Admin Review is the administrative law bulletin of the Administrative
Review Council.
More information about the work of the Council is available from the Council's website http://www.law.gov.au/arc and from the Secretariat (ph. 02 6250 5800).
Wayne Martin QC, Professor David Weisbrot, Melanie Sloss SC and Trevor Mobbs
(Secretariat)
Administrative Review Council
Robert Garran Offices
National Circuit
BARTON ACT 2600
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 the bulletin are those of the editors or writers and not necessarily the views of the Council or any of its members or the members of any 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 and not legal advice. Readers should carefully check the detail of legislation, cases and other material included in the bulletin.
Some reflections on the Council's discussion paper on the scope of judicial review
Launch of the issues paper on automated assistance in administrative decision making
The Department of Veterans' Affairs Compensation Claims Processing System
The Administrative Review Council
The Council's discussion paper The Scope of Judicial Review attracted much interest. This issue of Admin Review includes one commentator's response to matters raised in the paper. The Council's final report on the project will, I believe, be a useful contribution to an essential aspect of administrative law.
The other major project nearing completion is Automated Assistance in Administrative Decision Making. As part of this project, the Council held an information and consultation forum in Melbourne on 12 November 2003. The forum was well attended and attracted considerable interest in this developing area. This issue of Admin Review contains one of the presentations made at the forum and an article on the project by Council member Professor Robin Creyke.
A third Council project nearing completion is a curriculum guideline for people involved in developing legal training programs for primary decision makers. The Council hopes the guideline, Legal Training for Primary Decision Makers, will provide a core framework for training programs that can be tailored to the needs of individual government agencies. Good primary decision making is fundamental to the quality of the administrative system as a whole.
As well as these substantial longer term projects, the Council continues to provide advice to government agencies on the administrative review facets of particular legislative proposals and to make submissions to inquiries by other bodies, such as committees of Parliament, where the Council's knowledge of administrative law and practice can be of assistance.
Finally, late last year saw the passage of the Legislative Instruments Act 2003. It may have taken a little over a decade to come to fruition, but the Council's original proposal for reform of the way delegated legislation is created and enforced has consistently received broad support on both sides of politics. The commencement of this legislation will see a basic change in administrative practices that is testimony to the importance of the work of the Council.
Chris Finn[*]
In this, the discussion paper captures much of the flavour of current commentary on the respective roles of the courts and the executive in relation to administrative decision making. Critiques of 'interventionist' courts are unsurprisingly led by governments that find such intervention inconvenient and frustrating and are not afraid to respond strongly, stridently and often, by all means at their disposal, in support of the various policies for which they claim a political mandate. The vexed area of migration law is an obvious example here, and the litany of government measures designed to ensure that the executive of the day prevails in this policy field need not be recited. But still it is frequently asserted that it is the courts that are the primary transgressors across the less-than-bright constitutional line between executive and judicial responsibility. Moreover, this is a view that attracts a considerable degree of academic support.
The role of judicial deference should also not be overstated. Judicial deference on questions of fact is inherent in the nature of judicial review and is reflected in the parameters of the various grounds that constitute the substance of that review. When a decision maker has clearly erred in law, however, it is difficult to see why deference is appropriate. It is well established that in the Australian constitutional system the judiciary is the final arbiter of questions of law. This is because only the judiciary possesses the necessary degree of independence from government to make the required judgments as to the lawfulness of the intrusive exercise of government powers.
Even in the most extreme of these cases it does not follow that review by the courts is inappropriate. The initial decision made by an administrator might be polycentric in nature, but the matters faced by a review court will be different. Thus, the court does not ask whether a decision allocating a limited resource (for example, a visa) is the correct one but simply whether the decision was made fairly - that is, whether affected people (in particular the applicant in the matter) received a 'fair' hearing. This may not be a question that admits of a simple and obvious answer in all cases, but it is a quite different question from that decided by the original administrator. Equally, the reviewing court asks whether the impugned decision was made lawfully and rationally, without remaking the decision for itself.
It is argued, therefore, that 'policy and polycentric issues' do not provide a strong basis for limiting the scope of review, beyond those limits that flow from the nature of the grounds of review. The 'policy' nature of a discretion ought not in itself be sufficient reason for excluding or limiting judicial review. It should, however, be recognised that such decisions will be amenable to review only in limited circumstances, such as simple lack of power or jurisdiction. Other grounds are unlikely to be made out, because of the lack of a sufficiently individualised decision or the broad nature of the policy-making discretion at issue. There are already sufficient judicial techniques for dealing with such cases.
It should be noted that the predication of both standing requirements and procedural fairness on the decision having an individualised effect will in many cases suffice to exclude effective judicial review. Classification of decisions as 'legislative' is therefore redundant. In other cases, where the asserted ground is excess of power, judicial review is an appropriate mechanism for ensuring that government acts within the limits of its statutory and other powers. Thus the practical result is consistent with that recommended in paragraph 5.172 of the discussion paper, with a limited range of grounds being available at the judgment of the courts.
Two other matters warrant mention in relation to the public perspective. First, it must be asked whether legislative attempts to further limit review - with the result that complexity is added to the review process - are truly in the public interest. Legislative barriers such as the privative clause in the Migration Act 1958 have been strikingly unsuccessful in diminishing the volume or complexity of litigation. They have simply increased the complexity, cost and length of such litigation. It is difficult to see that this is in the public interest. Similarly, legislative measures to prohibit class actions are difficult to reconcile with a stated commitment to accessibility and affordability.
Legislative devices aimed at excluding judicial review will also exclude the educative and corrective effect of that review. It is well accepted that one of the benefits of judicial review lies in its potential to improve the quality of primary decision making, to the benefit both of the relevant agency and of people subject to that decision making. The most effective and rational way of lessening the demand for judicial review is to maintain that high quality of primary decision making. Exclusions from review might have the opposite effect.
One might also ask exactly how the availability of judicial review affects consistency and predictability. Differing outcomes are to be expected within any given class of administrative decisions since the facts will vary from case to case. Consistency here cannot mean consistency of outcome: it can only mean consistency in the decision-making process. At most, this will mean somewhat more elaborate decision-making processes in particular cases, as the facts of those cases require it. But the principles of fairness and rationality to be applied to those facts remain consistent.
The first question to be asked must be exactly what constitutes abuse of process. It can hardly be abuse to exhaust the full range of legal rights available to one. Moreover, in a field such as migration, where the majority of such concerns appear to arise, many applicants are unrepresented and thus in a very poor position to assess the legal strength of their own claims. This is even more the case when the legal matters to be argued concern not the factual merits of a visa application but the judicial review question of whether the process of determining that application has miscarried in a manner that might attract judicial intervention.
Even where it is possible to argue in hindsight that abuse of process may have occurred, such abuse is difficult to detect in advance unless it is very clear. On the rare occasions that it is clear, the court has suitable mechanisms for acting. Statements of claim can be, and are, struck out if they disclose no reasonable cause. But broad-brush legislative attempts to limit judicial review on the basis of perceived abuse of process should be strongly resisted. These measures cannot distinguish in advance between the meritorious and the unmeritorious cases. This can rarely be done until the arguments have been heard. To attempt a legislative limit on review in order to block purported abuse would have the unfortunate, and unjust, consequence of also blocking a large number of meritorious claims.
In this respect judicial self-restraint - while permitting the possibility of occasional error - has a broad advantage over legislative exclusions in that it is more discretionary and can be tailored to the facts of an individual matter. In general, judicial techniques for limiting the scope of judicial review are preferable to legislative measures for several reasons.
First, as noted, a judicial response - in essence involving a decision against an applicant on any of the number of discretionary elements that must be considered in the course of a judicial review - can be tailored and adapted to the facts of the matter at hand. The case can be judged on its 'legal' merits. Pre-emptive judgment, ill-adapted to as yet unforeseen legal issues, is avoided, as are its attendant injustices. It is worth re-emphasising the degree of injustice that is likely to flow from legislative attempts at a blanket restriction on judicial review in a class or classes of cases.
Second, it cannot be assumed that legislative techniques designed to exclude review will be effective. S157 shows that courts are unlikely to simply accept the more forceful attempts to oust their jurisdiction, at least where that jurisdiction is sourced to the Constitution.[3] It is doubtful if a single judicial review matter will be deterred by means of the privative clause tested in that case. Indeed, from the point of view of speeding up and simplifying the judicial review process (that is, 'administrative efficiency'), privative clauses are likely to be strongly counterproductive. Their practical effect is to provide a further, and highly complex, matter to be litigated - quite apart from the substantive merits of the particular ground or grounds to be argued. As with standing rules, the result is likely to be longer, more complex litigation rather than the exclusion of judicial review. Thus, if it were true that litigants in some fields (for example, migration) were 'abusing' the review process in order to delay the implementation of decisions taken against them, the use of devices such as privative clauses would aggravate rather than solve the problem. It would merely provide further areas for dispute. This is not in the interests of the courts, the litigants or administrative efficiency.
Finally, the question of constitutional propriety must be considered. Judicial review is in essence an accountability mechanism designed to provide a check on the power of the executive branch of government. Given that, the executive should not be able to finely calibrate its level of accountability to suit the needs of the day. Executive government ought not be the sole determiner of its own level of accountability to the courts, to parliament, and ultimately to the Australian people. If government is to be accountable solely on terms of its own choosing, that accountability is virtually meaningless. To put it bluntly, judicial review should, on occasion, be inconvenient for the executive if it is to be an effective accountability mechanism. An independent and impartial review of the legality of administrative action is one of the essential elements of a developed democratic society. Ultimately - and taking into account the decline in the doctrine of ministerial responsibility - it is one of the few devices left to ensure that the scope of executive activity remains consistent with legislative intent. It is fundamental that the executive branch be kept within the lawful range of its statutory and other powers. Were this not the case, there would be little substance to the requirement for the democratic assent of parliament.
This turns on a broad understanding of the term 'question of law'. It is therefore suggested that a statutory appeal on a question of law will provide an adequate alternative to judicial review as long as it is understood that such an appeal encompasses the normal judicial review grounds, such as denial of procedural fairness. The statutory appeal to the Federal Court on a question of law provided by s. 44 of the Administrative Appeals Tribunal Act 1975 is a well-known example.
As the discussion paper suggests (in paragraph 6.20), 'merits' review will provide an adequate - and in many cases superior - alternative remedy as long as it is full and comprehensive. That merits review cannot, however, be a dead end: provision must be made for an appeal from the merits review body on a question of law if required. An appeal 'on the merits' alone is not an 'adequate' alternative remedy in the relevant sense. Critically, a merits review body is not constitutionally authorised to determine questions of law. It possesses highly competent and dedicated members, but it is denied the necessary degree of constitutional independence from the executive, whose actions it is meant to scrutinise. As a consequence, it cannot 'adequately' perform the supervisory role of a judicial review court.
Where an avenue for merits review exists, it should generally be used in the first instance, except in cases where a contentious question of law will inevitably reach the courts however it is determined by the tribunal. Thus, the availability of merits review in the Administrative Appeals Tribunal, allied with the possibility of further appeal under s. 44 of the Administrative Appeals Tribunal Act, provides 'adequate' alternative remedies in the relevant sense, and courts should generally decline judicial review when these remedies are available. The most significant exception to this approach would be when a question of law is in serious dispute and it is apparent that any decision made by the tribunal on that question would probably be subject to appeal. Such circumstances would usually be dealt with under s. 45 of the Administrative Appeals Tribunal Act. In short, the current situation seems adequate and appropriate. The view taken by the Administrative Review Council in its submission to the Senate Legal and Constitutional Committee's Inquiry into Migration Legislation Amendment in January 1998 (quoted in paragraph 6.75 of the discussion paper) seems entirely appropriate.
The discussion paper suggests (paragraph 7.28) that legislative attempts to limit review should 'focus on the ambit of the power conferred, rather than on the extent to which a court is precluded from examining an exercise of power'. That said, it is reiterated that a desire to avoid the inconvenience of review is a poor reason for reconfiguring statutory discretions.
Discretions should be neither broadened nor narrowed with an eye to limiting judicial scrutiny. They should be drafted to confer the level of discretion most appropriate to the administrative or regulatory task at hand. Over-emphasis on defensive drafting would probably limit the effectiveness with which that task is carried out and, paradoxically, lead to more review.
Judicial review is better avoided by the making of high-quality, fair, lawful and reasonable decisions. Where this standard is not achieved, judicial review not only serves individual justice but also provides a useful corrective and feedback mechanism for the executive. Legislatures should be careful to avoid 'shooting the messenger' in such instances.
In general, situations where the decision could not have been affected by the breach are difficult to foresee in advance and so are best left for judicial determination. Particular care should be taken by courts in reaching this conclusion where it appears that it might require them to descend to the merits of the administrative decision in question.
In some respects it is arguable that the scope of judicial review should be increased rather than decreased. In particular, the standing rules deserve legislative rationalisation, and it is appropriate that outsourced service providers remain fully accountable to the courts and the public. In this, the positions previously taken by the Australian Law Reform Commission and the Administrative Review Council in earlier reports[4] should be endorsed and deserve reconsideration by government.
It is notable that there are three Commonwealth avenues for review - provided by s. 75(v) of the Constitution, the Administrative Decisions (Judicial Review) Act 1977, and s. 39B of the Judiciary Act 1903. In addition, there are statutory appeals on a question of law, as well as statute-specific schemes such as the taxation and workplace relations schemes discussed in the discussion paper. Some degree of rationalisation might be possible. This could be a matter for the Council to consider in the future, if not in the context of this particular inquiry.
Perhaps the time has come for a substantial updating of the Administrative Decisions (Judicial Review) Act, such that it 'covers the field'. Is there still any valid rationale for excluding from review 'legislative' decisions, such as the making of regulations, or decision-making powers formally conferred on the Governor-General? And what of the numerous and ad hoc exclusions from review (and the right to obtain reasons) that have accumulated over the years in the Act's schedules? It may be that a broader scope for judicial review - with the elimination of unnecessary technical restrictions on access - would best serve fair and rational government administration and the Australian community.
This is an edited version of a paper presented at the 2003 National Administrative Law Forum, held by the Australian Institute of Administrative Law in Canberra on 3-4 July 2003.
The paper pays particular attention to the role of counsel assisting an inquiry, partly because of the egocentricity of the author (who recently spent 18 months as Counsel Assisting the HIH Royal Commission) but also because it is the author's view that there is considerable scope for greater use of that role in a wide variety of tribunals and administrative proceedings.
Even within some categories of inquiry there are wide variations. For example, the matters inquired into by royal commissions vary greatly in subject and significance. In the United Kingdom in 1857 there was a royal commission into drawing. In 1903 in Western Australia there was a royal commission into the question of whether the Supreme Court building should be constructed of Donnybrook stone or brick. At the other end of the spectrum, some royal commissions in Australia have had a profound effect on the political history of this country; the Petrov and Costigan Royal Commissions are examples.
This is not to say that the terms lack utility. On the contrary, they are a convenient, if imprecise, way of differentiating between a proceeding in which the inquiring body itself takes a direct and active role in the investigative process - that is, the gathering of information and evidence - and a procedure in which that role is performed by someone else.
This brings me immediately to the role of counsel assisting because such a person can, of course, perform the important role of differentiating the function of the person or entity that must make the determination or findings of fact from the function of the person who is gathering the information or evidence. Such a differentiation of function has obvious benefits in terms of reducing the risk of partisanship or at least the appearance of partisanship that can often accompany the role of investigator - which is why we distinguish between, for example, the policing function and the magisterial function, although there are other models in which those roles are less distinct, such as in Europe. But even where there is a clear distinction between the determining person or body and the investigative agent of that body it may nevertheless be appropriate to describe the process as inquisitorial, because its fundamental function is to inquire into and establish facts.
I am optimistic that much greater light will be shed on these questions and a clearer understanding of the distinction between adversarial and inquisitorial proceedings will emerge after my colleague on the Administrative Review Council, Professor Robin Creyke, has completed a project sponsored by the Australian Institute of Judicial Administration, which will deal with the following:
In advancing this proposition I do not overlook the fact that one of the things that distinguishes an inquiry from, say, judicial proceedings is that the former is an iterative process, the course of which might be influenced by facts or evidence uncovered as the process takes place, whereas the latter is generally defined by the pleadings, or the charge, established at the outset. An inquiry must therefore retain the flexibility to adapt and respond to evidence or issues that emerge in the course of its conduct.
Nevertheless, in my opinion there are at least three sound reasons for trying to identify, with as much specificity as possible and as early as possible, the particular facts, events or topics that are to be examined. Three particular advantages flow from this course:
That person is also best equipped to promote the procedural fairness advantages I refer to. Those advantages can be achieved in a number of different ways, among them:
Dealing first with evidence gathering that occurs outside the hearing, evidence and information can in turn be conveniently classified according to their sources - that is, data and prospective witnesses. By 'data' I refer to documents and, increasingly today, information recorded in electronic form. Generally, inquiries are given the power to compel the production of data and require the attendance of witnesses to give evidence, but those powers are usually restricted to the formal hearing process. In many instances this can cause inefficiency by impeding the process of gathering information before the hearing begins. As a result, it is becoming increasingly common, and in my view appropriate, for the power to compel the production of data to a formal hearing to be accompanied by the power to compel the production of data administratively to an official outside the formal hearing process.
In relation to witnesses, if they are not prepared to cooperate and provide information voluntarily there is usually little alternative but to compel them to attend the formal hearing process. Even when witnesses are cooperative, however, there is often a concern that the provision of information otherwise than under compulsion could amount to an abandonment of the privilege that might otherwise attach to the provision of the information under compulsion - such as the privilege that attends the giving of evidence in a royal commission. One device that can be used to overcome this concern is to invite the prospective witness to record the information they would provide in writing and then compel the production of the document, which, being provided under compulsion, would have all the privileges that attach to compulsory production. It must be said, though, that this is something of an artifice, and I think it desirable to regularise this process by extending any privilege that attends compulsory provision of information to all information voluntarily provided.
Turning now to the provision of data and the calling of witnesses in the course of a formal hearing, the practices and procedures pertaining to this process are fairly well known and need not be detailed here. Perhaps the most common difficulty encountered is the sheer amount of time the process takes, which is leading to increasing use of devices such as the provision of evidence in the form of witness statements or declarations.
It is common for statutes to provide that inquiries are not bound by the rules of evidence, and this facilitates the use of less formal techniques with a view to expediting the process, at least in relatively non-contentious areas. Care must, however, be taken to ensure that any determination or report is based on material that is logically probative of the facts found or determinations made; otherwise the process is likely to be vulnerable to collateral legal attack. Thus, although the rules of evidence are not applicable, they often provide a reliable guide to a logical process for the establishment of disputed or contentious facts.
The form of the evidence received can also have implications for procedural fairness. For example, while hearsay evidence is commonly and properly received, if it is the sole source of evidence on a controversial and critical fact it could be argued with some force that any party against whom an adverse finding has been made based on the basis of that evidence has been denied procedural fairness. This is because they have been deprived of the opportunity to test the critical evidentiary source, since that person has not been presented before the tribunal.
Reverting to the subject of the role of counsel assisting, the evidence-gathering process is another area in which such a person can play a vital role, both outside and inside the hearing. Outside the hearing, as noted, the presence of such a person enables the evidence-gathering and investigative process to be differentiated from the process of fact or issue determination - with obvious advantages. Within the hearing, there are increasing numbers of tribunals and inquiries in which the adducing of data or questioning of witnesses is undertaken by the tribunal itself. There are potential dangers in this course. One of the most obvious is the perception that the manner in which the questions are posed, or the data are produced, might suggest a preconceived view or attitude toward the matters in hand, thereby potentially infringing another aspect of procedural fairness.
People who are the subject of an inquiry have a number of rights that can constrain the scope or conduct of the inquiry itself. Probably the most significant of those rights are the right to procedural fairness and the various privileges that can preclude the compulsory provision of evidence or limit its use.
Books have been written on the subject of procedural fairness, and identification of all the aspects of the rights grouped together under that heading is well beyond the scope of this paper. The rights are generally grouped into two classes: the right to a hearing free of bias or the apprehension of bias; and the right to know and meet the case.
In the case of the bias rule, the courts are, in my opinion, demonstrating a rather more robust view of bias or the apprehension of it in the context of administrative inquiries. This might be in recognition of the desirability of those conducting such an inquiry taking an active part in its processes, including the questioning of witnesses and the expression of preliminary views.
In relation to the right to know and meet the case, it is important to note that this right will be infringed only if the person concerned has not had the opportunity to meet the case at the conclusion of the entire process. As a result, infringement of the right cannot be meaningfully assessed until the process is complete, and it has to be ascertained on the basis of the inquiry as a whole.[6] Thus, provided that a party is given notice of adverse findings and given an opportunity to put submissions in relation to those findings before they are made, the right will not be infringed merely because the risk of those adverse findings was not made clear at the outset of the inquiry. Equally, a witness called to give evidence has no right to advance notice of the topics that are to be pursued in evidence - save to the extent necessary to enable the witness to assess whether the compulsory process served on him or her is valid.
Further, the better view in Australia seems to be that the right to meet the case does not include the right to call additional evidence and is therefore limited to the right to make submissions.[7] The same line of authority establishes that procedural fairness does not, of itself, confer a right to cross-examine, although the refusal of cross-examination may in a particular case, when combined with other circumstances, lead to the conclusion that a person has been denied a meaningful opportunity to meet the case against them.
Similarly, although the right to know the case to be met will generally confer a right of access to all the evidence to be relied on in support of a possible adverse finding, it will not extend to a right of access to other material, not adduced in evidence, that might be used by the person to advance their case. A party potentially adversely affected by an inquiry thus has no right to discovery or disclosure of materials in the possession of the inquiry, unless and until those materials are relied on for the purposes of a possible adverse finding.
Statutes authorising the conduct of inquiries often, but not invariably, stipulate whether legal representation is an entitlement or is prohibited or discretionary. In the absence of such a provision, it is debatable whether there is a right at common law to legal representation. However, like cross-examination, absent express statutory authority, refusal of legal representation is a factor that might be combined with other factors to lead to the conclusion that a person was substantively denied the opportunity to meet the case against them.
Privilege
Four areas of privilege are commonly encountered in the conduct of an inquiry:
Self-incrimination
It is clear that privilege against self-incrimination will ordinarily be implied in favour of natural persons (not corporations or other artificial entities) unless expressly abrogated by statute.[8] It is increasingly common for statutes to provide that self-incrimination shall not be an excuse for refusing to provide data or evidence but at the same time limit the extent to which the data or evidence provided can be used against the person providing it - sometimes on conditions such as a requirement that the privilege be claimed at the time of production, thus leading to the farcical process in a number of proceedings in which a witness precedes every answer with the word 'privilege'. Such statutory provisions generally do not preclude derivative use of the information provided; that is, its use for the purpose of gathering other evidence that can be used against the subject and that is not subject to the immunity deriving from compulsory production.
Legal professional privilege
The scope and availability of legal professional privilege has of course been widened by the decision of the High Court adopting the 'dominant purpose' test in lieu of the 'sole purpose' test.[9] Further, a relatively recent decision of the High Court establishes that statutes will seldom be construed as impliedly overriding legal professional privilege, which should therefore be presumed unless expressly abrogated.[10]
Public interest immunity
Public interest immunity is essentially that class of privilege that precludes compulsory production of data or the provision of evidence that will be contrary to the public interest in the confidentiality of aspects of the workings of government. It commonly protects data relating to the workings of the highest levels of government (Cabinet and the Executive Council) and such things as criminal law enforcement and various other areas of government activity.
Parliamentary privilege
Parliamentary privilege has its origins in Article 9 of the English Bill of Rights, which has in turn been incorporated in Commonwealth law by s. 49 of the Australian Constitution and by the Parliamentary Privileges Act 1987. It prohibits any act 'impeaching or questioning' any words that are spoken or written in parliament. The Parliamentary Privileges Act provides that the privilege extends to all words spoken and acts done in the course of, or for the purposes of or incidental to, the transacting of the business of a House or of a committee of a House. Thus, communications between members of parliament that occur outside parliament, or between members of parliament and their staff, may well be protected if they are related to some matter pending in parliament; for example, a briefing provided in respect of a possible parliamentary question would almost certainly be covered by the privilege. Care should therefore be taken before attempting to compel the production of any material of this class or before receiving in evidence any Hansard relating to the proceedings of parliament.
Determining the claim of privilege
One of the practical problems arising from a claim of any of these privileges in the course of an administrative proceeding is the usual inability to authoritatively and definitively determine the claim within the scope of the proceeding itself. The difficulty generally arises when a person claims the privilege in answer to the exercise of a power to compel the production of data or to attend to answer questions. Tribunals or inquiries are rarely, if ever, given the power to impose punishment for failure to answer compulsory process and could not be validly given such a power in the Commonwealth sphere because of the implied separation of powers found in the Constitution.[11] The usual consequence of the failure to answer compulsory processes relating to the provision of data or evidence is vulnerability to criminal prosecution for the commission of an offence created by the statute authorising the compulsory process. Thus, the scope of the privilege and its availability will generally have to be determined in criminal proceedings and will often determine the outcome of those proceedings. This seems somewhat unsatisfactory, but at least in the Commonwealth sphere, given the limitations imposed by Brandy, there do not seem to be many satisfactory alternative procedures available.
It is not uncommon for an inquiry to be conducted into matters that are the subject of pending criminal or civil proceedings. In this circumstance those conducting the inquiry need to take care to avoid conduct that might constitute a contempt of the court in which those proceedings are pending. The danger is greatest in the case of criminal proceedings and, although much reduced, should not be considered negligible in relation to civil proceedings.
Possible contempt usually arises in two areas. The first involves the use of process to compel the provision of data or information that could be used to the disadvantage of a person awaiting criminal trial at a time when that person has the so-called right to silence.[12] The second area of possible contempt lies in the making of a determination on precisely the same point or issue to be determined by the court. In such a circumstance it can be argued that it is a contempt to pre-empt the decision of the court because it might be seen as conduct intimidatory of the judicial process. The risk of such a conclusion is much greater when the process involves trial by jury rather than trial by judge alone.
The provision of submissions to an inquiry is a fundamental and vital part of the process. Those submissions have two important functions:
Reverting again to the role of counsel assisting or some person with an analogous task, such a person is ideally placed to provide submissions to an inquiry. The availability and use of such a person to provide those submissions facilitates the achievement of procedural fairness and precludes the perception or apprehension of bias that would flow from the tribunal itself putting parties who might be adversely affected on notice of the findings that might be made against them. The submissions also give the tribunal a helpful and, it is hoped, objective view as to the findings that might be made. In this respect the submissions from counsel assisting should be different in kind from those presented by parties in an adversarial proceeding, in the sense that they should not seek to advance a particular cause or case but instead seek to fairly and objectively analyse the material that has been produced before the tribunal. Submissions of this kind provide for a tribunal a resource that will not ordinarily be available in adversarial proceedings, in which all submissions are put by parties with a particular axe to grind or case to promote.
This is an edited version of a speech given at the launch of Automated Assistance in Administrative Decision Making in Canberra on 19 June 2003.
One of Australia's better known expatriates, Sir Les Patterson, once said on returning to his homeland that the closer one gets to the Australian coastline, the louder gets the back thumping! Whatever one's views about that perception, this is one occasion on which the back thumping is more than justified. Not only has Australia pioneered developments in the use of expert systems for assisting with government decision making: this issues paper will probably be the first in the world that has considered the implications of these developments for administrative law.
The introduction of automated decision making, particularly through the use of rule-base systems, is a development that first occurred in a systematic way in Commonwealth public administration in the early 1990s. However, governments and the private sector have embraced this technology with such speed that the sections of the issues paper that chronicle that usage - Part 2 and Appendix B - had to be expanded considerably.
The speed with which Australia has adopted rule-base systems has meant the nation is at the forefront of such technological developments. It also created an impetus for the Council's examination of the change. The Council's initial consideration of expert systems is described in the issues paper. The final report will be published in 2004, taking into account comments from people developing such systems, as well as users and consumers.
A significant breakthrough occurred when legal expert systems could be programmed using ordinary language: access by anyone, whether they understood programming languages or not, then became viable. The rule-base technology is of particular interest for administrative law because a rule-base system is capable of modelling complex or intricate rules (such as legislation) and this means such systems can be used in administrative decision making.
Although a rule-base system can model legislation, it is also capable of going further. A particular value of the rule base is that it is often an amalgam of the legislation, policy and relevant case law and might also contain explanatory material to help the user understand the reason for each question and how to answer it. These additional sources of information replicate the resources traditionally available to administrative decision makers exercising powers under legislation.
The technology allows people who use rule-base systems - departmental officers or even applicants - to view on screen commentary about the questions, the source legislation, relevant cases, and departmental policy. The applicant enters information that is processed through a combination of the expert system and a human decision maker when judgment or discretion is required.
When the question-and-answer process is complete, the questions and answers can be printed and, where appropriate, the applicant can sign the form. The rule-base system then produces a report on whether the person is eligible for the benefit and provides detailed reasons for the result.
Rule-base systems are not new, but their use to model legislation is a relatively new application of the technology. The systems can deal with simple mechanical decisions, such as calculation of youth allowance when informed of the amount earned by an allowee during the preceding fortnight, as well as more complex decisions involving multiple factors and the exercise of discretion, such as whether a person is a 'member of a couple' for the purposes of receiving benefits under the Commonwealth's Social Security Act 1991.
The Administrative Review Council is the administrative law system watchdog, so the focus of the issues paper is administrative law. Rule-base systems offer the potential to have a profound impact on administrative law. It is the Council's view that the technology could be moving the need for administrative accountability from the review process - the 'back end' of the system - to the input process at the 'front end' of the system. The consequence of such a development would be to open a new chapter in administrative law.
But the picture is not all rosy. There are administrative law and practical shoals. At the practical level such systems are only as good as their continuing accuracy. If they are not maintained and updated their usefulness is much diminished.
Expert systems can also breach administrative law standards. Inflexible application of policy is an example. If programmers do not correctly interpret policy instructions when entering policy into the database, or if they implement policy that lies outside the legislation, decision makers using the system will also breach that ground of review. If agencies do not institute honest and robust auditing of the information in the database, such errors continue to be perpetuated, including errors that amount to breaches of administrative law rules. External verification of the expert system by people familiar with the law, the policy and expert systems is also essential to ensure that any such problems do not persist.
Although the use of rule-base systems can decrease the time and costs associated with making administrative decisions - and this is evidenced by an Australian National Audit Office report on the Department of Veterans' Affairs Compensation Claims Processing System - the thoroughness the system insists on might also mean that new users take longer to process applications.
The issues paper marks a new stage in the work of the Council. To date, the Council's work has largely focused on monitoring and fine-tuning the package of administrative law reforms that was introduced, in some cases, over 25 years ago. With this issues paper, the Council has moved to lead, rather than react to, developments affecting administrative law.
Expert systems developments and their impact on administrative law principles and institutions are also a signal example of the continued growth and change of administrative law. This is a novel frontier for administrative law to explore. However, marching as it does alongside government, administrative law must reflect on and respond to changes that occur in the public sector if it is to continue its role of setting legal standards of good administration. And, as the body charged with monitoring developments in administrative law, the Administrative Review Council must match that growth and development of government if it is to continue to perform its monitoring task effectively.
This is an edited version of a presentation to the Administrative Review Council's information and consultation forum, held as part of the Council's project on automated assistance in administrative decision making in Melbourne on 12 November 2003.
CCPS has been a major success, resulting in vastly improved client service and considerable savings in administrative expenditure each year. Independent evaluations have shown productivity has improved by 80 per cent, claims processing costs have reduced significantly, and the average time taken to process a claim has fallen from 157 days to about 60 days. Consistency of outcomes has improved, and the cost of implementing the change was recouped within three years of full implementation. Customer satisfaction is at an all-time high and staff have more satisfying jobs.
It would, however, be simplistic to think these achievements were the result of the implementation of the technology alone. As innovative and powerful as the computer system is, its introduction could not by itself have achieved the extensive improvements to the compensation process without other associated policy and administrative changes.
Business process re-engineering was undertaken, dramatically changing the way staff processed claims and liaised with clients.
Important policy changes were introduced to establish an independent agency - the Repatriation Medical Authority - to determine legally binding statements of principles that established causal connections between diseases, injuries and death and service based on sound medical-scientific evidence.
The role of the ex-service community in the claims process and its relationship with the Repatriation Commission was revised. Changes included a jointly developed and delivered training program for ex-service organisations' practitioners to help them with preparing claims for veterans. Grants are also provided to ex-service organisations to support their claims practitioners.
All these elements of change - technology, policy change, business re-engineering, and the Repatriation Commission's relationship with the ex-service community - were closely interrelated and developed concurrently under an overarching change process. In essence, the technology enabled and enhanced the harvesting of benefits through a far-sighted and holistic approach to service delivery. As a result, when we talk about the implementation of CCPS, we in fact are talking about a substantial, multi-faceted change process for which the technology development provided the catalyst and focus.
The totality of the changes has provided greater openness and transparency in the claiming and decision-making processes and led to improved acceptance and cooperation by the veteran community.
A new Military Compensation Scheme is proposed for implementation from July 2004. This will require a new processing system. Following the success of the introduction of CCPS, the Department proposes to use the rule bases developed for CCPS (and Defcare), statements of principles, and business re-engineering concepts for administering the new Compensation Scheme.
The Compensation Program covers the following conflicts and peacekeeping operations: World Wars 1 and 2, Korea, the Malaysian Emergency, the Indonesian Confrontation, Vietnam, Namibia, Cambodia, the Gulf War, Somalia, Rwanda, Bougainville, East Timor, Afghanistan and Iraq. It pays 158 000 disability pensions and 114 000 war widows and orphans pensions, with annual expenditure of about $2.7 billion.
The law applying to the decisions that link medical conditions or death to war service is complex and has been changed and reinterpreted many times over the years. This complexity is now compounded by the amount of time that has elapsed since some service was rendered.
Before 1994 the Department processed claims using what was essentially a manual, paper-based system that had changed little since World War 1. There were four main steps in the process: receipt, investigation, medical recommendation, and decision on the claim. Different staff completed different steps.
There was heavy reliance on the departmental medical officer's recommendations about the relationship between the veteran's service and their disabilities or death and also (for deciding the rate of disability pension) the extent of the veteran's disability. The decision maker, a delegate of the Repatriation Commission, would be required to understand and apply the law and Commission policy with little practical guidance on how to make such decisions. As a result, outcomes were inconsistent. The system was also highly process bound, with little focus on the claimant's needs.
By the late 1980s the Department had reached the view that patching the existing system was not going to bring about the necessary improvements: a major overhaul of the system and an innovative approach were needed.
In the late 1980s and early 1990s the Department had been trialling the use of expert systems for internal dissemination of legislation and policy guidelines. This work suggested that expert systems could be applied to the compensation process. In early 1992 it was decided to commission a Canberra-based information technology firm, SoftLaw, to build an expert computerised system for processing claims, as the cornerstone of a comprehensive business re-engineering project. It was a bold step to use an outside organisation for a major redesign of the business system.
In 1993 the Australian National Audit Office reviewed the operations of the Compensation Program. The key findings of the review described a system with the following characteristics:
The technology
CCPS is an innovative blend of workplace technologies. It delivers a unique whole-of-job claims management system to the desktop of officers processing compensation claims. The system combines expert systems and multimedia hypertext technologies, built with SoftLaw's STATUTE Expert product. It has a client-server database, document generation facilities, case management and mainframe legacy systems integration, all within a Microsoft Windows environment.
The system combines a natural language claims processing checklist with a sophisticated, object-oriented case management system and uses a massive medical knowledge rule base to direct the investigation and determination of compensation eligibility and assessment.
The knowledge rule base of CCPS contains all the logic of the policy and the questions that have to be answered to apply the policy, as well as commentary on interpretation of the policy. It also has a Research Library that includes military history, repatriation history, legislation and departmental instructions.
CCPS was the first application in the Australian Government to use expert technology for large-scale processing.
Policy review
Throughout the history of the repatriation system in Australia, the question of how to determine whether a veteran's disability or death was war-caused has been the subject of many legislative changes. During the 1980s and 1990s the law had also been subject to testing and clarification by tribunals and courts. Around the mid-1980s it was clear that not only were there inconsistencies in decision making between primary-level decision makers, but the review bodies, tribunals and courts were also adding to system inconsistency through widely varying decisions. A large part of the problem was that medical-scientific matters were being decided in an adversarial environment by lay people sitting on tribunals and courts.
In 1993 the government of the day established an independent review of the fundamentals of repatriation compensation policy. The report of the review was published in March 1994.[14] In response to the report, the government decided to make a number of major changes to the Veterans' Entitlements Act 1986, to improve the consistency of decision making. The changes were as follows:
All claims lodged with the Department after 1 June 1994 were to be determined using the RMA's statements of principles.
The Repatriation Medical Authority and statements of principles
The RMA was established in July 1994 as an independent body of five eminent medical specialists appointed by the Minister for Veterans' Affairs. It was to provide a forum for the resolution of medical-scientific questions at all levels of the determining system. The 1994 amendments meant that only mainstream medical opinion would be regarded as meeting the requirements to link service and medical conditions, and any alternative opinions would have to have a sound medical-scientific basis.
The RMA has now produced over 700 instruments that cover around 4500 individual disabilities and causes of death. About 95 per cent of claimed disabilities are now covered by SOPs. Only the rarer diseases and injuries are without SOPs, these claims being decided on the best evidence available.
This legislative change has brought about far greater openness and transparency in decision making and has given the ex-service community an opportunity to have input. Importantly, it has placed the debate about complex medical questions with a body competent to deliberate on these things.
Involvement of the ex-service community
A number of initiatives were introduced in order to engender a cooperative partnership with ex-service organisations and to improve the quality of compensation claims from veterans.
A program of training for ex-service organisation practitioners was developed with veteran organisations. Training modules under the Training Information Program are developed jointly by the Department and veteran organisations and are presented by skilled practitioners from the veteran community.
Grants are also provided to ex-service organisations so they can help veterans prepare and submit pension claims to the Repatriation Commission and represent veterans in appeals against decisions by delegates of the Commission.
These programs have increased the understanding of the disability compensation system and contributed to an improvement in the claims presented to the Commission. They have also resulted in a much more cooperative relationship with the general ex-service community.
Desired outcomes
The aim of CCPS was to improve the performance and lower the cost of administering compensation claims. It was decided that CCPS should seek to provide the following:
Development
Development of CCPS involved a number of steps:
Changing the staffing structure
The new system led to a major cultural change for claims processing staff. Previously, this group had been hierarchically organised, with seniority determined by expertise and a track record in adjudication. When single-officer determinations were introduced there were significant changes for staff.
Implementation required an enormous effort in human resource management to overcome the pessimism and scepticism of some affected staff, a reduction in staff numbers, and recruitment and training of new staff.
The key results are as follows:
Evaluations of CCPS
In 1996 the Australian National Audit Office conducted a follow-up to the 1993 audit. The principal finding of the follow-up was that the reforms to the Department's processes, including the introduction of CCPS, had led to substantial improvements in the efficiency and administrative effectiveness of claims processing. The Audit Office stated, 'CCPS has clearly brought considerable benefits to the Department and the veteran community'.
In March 1995 the Department and the Community and Public Sector Union conducted a post-implementation review of CCPS, reporting favourably on the implementation process and recommending some refinements to the system and improvements in processes and the training of staff.
In September 1996 the Department and the Union began a formal portfolio evaluation of CCPS against its original objectives. The evaluation included an updated cost-benefit analysis and concluded that CCPS had achieved all its objectives.
The Repatriation Medical Authority and the system of statements of principles were the subject of a ministerial review by an independent reviewer, Emeritus Professor Dennis Pearce of the Australian National University. Professor Pearce concluded that implementation of the regime had resulted in a more equitable system for the compensation of veterans than had existed previously.
The change process
Whilst the emergence of innovative technology can be the catalyst for change, the benefits of innovation were maximised by embarking on the change process with a broad strategic outlook. This approach incorporated a review of policy, processes, staffing structures and the needs and wishes of the client group against stated government and organisational service delivery objectives. Importantly, it also took into account and involved the range of stakeholders early in the process of exploring possibilities for improvement and in reaching the desired outcomes.
In terms of the change process itself, our experience was to establish a clear and explicit set of business requirements through a thorough business analysis process before moving to explore the technology. The business analysis was motivated by an acknowledgment that our current system was not providing an effective and efficient service. In essence, we took a 'clean sheet' approach and started by asking the question: In an ideal environment, how can we best process compensation claims in an efficient, fair and consistent way? Once the business requirements were established, it was possible to synergise the three primary elements of the change process - that is, the policy, the technology, and the business process re-engineering - so that maximum benefits could be realised.
The effort required to inform, involve and manage affected staff during such a change cannot be underestimated.
The focus of jobs changed from process to people skills. It was necessary to carefully match selection and performance criteria to the new environment and provide a completely new training and support regime for those moving into the new environment. Valued competencies and behaviours moved from those traditionally associated with expertise in the subject matter to new areas of communication, client skills, team skills and willingness to accept responsibility.
Some experts felt their influence was downgraded, and many concerns were expressed about loss of expertise through transfer of knowledge to a computer system. This required careful management. The subsequent evaluations of CCPS showed that these fears were largely unfounded and that staff had more satisfying jobs through greater responsibility and providing a whole service to clients. But not all staff adapted successfully.
Ongoing updates
CCPS is a dynamic system that is regularly updated - approximately three major releases a year - to reflect new and changed statements of principles and other policy changes. There is a robust maintenance and review system involving a support team, internal users and scrutiny by ex-service organisations to ensure that the system accurately reflects law and policy.
Extension to internal review of decisions
CCPS has since been extended to support internal review (appeals) of primary decisions. Appeals lie to independent bodies - in the first instance the Veterans' Review Board and then the Administrative Appeals Tribunal. The Department can, however, intervene in appeal cases where the evidence suggests the case should be reconsidered. At the time CCPS was implemented for primary claims in 1994, the Department rarely used its internal powers of review when a claimant appealed against a decision. This appeal system proved cumbersome for veterans, with waits of up to two years before appeals were heard by the Veterans' Review Board.
Using the Department's internal review powers, there is now a process whereby all decisions appealed to the Veterans' Review Board are first reviewed internally. If the evidence is sufficient - often new evidence lodged with the appeal - the decision is reviewed using the CCPS rule base. Under this system, appeals to the Board are generally reviewed internally within 30 days of lodgment.
This change using the CCPS tool has resulted in improved service to clients, reduced costs associated with the external review process, and fewer cases going to an external Veterans' Review Board hearing. It is another example of combining a policy or procedural change with technology to achieve a better outcome.
ELMnet
ELMnet is a CCPS-related computer system the Department has developed in association with SoftLaw. It is a web-enabled product that is used to test whether a person's service in the armed forces is eligible service for a range of departmental benefits. The system asks a series of questions and produces a report on a person's eligibility to apply for benefits. It is used by internal decision makers but, because it is web-enabled and available as a stand-alone system on the Department's website, it can also be used by veterans wishing to test their eligibility for certain benefits.
Continued monitoring
It is important that suitable governance and security arrangements are adopted to ensure adherence to administrative law standards and the correctness and fairness of decisions. Monitoring arrangements need to be tailored to the jurisdiction and the client group that is subject to the decision-support system.
There are a number of internal and external mechanisms for providing assurance that CCPS is being applied correctly:
These mechanisms have worked to improve the administration of compensation claims and to provide an effective assurance that CCPS and its outcomes:
Conclusion
The Department considers that the changes introduced, as outlined in this paper, have successfully combined policy, business re-engineering and systems development reforms, bringing significant benefits in the delivery of disability compensation pensions to veterans.
Legislation will soon be presented to parliament to establish a new Military Compensation Scheme, with an anticipated commencement date of July 2004. This scheme will not replace the Veterans' Entitlements Act 1986 or the Safety Rehabilitation and Compensation Act 1988 (SRCA) for injuries or diseases resulting from service before the new Act is operational. Accordingly, the new scheme will require its own system. The Department proposes to use the rule bases developed for CCPS and Defcare (SRCA), the statements of principles regime and the business re-engineering concepts that have been developed for the existing schemes.
Postscript
The legislation to establish the new Military Rehabilitation and Compensation Scheme has been passed by parliament and will commence on 1 July 2004. The new scheme will provide rehabilitation and compensation cover for all service in the Australian Defence Force from this date.
Implementation of the new scheme will introduce new complexity and challenges into the Department's compensation environment. Although incorporating key elements of the existing Safety Rehabilitation and Compensation Act and Veterans' Entitlements Act schemes, the new scheme contains different legislative rules and differences in the detail of benefits provided. The Department will also need to retain for many years the capacity to process compensation claims under the two existing schemes, which will continue to apply for service rendered before 1 July 2004.
Development work is well under way to introduce system support for the new scheme along lines similar to CCPS, including updated rule-base decision-making support for the statements of principles as they will apply under the new scheme, as well as continuing to support the existing Veterans' Entitlements Act scheme. This new rule base, being developed by SoftLaw, incorporates SoftLaw's latest STATUTE Expert technology, which will support eventual web deployment and be able to integrate with new enterprise-wide application software under consideration by the Department.
The long-term aim of this development is to create a single web-based desktop environment capable of handling claims lodged under the new Military Rehabilitation and Compensation Scheme and the existing schemes, seamlessly streaming claims to arrive at the appropriate outcomes under the relevant Act(s). The existing CCPS and Defcare systems will be decommissioned over time; the new system will be based around re-usable modules with a minimum of duplication of function and will make use of other IT initiatives under way in the Department, such as electronic document management and electronic lodgment of claims.
The Administrative Review Council
The Council officially launched its Automated Assistance in Administrative Decision Making issues paper on 19 June 2003 and its Twenty-Seventh Annual Report 2002-03 was tabled in Parliament in November 2003.
Letters of advice
Since publication of the previous issue of Admin Review the Council has provided letters of advice dealing with the following matters:
Submissions
Since publication of the previous issue of Admin Review the Council has presented submissions to the following:
The final report will consider constitutional principles relevant to the scope of judicial review. It will document arguments that have been presented for limiting judicial review and consider the manner in which legislative limitations on the scope of judicial review should be imposed. It will also include a set of framework principles to assist agencies, legislators and others when considering matters relevant to the appropriate scope of judicial review.
The Council is finalising its report for this project. The final report will focus on the benefits of and concerns about using expert systems in administrative decision making. It will also consider the types of administrative decisions best suited to the use of expert systems and will provide best-practice guidelines for the system's development and operation.
The project's main objective is to determine whether greater consistency in these powers across government is desirable or achievable. It will also consider the accountability mechanisms associated with the exercise of coercive investigative powers and the legal protections available to people affected by exercise of those powers.
The Administrative Appeals Tribunal
Between 1 May 2003 and 30 April 2004 the following enactments (including delegated legislation) conferred new jurisdiction on the Tribunal (the date from which jurisdiction is conferred is noted for each enactment):
Decisions of interest
Jurisdiction, use of summons and entitlement to reasons for decision
In a series of decisions relating to a single matter, the Tribunal constituted by the Acting President has explored the means whereby a prospective applicant for review of a decision can obtain material relating to that decision.
The applicant made a complaint pursuant to s. 536 of the Corporations Act 2001 to the Australian Securities and Investments Commission about the conduct of the liquidator of One.Tel Limited. This section of the Act allows ASIC to make inquiries into the conduct of a liquidator in certain circumstances (including if a complaint is made) but any resultant action is taken by the Federal Court, not ASIC.
After some initial consideration and correspondence, ASIC decided not to proceed further. The applicant then sought a statement of reasons for that decision. ASIC refused to provide this, asserting that the power to make the decision came from its general powers under the Australian Securities and Investments Commission Act 2001, rather than the Corporations Act, and was therefore not reviewable by the Tribunal. As a result, reasons were not required to be provided under the Administrative Appeals Tribunal Act 1975.
The application to the Tribunal was for a decision under s. 28(1AC) of the AAT Act as to whether the applicant was entitled to a statement of reasons. There was no application for review of the alleged substantive decision.
The applicant sought issue of a summons requiring ASIC to produce documents associated with its conduct in connection with the initial complaint. In its first decision, the Tribunal granted leave for the issue of the summons. It held that the applicant was entitled to at least seek to prove that ASIC's conduct included making a reviewable decision under s. 536. The documents that came into existence within ASIC in connection with its inquiries would at least in part determine whether a decision had been made.[16]
ASIC answered the summons but objected to the production of the documents to the applicant, on the grounds that the application for a statement of reasons would inevitably fail and the documents would effectively grant the applicant reasons he was not entitled to obtain. ASIC argued that s. 536 of the Corporations Act simply sets out one of its functions and that power to perform those functions was conferred by the ASIC Act. Therefore there would never be any decision under s. 536 capable of review.
After considering relevant authorities and the terms of s. 536, the Tribunal rejected this argument. Section 536 did not merely identify ASIC's inquiry function: it also conferred the power to make those inquiries. The documents produced under summons were therefore capable of revealing that a reviewable decision had been made, and as a consequence the applicant's case was not hopeless.[17]
In its third decision the Tribunal examined the correspondence between the applicant and ASIC and other documents that showed ASIC had earlier investigated its own separate concerns about the liquidation of One.Tel and received assurances from the liquidators. The Tribunal held that, on receipt of the applicant's complaint, ASIC had in effect re-examined its own inquiries and had concluded that it remained satisfied with the results of those inquiries. This constituted a new decision under s. 536 to not inquire further. The applicant was therefore entitled to a statement of reasons for this decision.[18]
Both applicants received a letter dated 10 December 2001 that purported to advise them of a decision. Although the letters provided details of the amounts of payment that would be made, they made no reference to the previous correspondence and did not state that the change in payment was a result of application of the new rules. One of the applicants gave evidence that she regularly received letters making small adjustments to the rate of pension without explanation, which were virtually indistinguishable from the letters of 10 December 2001.
The applicants advised Centrelink in May 2002 that the trust had been inactive since June 2001. In consequence, Centrelink decided to cease attributing the income and assets of the trust to the applicants. However, it refused to pay arrears of the pensions for the period January to May 2002 on the basis that the applicants had failed to seek review of the December 2001 decision within the statutory period of 13 weeks after notice had been given.[20]
After reviewing a number of authorities, the Tribunal decided that