Parliament on 9 April 1981.
The Council made 34 recommendations in the report, including on the

initiation of inquiries by the Australian Broadcasting Tribunal, for a
uniform inquiry procedure, for public availability of documents, on
procedures for conduct of an inquiry involving hearings, on conferences
and preliminary hearings, and on standing.
Report no. 11, Student Assistance Review Tribunal, 1981

The Council’s report on the Student Assistance Review Tribunal was
transmitted to the Government on 23 January 1981 and tabled in the
Parliament on 27 August 1981.
The report contained nine recommendations, covering the following areas:
 appeals and references to the AAT being permitted in certain

circumstances
 legal representation before the Student Assistance Review Tribunal

being possible
 access to information
 withdrawal of references to the Student Assistance Review

Tribunal
 ministerial directions
 extensions of time
110
 time limits for recommendations and for the forwarding of

requests for review by authorised persons.
The Council did not recommend transfer of the Student Assistance Review
Tribunal jurisdiction to the Administrative Appeals Tribunal at that stage
but recommended changes to improve the Student Assistance Review
Tribunal’s procedures.
Report no. 10, Shipping Registration Bill, 1980

The Council’s report on the Shipping Registration Bill 1980 was transmitted
to the Government on 6 August 1980.
The Council made eight recommendations, concerning whether the

appropriate body to hear appeals should be the Administrative Appeals
Tribunal or the courts, the appropriate decisions for review, removal of the
requirement that internal review be a prerequisite for external review, and
deletion of broad exclusions of actions against the Commonwealth and its
officials. The Bill was amended following the Council’s recommendations.
It was enacted as the Shipping Registration Act 1981.
Report no. 9, Administrative Decisions (Judicial Review)

Amendment Bill 1980, 1980
The Council’s report on the Administrative Decisions (Judicial Review)
Amendment Bill was transmitted to the Government on 16 July 1980 and
tabled in the Parliament on 20 August 1980.
The Council noted in the report that some exclusions in the Bill appeared
to be inconsistent with the bases of the Council’s previous
recommendations in Report no. 1 (1978). The 1980 report contained six
recommendations, concerning regulations to delete classes of decisions
from the schedules to the Administrative Decisions (Judicial Review) Act 1977,
the ambit of clause 13A of the Bill, levels of decision making for the
proposed s 13A, and the time for giving notice in clause 13A. The Council
also recommended that the Act be reviewed after a period of operation and
highlighted the need for record keeping by departments in anticipation of
this future review of the Act.
111
Report no. 8, Social Security Appeals, 1980

The Council’s report on social security appeals was transmitted to the
Government on 27 June 1980 and tabled in the Parliament on 2 June 1981.
The report examined the review mechanism existing at the time for
decisions relating to social security payments and benefits. This involved
review officers and appeals to the Social Security Appeals Tribunal, which
had power to make recommendations but not to substitute a decision for
that of the primary decision maker. Only in very limited circumstances was
appeal to the Administrative Appeals Tribunal available.
The Council concluded that, in principle, every decision that related to the
making of a social security payment or assistance should be subject to
external review by an independent tribunal with adequate fact-finding
powers and procedures and with the authority to determine matters
conclusively. It considered that the Social Security Appeals Tribunal was
not properly constituted and did not operate satisfactorily and that a major
restructuring of the social security appeals process was necessary.
The Council argued that a two-tier structure was not necessary, since the
principle of res judicata did not apply to administrative decisions. It
recommended that the Tribunal be abolished and replaced by an improved
review officer structure within the Department of Social Security. It further
recommended that a Social Security Division be established within the
Administrative Appeals Tribunal for external review of social security
decisions.
The report also contains recommendations concerning primary decision

making and internal review of Department of Social Security decisions.
The Council provided further advice after publication of the report,
supporting the conferral on the Administrative Appeals Tribunal of
jurisdiction to review decisions arising under the Social Security Act 1947
that were based on medical grounds.
The Council also argued that a good internal review system before—but
not as a prerequisite for—external review was desirable because decisions
were often made by officers with limited experience and internal review is
fast and cost efficient and reduces the need for external review. It then
argued that, since social security had become accepted as part of
Australia’s community fabric and the effect of adverse decisions on
claimants could be serious, it was important to provide an avenue for
external review of decisions. The Administrative Appeals Tribunal was
112
well placed to take on this role, the Council said, since it would assure a
high standard of procedural fairness, authority and clarity of decision
making, it had a pool of members with broad skills and experience, and it
had proved an efficient review process.
Report no. 7, Citizenship Review and Appeals System, 1980

The Council’s report on the citizenship review and appeals system was
transmitted to the Government on 13 June 1980 and tabled in the
Parliament on 29 October 1981.
The report contained recommendations on the first part of the Council’s

examination of immigration and citizenship decisions. The Council found
that much of the legislation considered did not involve decision-making
powers calling for review rights. It recommended, however, that
jurisdiction be vested in the Administrative Appeals Tribunal in respect of
decisions under all but expressly excluded sections of the Australian
Citizenship Act 1948, decisions under certain regulations of the Australian
Citizenship Regulations, and decisions under one section of the Aliens Act
1974. It also considered that the Immigration (Guardianship of Children) Act
1946 should be referred to the Family Law Council or the Law Reform
Commission for inquiry.
Report no. 6, Entry to Cocos (Keeling) Islands and Christmas

Island, 1979
The Council’s report on entry to the Cocos (Keeling) Islands and Christmas
Island was transmitted to the Government on 2 November 1979.
The Council made identical recommendations in respect of the Cocos

(Keeling) Islands and Christmas Island. It noted that permanent residents
of Australia and Australian citizens were entitled in some situations to seek
protection, by an appeal to the Administrative Appeals Tribunal, against
orders for their deportation from Australia under the Migration Act 1958. It
recommended that, unless further examination showed that the criteria
adopted under the Migration Act were inappropriate, for the sake of
conformity the same appeal rights should be available to Australian
citizens and to foreign nationals who are permanent residents of Australia
or its territories.
The Council recommended that jurisdiction be vested in the

Administrative Appeals Tribunal in respect of certain decisions under the
113
Immigration Ordinance, that standing be restricted to Australian or

external territories’ citizens or permanent residents, and that provision be
made for internal review between lodgment of application and hearing.
Report no. 5, Defence Force Ombudsman, 1979

The Council’s report on the establishment of a Defence Force Ombudsman
was transmitted to the Government on 16 July 1979 and tabled in the
Parliament on 2 June 1981.
The Council considered whether it was appropriate for a separate Defence

Force Ombudsman to be established if its procedures and powers were to
be virtually the same as those of the Commonwealth Ombudsman. Because
of the small scale of the Defence Force Ombudsman’s operations and the
potential problems with overlapping jurisdiction, the Council
recommended the incorporation of the proposed jurisdiction in the
Commonwealth Ombudsman’s Office—but as a specially identified part of
that Office. The Council also recommended that there be a statutory office
of Deputy Ombudsman (Defence Force), exercising powers delegated by
the Defence Force Ombudsman.
Report no. 4, Administrative Appeals Tribunal Act 1975—

Amendments, 1979
The Council’s report on amendments to the Administrative Appeals
Tribunal Act was transmitted to the Government on 26 June 1979.
Although the report was not tabled, the Attorney-General stated in the
Senate on 15 November 1979 that copies of it were available on request.
Among other things, the report contained recommendations about the

following:
 the repeal and non-enactment of provisions specifying presidential

tribunals
 the constitution of an ACT Division in the Administrative Appeals

Tribunal and reorganisation of provisions relating to divisions
 removal of the limitation on the Tribunal’s power to grant stays of

decisions
 obligatory notification of appeal rights
114
 the right to request a copy of the full reasons for decisions
 time for furnishing reasons and documents
 compulsory holding of preliminary conferences
 the power to receive evidence otherwise than in the presence of the

parties
 the constitution of the Administrative Review Council itself.
Report no. 3, Review of Import Control and Customs By-law

Decisions, 1979
The Council’s report on import control and customs by-law decisions was
transmitted to the Government on 25 June 1979 and tabled in the
In the report the Council recommended that jurisdiction be vested in the

Administrative Appeals Tribunal 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.
The Council report also recommended that jurisdiction be vested in the

Industries Assistance Commission to review decisions granting or refusing
by-law entry of goods, but with the Commission having power only to
recommend a course of action.
The Council considered these recommendations to be the most efficient

and suitable way of providing external review, although it acknowledged
that implementation of the proposed system would no doubt be affected
by an evaluation of certain matters that the Council had not been able to
measure.
115
Report no. 2, Repatriation Appeals, 1979

In its report on repatriation appeals the Council expressed support for a
link between the proposed Repatriation Review Tribunal and the
Administrative Appeals Tribunal. It also expressed support for many of the
then existing proposals for reference of matters from the specialist tribunal
to the AAT. Six exceptions were identified, and the Council recommended
that the AAT be vested with jurisdiction over two additional matters not
covered by the draft proposals. The Council proposed:
 Jurisdiction should be vested in the AAT to review decisions of the

Repatriation Review Tribunal—the right of review being available to
both veterans and the Repatriation Commission.
 There was no need for the AAT to be constituted by a presidential

member in all cases.
 Legal representation before the AAT should be permitted.
 The provisions for appeals to the Federal Court from both

tribunals should be materially identical.
Recommendations were also made on the criteria and procedure for

referring cases from the Repatriation Review Tribunal to the AAT and for
the Repatriation Review Tribunal President to be eligible to sit as an AAT
member.
Report no.1, Administrative Decisions (Judicial Review) Act 1977

—exclusions under section 19, 1978
The Council’s report on exclusions under s 19 of the Administrative
Decisions (Judicial Review) Act was transmitted to the Government on
13 October 1978 and tabled in the Parliament on 21 May 1980.
In the report the Council identified particular classes of decisions for

exclusion from the Act. The Council was guided in its work by a statement
of general principles, which had been developed with the understanding
that the Act did not introduce a new form of administrative review but
simply modified existing judicial review. The Act thus applied widely, and
the Council adopted the view that ‘cogent reasons are required to justify
excluding a class of decisions from the beneficial operation of the Act’.
116
Many of the Council’s recommendations were incorporated in the

Administrative Decisions (Judicial Review) Amendment Bill 1980.
Bahan Bacaan : BERNA SUDJANA ERMAYA, SH., M.H.

13 September 2007
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A D M I N

Admin Review is the administrative law bulletin

Administrative Review Council No. 58

Punya Oe`Weet /IX/2007

The Administrative Review Council: future challenges

The 30th anniversary: a congratulatory note

The 30th anniversary: a judicial perspective

The 30th anniversary: future challenges for administrative review

The 30th anniversary: an administrative perspective

The 30th anniversary: an international perspective

The 30th anniversary: challenges for administrative law—a consumer

The 30th anniversary: judicial review in Western Australia

An endnote: the beginnings

Review and status of Council reports..............................................................................79

The Administrative Review Council: future challenges

Jillian Segal AM and Professor Robin Creyke*

The purpose of this introductory article is to provide an overview of the

proposed system of administrative review’.4 Among these roles were being

To this end, the Council’s membership includes key players in the

This view of the Council’s effectiveness is flatteringly echoed by all

My assessment of the ARC is equally favourable. The Council’s

It has continued to monitor the system as a whole, to identify

This view—that administrative law was no longer of frontline interest for

Indeed, among the specific recommendations of the Senate Committee

As Lord Newton of Braintree, Chairman of the UK Council on Tribunals,

In addition to its role in providing advice and guidance to government, as

The importance of this work is consistent with the current government

used by a range of agencies. The Council is also working on a series of

Additionally, the Council has sought to anticipate the needs of the

In producing such a broad range of publications, the Council has sought to

The advantage of expert systems for administrative decision making is that

The project culminated in Automated Assistance in Administrative Decision

The report contains 27 best-practice principles directed at ensuring that

In addition to the 27 principles, the report recommended the creation of an

The Group has 16 members, drawn from Australian government agencies

Government Information Office in hosting the Advisory Working Group

Among other contexts highlighted by contributors to this issue are the

The pressure from business to minimise the ‘deadweight of regulation’35

The Council is also working on a project dealing with the coercive

Dr Shergold’s identification of the personalising or focusing of government

As Justice Brennan, the first President of the Administrative Review

A monitor of the system is essential and the Council will fulfil

As the ‘monitor’ of the system of administrative law in this country,

The 30th anniversary: a congratulatory note

The Hon. Philip Ruddock MP

I would like to congratulate the Administrative Review Council on its 30th

Throughout its history, the Council’s membership has included respected

It is an impressive record, and there are no signs of slowing down. In fact,

The ARC’s future

in the future from five key perspectives, including an international update

As you may know, the Government is committed to reducing red tape. I

This issue—the tension between administrative efficiency and

The implementation of the administrative law package, including the ARC,

Once again, congratulations, ARC, on reaching this 30-year milestone. It is

The 30th anniversary: a judicial perspective

The Hon. Sir Anthony Mason AC KBE

The title given to my remarks, ‘Perspective of the judiciary’ is, I confess, a

An advantage—or is it a disadvantage?—of being an octogenarian is that

So my recollections of the Kerr Committee, whose recommendations

The Kerr Committee recommendations

 the introduction of ‘merits’ review of administrative decisions,

 the classification of the grounds of judicial review by means of the