Administrative Review Council - 30th Anniversary Address
14 September 2006
Administrative Perspective
Introduction
On 15 December 1976, the then Attorney-General, Bob Ellicott, opened the first meeting of the Administrative Review Council with these words:
(This) is an historical occasion. The group is small, but the event is considerably significant. This is a body which … has brought together a number of people with diverse experience and with considerable expertise.
The same observation could be made tonight, thirty years on.
So it is a pleasure for me to have this opportunity to put forward for your consideration six issues I think we will have to grapple with in the future from an administrator’s perspective.
Electronic decision making
The first issue is to try to gauge the impact that computerization, expert systems and global electronic networking will have on the process of making decisions and administrative review.
The Administrative Review Council has already taken the first step in this direction by publishing its well received report on Automated Assistance in Administrative Decision Making.
I should note that the process of producing that report would disabuse a keen observer of any notion that the ARC is an insular Canberra think tank.
One Friday afternoon, council members arrived en masse at Centrelink in North Ringwood – much to the bemusement of staff and clients. They spread quickly around the office and, working in small groups, interrogated computer operators in depth about the procedures they went through to derive decisions from the automated system they were developing at that time.
Given the rapid rate of computer development, it is impossible to predict where technology will take us but a few points can be asserted with some confidence.
First, more and more decisions will be made through automated systems. At the last count, eight Australian Government agencies were using automated systems in administrative decision making.
Second, provided the systems are well designed and regularly audited, automated decisions will generally be accepted as fair.
And finally, the ARC and government policy makers will need to take care, in designing both the automated systems and the legislation under which they operate, to make proper provision for review of those aspects of the automated decisions that involve the exercise of judgment or discretion.
Globalisation
The next issue is globalization.
There is no doubt we are now living in a global village. The barriers of distance and national borders are daily becoming less and less significant. We are actively expanding Australia’s international markets for goods and services and negotiating free trade agreements to break down barriers that still exist.
The question is: How will administrative review work internationally?
An early indication can be seen in the regulation of therapeutic goods under the Trans Tasman Mutual Recognition Agreement.
In a treaty made under that Agreement in 2003, Australia and New Zealand agreed to set up a joint agency to regulate therapeutic goods.
The agency’s decisions – which affect the ability to market therapeutic goods in both countries – are subject to administrative review.
The treaty provides for tribunal members in both jurisdictions to be drawn from a Merits Review Panel established by the Australian and the New Zealand ministers.
The early thinking in relation to therapeutic goods was that there would not be administrative review. One reason for this approach was that administrative review was too difficult, particularly as New Zealand does not have an equivalent tribunal to the Administrative Appeals Tribunal.
It is a feather in the ARC’s cap that its persistence was a major factor in the development of a bilateral international regime for administrative review in this important area.
Nature of the Australian Public Service
The third issue I want to mention is the future make up of the public service and the impact that will have on our established processes for reviewing administrative decisions.
The public service is increasingly made up of a mix of permanent officers, non-ongoing staff and contractors. Many traditional public service functions are outsourced altogether.
The problem this poses was well articulated by the ARC in its 1998 report on The Contracting Out of Government Services.
The Council noted that contracting out has the potential to result in a loss of the benefits which the administrative law system provides for individuals. The report contained 30 recommendations to address the problem.
A significant improvement was made last year when the Ombudsman’s Act was changed, giving him jurisdiction to investigate the actions of Commonwealth service providers as if those actions had been made by the relevant department or agency. That extended authority will be particularly relevant to immigration oversight and Welfare to Work.
Nonetheless, the issue is still with us. We will have to be constantly on our guard to see that reforms designed to improve the efficiency of government services don’t come at the expense of diminished access to administrative review.
Another, but less obvious, human resource problem relates to the average length of service and its implications for staff training.
Along with other big employers, the APS is finding that its staff are becoming more mobile and less likely to stay in one place for very long.
This changing employment demographic raises questions about their preparation to make sound administrative decisions. Will they have had enough time in the job to learn how to do so? It highlights the need to have good training programs that get staff up to an acceptable level of performance very quickly.
An Administrative Review Tribunal
Next I want to comment on the question of a combined Administrative Review Tribunal.
The ARC had urged the formation of a single tribunal to replace a number of existing federal merits review tribunals in its Better Decisions report. In his second reading speech on the Administrative Review Tribunal Bill in June 2000, Attorney-General Daryl Williams noted that the Government had accepted that recommendation.
As we all know, that bill was not passed by Parliament.
However, in my view, it is likely that a similar proposal will be brought forward again at some stage in the future because it makes good sense for all the reasons previously advanced.
I think the success of the Victorian Civil and Administrative Tribunal supports that opinion.
The aim would be, as before, to establish one tribunal with centralized administration and accommodation, a common registry and common procedures (to the maximum extent practicable).
A redeveloped ART could sit in separate divisions with different levels of appointment and member remuneration and entitlements.
It would also be important for a single tribunal to have sufficient flexibility in its separate divisions to bring appropriate levels of procedure and decision making to the review of different sorts of administrative decisions.
In other words, simple and quick processes should apply in cases where that is appropriate with lengthier and more complicated procedures applying to matters that justify more detailed consideration.
This will be necessary to meet any concern that applicants could use a complex review process in some unmeritorious matters to simply create delay in implementing administrative decisions.
Legislation
My fifth point is to do with the volume of legislation passed and regulations made each year.
I can’t see the rate at which new laws are made decreasing much in the foreseeable future, even though some improvements will be made by concerted attacks on red tape.
This is in large part due to community expectations that the government will legislate to regulate or outlaw most unfortunate events or unpleasantness that arise in the ordinary course of daily life.
The British Prime Minister, Tony Blair, has sharply criticized this community expectation. He has called it a wholly disproportionate attitude to the risks we should expect to see as a normal part of life, resulting in a plethora of rules, guidelines, responses to ‘scandals’ of one nature or another that ends up having utterly perverse consequences.
I agree it would be good if we could get out of what Richard Humphry – a member of the Banks red tape review task force - has called a regulate first, ask questions later culture, but I think that will take some time to achieve.
So there will be no shortage of new legislation and regulation over the next few years which will present continual new challenges for effective administrative review.
Nature of democracy
My final observation deals largely with the same point but from a different perspective. It’s about the nature of our democracy.
It seems to me that administrative review is really about ensuring that everyone gets a fair go.
It is about establishing an acceptable balance between the executive arm of government and individual rights and ensuring that the judiciary and administrative tribunals have the authority to enforce that balance.
However, the way the Australian community defines a fair go will change over time and administrative review will need to adjust to that change.
For example, people may come to accept automated decisions as fair and not be inclined to challenge them.
But right now, I think we are towards the other end of the complaint spectrum. Author and expatriate Robert Hughes believes we have developed a culture of complaint and was sufficiently concerned to write a book about it.
Other commentators have observed that Australians are now much more likely to complain or insist on what they see as their entitlements than say ten years ago.
My observation in my former role of dealing with complaints against Victorian solicitors is that many complainants want justice but justice, when expressed in this way, is a very personalized concept. It usually means the outcome that suits them the best.
Those community attitudes indicate that, right now, we are in a period when citizens have very high expectations of their right to have official decisions reviewed and – they certainly hope – to get a more favourable outcome from the reviewer.
A challenge for administrators will be to ensure that future policy proposals match community expectations about the appropriate balance between the exercise of proper authority by official decision makers and an individual’s right to merits review, which will change over time.
Conclusion
So my summary is this.
Given the nature of our open democracy, the steady passage of new laws and our strong expectation that we will receive a fair go, administrative law and administrative review will grow and prosper in Australia over the next 30 years.
However, I recognize that my perspective on these issues as an administrator could be quite different to the perspective of a judge, a tribunal member, an academic, a person in business or a member of the community affected by an administrative decision.
This message was brought home to me by Justice Kirby’s comment, at the ARC’s 25 th anniversary celebration, that Prime Minister Bob Hawke and the head of his department, Sir Geoffrey Yeend, used to watch the television program Yes Minister together on Monday nights.
Justice Kirby observed: They both laughed. But in different places.
Robert Cornall AO