Administrative Review Council
twenty-sixth annual report
2001 - 2002
Contacting the Administrative Review Council
For information about this report, or more generally about the Council’s work, please contact:
The Executive Director
Administrative Review Council
Robert Garran Offices
National Circuit
BARTON ACT 2600
Telephone: (02) 6250 5800
Facsimile: (02) 6250 5980
e-mail: arc.can@ag.gov.au
Internet: law.gov.au/arc
The offices of the Administrative Review Council are located in the Robert Garran Offices, National Circuit, Barton ACT.
© Commonwealth of Australia 2002
ISBN 0 642 21070 5
This work is copyright. Apart from any use permitted under the Copyright Act 1968 no part may be reproduced by any process without written permission.
Administrative Review Council
Attorney-General
Parliament House
CANBERRA ACT 2600
Dear Attorney-General
In accordance with section 58 of the Administrative Appeals Tribunal Act 1975, I am pleased to present you with this report on the operation of the Administrative Review Council for the year 2001-2002.
Yours sincerely
Wayne Martin QC
President
Wayne Martin QC Justice Garry Downes AM
Ron McLeod AM Professor David Weisbrot
Bill Blick PSM Christine Charles
Robert Cornall Professor Robin Creyke
Stephen Gageler SC Patricia Ridley
Robert Garran Offices, National Circuit, Barton ACT 2600
Telephone: (02) 6250 5800 Facsimile: (02) 6250 5980 e-mail: arc.can@ag.gov.au
Internet: law.gov.au/arc
See Photograph in PDF or Word Versions of this document.
Photograph of the Council at 28 June 2002.
Those photographed are:
Standing: Stephen Gageler SC, Ron McLeod AM, Bill Blick PSM, Justice Garry Downes AM.
Seated: Professor Robin Creyke, Wayne Martin QC, Kelly Williams (Acting Executive Director).
Not included: Christine Charles, Robert Cornall, Patricia Ridley, Professor David Weisbrot.
Photograph by Norman Plant
A Tribute to Bettie McNee
It is with great sadness that the Council reports the death on 11 March 2002 of its President, Bettie McNee. Bettie was a valued colleague and friend to Administrative Review Council members and Secretariat staff who worked with her.
At the time of her appointment as President of the Council in 1999, Bettie was Group Secretary and General Counsel of Westpac Banking Corporation. She enjoyed an impressive professional reputation including as a partner of Freehill Hollingdale and Page, where she was managing partner of its Federal Government practice in Canberra and national co-ordination partner of the national firm with responsibility for the implementation of national and international policies. Through a number of positions on government and private sector boards and advisory bodies, she also made a significant contribution to the community.
As President, Bettie provided excellent leadership to the Council and its Secretariat, displaying considerable dignity and courage as she continued to promote the interests of the Council despite her illness. In opening proceedings on the 25th anniversary of the Council's establishment on 6 December 2001, her last public act as Council President, she was able to mark her place as part of the strong tradition of Council Presidents.
At its 201st meeting on 28 June 2002, the Council recorded its regret at Bettie’s death, and its appreciation for her wide-reaching contribution, as President, to the work of the Council.
Contents
Chapter 1........................................................................................................................... 1
OVERVIEW........................................................................................................................................................................ 1
Introduction................................................................................................................................................................. 1
Work of the Council.................................................................................................................................................... 1
Changes in Council Membership............................................................................................................................ 3
Chapter 2........................................................................................................................... 5
Work and performance of council............................................................................................................. 5
Introduction................................................................................................................................................................. 5
An assessment of the work of the Council during 2001 - 2002.......................................................................... 6
Reports.......................................................................................................................................................................... 6
Advice and submissions to Government and Parliament.................................................................................... 8
Educational and training activities........................................................................................................................ 9
Other work of the Council...................................................................................................................................... 14
Current Projects........................................................................................................................................................ 14
Chapter 3......................................................................................................................... 17
MANAGEMENT AND ACCOUNTABILITY............................................................................................................ 17
Enabling legislation................................................................................................................................................ 17
Responsible Minister............................................................................................................................................... 17
Annual Report........................................................................................................................................................... 17
Functions and powers of the Council................................................................................................................... 17
Membership............................................................................................................................................................... 17
Current members of the Council's Secretariat.................................................................................................... 19
Council Expenditure................................................................................................................................................ 20
The Council's meeting dates................................................................................................................................... 21
Consultancy services............................................................................................................................................... 22
Social justice and equity issues............................................................................................................................. 22
Equal employment opportunity program............................................................................................................. 23
Occupational health and safety issues................................................................................................................. 23
Freedom of information........................................................................................................................................... 23
Advertising and market research.......................................................................................................................... 26
Ecologically sustainable development and environmental performance..................................................... 26
APPENDIX 1 - SECTION 51, ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975...... 27
APPENDIX 2 - LETTERS OF ADVICE.............................................................................. 29
APPENDIX 3 - Publications of the Administrative Review Council.. 51
APPENDIX 4 - Status of the Council’s Recommendations....................... 55
APPENDIX 5 - The Council’s Expenditure, 1 July 2001 to 30 June 2002... 63
The 2001-2002 reporting year was a challenging and successful one for the Council, sadly, overshadowed by the untimely death, on 11 March 2002, of Council President, Bettie McNee.
It is a mark of her singular determination, commitment and courage, that although gravely ill, Bettie continued to provide significant direction and drive to the work of the Council until very shortly before her death. As a result of this determination, two significant projects in progress at the commencement of the 2001- 2002 reporting year came to fruition during the course of the year.
They were:
· the launch of the Council publication, A Guide to Standards of Conduct for Tribunal Members (the Guide); and
· the establishment of a Council of Australasian Tribunals.
The Guide was launched by the Commonwealth Attorney-General, the
Hon Daryl Williams AM QC MP, on 3 October 2001.
The Guide was developed by the Council following an extensive consultation process including the release of an Exposure Draft Principles of Conduct for Members of Merits Review Tribunals, and discussion forums with tribunal heads, members, agencies and other stakeholders.
The high level of interest in the Guide, evident during the course of the extensive consultation process preceding its publication, continued following its release, with requests for copies of the publication being received from a wide range of Commonwealth, State and Territory tribunals. In some cases, copies of the Guide have been requested by tribunals for distribution to all members. The Council finds this a most gratifying response to its work in this area.
The Council of Australasian Tribunals (the COAT) was formed in Melbourne on
6 June 2002 at a meeting of Commonwealth, State, Territory and New Zealand presiding officers. At that meeting, the COAT Constitution was adopted and office holders were elected to serve on the inaugural COAT.
From the meeting of the Council in March 2001 at which it was decided to further develop earlier proposals for the establishment of a council of tribunals, the Council played a key role in the achievement of this result. Following the establishment at preliminary meeting of presiding officers of tribunals in Sydney on 3 October 2001 of a COAT Steering Group, the Council’s Secretariat provided secretariat support to the Group until the establishment of the COAT on 6 June 2002.
The year was also marked by the celebration, on 6 December 2001, of the Council’s 25th Anniversary.[1]
To mark the occasion, there was a
presentation by Emeritus Professor Dennis Pearce in the House of
Representatives Chamber in Old Parliament House. The presentation was preceded
by introductory comments from the President of the Council. It was followed by
a dinner, hosted by Council Member,
Wayne Martin QC. Those attending the dinner included the Attorney-General,
the Hon Daryl Williams AM QC MP, former Attorneys-General, Council Presidents,
Council Members and staff, as well as people who have had an interest in the
work of the Council over the years.
The 25th Anniversary celebrations were marked by a range of encouraging remarks about the Council. The following comments conveyed to those attending the anniversary dinner in a message from the Prime Minister, the Hon John Howard MP, are reflective of the sentiments of the occasion:
‘The Council’s establishment in 1975 was a significant element in a series of reforms which have shaped Australia’s administrative law system. As an adviser to Government, the Council has made, and continues to make, a substantial contribution to the development of our system of administrative law.’
Projects commenced during the previous year were also progressed significantly during the current reporting year. At the end of the reporting year, work on a discussion paper for the scope of judicial review project, and an issues paper for the project relating to the use of automated assistance (or expert systems) in administrative decision-making were well advanced. Both projects have already attracted considerable interest from a range of stakeholders.
During the year, the Council also continued to provide broad support to the Commonwealth system of administrative decision-making and review. Examples of the Council's work in this area include:
· letters of advice and submissions in relation to aspects of administrative review, administrative law and public administration (see Appendix 2); and
· production of the Council’s administrative law bulletin, Admin Review, which provides information on the current work of the Council and general developments (including tribunal and judicial decisions) affecting the Commonwealth system of administrative review.
During the year, the Hon Deirdre O’Connor retired as President of the Administrative Appeals Tribunal on 5 March 2002, and her ex officio position on the Council was filled by the acting President of the Tribunal,
the Hon Justice Garry Downes AM.
At its June 2002 meeting, the Council thanked Deirdre O’Connor for her contribution to the work of the Council and extended a warm welcome to her successor, Justice Downes.
At the June meeting, the Council also extended its congratulations to Council Member, Robin Creyke, upon her appointment to the position of Professor of Law at the Australian National University.
The Council is pleased also to note the extension of the term of appointment of Council Member Patricia Ridley from November 2001 until November 2003.
Subsequent to the reporting period, Wayne Martin QC has been appointed to the position of President of the Council.
The statutory functions of the Administrative Review Council (the Council) are set out in section 51 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). A copy of this provision is at Appendix 1.
When the Council was first established some twenty-five years ago, its primary function was that of identifying those administrative decisions that should be subject to review and to oversee the procedures of review bodies within the administrative review system. Both these functions are reflected in section 51 of the AAT Act. Additionally, over time, the Council has developed a broader function involving oversight of the administrative law system and inquiry into the procedures used by authorities of the Commonwealth and others when overseeing administrative discretions. These functions and the Council’s educational role were formally recognised in 1999 amendments to the AAT Act.[2]
This legislative expansion of the functions of the Council has been accompanied by an expansion in the challenges confronted by the Council in its overseeing role of the Commonwealth administrative system. As observed by the Hon Justice Michael Kirby AC CMG on the occasion of the Council’s 25th Anniversary celebrations:
‘The work of the Council continues…It should not be thought that the work of the Council is over, or that the best lies in the past…The challenges of the present are different. Privatisation, outsourcing, international obligations, globalisation of administration and the influence of the principles of universal human rights present new and important challenges for administrative law reform in the twenty-first century. The biggest challenges for the Council therefore lie ahead.’[3]
The Council’s response to changing times has been publicly acknowledged in a speech by the Attorney-General, the Hon Daryl Williams AM QC MP:
‘Since I have been Attorney-General, the Council has published on a range of issues, including guidelines for preparing statements of reasons, a best practice guide on internal review of agency decision-making, a guide to standards of conduct for tribunal members and a report on the contracting out of government services.
‘The Council has made a valuable contribution to the debate on these and other issues.’[4]
- report writing;
- advice to government on specific issues and general liaison with agencies on matters relating to administrative decision-making and review; and
- educational and informational activities through publications and seminars.
The Council's reports provide a concise statement of administrative law and practice in relation to the subject matter of the report. They are designed to make an important and unique contribution to debate and discussion of administrative law issues, both within government and the wider community.
Reports may be prepared by the Council either at its own instigation or at the request of the Attorney-General (section 51C AAT Act). Reports submitted to the Attorney-General are required to be tabled in the Parliament.
Although no reports were finalised during the reporting year, there were a number of encouraging developments in the implementation of reports of previous reporting years.
The Senate Legal and Constitutional Legislation Committee's 1997 Report on the Role and Function of the Administrative Review Council recommended that the Government give an undertaking to respond to all reports within 12 months of their delivery. That recommendation was not accepted by the Government.
Such reports can, nevertheless, have an important impact on the development of government policy. It has been noted by the Attorney-General that:
‘The Government always carefully considers the Council’s work, even if it is not as quickly as the Council would prefer.
‘…Just because all the Council’s recommendations are not accepted by the Government does not mean that they are ignored. The Council’s work contributes to the debate within the Government and the broader community on particular issues, whether it is ultimately implemented or not.’[5]
A complete list of the titles of the Council's reports together with details of other Council publications not of the status of reports is at Appendix 3.
An update on the implementation by Government of recommendations made by the Council in its reports is at Appendix 4.
The recommendations made in Council reports can have a broad impact on the administrative system through their consideration and adoption by other bodies. The impact of Council reports can thus be of a longstanding nature.
During the 2001 – 2002 reporting year, recommendations for changes made in the Council’s Review of the Administrative Decisions (Judicial Review) Act, The Ambit of the Act, Report No 32 of 1989, have been tentatively recommended by the Law Reform Commission of Western Australia in its Discussion Paper Judicial Review of Administrative Decisions, Options for Reform (June 2002), for adoption in that State.
The tentative recommendations advanced by the Western Australian Law Reform Commission having regard to Report No 32 include:
· the extension of the operation of proposed judicial review legislation in that State to decisions of an administrative character not made under legislation but which relate to the use of funds authorised or appropriated by the Parliament (Recommendation 1 of the Council Report);
· the extension of the Act to decisions of the Governor-General (Recommendation 2 of the Council Report); and
· that the Court have a general discretion to refuse relief (Recommendation 15 of the Council Report).
There are also references to a number of Council reports in the Australian Law Reform Commission’s Discussion Paper 65, April 2002, Securing Compliance: Civil and Administrative Penalties in Australian Federal Regulation.[6]
Other
Additionally, Council reports are widely relied on in tertiary education institutions by both academics and students. This is reflected in the steady stream of requests for copies of Council reports received by the Council Secretariat each year.
Copies of Council reports and other Council publications are also published on the Council’s website (law.gov.au/arc). The website is an important ‘public face’ for the Council, also containing details of Council membership and of letters of advice provided to government during each reporting year.
Prior to the end of the 2001 – 2002 reporting year, the Secretariat was engaged in a revision and updating of the Council’s website to ensure that it accurately reflected the current work and membership of the Council.
Over the reporting year, the Council's website received 5, 381 hits, compared to
5, 827 hits in 2000 – 2001.
In addition to the preparation of reports, the Council also pursues other opportunities to assist in the development of administrative law policy. Letters of advice, usually directed at specific aspects of the administrative law system or public administration, form an important aspect of the Council’s work.
To the end of June 2002, the Council had produced approximately 250 letters of advice and submissions to Ministers, parliamentary committees and government agencies.
Subject to instances where the public interest may require that publication of a letter should be deferred, for example, where a matter remains under active consideration by the Government, or would disclose considerations of Cabinet, the Council has, since its Tenth Annual Report in 1985 – 1986, published its advices in its annual reports.
In his presentation on the occasion of the Council’s 25th Anniversary celebrations, Emeritus Professor Dennis Pearce noted that the Council’s advices:
‘… provide useful guidance to public administrators and administrative law practitioners on a diversity of issues. They are a very significant collection of wisdom. Any assessment of the value of the ARC cannot ignore this contribution.’[7]
In his presentation, Professor Pearce also observed that the number of advices provided to Government by the Council had been declining over the last few years, with only four advices being provided during 2000 – 2001.[8] This trend seems to have been arrested somewhat during the 2001 – 2002 reporting year, with formal written advice being provided by the Council on seven occasions. An eighth advice was being finalised at the end of the reporting period. It will be published in next year’s report.
As noted by Professor Pearce, it is to the advantage of agencies to approach the Council at an early stage in the legislative process as the Council may raise similar issues to those identified by the Senate Scrutiny of Bills Committee once a Bill is introduced. Towards the end of the 2001 – 2002 reporting year, the Council was actively pursuing ways in which early contact with the Council by agencies might be encouraged.
A consequence of early involvement in the legislative process is the increasing likelihood that the advice will not be able to be published in the annual report because of its proximity to the deliberations of government. Four such advices, relating to draft legislation and coordination comments provided by the Council in response to a Cabinet submission, are not reproduced in the report.
Letters of advice included in the report are at Appendix 2.
The Council provides copies of all of its reports to students, academics, libraries, and educational institutions, both in Australia and overseas, either as a matter of course or on request. The Council considers that this is an important means of encouraging debate and discussion about administrative law, as well as encouraging positive and educated change in public administration.
All Council publications are educative in a broad sense, in so far as they contain a compendium of the law on issues under consideration. In recent years however, the Council has released a number of significant publications aimed specifically at improving administrative decision-making and review. As noted by
Emeritus Professor Pearce in his 25th Anniversary presentation:
‘These are necessary aids to decision-making for government officers. They are also valuable guides to persons affected by government decisions in setting out the standards with which the public can expect government officers to comply.’[9]
A Guide to Standards of Conduct for Tribunal Members, published by the Council in September 2001 and launched on 3 October 2001, by the Attorney-General is reflective of this trend.
The Guide was developed by the Council following an extensive consultation process including the release of an Exposure Draft, Principles of Conduct for Members of Merits Review Tribunals, and discussion forums with tribunal heads, members, agencies and other stakeholders.
Having regard to the values of lawfulness, fairness, openness and efficiency underpinning the Australian administrative law system, the Guide suggests a number of principles of conduct against which the professional conduct and public respect of administrative tribunals may be measured and maintained. The principles seek to reinforce the importance of respect for the law, respect for others, fairness, independence, integrity and diligence, transparency, accountability and timeliness.
Each principle is supplemented by explanatory comments, focussing particularly on issues that prompted discussion during the consultation process.
The Guide was not developed with any particular tribunal in mind. As well as providing direction on standards of conduct for Commonwealth tribunal members, the Guide can also be of assistance to members of State and Territory tribunals.
The interest from tribunal members apparent in the development of the Guide has continued following its publication. At the end of the 2001 – 2002 reporting year, some 1, 500 copies of the Guide had been distributed to Commonwealth, State and Territory tribunals. In some cases, tribunals requested copies of the Guide for all tribunal members. The Council is also aware that in developing their own codes of practice, tribunals have been using the Guide as a point of reference.
Other publications which continue to play an important educative role, as reflected in the steady stream of requests to the Secretariat for copies, include What Decisions Should be Subject to Merits Review?(1999), Practical Guidelines for Preparing Statements of Reasons (2000) and Internal Review of Agency Decision Making (2000).
The Council's administrative law bulletin, Admin Review, also represents a significant aspect of its wider activities, and reflects the Council's contribution to raising awareness of administrative law issues. During the 2001 – 2002 reporting year, one edition of Admin Review, No 53, was published in September 2001.
The Council’s profile is enhanced through participation of Council members and members of the Secretariat in speaking engagements and in administrative law forums.
During the 2001 – 2002 reporting year, presentations relating directly to the work of the Council given by Council members and Secretariat staff in that capacity included:
Presentation at AIAL National Conference, Administrative Law - The Essentials, Canberra, 5 July 2001
Matt Minogue, Executive Officer, Administrative Review Council
Administrative Review in Context
Presentation at Environment Australia, Canberra, 20 February 2002
Matt Minogue, Executive Officer, Administrative Review Council
Improving Government Decision-Making
Presentation at AIAL seminar, Canberra, 31 May 2002
Christine Charles, Member, Administrative Review Council
Other presentations made by members of Council of relevance in a broader sense to the administrative law system included:
Presentation at AIAL National Conference, Administrative Law - The Essentials, Canberra, 6 July 2001
Stephen Gageler SC, Member, Administrative Review Council
Departmental Representation in Tribunal Membership - a Viable Option? Presentation at AIAL National Conference, Administrative Law - The Essentials, Canberra, 6 July 2001
Professor Robin Creyke (presentation with Professor J McMillan)
Presentation to the World Bank Group on Legal Institutions and the Market Economy, Washington DC, 25 July 2001
Professor David Weisbrot, Ex officio Member, Administrative Review Council
Courts, Tribunals and Public Administration – Scepticism Unjustified
Presentation at Annual Judges’ Conference, Hobart, 22 September 2001
Professor Robin Creyke
Professional Standards and Ethics Issues
Presentation to members of the NSW Mental Health Review Tribunal, Sydney, 30 November 2001
Professor Robin Creyke
The High Court on Constitutional Law: The 2001 Term
Presentation at University of New South Wales Centre of Public Law 2002 Constitutional Law Conference, Sydney, 15 February 2002
Stephen Gageler SC, Member, Administrative Review Council
The Impact of Judicial Review on Tribunals - Recent Developments
Presentation at Annual AIJA Tribunals’ Conference, Melbourne, 6 June 2002
Professor Robin Creyke
Council of Australasian Tribunals
Another important Council project which came to fruition during
2001 – 2002 was the establishment on 6 June 2002 of the Council of Australasian Tribunals (COAT). The establishment of the COAT will offer obvious educational and training benefits for tribunals, particularly small tribunals with limited resources.
Although the role of the Council was essentially that of a facilitator in this process, the establishment of such a body had been recommended by both the Council and the Australian Law Reform Commission (the ALRC) some years previously.
In Better Decisions, the Council proposed a ‘Tribunals Executive’ as part of formal arrangements for promoting and coordinating liaison between review tribunals.[10] The ALRC’s Managing Justice report expanded the proposal to a ‘Council on Tribunals’ which would act as a national forum for tribunal leadership to develop policies, secure research and promote matters of common interest.[11] The ALRC recommended that membership should include the heads of Commonwealth and State tribunals involved in administrative review and the President of the Council.
At its meeting on 1-2 March 2001, the Council committed itself to facilitating the creation of such a body. The proposal for a ‘Council of Australian Tribunals’, or COAT was developed by the Council and supported at a meeting of Commonwealth, State and Territory heads on 3 October 2001. With the support from the Council’s Secretariat, the Steering Group of Commonwealth and State tribunal heads established at this meeting further developed the proposal in conjunction with the Council.
The Council proposed that COAT would be an informal body, operating largely by consensus. Membership was to be open to all Commonwealth, State and Territory tribunals and the COAT was to operate nationally, as well as through State and Territory chapters. This would assist the development of networks for the dissemination of information and could provide an opportunity for the participation of smaller tribunals.
On 6 June 2002, the Council’s proposal for the COAT, was accepted at an inaugural meeting of Commonwealth, State, Territory and New Zealand tribunal heads. The proposal was expanded to include New Zealand tribunals and the Council of Australasian Tribunals was established.
As envisaged by the Chair of the COAT Interim Executive, the
Hon Justice Murray Kellam, President of the Victorian Civil and Administrative Tribunal, the COAT will achieve practical benefits in the following areas:
- professional development and training;
- sharing of knowledge and experience among tribunals;
- co-ordination and transfer of information by visiting other tribunals; and
- proposals for research (for example, the COAT could co-operate with other research bodies such as the Australian Institute of Judicial Administration, the Administrative Review Council or the National Judicial College).[12]
The Council’s association with the COAT will continue through the Council’s President who is an ex officio member of the COAT.
It is proposed to publish a short account of the Council’s involvement in the development of the COAT. At the conclusion of the reporting year, work on the report was progressing well.
The Council’s 25th Anniversary celebrations on 6 December 2002 cannot be readily allocated to any of the above categories. The celebrations provided a valuable opportunity for the Council to review its contribution to the administrative law system over the preceding twenty-five years, and to focus with renewed energy upon its future role.
To mark the milestone, the Council organised a presentation in the House of Representatives chamber of Old Parliament House by Emeritus Professor Dennis Pearce, and an anniversary dinner.
In his presentation, Professor Pearce noted the valuable contribution of the Council and the effect of limitations being imposed on the review system. He challenged the Council to strengthen its resolve in the face of the threat of such limitations.
Inaugural ex officio Council members, Sir Gerard Brennan AC KBE CMG, the
Hon Justice Michael Kirby AC CMG and Professor Jack Richardson AO, all spoke at the dinner, reflecting on their experiences as members of the Council. Their presentations acknowledged the work of members and staff of the Council in continuously seeking to protect the reputation and integrity of Commonwealth administrative law system. The continued value of the Council as an independent source of advice was also recognised.
Approximately 150 people attended the anniversary celebrations. To mark the occasion, a record of proceedings is to be published by the Council. The publication will be directed, principally, at those who attended the anniversary celebrations.
During the reporting period, the Council was able to make significant progress on several projects. At the close of the 2001 – 2002 reporting year, the Council was working on two major projects. Both reflect a continuing Council trend towards education and guidance. The scope of judicial review project, in particular, will provide a comprehensive guide to a range of aspects of the judicial review of administrative decisions.
The Council anticipates that the outcome of the project will be the publication of a set of guidelines for agencies, legislators and commentators exploring policy issues relevant to the appropriate scope, including the desirable minimum scope, of judicial review having regard to constitutional considerations. The Council hopes that its final publication on the scope of judicial review will be a useful complement to its 1999 publication What Decisions Should Be Subject To Merits Review?
During the year, as part of the consultative process preceding development of the proposed guidelines, the Council has continued to focus on the drafting of a discussion paper.
In the discussion paper, the Council will seek to canvass a range of policy and legal factors relevant to the appropriate application of judicial review. Matters to be canvassed in the discussion paper will include:
· the Constitutional significance and shape of judicial review;
· other factors relevant to the scope of judicial review from either the judicial or the government perspective, including:
- justiciability;
- deference;
- the nature of the grounds of judicial review;
- resource-related considerations;
- the nature of the decision-maker;
- the nature of the decision; and
- the alternative remedies available.
The discussion paper will also address the means of legislatively limiting or excluding judicial review.
The Council is continuing its inquiry into the use of automated assistance (i.e. expert systems) in administrative decision-making. An expert system is a computing system which, when provided with certain basic information and general rules instructing it how to reason and draw conclusions, can then mimic the thought processes of a human expert in a specialised field.[13]
Rule-base systems are one type of expert system. While the Council is considering the use of expert systems, its focus is on rule-base systems because they are generally the type of expert system used to model legislation. Such systems are used in administrative decision-making in a number of Commonwealth government departments and some State government departments.
The Council is preparing an issues paper on the subject. Among other matters, the issues paper will consider the implications of the use of such systems for primary decision-making, particularly the potential de-skilling of decision-makers, and how administrative review is undertaken of decisions made using expert systems.
The Council has conducted a stocktake of the current and proposed use of expert systems in administrative decision-making within Commonwealth agencies. The results of that stocktake will be published in the Issues Paper. The Council has also undertaken consultations with a number of agency heads and their agencies.
It is anticipated that the issues paper will be ready for publication by the end of 2002.
The update of the content of these two publications is necessary as a result of the decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1.
It is expected that the revised booklets will be republished during the first half of the 2002 – 2003 reporting year.
The booklets have proved particularly popular with agency decision-makers, and have been reprinted once already.
The Administrative Review Council is established under section 48 of the Administrative Appeals Tribunal Act 1975 (the AAT Act).
The responsible Minister is the Attorney-General who may give directions to the Council regarding the performance of its functions or the exercise of its powers (section 51A AAT Act), and may refer matters to the Council for inquiry and report (section 51B). The Council reports to the Attorney-General (section 51C).
The Council is required to furnish an annual report to the Attorney-General for presentation to the Parliament as soon as practicable after 30 June each year and the report is to be tabled within 15 sitting days of its receipt by the Attorney-General (section 58 AAT Act).
As mentioned in the preceding Chapter, the powers and functions of the Administrative Review Council are set out in section 51 of the AAT Act. A copy of this provision is at Appendix 1.
Membership of the Council comprises a President, three ex officio members and up to ten appointed members (section 49 AAT Act).[14]
The President of the Council is appointed by the Governor-General (section 49 AAT Act).
Bettie McNee was appointed as President of the Council for a period of three years from 25 August 1999 to 24 August 2002. As noted earlier, sadly, Bettie died on 11 March 2002, a little over five months before the end of her term of appointment as Council President. Wayne Martin QC was appointed President of the Council on 22 August 2002.
There are three ex officio Council members (section 49 AAT Act). At the end of the reporting period, they were:
·
the Acting
President of the Administrative Appeals Tribunal -
the Hon Justice Garry Downes AM (from 28 March 2002);[15]
· the Commonwealth Ombudsman - Ron McLeod AM; and
·
the President
of the Australian Law Reform Commission -
Professor David Weisbrot.
Council members are appointed by the Governor-General (section 49 AAT Act). Appointments are for up to three years and members are eligible for reappointment (section 52 AAT Act).
At the close of the year there were seven appointed members of Council.
To qualify for appointment to the Council members must have had:
· extensive experience at a high level in industry, commerce, public administration, industrial relations, the practice of a profession or the service of a government or authority of government;
· extensive knowledge of administrative law or public administration; or
· direct experience, and direct knowledge, of the needs of people, or groups of people, significantly affected by government decisions (section 50 AAT Act).
Details of appointed members at the end of the 2001 – 2002 reporting year, together with their current terms of appointment, are as follows:
Bill Blick PSM (25/6/2000 - 24/6/2003), Inspector-General of Intelligence and Security
Christine Charles (9/7/2000 - 8/7/2003), Consultant
Robert Cornall (7/6/2000 - 6/6/2003), Secretary, Attorney-General's Department
Professor Robin Creyke (8/12/1999 - 7/12/2002), Professor of Law, Australian National University
Stephen Gageler SC (8/12/1999 - 7/12/2002), Barrister
Wayne Martin QC (9/7/2000 - 8/7/2003), Barrister
Patricia Ridley (12/11/2001 - 11/11/2003), Consultant, Clifton Consulting Services
The Council is assisted in its work by a small Secretariat, the members of which are employed in the Attorney-General's Department under the Public Service Act 1999. Information about that Department's management and human resources policies and practices, including certified agreements and Australian workplace agreements, training and development strategies and outcomes and occupational health and safety and productivity gains can be found in its annual report.
At 30 June 2002, members of the Council's Secretariat were as follows:
Kelly Williams
Acting Executive Director[16]
(from 20 May 2002)
Margaret Harrison-Smith
Acting Principal Legal Officer
Natasha Simmons
Legal Officer
(from 25 March 2002)
Karen Stark
Executive Assistant
Three Secretariat members left during the reporting year:
Sara Pesenti
Legal Officer
(left 9 October 2001)
Melanie Mitchell
Legal Officer
(left 7 December 2001)
Matt Minogue
Executive Officer
(left 17 May 2002)
The Requirements for Annual Reports published by the Department of the Prime Minister and Cabinet (11 July 2002) notes that section 57 of the Financial Management and Accountability Act 1997 (the FMA Act) requires a copy of audited financial statements and the Auditor-General's Report to be included in Annual Reports. The Council is neither a department of state, an Executive Agency nor a prescribed agency under the FMA Act, and is funded from the budget of the Attorney-General's Department. Appropriate and audited financial statements for that Department can be found in its annual report. However a statement of the expenditure of the Council during the reporting year is set out in the table in Appendix 5.
The Council Secretariat was allocated $626, 623.00 during the reporting year, compared with $632, 380.00 in 2000-2001. The Council spent $501, 442.00, of which $390, 594.00 was paid in salaries and allowances and $110, 848.00 was paid for supplier expenses (the corresponding amounts in 2000-2001 were $378, 200.00 and $113, 424.00).
Much of the Council's business is conducted at its regular meetings. During the reporting year, Council meetings were held in Canberra on the following dates:
· 3 August 2002