ADMINISTRATIVE REVIEW COUNCIL THIRTY-FOURTH ANNUAL REPORT 2009–10 © Commonwealth of Australia 2010 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. ISSN 0155-025X ISBN 978-1-921725-33-3 For information about this report, or more generally about the Council’s work, please contact: Administrative Review Council c/o Attorney-General’s Department 3-5 National Circuit BARTON ACT 2600 Telephone: 02 6141 3130 Facsimile: 02 6141 3248 Email: [email protected] Internet: www.law.gov.au/arc ADMINISTRATIVE REVIEW COUNCIL 13 September 2010 The Hon Robert McClelland MP Attorney-General Parliament House CANBERRA ACT 2600 Dear Attorney-General On behalf of the members of the Administrative Review Council and in accordance with section 58 of the Administrative Appeals Tribunal Act 1975, I have pleasure in presenting to you the annual report of the Administrative Review Council for the financial year ending 30 June 2010. Yours sincerely Colin Neave AM President Colin Neave AM Professor John McMillan AO Brigadier Bill Rolfe AO (rtd) Roger Wilkins AO Dr Melissa Perry QC Justice Garry Downes AM Professor Rosalind Croucher Andrew Metcalfe Linda Pearson 3-5 National Circuit, Barton ACT 2600 Telephone: 02 6141 3130 Facsimile: 02 6141 3248 Email: [email protected] Internet: law.gov.au/arc The Administrative Review Council, 2009-10 Back: Roger Wilkins AO, Justice Garry Downes AM, Professor Rosalind Croucher, Professor John McMillan AO Front: Andrew Metcalfe, Dr Melissa Perry QC, Colin Neave AM (President), Linda Pearson Below: Ian Carnell, Brigadier Bill Rolfe AO (rtd), Jillian Segal AM, Professor Robin Creyke, Emeritus Professor David Weisbrot, Ron Brent Thirty-fourth annual report: 2009–10 v Contents 1 Overview ............................................................................................................... 1 2 The work of the Council..................................................................................... 3 Consultation .......................................................................................................... 3 Education ............................................................................................................... 4 3 Management and accountability ...................................................................... 7 Establishment ........................................................................................................ 7 Statutory functions & powers ............................................................................. 7 Membership ........................................................................................................... 8 Meetings ................................................................................................................. 9 Personnel & administrative functions ............................................................. 10 Expenditure ......................................................................................................... 10 Consultancy services & advertising ................................................................. 10 Freedom of information ..................................................................................... 10 Appendix A Reports and guidelines issued by the Council ............................... 12 Appendix B Section 51 of the Administrative Appeals Tribunal Act ............... 15 Thirty-fourth annual report: 2009–10 1 1 Overview The Administrative Review Council places a high value on its role in promoting knowledge of the administrative law system and providing guidance for those with particular responsibilities within that system. During the 2009-10 year, the Council finalised its work on two publications which advance that purpose. On 26 August 2009, the Attorney-General launched the Council’s revised Guide to Standards of Conduct for Tribunal Members at the Administrative Appeals Tribunal and ACT Bar Association seminar on ‘The Obligation to Assist: Model Litigants in Administrative Appeals Tribunal Proceedings’. The Council hopes that the new Guide will highlight the standards of conduct for tribunal members in a relevant and useful manner. The Council also collaborated with academics, practitioners, administrators and others involved in administrative law to publish the 59th edition of Admin Review in May 2010. This bulletin aims to raise awareness about developments in administrative law and practice in the 21st century. The Council was also consulted on a range of policies under consideration by the Government that raised administrative law issues. The Council had a particular interest in the Government’s Freedom of Information reforms having co-authored with the Australian Law Reform Commission, the 1995 Report Open Government: a review of the federal Freedom of Information Act 1982. The 2009-10 reporting year brought an important change to the membership of the Council with the appointment, on 20 May 2010, of Mr Colin Neave AM as the new President of the Council. Mr Neave brings extensive experience in both government and business to the Council and his appointment has been welcomed by Council members. The Council wishes to express its thanks to former President, Ms Jillian Segal AM, whose term concluded in October 2009, for her valuable contribution to the work of the Council. Under her leadership, the Council produced a number of important reports, including The Scope of Judicial Review (2006), The Coercive Information Gathering Powers of Government Agencies (2008) and Administrative Accountability in Business Areas Subject to Complex Regulation (2008) and provided practical resources for agencies in the form of the Best Practice Guides for Administrative Decision-Making, which were completed in 2007. During the reporting year the Council also farewelled Mr Ian Carnell, who retired from his role as Inspector-General of Intelligence and Security and Emeritus Professor David Weisbrot AM, who stepped down from his position as President of the Australian Law Reform Commission in November 2009. 2 Thirty-fourth annual report: 2009–10 Professor John McMillan AO will continue to be a member of the Council in his new role as the first Australian Information Commissioner. When Professor McMillan was appointed Information Commissioner Designate on 26 February 2010, he took leave from his position as Commonwealth Ombudsman but has continued his involvement in the work of the Council during the year. The Council looks forward to commencing work on new projects in the next reporting year and will be supported in this work by staff of the Attorney-General’s Department. Thirty-fourth annual report: 2009–10 2 3 The work and performance of the Council Consultation The Council provides advice on a range of administrative law and policy questions to government departments and agencies and responds to public inquiries into matters that affect the Commonwealth administrative law system. The Council believes that its early involvement in the development of administrative law policy fosters positive outcomes—from the perspectives of both government and the Council—and leads to improved understanding and implementation of best practice in the application of administrative law. Freedom of Information reforms In February 2010, the Council made a submission to the Senate Finance and Public Administration Committee’s inquiry into the Freedom of Information Amendment (Reform) Bill 2009 and Information Commissioner Bill 2009. Reforms to Freedom of Information laws involve the appointment of an Australian Information Commissioner to provide independent oversight of freedom of information and privacy matters. The Council commented on the role of the Australian Information Commissioner in review of administrative decisions and the impact that adding another layer of review might have on the efficiency of current review processes. The Council suggested that the review of the Act to be conducted two years after commencement should pay close attention to the efficiency of the review process, including the length of time matters are taking to be resolved and the role played by the Australian Information Commissioner. The workload of agencies in dealing with FOI requests arising from the proposed amendments is another matter that will necessarily arise in the review of the Act. On 13 May 2010, the Australian Information Commissioner Bill 2010 and the Freedom of Information Amendment (Reform) Bill 2010 passed through the Parliament. The Council was pleased to publish an article by Senator the Hon Joe Ludwig, The Freedom of Information Act – no longer a substantial disappointment, in the 59th edition of Admin Review. Thirty-fourth annual report: 2009–10 4 Other consultation During 2009-10, the Council was also consulted on the following matters: the development of recommendations of the Access to Justice Task Force from the Attorney-General’s Department for its report to Government, A Strategic Framework for Access to Justice in the Federal Civil Justice System, including recommended improvements to the quality of primary decision making and case management in the Administrative Appeals Tribunal. proposed reforms to Norfolk Island’s governance arrangements, which include extending the major elements of the Commonwealth administrative law system to the Norfolk Island Government and Administration including AAT merits review, Freedom of Information Act 1982, Privacy Act 1988, Commonwealth Ombudsman and judicial review of actions Dr Allan Hawke’s independent review of the Environment Protection Biodiversity Conservation Act 1999 Senate Scrutiny of Bills Committee inquiry into its future direction and role UK Administrative Justice and Tribunal Council’s draft Principles of Administrative Justice Department of Immigration and Citizenship’s proposed simplification of the current visa framework, and Attorney-General’s Department consideration of measures to improve the Australian administrative law system, including the development of an Administrative Law Policy Guide to provide direction for Commonwealth officers developing policy and legislation on matters involving administrative law. Education Administrative law is concerned with the interaction between government and its citizens. An essential part of the Council’s role is to promote knowledge and contribute to the discussion of administrative law matters, reinforcing the core administrative values of lawfulness, fairness, rationality, openness and efficiency. New themes continue to arise and the Council’s influence is often most effectively achieved through its educative role and constructive engagement with both the public and private sector. Thirty-fourth annual report: 2009–10 5 Admin Review On 20 May 2010, the Council published the 59th edition of its administrative law bulletin, Admin Review. This edition presents current issues with the administrative law system from the perspective of a range of people, among them academics, legal practitioners, administrators and business users. A general theme running through the articles is how administrative law and practice can respond to the challenge of ensuring fair and open government in a constantly evolving legal landscape. Guide to Standards of Conduct for Tribunal Members On 26 August 2009, the Council published a revised Guide to Standards of Conduct for Tribunal Members. The revised guide is intended to reflect the current role of tribunals and changing public expectation of tribunal members. It will assist in maintaining the high standards expected of tribunal members with regard to respect for the law, fairness, independence, respect for persons, diligence and efficiency, integrity and accountability and transparency. Past publications The Council has published 49 reports, discussing many aspects of the Commonwealth’s administrative law and decision-making system. See Appendix A for a full list of Council publications. Publication of these reports has often been preceded by distribution of one or more consultation papers. The Council’s reports invariably contribute to debate and discussion in the area of administrative law. The Council places considerable emphasis on engaging with relevant departments and agencies in this regard. The Council also produces guidelines for agencies, decision makers, tribunals and legislators. The impact of the Council’s reports and other publications extends much further than the Commonwealth administrative law system. Information and recommendations presented in these publications are often turned to by other bodies. There is continuing demand for the Council’s earlier reports, most notably Better Decisions: review of Commonwealth Merits Review Tribunals and What Decisions Should Be Subject to Merits Review? The Council continues to receive a steady stream of requests for its series of Best Practice Guides for Administrative Decision Makers and in this reporting year, has circulated around 260 copies of the guides to interested parties. The guides are available on the Council’s website and the Council encourages the downloading of the guides as a package. The Council continues its practice of providing free copies of its reports and other publications to educational institutions, libraries, academics and students. It sees this as one way of participating in academic debate associated with administrative law, both within government and in the broader community. Thirty-fourth annual report: 2009–10 6 The website The website is an important window for the Council to provide information about its membership, publications and advice and submissions given to government. The Attorney General’s Department is responsible for updating the website. There were 130 092 visits to the Council’s website in 2009-10, averaging 356 visits per day. Relationship with other bodies The Council works to maintain links with others who have an interest and involvement in administrative law, both overseas and at the State and Territory level. It maintains a close association with the Council of Australasian Tribunals, Australian Law Reform Commission, Administrative Appeals Tribunal and the Commonwealth Ombudsman. The Council from time to time contributes to the Australian Law Reform Commission’s journal, Reform. Thirty-fourth annual report: 2009–10 3 7 Management and accountability Establishment The Administrative Review Council is an independent statutory body provided for under Part V of the Administrative Appeals Tribunal Act 1975. The Council is established under section 48 of that Act and commenced operation in 1976. Statutory Functions & Powers The statutory functions of the Administrative Review Council are set out in section 51 of the Administrative Appeals Tribunal Act at Appendix B. The Council is required to keep the Commonwealth administrative law system under review and recommend to the Attorney-General improvements that might be made to the system. It is also required to assess the adequacy of procedures used in exercising administrative discretions and review classes of decisions to determine if they should be subject to administrative review. It is in fulfilment of these review and monitoring functions that many of the Council’s reflective reports are focussed; often commenting on developments which have not previously been the subject of formal analysis or guidance. The Attorney-General may give directions to the Council in relation to the performance of its functions or the exercise of its powers (s. 51A of the Act) and may refer matters to the Council for inquiry and report (s. 51B of the Act). The Council reports to the Attorney-General on matters which it has inquired into either on its own motion or as a result of reference by the Attorney-General (s. 51C of the Act). 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. The report is required to be tabled within 15 sitting days of its receipt by the Attorney-General (s. 58 of the Act). Thirty-fourth annual report: 2009–10 8 Membership The Administrative Appeals Tribunal Act provides that the Council must consist of the President of the Administrative Appeals Tribunal, President of the Australian Law Reform Commission, the Commonwealth Ombudsman and up to 11 appointed members.1 Members of the Council are appointed by the Governor-General on the recommendation of the federal Attorney-General. The Freedom of Information (Reform) Act 2010 amends section 49 of the Administrative Appeals Tribunal Act 1975 to include the Australian Information Commissioner as an ex officio member of the Council. The Act was passed on 13 May 2010 and commences on 1 November 2010. The President The President of the Council is appointed by the Governor-General (s. 49 of the Act). On 20 May 2010, Colin Neave AM, Chief Ombudsman, Financial Ombudsman Service, was appointed as President of the Council for a three year term. Ex officio members The three ex officio Council members at the end of the reporting period were: President of the Administrative Appeals Tribunal, The Hon Justice Garry Downes AM Acting Commonwealth Ombudsman, Mr Ron Brent President of the Australian Law Reform Commission, Professor Rosalind Croucher Appointed members Council members are appointed by the Governor-General (s. 49 of the Act). Appointments are for up to three years, and members are eligible for reappointment (s. 52 of the Act). To qualify for appointment to the Council, members must satisfy one or more of the following criteria: 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 an authority of government 1 Regulation 22 of the Administrative Appeals Tribunal Regulations 1976 prescribes 11 members in accordance with s 49 (1)(d)(ii) of the Administrative Appeals Tribunal Act 1975. Thirty-fourth annual report: 2009–10 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 (s. 50 of the Act). 9 In addition to the President of the Council, the following members formed part of the Council for all or part of the reporting period: Jillian Segal AM (former President), Director, National Australia Bank Limited and Australian Stock Exchange Limited, 15 September 2005 – 14 September 2008, 3 October 2008 - 2 October 2009 Ian Carnell, former Inspector General of Intelligence and Security, 11 July 2005 – 22 March 2007 and 24 April 2007 – 31 December 2009 Professor Robin Creyke, Senior Member, Administrative Appeals Tribunal, 8 December 1999 – 7 December 2002, 8 December 2002 – 7 December 2005 and 15 February 2006 – 14 February 2009 and 30 July 2009 – 29 July 2010 Andrew Metcalfe, Secretary, Department of Immigration and Citizenship, 17 July 2003 – 16 July 2006 and 17 July 2006 – 16 July 2009, 30 July 2009 – 29 July 2012 Linda Pearson, Commissioner, Land and Environment Court of New South Wales, 3 October 2008 – 2 October 2009, 14 December 2009 – 13 December 2012 Dr Melissa Perry QC, Barrister, 13 April 2006 – 12 April 2009, 30 July 2009 – 29 July 2010 Brigadier Bill Rolfe AO (rtd), former Repatriation Commissioner, 4 October 2007 – 3 October 2010 Roger Wilkins AO, Secretary, Attorney-General’s Department, 30 July 2009 – 29 July 2012 Meetings The Council meets a number of times each year in person and by teleconference. Sub-committees are formed and also meet in relation to specific projects. During 2009–10, Council meetings in person were held on Friday 21 August 2009 and Friday 25 September 2009. The Council held teleconferences on 12 August and 11 September 2009 and on 1 February and 17 June 2010. Thirty-fourth annual report: 2009–10 10 Personnel & administrative functions The Council’s personnel and administrative functions are performed by the Attorney-General’s Department. Dedicated officers of the Administrative Law Branch of the Department are assigned to manage the Council’s work. Departmental officers are employed under the Public Service Act 1999. The Council uses the policy and resources of the Department. Information about the Department’s management and human resources policies and practices—including certified agreements and Australian workplace agreements, training and development strategies and outcomes, occupational health and safety, and productivity gains—can be found in the Department’s annual report at <www.ag.gov.au/www/agd/agd.nsf/Page/PublicationsAnnual_Reports>. Expenditure The Council is funded from the budget of the Attorney-General’s Department. The Department has sole responsibility for the Council’s expenditure and publishes its audited financial statements in the Department’s annual report. Consultancy services & advertising There were no consultancies during the reporting period and the Council was not involved in any advertising or market research activity. Freedom of information The Council is an agency for the purposes of the Freedom of Information Act 1982 (FOI Act). It received no requests for access to documents during the reporting year. Section 8 of the FOI Act requires that agencies publish specific information. The Council’s statutory functions are set out in Appendix B. The information required by s. 8 follows. Arrangements for outside participation in the work of the Council The Council issues discussion papers, preceding some of its reports, which are distributed for comment and are generally available on the Council’s website or on request. Final reports are made available to the public after they have been tabled in Parliament. The papers and reports are also circulated to those with a particular interest in the subject matter, including all State and Territory bar associations, law societies, tribunals and universities. Thirty-fourth annual report: 2009–10 11 Categories of documents held by the Council The Council maintains the following categories of documents: annual reports, project reports, issues and discussion papers, guideline documents and the administrative law bulletin, Admin Review letters of advice and submissions prepared by the Council minutes of Council meetings and documents presented at meetings research notes and papers compiled by Departmental staff, and correspondence and documents relating to internal administration and management. Access to documents The Council’s reports are available from its website <www.law.gov.au/arc>. All reports, discussion papers and guideline documents, as well as Admin Review, are available from the Attorney-General’s Department and can be inspected on request. Letters of advice are listed in the annual report and published on the Council’s website. Minutes of Council meetings and documents presented at the meetings are held by the Department. It is the Council’s policy to make available copies of submissions received as part of its consultation processes in all but two circumstances: the person making a submission specifically requests that the confidentiality provisions of the FOI Act apply to their submission, and there are strong reasons for not disclosing the information in a submission— for example, if the submission contains personal information about an individual. All other documents are kept on file and access to them can be sought under the FOI Act. If it is possible to release such information, it is the Council’s policy to do so. The Council will assist people seeking access to information to identify the documents in question. Thirty-fourth annual report: 2009–10 12 Appendix A Reports and guidelines issued by the Council Reports The following reports have been published by the Administrative Review Council since 1976. All reports are available on the Council’s website. A number of the reports are preceded by discussion or issues papers and these are generally available on request. The reports are listed below in year order, starting with the most recent. 49 Administrative Accountability in Business Areas Subject to Complex and Specific Regulation 2008 48 The Coercive Information-gathering Powers of Government Agencies 2008 47 The Scope of Judicial Review 2006 46 Automated Assistance in Administrative Decision Making 2004 45 A Report on the Council of Australasian Tribunals 2002 44 Internal Review of Agency Decision Making 2000 43 Administrative Review of Patents Decisions 1998 42 The Contracting Out of Government Services 1998 41 Appeals from the Administrative Appeals Tribunal to the Federal Court 1997 40 Open Government: a review of the federal Freedom of Information Act 1982 1995 39 Better Decisions: review of Commonwealth Merits Review Tribunals 1995 38 Government Business Enterprises and Commonwealth Administrative Law 1995 37 Administrative Review and Funding Decisions—a case study of community services programs 1994 36 Environmental Decisions and the Administrative Appeals Tribunal 1994 35 Rule Making by Commonwealth Agencies 1992 Thirty-fourth annual report: 2009–10 13 34 Access to Administrative Review by Members of Australia’s Ethnic Communities 1991 33 Review of the Administrative Decisions (Judicial Review) Act: statements of reasons for decisions 1991 32 Review of the Administrative Decisions (Judicial Review) Act—the ambit of the Act 1989 31 Review of Decisions under Industry Research and Development Legislation 1988 30 Access to Administrative Review: provision of legal and financial assistance in administrative law matters 1988 29 Constitution of the Administrative Appeals Tribunal 1987 28 Review of Customs and Excise Decisions: stage three—anti-dumping and countervailing duty decisions 1987 27 Access to Administrative Review: stage one—notification of decisions and rights of review 1986 26 Review of the Administrative Decisions (Judicial Review) Act: stage one 1986 25 Review of Migration Decisions 1985 24 Review of Customs and Excise Decisions: stage four—censorship 1985 23 Review of Customs and Excise Decisions: stage two 1985 22 The Relationship between the Ombudsman and the Administrative Appeals Tribunal 1985 21 The Structure and Form of Social Security Appeals 1984 20 Review of Pension Decisions under Repatriation Legislation 1983 19 Rights of Review under the Migration Act 1958 and Related Legislation: interim report on the constitution of the Administrative Appeals Tribunal 1983 18 Compensation (Commonwealth Government Employees) Act 1971— amendments 1983 17 Review of Taxation Decisions by Boards of Review 1983 16 Review of Decisions under the Broadcasting and Television Act 1942 – 1982 15 Australian Federal Police Act 1979—sections 38 & 39 – 1982 Thirty-fourth annual report: 2009–10 14 14 Land Use in the ACT 1981 13 Commonwealth Employees’ Compensation Tribunal 1981 12 Australian Broadcasting Tribunal Procedures 1981 11 Student Assistance Review Tribunals 1981 10 Shipping Registration Bill 1980 9 Administrative Decisions (Judicial Review) Amendment Bill 1980 – 1980 8 Social Security Appeals 1980 7 Citizenship Review and Appeals System 1980 6 Entry to Cocos (Keeling) Islands and Christmas Island 1979 5 Defence Force Ombudsman 1979 4 Administrative Appeals Tribunal Act 1975—amendments 1979 3 Review of Import Control and Customs By-Law Decisions 1979 2 Repatriation Appeals 1979 1 Administrative Decisions (Judicial Review) Act 1977—exclusions under section 19 – 1978 Guidelines The Council has also published guidelines for use by agencies, decision makers, tribunals and legislators, as follows: A Guide to Standards of Conduct for Tribunal Members 2001, revised 2009 Best Practice Guides for Administrative Decision Makers 2007 Legal Training for Primary Decision Makers: a curriculum guideline 2004 Internal Review of Agency Decision Making—a best practice guide 2000 Commentary on the Practical Guidelines for Preparing Statements of Reasons 2000, revised 2002 Practical Guidelines for Preparing Statements of Reasons 2000, revised 2002 What Decisions Should Be Subject to Merits Review? 1999 Thirty-fourth annual report: 2009–10 15 Appendix B Section 51 of the Administrative Appeals Tribunal Act Section 51 of the Administrative Appeals Tribunal Act 1975 describes the functions and powers of the Administrative Review Council: 51(1) The functions of the Council are: (aa) to keep the Commonwealth administrative law system under review, monitor developments in administrative law and recommend to the Minister improvements that might be made to the system; and (ab) to inquire into the adequacy of the procedures used by authorities of the Commonwealth and other persons who exercise administrative discretions or make administrative decisions, and consult with and advise them about those procedures, for the purpose of ensuring that the discretions are exercised, or the decisions are made, in a just and equitable manner; and (a) to ascertain, and keep under review, the classes of administrative decisions that are not the subject of review by a court, tribunal or other body; (b) to make recommendations to the Minister as to whether any of those classes of decisions should be the subject of review by a court, tribunal or other body and, if so, as to the appropriate court, tribunal or other body to make that review; (c) to inquire into the adequacy of the law and practice relating to the review by the courts of administrative decisions and to make recommendations to the Minister as to any improvements that might be made in that law or practice; (d) to inquire into: (i) the qualification required for membership of authorities of the Commonwealth, and the qualifications required by other persons, engaged in the review of administrative decisions; and (ii) the extent of the jurisdiction to review administrative decisions that is conferred on those authorities and other persons; and Thirty-fourth annual report: 2009–10 16 (iii) the adequacy of the procedures used by those authorities and other persons in the exercise of that jurisdiction; and to consult with and advise those authorities and other persons about the procedures used by them as mentioned in subparagraph (iii) and recommend to the Minister any improvements that might be made in respect of any of the matters referred to in subparagraphs (i), (ii) and (iii); and (e) to make recommendations to the Minister as to the manner in which tribunals engaged in the review of administrative decisions should be constituted; (f) to make recommendations to the Minister as to the desirability of administrative decisions that are the subject of review by tribunals other than the Administrative Appeals Tribunal being made the subject of review by the Administrative Appeals Tribunal; and (g) to facilitate the training of members of authorities of the Commonwealth and other persons in exercising administrative discretions or making administrative decisions; and (h) to promote knowledge about the Commonwealth administrative law system; and (i) to consider, and report to the Minister on, matters referred to the Council by the Minister. (2) The Council may do all things necessary or convenient to be done for or in connection with the performance of its functions. (3) If the Council holds an inquiry, or gives any advice, referred to in paragraph (1)(ab), the Council must give the Minister a copy of any findings made by the Council in the inquiry or a copy of the advice, as the case may be.