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Admin Review is the administrative law bulletin of the Administrative
Review Council.
Since the last edition of Admin Review, the Council has published a report
entitled Automated Assistance in Administrative Decision Making. Its report
The Scope of Judicial Review is nearing completion.
More information about the work of the Council is available from the
Council’s website <www.law.gov.au/arc> and the Council’s Secretariat
(ph. 02 6250 5800).
Editors
Jillian Segal AM, Professor Robin Creyke, Melanie Sloss SC,
and Alison Jermey and Scott Stephenson (Secretariat)
Administrative Review Council
Robert Garran Offices
National Circuit
BARTON ACT 2600
No. 57
March 2006
ISSN 0814 - 1231
Admin Review is an administrative law bulletin concerned with informing government,
private organisations and individuals about developments in Commonwealth
administrative law and procedure. It is produced under the auspices of the Administrative
Review Council, but the views expressed in it are those of the editors or writers and not
necessarily the views of the Council or any of its members or the members of its committees.
Although every care is taken in the preparation of the bulletin, no liability is accepted in
respect of matters published in it. The purpose of the bulletin is to provide general
information, not legal advice. Readers should carefully check the detail of the legislation,
cases and other material discussed in the bulletin.
Contents
President’s comments .........................................................................................................3
Focus......................................................................................................................................5
The legitimate scope of judicial review: the prequel ......................................................5
‘Inquisitorial’ practice in Australian tribunals ...............................................................17
Watching the watchers: how the Inspector-General of Intelligence and Security
helps safeguard the rule of law ........................................................................................34
Regular reports ..................................................................................................................50
The Administrative Review Council ...............................................................................50
The Administrative Appeals Tribunal ............................................................................52
The Commonwealth Ombudsman ..................................................................................68
Freedom of information ....................................................................................................72
The courts: case notes .......................................................................................................74
‘Made under an enactment’ reconsidered ......................................................................74
Notification of decision—rejection of protection visa application ..............................77
Procedural fairness—‘dob–in’ letters ..............................................................................79
Error of law—failure to take into account relevant considerations ............................80
Procedural fairness—notification of adverse information ...........................................82
Compulsory acquisition of land: ‘urgent necessity’—procedural fairness ................84
Admin law watch ..............................................................................................................86
Amendments to the Administrative Appeals Tribunal Act ........................................86
Establishment of the Western Australian State Administrative Tribunal .................89
1
Tasmanian and ACT tribunal developments ................................................................ 91
The 2002 security legislation review and new security laws ....................................... 92
Inquiries into the detention of Cornelia Rau and Vivian Alvarez .............................. 93
UK tribunal reforms: an update ...................................................................................... 95
Protecting classified and security sensitive information ............................................. 96
Review of the Privacy Act ................................................................................................ 98
The Business Council of Australia report on regulation .............................................. 98
ACT and Victorian human rights developments .......................................................... 98
The Age Discrimination Act ............................................................................................ 99
Review of uniform evidence Acts ................................................................................... 99
The Postal Industry Ombudsman ................................................................................. 100
The Migration Litigation Reform Act ........................................................................... 100
The Migration and Ombudsman Legislation Amendment Act ................................ 101
Personalia ......................................................................................................................... 103
The Administrative Appeals Tribunal.......................................................................... 103
The Federal Court ............................................................................................................ 105
The High Court ................................................................................................................ 105
The Federal Magistrates Court ...................................................................................... 106
The Family Court............................................................................................................. 106
The Administrative Review Council ............................................................................ 107
The National Alternative Dispute Resolution Advisory Council ............................. 107
A new Privacy Commissioner ....................................................................................... 107
A new Human Rights Commissioner ........................................................................... 108
The Australian Law Reform Commission ................................................................... 108
2
President’s comments
I am delighted to be involved in the production of this edition of Admin
Review, the first with which I have been involved since my appointment as
President of the Administrative Review Council in September 2005.
The Council has been in existence for almost 30 years and during that time
has made a very significant contribution to the identification of sound
administrative law principles and the education, through the development
of best-practice principles, of people involved in making administrative
decisions and in reviewing such decisions.
The Council will be celebrating its 30th anniversary in December 2006 and
proposes to mark this milestone with an event in the second half of the
year. Details are yet to be determined, but when they are they will be
posted on the Council’s website. We also propose to produce a special
edition of Admin Review later in the year, featuring articles by people who
have had strong connections with the Council during its existence.
As reflected in the content of this latest edition of Admin Review, there is
every indication that sound administrative law principles are as important
this century as they were in the preceding one, when the Council was
established. New community developments and business initiatives
continue to demand administrative law responses that are both flexible
and grounded in sound principle.
The Council’s work reflects this demand for administrative law principles
to be appropriately applied to new situations. In the past year the Council
tabled and launched its report on the use of expert computer systems in
government decision making, Automated Assistance in Administrative
Decision Making, and a working group has already been established to
develop a set of best-practice guidelines for using expert systems and
promoting consistency across government agencies.
Since publication of the previous edition of Admin Review, in June 2004,
there have been a number of interesting developments in administrative
law. Many of these developments are documented in this current edition.
Among them are important amendments to the Administrative Appeals
Tribunal Act 1975 (Cth) to streamline procedures for dealing with review
applications, and the establishment of a new tribunal, the Western
Australian State Administrative Tribunal.
Recently there has been much focus on the question of regulatory reform.
The Council considers that sound administrative decision-making and
review processes can play an important role in the reform process, and
3
I am pleased to report that it is contemplating several projects that will
complement other broad reform initiatives in this area.
Jillian Segal AM
4
Focus
The legitimate scope of judicial review: the prequel
Stephen Gageler SC*
When is an action taken in fact characterised in law as an exercise
of statutory power subject to judicial review? The answer
suggested is where a statute attaches to the action legal
consequences for the rights of another, but only if the action is of
a nature or quality that falls within limits prescribed expressly or
by implication in the statute.
Introduction
Four years ago, at the National Conference of the Australian Institute of
Administrative Law, I presented a paper that examined the modern
jurisprudence of the High Court on the topic of jurisdictional error. 1 The
starting point for the paper was the now often repeated statement of
Brennan J in Attorney-General (NSW) v Quin. The statement refers to a
‘repository’ of a power, conferred either by statute or the prerogative, and
goes on to define the province of judicial review in terms limited to ‘the
declaration and enforcing of the law which determines the limits and
governs the exercise of the repository’s power’. 2
The thesis of my earlier paper was that the content of judicial review is
most profitably recognised as being that determined by the legislature in
its formulation of the law by which the limits (explicit or implicit) of the
statutory power of the ‘repository’ are set and by which the exercise of the
statutory power is governed. The traditional grounds of judicial review, I
*
1
2
Stephen Gageler SC was a member of the Administrative Review Council from
8 December 2002 to 7 December 2005. This is an edited version of a paper
presented at the National Conference of the Australian Institute of
Administrative Law on 30 June 2005 in Canberra. An unedited version has
already been published in Australian Bar Review (2005, vol. 26, p. 303).
Gageler, S 2001, ‘The legitimate scope of judicial review’, Australian Bar Review
vol. 21, p. 279; also in Creyke, R & McMillan, J (eds), Administrative Law: the
essentials. Papers presented at the 2001 National Administrative Law Forum, p. 27.
(1990) 170 CLR 1, 35–6.
5
argued, are in truth no more than the default position to be applied in the
absence of a legislative intention to define differently the limits of the
statutory power or jurisdiction of the ‘repository’.
This present paper constitutes a ‘prequel’ to the 2001 paper. It examines the
modern jurisprudence of the High Court on a topic logically anterior to the
topic of jurisdictional error. It explores the circumstances in which a person
or body of persons will be properly identified as the ‘repository’ of
statutory power so as to be capable of falling into jurisdictional error. The
answer it suggests is not simply where the legislature has attached a legal
consequence to an action of the person or body. More precisely, the answer
is where the legislature, expressly or by implication, has placed a limit or
qualification on the nature or quality of the action of the person or body to
which it attaches a legal consequence. The unifying theme is legislative
intention.
Constitutional foundations
Ours is a constitutional system of parliamentary democracy founded on
the twin pillars of the common law and the separation of judicial power.
In a constitutional system founded on the common law ‘everybody is free
to do anything, subject only to the provisions of the law’. 3 The underlying
premise is that a person has freedom to do what is not prohibited. Save for
those few vestiges of extraordinary executive power we call ‘the
prerogative’, the only provision of the law that can limit the freedom
permitted by the common law is one enacted by the legislature.
A legislative provision limiting the freedom permitted by the common law
can be absolute or conditional. If it is conditional, the imposition or the
removal of the limitation might or might not involve some action on the
part of another person. Where the imposition or removal of a limitation is
conditional on some action on the part of another person, that other person
exercises ‘power’ over the person whose freedom is thereby limited. The
power comes not from the capacity to take action: it comes from the legal
effect given to that action by statute.
The same is true of a legislative provision making the conferral of some
statutory entitlement or benefit conditional on some action on the part of
another person. That other person exercises power over the person who
seeks the entitlement or benefit. Again, the power comes not from the
capacity to take action but, rather, from the legal effect given to that action
by statute.
3
6
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 564.
Although there is a borderland in which judicial and administrative
functions overlap, in a constitutional system founded on the separation of
judicial power it is the exclusive province of the judiciary to declare and
enforce the provisions of the legislation that confers such power. Indeed,
the unique and distinguishing feature of judicial power is the power to
make a binding and authoritative declaration of the legal consequences of
an action, including whether or not legal effect is given to that action by
statute.4
The scope of the judicial power to make a binding and authoritative
declaration is limited to the legal consequences of an action. A judicial
determination that an action is ‘void’ or ‘invalid’ or a ‘nullity’ is not a
determination that the action has not occurred: it is a determination that
the action has no legal consequence under statute. Thus, in Minister for
Immigration v Bhardwaj Gaudron and Gummow JJ expressed the following
view:
it is neither necessary nor helpful to describe erroneous
administrative decisions as ‘void’, ‘voidable’, ‘invalid’, ‘vitiated’
or, even, as ‘nullities’. To categorise decisions in that way tends
to ignore the fact that the real issue is whether the rights and
liabilities of the individual to whom the decision relates are as
specified in that decision. And, perhaps more importantly, it
overlooks the fact that an administrative decision has only such
force and effect as is given to it by the law pursuant to which it
was made.5
The nature of judicial power is such that, although in some circumstances
the grant of relief is discretionary, a court faced with a properly constituted
suit within the limits of its jurisdiction cannot act or be prevented from
acting other than by way of declaration and enforcement of the law as
judicially determined. In R v Hickman; Ex parte Fox & Clinton, Dixon J said
that it was ‘quite impossible’:
for the legislature to impose limits upon the quasi-judicial
authority of a body which it sets up with the intention that any
excess of that authority means invalidity, and yet, at the same
time, to deprive this Court of authority to restrain the invalid
action of the court or body by prohibition. 6
The language and context of this statement make clear that his Honour was
referring to the original and entrenched jurisdiction of the High Court
4
5
6
R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR
361, 375–6.
(2002) 209 CLR 597, 613 [46].
(1945) 70 CLR 598, 616.
7
under s 75(v) of the Constitution in matters calling into question the
validity or legality of some action of an ‘officer of the Commonwealth’.
More recent cases have served only to underline the centrality of that
provision in the federal constitutional structure.
Yet the jurisdiction of the High Court under s 75(v) of the Constitution has
also been placed in a broader context. Its entrenchment of judicial
supervision of the legality of Commonwealth officers’ actions has been
seen as a manifestation of the separation of judicial power effected by
Chapter III of the Constitution. Even more generally, it has been seen as an
aspect of the ‘rule of law’ that has long been identified as forming an
assumption on which the Constitution was framed.7 Indeed, two Chief
Justices have now adopted the description of ‘[j]udicial review’ as ‘neither
more nor less than the enforcement of the rule of law over executive action’
and as ‘the means by which executive action is prevented from exceeding
the powers and functions assigned to the executive by law’.8
In the context of a matter arising wholly within state jurisdiction, in
Corporation of the City of Enfield v Development Assessment Commission
Gaudron J made the following general statement:
Those exercising executive and administrative powers are as
much subject to the law as those who are or may be affected by
the exercise of those powers. It follows that, within the limits of
their jurisdiction and consistent with their obligations to act
judicially, the courts should provide whatever remedies are
available and appropriate to ensure that those possessed of
executive and administrative powers exercise them only in
accordance with the laws which govern their exercise. The rule of
law requires no less. 9
That general statement has been repeated by other members of the High
Court, and in one case it was described as expressing the ‘animating
principle’ of judicial review.10
Power in another
Given that an administrative power exists only because a legislative
provision attaches a consequence to an action, the question that arises is
7
8
9
10
8
Australian Communist Party v Commonwealth (1951) 83 CLR 1, 193 (Dixon J).
Church of Scientology Inc v Woodward (1982) 154 CLR 25, 70 (Brennan J); quoted
in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 492 [31] (Gleeson CJ).
(2000) 199 CLR 135, 157 [56].
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, 107–8 [55]
(Gummow and Gaudron JJ).
how and in what sense will a legislative provision limit or govern the
taking of the action and therefore the ‘exercise’ of the power?
Take the typical legislative formula: A shall not do B unless X does Y. A
shall not transfer a lease unless X gives consent. A shall not drive a taxi
unless X gives permission in the form of a licence. A shall not remain in
Australia unless X gives permission in the form of a visa.
A court faced with the question of whether A can do B must determine,
bindingly and authoritatively in the exercise of judicial power, whether X
has done Y. The doing of Y by X is the fact—call it the ‘jurisdictional fact’—
on which the right of A to do B turns.
Does the court have any role beyond simply determining as a fact whether
X has done Y? The traditional answer to that question is ‘no’. The court is
limited to determining the existence or non-existence of the jurisdictional
fact Y. But in so doing the court must scrutinise carefully the action of X to
determine whether it truly meets the statutory description Y.
On a traditional analysis—at least where X occupies an official government
position—it has been treated as implicit in the statutory description of Y
that the description encompasses only those cases in which X acts within
certain bounds. So, for example, in R v Anderson; Ex parte Ipec-Air Pty Ltd11
the High Court was concerned with a customs Regulation that explicitly
did no more than prohibit the importation of an aircraft other than with the
permission of the Director-General of Civil Aviation. Justice Kitto said:
Neither in the Regulations nor elsewhere is there to be found any
express provision as to the principles which the Director-General
is to observe, or the matters which he is to take into
consideration, when deciding whether to grant or to refuse a
permission to import aircraft. But from the fact that he is
designated by the title of his office the intention appears, as it
seems to me, that the power of lifting the general prohibition is
not given him for his own benefit or otherwise than for purposes
relevant to his office. It is a general principle of law, applied
many times in this Court and not questioned by anyone in the
present case, that a discretion allowed by statute to the holder of
an office is intended to be exercised according to the rules of
reason and justice, not according to private opinion; according to
law, and not humour, and within those limits within which an
honest man, competent to discharge the duties of his office,
ought to confine himself: Sharp v Wakefield [[1891] AC 173, 179].
The courts, while claiming no authority in themselves to dictate
the decision that ought to be made in the exercise of such a
discretion in a given case, are yet in duty bound to declare
11
(1965) 113 CLR 177.
9
invalid a purported exercise of the discretion where the proper
limits have not been observed.12
This is consistent with the now frequently repeated statement of Latham CJ
in R v Connell; Ex parte Hetton Bellbird Collieries Ltd (No 2):
where the existence of a particular opinion is made a condition of
the exercise of power, legislation conferring the power is treated
as referring to an opinion which is such that it can be formed by a
reasonable man who correctly understands the meaning of the
law under which he acts. If it is shown that the opinion actually
formed is not an opinion of this character, then the necessary
opinion does not exist. 13
The Chief Justice continued:
It should be emphasized that the application of the principle now
under discussion does not mean that the court substitutes its
opinion for the opinion of the person or authority in question.
What the court does do is to inquire whether the opinion
required by the relevant legislative provision has really been
formed. If the opinion which was in fact formed was reached by
taking into account irrelevant considerations or by otherwise
misconstruing the terms of the relevant legislation, then it must
be held that the opinion required has not been formed. In that
event the basis for the exercise of power is absent, just as if it
were shown that the opinion was arbitrary, capricious, irrational,
or not bona fide. 14
The focus in each of these statements is not the ‘source’ of the power of X
to do Y: it is whether what has been done by X has all the characteristics
implicit in the statutory description of Y. It is taken for granted, at least in a
case where X is a natural person, that X will have the capacity in fact to
take action by way of giving or withholding consent or permission or
forming or not forming an opinion or state of satisfaction. The question of
jurisdictional fact is confined to determining whether the action taken in
fact in the exercise of that inherent capacity meets the description of the
action to which the legislation in question attaches a legal consequence. If
so, the action taken in fact is a valid exercise of power having such force
and effect as the statute in question gives to it. If not, the action taken in
fact is without legal consequence for the purposes of that statute.
12
13
14
10
Ibid 188–9.
(1944) 69 CLR 407, 430. See generally the cases referred to in Corporation of the
City of Enfield v Development Assessment Commission (1999) 199 CLR 135, 150 [34]
[footnote 57].
(1944) 69 CLR 407, 432.
In many instances the existence of a power conferred by statute has been
treated as carrying with it an implied duty to exercise the power. This is
the point of the famous and often repeated statement of Earl Cairns LC in
Julius v Bishop of Oxford:
There may be something in the nature of the thing empowered to
be done, something in the object for which it is to be done,
something in the conditions under which it is to be done,
something in the title of the person or persons for whose benefit
the power is to be exercised, which may couple the power with a
duty, and make it the duty of the person in whom the power is
reposed, to exercise that power when called upon to do so. 15
That principle as so expressed is not a free-standing rule of law but a guide
to statutory interpretation. A power is taken to be coupled with a duty
where, in all the circumstances, that is the intention to be discerned from
the legislative conferral of that power.
Both the scope and the existence of a power conferred by legislation are
therefore determined by the characteristics of the action to which a
legislative provision attaches consequences. They are not determined by
the character of the ‘repository’ alone. The repository may or may not be a
governmental official and, if a governmental official, may or may not hold
an office of the Commonwealth. The repository may or may not be a
natural person. If a corporation, it may or may not be incorporated under
general corporations law. Under Part 3 of the Migration Act 1958 (Cth), for
example, a person is prohibited from giving migration assistance if not
registered as a migration agent. Registration or the continuance of
registration is in some instances made to turn on the action of the
Migration Agents Registration Authority, which is in fact the Migration
Institute of Australia Limited.16 In the numerous cases in which actions of
that body have been called into question in the Federal Court, it has rightly
never been suggested that those actions lie beyond the scope of judicial
review.
In state and territory legislation there are numerous examples of similar
statutory powers that are capable of being exercised by privately
constituted bodies.
15
16
(1880) 5 App Cas 215, 222–3; applied, for example, in Commissioner of State
Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 52.
Appointed under s 315.
11
Power in others
The situation becomes more complicated when the action of a third person
is also given a statutory consequence as a condition of an exercise of power
by another.
Take the typical legislative formula: A shall not do B unless X does Y, and
X cannot do Y unless C does D. A shall not remain in Australia unless X
gives permission in the form of an entry permit, and X cannot give
permission in the form of an entry permit unless the Minister has
determined, by instrument in writing, that A has the status of a ‘refugee’
within the meaning of the relevant international convention. A shall not
export wheat from Australia unless B consents, and B cannot consent
without the prior written approval of a nominated company. The first of
these examples is drawn from the subject matter of the decision of the High
Court in Minister for Immigration and Ethnic Affairs v Mayer.17 The second is
drawn from the subject matter of the decision of the High Court in Neat
Domestic Trading Pty Ltd v AWB Ltd.18
In Mayer the specific question dealt with was whether a decision of the
Minister not to determine that a person had the status of a refugee was a
decision ‘under an enactment’ for the purposes of the Administrative
Decisions (Judicial Review) Act 1977 (Cth), so as to require the Minister to
provide a statement of reasons on request. That question lies outside the
scope of this paper. It is the mode of analysis adopted by the members of
the High Court that has broader implications. In Griffith University v Tang,
Mayer was said to be authority for the proposition that ‘a power to make a
determination may be discerned as a matter of implication in a particular
statute’.19 The majority in Mayer saw the relevant legislative provision as
impliedly conferring on the Minister the function of determining whether a
particular person had refugee status.20 The minority was unable to
construe the provision in that way. According to Gibbs CJ (dissenting):
The Minister needs no statutory authority to execute an
instrument in writing by which he determines that someone has
the status of a refugee. If he does execute such an instrument, it
will not have the force of law, although it may operate as
sufficient (although it is not a necessary) direction to the
Minister’s department to treat the person named as having the
status of a refugee. [The provision] does not authorize the
Minister to make any determination of the kind to which it refers,
and does not give the determination any legal effect. The
17
18
19
20
12
(1985) 157 CLR 290.
(2003) 216 CLR 277.
(2005) 213 ALR 724, 742 [74].
(1985) 157 CLR 290, 303.
existence of the instrument in writing is an objective fact which, if
the person in question is the holder of a temporary entry permit
which is in force, will satisfy [the condition set out in the
provision].21
To similar effect, Brennan J (dissenting) said:
A determination made for the purposes of the Convention …
neither has nor requires a statutory authority or power to make
it. Such a determination produces a legal effect in international
law, but in domestic law it affects no rights, privileges or
immunities though the fact that it is made … satisfies the
condition.22
In Neat, although a question arose as to the application of the
Administrative Decisions (Judicial Review) Act 1977 (Cth), the fundamental
question was whether the action of the nominated company, AWB
International Ltd, in comprehensively refusing to give written approval for
the export of wheat, could be said to have been beyond the scope of what
was specifically authorised by the legislation, which made the giving of
such an approval a precondition to the grant of consent to export by the
relevant Commonwealth authority. According to the joint judgment of
three members of the majority:
neither a decision of AWBI not to give approval to a consent to
export, nor a failure to consider whether to give that approval,
was open to judicial review under the AD(JR) Act or to the grant
of relief in the nature of prohibition, certiorari or mandamus.23
The following is the crucial passage in the reasoning of the joint judgment:
Unlike the Authority, AWBI needed no statutory power to give it
capacity to provide an approval in writing. As a company, AWBI
had power to create such a document. No doubt the production
of such a document was given statutory significance by [the
legislative provision] but that subsection did not, by implication,
confer statutory authority on AWBI to make the decision to give
its approval or to express that decision in writing. Power, both to
make the decision and to express it in writing, derived from
AWBI’s incorporation and the applicable companies legislation.
Unlike a statutory corporation, or an office holder such as a
Minister, it was neither necessary nor appropriate to read [the
21
22
23
Ibid 295.
Ibid 307.
(2003) 216 CLR 277, 300 [64] (McHugh, Hayne and Callinan JJ).
13
legislative provision] as impliedly conferring those powers on
AWBI.24
The joint judgment in Neat made clear that it was concerned only with the
role of AWB International under the particular legislation. It noted, but
said it did not deal with, the more general question of ‘whether public law
remedies may be granted against private bodies’. 25
In Griffith University v Tang, Neat was explained as a case in which ‘the
statutory condition precedent was a decision made dehors the federal
statute, although, once made, it had a critical effect for the operation of the
federal statute’.26
The legislation considered in Neat was extreme but in its broad structure
not unique. Not only in the form in which it was considered in Mayer but
also in its current incarnation the Migration Act 1958 (Cth) and the
Regulations made under it give rise to many circumstances in which the
power to grant permission (now in the form of a visa) to enter or remain in
Australia is conditional on the action of a third party, such as the
certification of an academic qualification or the certification of a medical
condition.27
The unifying principle
What, then, is the criterion by reference to which an action that has a
particular legal consequence by virtue of a statutory provision can be said
on one hand to involve an exercise of power that is subject to judicial
review or on the other to be dehors the legislative provision,
notwithstanding that it might be given ‘critical effect’ by the provision?
In trying to answer this question, it is not particularly profitable to focus on
the supposed ‘source’ of the power to take the action to which the
legislative provision attaches a legal consequence. Just as the Minister in
Mayer required no grant of statutory authority under domestic law to
perform the action of executing an instrument in writing determining a
person to have the status of a refugee, neither a Minister nor any other
natural person requires a grant of statutory authority to execute an
instrument in writing purporting to grant an entry permit or a visa or an
export permit or a warrant for another person’s arrest or anything else. It is
24
25
26
27
14
Ibid 298 [54] (McHugh, Hayne and Callinan JJ).
Ibid 297 [49]–[50].
(2005) 213 ALR 724, 745 [87].
See, for example, Silveira v Australian Institute of Management (2001) 113 FCR
218.
the consequence that the legislative provision attaches to the action—rather
than the capacity of the person to take the action—that matters.
The majorities in both Mayer and Neat placed emphasis on the character of
the person upon whose action the legislation fastened. Would it have made
a difference in Mayer if that person had been not the Minister but the
United Nations High Commissioner for Refugees? Would it have made a
difference in Neat if that person had not been a company incorporated
under the corporations legislation but instead a statutory corporation or
the holder of an official position established by Commonwealth or state
law? The reasoning in both cases suggests that it would, but as an indicium
of legislative intention rather than as a determining factor.
The answer to the broadest question must lie in discernment of the nature
of the action on which the legislation fastens. Does the legislation fasten on
the bare occurrence or non-occurrence of the action to which the legislative
provision expressly refers? Alternatively, is the legislative provision to be
interpreted (if necessary, by implication) as requiring that the action not
only occur but also have some or all of the particular qualities traditionally
associated with administrative decision making?
Among the factors relevant to characterisation of the nature of the action
on which the legislation fastens are doubtless the status of the person on
whose action the legislative provision fastens, whether the action has any
utility or serves any purpose apart from the legal consequence given to it
by the legislative provision, and the existence or non-existence of express
legislative criteria governing the circumstances in which, or the process by
which, the action can be taken.
The exercise is, however, ultimately one of statutory interpretation. The
role of a court is to discern the content and operation of the legislation in
question as an aspect of determining the consequence in law, if any, of an
action taken in fact.
There is nothing new about this approach. It is reflected in the general
principle stated by Kitto J in Ipec-Air, which in turn derives from the
expression of principle in the late-nineteenth-century decision of the House
of Lords in Sharp v Wakefield.28 It is reflected in the same principle stated in
other words by Latham CJ in Hetton Bellbird Collieries. The value of those
statements lies not only in their longevity but also in their expression of a
strong presumption that a legislative provision is not ordinarily to be
interpreted as attaching a consequence to an action that is arbitrary,
capricious, irrational or not bona fide. That presumption ought not lightly
be departed from.
28
[1891] AC 173.
15
The presumption probably now goes further. The modern view, expressed
in the majority judgment in Plaintiff S157/2002 v Commonwealth, is that
‘[p]eople whose fundamental rights are at stake are ordinarily entitled to
expect more than good faith. They are ordinarily entitled to expect
fairness’.29 For a legislative provision to attach a consequence to an action
taken without regard to procedural fairness might be said now ordinarily
to require a clear expression of legislative intention—perhaps even rising
to the level of ‘unmistakable and unambiguous language’. 30
Conclusion
The subject matter of this paper can perhaps be described, at one level, as
the ‘public–private’ distinction. Its burden, however, is to elide that
distinction, at least in its application to statutory power.
The distinction between the ‘merits’ and the ‘legality’ of an action that is
the subject of judicial review falls more readily into place when it is borne
in mind that the limited purpose of judicial review is the declaration and
enforcement of the law that defines, and thereby limits or governs, the
action to which it attaches a consequence. So, too, the distinction between
an action that is the subject of judicial review and an action that is not the
subject of judicial review falls more readily into place when the same
limited purpose is borne in mind.
The modern jurisprudence of the High Court on judicial review is for the
most part a return to, a reinforcement of and an incremental development
of the mode of analysis it has traditionally adopted well before the
administrative law explosion of the 1970s. The traditional legal analysis of
the High Court is, of course, incapable of yielding precise answers to the
myriad problems that have emerged and will continue to emerge as
processes of privatisation and corporatisation break down what might
once have been seen as the somewhat clearer divide between private action
and public administration. But it is capable of providing a stable and
principled framework within which answers can be worked out.
29
30
16
(2003) 211 CLR 476, 494 [37] (Gleeson CJ).
(2003) 211 CLR 476, 492 [30] (Gleeson CJ).
‘Inquisitorial’ practice in Australian tribunals
Professor Robin Creyke*
What does it mean in an Australian context to describe the tribunal process
as ‘inquisitorial’? The Australian Institute of Judicial Administration has
funded a project to find answers to that question. Inquisitorial process is
commonly understood to refer to European-based civil law procedures,
where the adjudicator takes an active role in identifying witnesses and
seeking out the evidence before reaching a decision. In contrast, in the
adversarial process generally adopted in common law countries the
adjudicator adopts a neutral stance, leaving it to the parties to present the
opposing arguments on which the adjudicator pronounces.
What the researchers have discovered is that, despite some resemblance to
the European civil law, Australian parliaments have modified the
European model when setting up administrative tribunals. Australian
tribunals have usually been established to handle large numbers of cases
and have not been provided with funds sufficient to make inquiries.
Further, the imperative of speedy and efficient decision making has
assumed a prominence that has affected the way inquisitorial practice has
been interpreted.
This is reflected in some common statutory features of Australian
inquisitorial tribunals. Foremost among them is the litany of adjectives that
describe the processes of an inquisitorial tribunal—namely, that the
tribunal should operate in a manner described as ‘fair, just, economic,
informal and quick’. The list can broadly be divided into two: the tribunal’s
processes are to be ‘economical, informal and quick’ and they are also to be
‘fair and just’.
As Justice Lindgren pointed out, however, in Sun Zhan Qui v Minister for
Immigration and Ethnic Affairs31—a view quoted with approval by the five
members of the High Court in Minister for Immigration and Multicultural
Affairs v Eshetu—the problem is that ‘the objectives referred to in [s] 420(1)
will often be inconsistent as between themselves. In particular, a
*
31
Professor Creyke is Professor of Law at the Australian National University.
She was appointed a member of the Administrative Review Council on
8 December 2002 and reappointed on 15 February 2006 for a further three-year
term.
(1997) 81 FCR 71.
17
mechanism of review that is “economical, informal and quick” may well
not be “fair” or “just”‘.32
Although no-one would cavil at the application of either cluster of
adjectives, the competing objectives impose a task on tribunal members.
They must decide which category is to take precedence and, with no
legislative guidance, this can be difficult. In other words, the legislation has
created a quandary for tribunal members.
The difficulties were illustrated in the recent High Court decision in SAAP
v Minister for Immigration and Multicultural and Indigenous Affairs.33 By a
three–two majority, the Court (Kirby, McHugh and Hayne JJ; Gleeson CJ
and Gummow J dissenting) found there had been a jurisdictional error
when, at a hearing of a woman in detention, oral, but not written, notice, as
s 425 of the Migration Act 1958 (Cth) requires, was given to the woman of
adverse comments made about her by her daughter.
In criticising the failure to give written notice, Kirby J emphasised the need
to be ‘fair and just’ at the expense of being ‘economical, informal and
quick’. Why his Honour gave prominence to fairness and justice at the
expense of the other criteria was not explained. In contrast, Gleeson CJ
took a more practical approach, in effect, applying the ‘economical,
informal and quick’ requirements. He pointed out:
It is agreed on all sides that the hearing contemplated by s 425 is
not a trial. Subject always to the overriding requirement of
procedural fairness, the object of the occasion is to hear evidence
and receive arguments in the most useful and efficient manner.
This will often involve flexibility in the order of proceedings.
There seems to be an incongruity in the intrusion of an inflexible
requirement for written communication at a ‘hearing’. The
incongruity is heightened in a case such as the present where any
such written communication would require oral translation and
explanation. Such a case would not be unusual. No doubt many
applicants who can read and write in a language other than
English cannot read English. Presumably, on the appellants’
argument, what the Tribunal should have done was prepare a
letter to the first appellant, fax it to Woomera, then have it
translated orally by the interpreter. Having done that, on the
findings in the Federal Court about fairness, the Tribunal could
then have proceeded as it did. On those findings, the letter would
32
33
18
(1999) 197 CLR 611, 643 (Gummow J); 628 (Gleeson CJ and McHugh J); 668
(Callinan J).
(2005) 215 ALR 162.
have been pointless. That, indeed, is why the Federal Court
decided the case as it did.34
As these exchanges show, the competing categories can give comfort to
both sides of the debate.
Arguably, the statutory criteria, albeit in competition, do provide one
advantage—allowing tribunal members and courts the flexibility to choose
one cluster over the other. This is appropriate given the breadth of matters
that come before tribunals, notably those with a combined civil and
administrative jurisdiction. There does, however, remain room for
criticism. How does a tribunal decide whether to emphasise the need for
speed, informality or economy over fairness and justice? It is here that
neither the parliaments nor the courts have provided sufficient guidance
for tribunal members.
Tribunals, too, have not clearly identified what it means for them to be
‘inquisitorial’. What follows is a limited survey of cases decided by the key
tribunals covered by the project—the Commonwealth Administrative
Appeals Tribunal, the migration tribunals (the Migration Review Tribunal
and the Refugee Review Tribunal), the New South Wales Administrative
Decisions Tribunal, and the Victorian Civil and Administrative Tribunal.
The purpose of the survey is to identify what tribunals understand by the
requirement that they operate in an inquisitorial manner and how they
have determined what weight should be accorded the competing
objectives with which they are faced.
Considerations affecting the extent of obligation
What factors suggest that tribunals should adopt an inquisitorial rather
than an adversarial process? The answers to this question are premised on
the fact that the procedural obligations of inquisitorial tribunals are
different from, and at times more onerous than, those of courts. 35
The extent to which inquisitorial obligations are imposed on tribunals is
influenced by several features:
34
35
Ibid 168 [21].
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004)
207 ALR 12, 30–3 [73].
19

the terms of the statute and whether it explicitly or impliedly imposes
such a duty36

the obligation of the tribunal to reach the ‘correct or preferable’
decision

the respective rights and interests of parties to a dispute and how these
are affected by the tribunal’s processes

pragmatic considerations such as economy and speed.
These features are explored in the context of the statutory evidential role of
tribunal members—including members’ responsibility to elicit evidence in
order to reach the correct or preferable decision; the management of the
proceedings (that is, what information to elicit and when); the level of
representation of the parties; the onus of proof; and the requirement for
tribunals to operate in a speedy and efficient manner.
The statutory evidence-gathering role of tribunal
members
When there is an explicit duty on a tribunal—for example, to elicit
information—the courts enforce that duty. How extensive the obligation is
can depend on the parties involved or the impact of the decision. For
example, in the veterans’ jurisdiction the failure of the head of the
veterans’ agency to investigate a claim, as required by the agency’s
legislation, has been criticised by the courts, not least because of the special
respect accorded this group in our society.37
Section 73 of the Administrative Decisions Tribunal Act 1997 (NSW) also
imposes a duty of inquiry on that Tribunal. 38 Nonetheless, the Tribunal has
taken a pragmatic view about how extensive that duty should be. As it
noted in Battenberg v The Union Club39, in the context of a refusal to call a
36
37
38
39
20
For example, in the context of the Migration Act 1958 (Cth), see Minister for
Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12,
16–17 [19] (Gleeson CJ); 21–2 [43] (Gummow and Hayne JJ); 48–9 [123]–[124]
(Callinan J).
Re Ross and Repatriation Commission [2002] AATA 497; Re Rowe and Repatriation
Commission [2000] AATA 329.
Administrative Decisions Tribunal Act 1997 (NSW) s 73(5)(b): ‘The Tribunal is to
ensure that all relevant material is disclosed to the Tribunal so as to enable it to
determine all of the relevant facts in issue in any proceedings’.
[2004] NSWADT 285.
witness in a claim of discrimination and victimisation by Mr Andrew
Battenberg following his expulsion from the Union Club:
The Tribunal’s broad inquisitorial powers do not impose upon it
an obligation to inquire into every matter a party asserts might be
relevant to the facts in issue. The duty of the Tribunal is to ensure
that a party is given a reasonable opportunity to present its case.
That duty does not extend to acceding to every application for
evidence to be admitted out of time, which a party believes might
assist the Tribunal’s knowledge of its case. One of the directives
in s 73 is that the Tribunal act as quickly as possible. The practical
effect of granting this application would have been to require a
further hearing day to be set aside. For these reasons the
application was not granted.40
Despite these examples, an explicit statutory obligation on a tribunal to
seek evidence is rare.41 Such requirements as there are generally take a less
onerous form. For example, under s 426 of the Migration Act 1958 (Cth) the
Refugee Review Tribunal is given the power to obtain a medical report. 42
Despite this provision, the majority of the High Court in Minister for
Immigration and Multicultural and Indigenous Affairs v SGLB were not
prepared to require the Tribunal to obtain a second psychologist’s report in
order to assess whether the applicant’s accepted medical condition of posttraumatic stress disorder could have affected his ability to present his case
to best advantage.43 In other words, in the migration context the power of a
tribunal set up to be inquisitorial to seek information means no more than
that the tribunal must respond to the party’s case. The statutory authority
to seek information does not require that the tribunal actively supplement
the information supplied by either party. 44
Commonly, the statutory provisions provide that the tribunal ‘may inform
itself on any matter as it sees fit’.45 A provision of this kind also imposes no
duty to initiate action. In addition, the statutory authority to require the
provision of documents or to summon witnesses suggests no more than
that the tribunal is able to take steps to obtain further evidence. As the
cases illustrate, even these powers will be exercised only in circumstances
where the information will be relevant.
40
41
42
43
44
45
Ibid [23]–[24].
However, see the Injury Prevention, Rehabilitation and Compensation Act 2001
(NZ) s 140(e).
Migration Act 1958 (Cth) s 426.
(2004) 207 ALR 12.
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR
389.
See, for example, Victorian Civil and Administrative Tribunal Act 1998 (Vic)
s 98(1)(c).
21
The implications of these findings can be illustrated by examination of
cases relating to the Administrative Decisions Tribunal Act, which contains
a specific provision limiting that Tribunal’s duty to inquire to material that
is ‘relevant’.46 In deciding what is ‘relevant material’, the Tribunal
considers all the available evidence and whether it is sufficient to enable
the tribunal to be satisfied of an outcome.
Failure to meet the threshold test of relevance arose in Neary v The
Treasurer, New South Wales.47 An assertion by the applicant, based on
information in a news story and a related press release, that the Treasurer
and other Ministers and officers in New South Wales had documents
relating to a matter other than documents already released under the
Freedom of Information Act 1989 (NSW) was not sufficient to persuade the
Tribunal to issue a summons to see whether further information could be
obtained. In other words, the precondition that material must be relevant
before any duty of inquiry arises does not sanction fishing expeditions to
find material.
In deciding what is relevant, the Administrative Decisions Tribunal Act
also requires that the public interest be a dominant consideration. 48 The
meaning of ‘public interest’ is elusive. For this purpose who is the public?
Anyone affected by the decision? The public at large? What is the interest
that should be protected? An interest in the speedy resolution of a matter?
An interest in ensuring that a hearing is fair? At first sight ‘public interest’
is not an expression that can provide clear guidance to those who must
assess relevance.
In practice, interpretation of this provision does appear to have provided
some assistance to tribunals. In Law Society of NSW v Carver49, in deciding
what the ‘public interest’ required, the Tribunal gave prominence to the
need for ‘fairness’. Before accepting an application to dismiss by consent a
claim of professional misconduct by a solicitor, the Tribunal required that
it be satisfied that there were grounds or reasons advanced in support. In
the absence of such reasons the public interest in ensuring that the consent
order was not contrived would have meant that the Tribunal was
unwilling to accede to the application for dismissal.
However, in summary, even tribunals under a statutory obligation to
inquire have not interpreted their powers as requiring that they take a
proactive role. Certainly the bulk of tribunals that have no such explicit
46
47
48
49
22
Administrative Decisions Tribunal Act 1997 (NSW) s 73(5)(b). Section 73 is the
general procedural provision for the Tribunal.
[2002] NSWADT 123.
Administrative Decisions Tribunal Act 1997 (NSW) s 60(3)(c).
[2004] NSWADT 275.
obligation adopt this stance. Despite being characterised as inquisitorial,
and even when granted powers to compel witnesses and require the
production of documents, tribunals are inhibited in their obligation to
inquire by other considerations, such as the nature of the parties and the
limited effect of the obligation to ‘inform themselves on any matters as
they see fit’.
Management of proceedings
These conclusions are supported by the discussion of the management of
proceedings. In theory, a tribunal’s flexible mode of operation is limited
only by the minimum standards of fairness—that is, the need to accord
natural justice.50 In practice, however, limitations arising from the onus of
proof, the nature of the interests involved, and pragmatic considerations
will affect the management of a tribunal’s processes.
The flexibility accorded tribunals means they must decide for themselves
how the proceedings will be conducted. As Woodward J noted in this
regard in McDonald v Director-General of Social Security51:
a tribunal will still have to determine practical problems such as
the sequence of receiving evidence and what to do if it is unable
to reach a clear conclusion on an issue, but it is more likely to
find the answer to such questions in the statutes under which it is
operating, or in considerations of natural justice or common
sense, than in the technical rules relating to onus of proof
developed by the courts. However, these may be of assistance in
some cases where the legislation is silent.52
How then should a tribunal approach its evidence-gathering task? In the
absence of some ordered process, as counsel in Golem v Transport Accident
Commission ‘trenchantly observed’, ‘[s]ome procedure, some order of
receiving evidence, must be established or we will all simply sit looking at
each other in silence’.53 Otherwise, the dispensation of rules of evidence
and procedure altogether in an ‘endeavour to provide some form of rough
justice may mean that justice becomes so rough that it ceases to be
50
51
52
53
Re De Brett Investments Pty Ltd and Australian Fisheries Management Authority
[2004] AATA 704; Mahon v Air New Zealand Ltd [1984] AC 808; Minister for
Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666; Re A Taxpayer and
Commissioner of Taxation [2004] AATA 398. Whether natural justice imposes an
obligation to inquire is still an open question.
(1984) 1 FCR 354.
Ibid 356.
[2002] VCAT 319, 4 (vii).
23
justice’.54 In other words, the flexibility accorded tribunals by the explicit
lifting of the obligation to rely on the rules of evidence does not mean that
‘Rafferty’s rules’ apply.55
If one turns for guidance to their legislation, the Acts establishing tribunals
universally provide that the tribunals are not bound by rules of evidence.
These provisions do not mean, however, that a tribunal cannot rely on the
rules of evidence. Evidential rules, after all, are the principles that have
been developed over centuries to ensure fair hearings by courts.56 Since the
‘bottom line’ for a tribunal too is that its proceedings must be fair, the rules
of evidence are a useful guide to achieve this end. As Evatt J noted in R v
War Pensions Entitlement Appeal Tribunal; Ex parte Bott57:
Some stress has been laid by the present respondents upon the
provision that the tribunal is not, in the hearing of appeals,
‘bound by any rules of evidence’. Neither it is. But this does not
mean that all rules of evidence may be ignored as of no account.
After all, they represent the attempt made, through many
generations, to evolve a method of inquiry best calculated to
prevent error and elicit truth. No tribunal can, without grave
danger of injustice, set them on one side and resort to methods of
inquiry which necessarily advantage one party and necessarily
disadvantage the opposing party. In other words, although the
rules of evidence, as such, do not bind, every attempt must be
made to administer ‘substantial justice’.58
At the same time, given their statutory permission not to be bound by the
rules of evidence, when should tribunals rely on the standard evidential
rules? The tendency to do so is most noticeable in cases at the adversarial
end of the spectrum, when both parties are represented and the case is
being contested in a ‘vigorous, adversarial fashion’. 59 Even on such
occasions, however, there is no imperative to this effect. Justice Morris,
President of the Victorian Civil and Administrative Tribunal, described the
reasons many tribunals can avoid adoption of rules of evidence and courtlike process:
54
55
56
57
58
59
24
Ibid 3.
Ibid 4 (vii).
Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186, 199;
Jacques Nominees Pty Ltd v National Mutual Trustees Pty Ltd (2000) 16 VAR 152;
Buffalo Corporation Pty Ltd v Bulla Road Pty Ltd [2000] (unreported, 26 May
2000).
(1933) 50 CLR 228. See also Golem v Transport Accident Commission [2002] VCAT
319.
R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228,
256.
Golem v Transport Accident Commission [2002] VCAT 319, 3 (v).
First, the method of bringing cases before the tribunal is
relatively simple; complex pleadings are unnecessary. Second,
the tribunal engages a substantial registry staff to assist parties
and to perform work which would ordinarily be done by
solicitors in courts of law. Third, hearings are conducted in an
ordered manner, but with as little formality and technicality as is
practicable. Fourth, the tribunal is empowered to inform itself on
any matter as it sees fit and this power is used to promote the fair
conduct of a case as well as to achieve a just outcome according
to law. For example, tribunal members often ask questions or
raise issues in order to overcome an inability of a party to
articulate its true case.60
Application of the ‘substantial justice’ or fairness approach as an
alternative to the rules of evidence arose in Golem.61 The Victorian Civil and
Administrative Tribunal required the respondent, the Transport Accident
Commission, to present evidence first. What led to that step was that it was
the Commission that had accepted liability for benefits and some six years
later, with little in the way of explanation, had revoked them; in other
words, as the Tribunal noted, it was the Commission that was seeking to
alter the status quo. The Commission also had an obligation, as the
primary administrative decision maker, to assist the Tribunal and not
behave in an adversarial fashion. 62 For these reasons the Commission was
required to initiate the presentation of evidence. Fairness required it. This
practice of requiring the ‘respondent’ to commence the evidence giving has
also been adopted in the Administrative Decisions Tribunal and in
Western Australia’s State Administrative Tribunal. 63
The absence of rules of evidence also means that material that would be
inadmissible in a court—for example, hearsay evidence—can be admitted
in a tribunal. At the same time, though, the admissibility of such evidence
does not deny the tribunal the prerogative to give the material reduced
weight.64 There is also a discernible reluctance on the part of tribunals to
rely on other evidential principles (such as estoppel) that limit
opportunities for re-litigation of matters.65 So, on balance, tribunals are
taking advantage of their freedom to adapt their processes to suit
particular cases.
60
61
62
63
64
65
Ogawa v University of Melbourne [2005] VCAT 197 [21].
[2002] VCAT 319.
R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 13 CLR 13.
Evidence provided to the author by the presidents of both tribunals.
Freeman v Transport Accident Commission [2004] VCAT 40 [27].
Re Jebb and Repatriation Commission [2005] AATA 470 [46].
25
The role of parties vis-à-vis the tribunal
How does the inquisitorial mode of operation of tribunals affect the
parties? Perhaps the most distinctive aspect of the management of tribunal
hearings as compared with court hearings is that evidence is generally
obtained in a different manner. There is no discovery; nor is there the same
reliance on cross-examination to elicit information or to discredit the
testimony of the other side.66 Instead, agencies are expected to provide the
applicant’s file, including the reasons for the decision under challenge, the
evidence on which the decision maker relied, and the reasoning adopted to
reach the decision. At first sight, this is a markedly different process
compared with what applies in the courtroom.67
In practice, however, the approaches converge. When parties are
represented there is a clear tendency for the parties to play the dominant
role, even when the hearings are ostensibly inquisitorial. Indeed, parties’
legal representatives have been criticised by tribunal members for not
seeking out all relevant evidence or for failing to conduct a detailed
analysis of materials received in evidence (such as medical records), thus
forcing the tribunal to perform that task. 68 So, in general, despite tribunals
being inquisitorial, there is an expectation that it will generally be the
parties that present all the relevant material.
At the same time, the tribunal’s role is not simply to adjudicate on the
merits of both cases or to act as an adversarial umpire. The requirement
that the tribunal be satisfied that it can reach the ‘correct or preferable’
decision after ‘informing itself in any manner it thinks fit’ does play a part
in tribunal processes. In other words, the tribunal is not confined to the
material presented by the parties but can seek further information for
itself.69 Deputy President Forgie explained this flexible approach:
There are various ways in which the Tribunal may use its
inquisitorial powers. They range from questioning the parties’
witnesses, through asking the parties to procure or produce
66
67
68
69
26
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002
(2003) 201 ALR 437, 450 [57] (Gummow and Heydon JJ), quoted in Dimian v
Health Insurance Commission [2004] FCA 1615.
PJ Beaconsfield Gold NL and Australian Securities Commission [1998] AATA 787.
Re Demosthenous and Comcare [2001] AATA 949; Re Erdstein and Comcare [2004]
AATA 798; Re Ross and Repatriation Commission [2002] AATA 497; Re Rowe and
Repatriation Commission [200] AATA 329.
Re Hargreaves and Australian Community Pharmacy Authority (No 2) (1995) 41
ALD 147; Re Bessey and Australian Postal Corporation [2000] AATA 404.
further material, to producing documentary material from its
own research. In a rare case, it may call its own witnesses.70
Nonetheless, as the earlier discussion points out, the circumstances in
which the tribunal will exercise these powers to ‘request or itself compel
the production of further material’71 are limited. The justification for this is
that prolongation of the proceedings flies in the face of the requirement to
be ‘quick’. There are resource implications for the tribunal, the subject
matter of the hearing, and the culture of the tribunal, which will also affect
the level of intervention.
In relation to resource implications, it is noticeable that in veterans’
matters—where the Repatriation Commission calls for and pays relevant
medical specialists—there is a greater willingness on the part of the agency
(the Veterans’ Review Board) and the Administrative Appeals Tribunal to
assist applicants.72 The absence of this financial support in other cases
affects the Tribunal’s willingness to call for, or itself obtain, further
evidence.73
Another factor bearing on the allocation of responsibility for providing
evidence is the level of representation. If both parties are legally
represented, the Tribunal will be reluctant to intervene. As the Tribunal
remarked in Golem74:
the closer one gets to something resembling an adversarial
contest with experienced counsel representing the parties, the
closer one gets to the system applied in the courts and the greater
the reluctance on the part of the Tribunal to interfere and impose
its own inquisitorial directions.75
In turn, the level of representation is tied to the nature of the interests at
stake. Different stances are taken if the matter relates to something of
limited monetary value as compared with cases in which personal liberty
is involved. Hence, for example, in Goldie v Commonwealth76 the Federal
Court imposed a weighty evidential burden on those making a decision to
detain a person as an unlawful non-citizen under s 189 of the Migration Act
70
71
72
73
74
75
76
Re Beer and Australian Telecommunications Commission [1990] AAT 5974; Re De
Brett Investments Ltd and Australian Fisheries Management Authority [2004]
AATA 704 [128].
Bushell v Repatriation Commission (1992) 175 CLR 408, 424–5.
See, for example, Re Talma and Repatriation Commission [2003] AATA 866.
Re Erdstein and Comcare [2004] AATA 798.
[2002] VCAT 319. See also Rzanovski v Transport Accident Commission (General)
[2005] VCAT 652 [7].
[2002] VCAT 319.
(2002) 117 FCR 566.
27
1958 (Cth) and cautioned the authorities about the necessity of making
‘due inquiries’ before placing a person in detention. 77
In practice, in tribunals with combined civil and administrative jurisdiction
there are discernible patterns in representation. The credit and planning
jurisdictions are traditionally at the adversarial end of the spectrum, with
most parties being legally represented. In contrast, in the area of small
claims, residential tenancies and domestic building disputes the parties are
less likely to be represented.78 This affects the level of intervention required
of the tribunal.79
The onus of proof
Rarely do the statutes establishing tribunals explicitly refer to the onus of
proof.80 Despite this statutory silence, the general rule is that no party bears
a legal onus of proof in tribunal proceedings: the onus falls instead on the
tribunal. Nonetheless, it has long been accepted that this does not preclude
there being a practical onus on the applicant to make and support their
case.81
At the same time, the fact that there is a practical onus on the parties does
not prevent the tribunal itself taking on the evidence-gathering role. In an
inquisitorial proceeding, the tribunal must ‘be satisfied’ of the outcome in
the case. In order to meet this level of satisfaction it is often expected that a
tribunal will adopt an interventionist role. This expectation has a direct
impact on the onus of proof.
This can occur in one of two ways. The tribunal frequently identifies and
requires the parties to obtain evidence in order that it ‘be satisfied’ that it
77
78
79
80
81
28
Ibid 569 [6].
Ibid 571 [13].
Re Mustafay and Secretary, Department of Family and Community Services [2004]
AATA 819; Re Hudson and Child Support Registrar [1998] AATA 863.
Veterans Entitlement Act 1986 (Cth) s 15(4). See also Transport Accident Act 1986
(Vic) s 76(2), which states: ‘A person claiming to be entitled to receive
compensation under Part 3 during the first 18 months after the transport
accident or under Division 1 or Part 10 bears the onus of proving the
entitlement’. See also Micu v Ferretti [2000] VCAT 1283 [49].
McDonald v Director-General of Social Security (1984) 1 FCR 354; Golem v
Transport Accident Commission [2002] VCAT 319; Rzanovski v Transport Accident
Commission (General) [2005] VCAT 652 [7]; Re Hargreaves and Australian
Community Pharmacy Authority (No. 2) (1995) 41 ALD 147; Re De Brett
Investments Pty Ltd and Australian Fisheries Management Authority [2004] AATA
704; Australian Postal Commission v Hayes (1989) 18 ALD 135.
has reached the ‘correct or preferable’ decision. 82 This requirement is
commonly imposed at preliminary proceedings. Equally, if the tribunal
identifies a subject not raised at the hearing it may call evidence on that
subject and adjourn the hearing until that evidence is obtained. 83
Alternatively, the tribunal can obtain the evidence itself. It should do so if
it is unable to make a correct or preferable decision because of, for
example, the absence of a crucial witness. In those circumstances the
tribunal may be obliged to call that witness. 84
Which option the tribunal adopts depends on the character of the
proceedings and the assumed skills and resources of the applicant. Hence,
in a development proposal the tribunal commented:
it seems to us generally fair that a development proponent who
seeks approval for a development, no doubt with a view
ultimately to obtaining a profit from the transaction, should bear
the responsibility of placing before the decision-maker any expert
opinion upon which he relies.85
In making its choice, the tribunal must balance the requirement that there
be a speedy conclusion to the matter with the need to ensure fairness. In
that context, as the Administrative Decisions Tribunal pointed out in KO v
Commissioner of Police86, quoting Ipp JA in Barwick v Council of the Law
Society of New South Wales87, a deficiency in the evidence resulting from a
failure to seek material on a question of fact is more likely to raise the
possibility of a breach of natural justice. As Ipp JA put it:
where there has been a denial of natural justice affecting the
entitlement of a party to make submissions on an issue of fact,
especially when the issue is whether the evidence of a particular
witness should be accepted, it is more difficult for a court of
appeal to conclude that compliance with the requirements of
natural justice could have made no difference to the outcome
than where the denial related to the opportunity of making
submissions on a question of law.88
82
83
84
85
86
87
88
Bushell v Repatriation Commission (1992) 175 CLR 408, 424–5.
Re Richards and Australian Federal Police [1999] AATA 724.
Re Bessey and Australian Postal Corporation [2000] AATA 404; Re Lutter and
Comcare [2000] AATA 2.
Campbell v Port Phillip City Council [1999] VCAT 128 [32].
[2004] NSWADT 21.
[2004] NSWCA 32.
Ibid [111]. Ipp JA was in turn quoting the headnote for the judgment of the
High Court in Stead v State Government Insurance Commission (1986) 161 CLR
141.
29
Once again, the general principles are clear. There is a practical but not a
legal onus on the parties, although the level of representation, the type of
matter, and the need for the tribunal to be satisfied that it can reach the
correct or preferable decision will determine who bears the practical
burden at any time.
The rights and interests of parties
The more serious the impact on a party, the more likely it is that the
Tribunal will adopt a more formal—and hence less inquisitorial—process.
For example, in occupational licence cases89 the Tribunal has noted that the
seriousness of the initial decision to deny the applicant a licence suggests a
need to adopt more formal processes. In Curcio v Business Licensing
Authority90 the Tribunal noted:
As a matter of procedure such matters ought proceed by way of
proper notice to an estate agent with particulars in support being
detailed and in circumstances where the case is put by the
informant before the estate agent is called upon to answer the
allegations.91
The Tribunal also ruled as inadmissible a police summary that was
substantially in the form of hearsay evidence; it did so on the basis that in a
case such as this the rules of evidence should be applied ‘unless for sound
reason, their application is dispensed with’.92 Similarly, in a denial of
compensation case93 the Tribunal refused to override medical professional
privilege despite the discretion available under s 80(3) of the Victorian Civil
and Administrative Tribunal Act 1998 (Vic) to require a party to produce a
document.
Pragmatic considerations
The need for speed
As noted, a feature of the procedural model of Australian tribunals is that
they have often been created to provide speedier dispute resolution than
the courts. The emphasis on a ‘quick’ resolution of the matter is often
referred to as an answer to a complaint that the tribunal should have taken
a more interventionist stance or called for more evidence. For example, in
89
90
91
92
93
30
Curcio v Business Licensing Authority [2001] VCAT 423.
Ibid.
Ibid [24].
Ibid [26].
Treverton v Transport Accident Commission [1998] VCAT 581.
Spano v Business Licensing Authority94, which concerned an application to be
a real estate agent’s representative, the Tribunal pointed out:
Although the Tribunal takes an inquisitorial role, that role is one
of review and it must to large degree rely upon the evidence
presented to it if it is to operate efficiently and with some speed
whilst ensuring fairness to the parties.
This Tribunal whilst having all the functions of the Respondent
also has the Respondent appearing before it and it cannot be that
it is expected to carry out a function that is the equivalent to that
carried out by the Respondent at first instance. It may choose to
do so, but that should be only in circumstances where the
Respondent has failed to have others investigate for it or
investigate matters itself that were so pertinent to the outcome of
the proceedings before it that fair process demanded action by
the Tribunal at the review stage of the process.95
The applicant had conducted his case on the basis that he accepted all the
factual matters and consequently would not give evidence but was
available for cross-examination. The Tribunal criticised this approach to
the giving of evidence on the basis that it ‘caused disadvantage to the
Respondent and an unnecessary lengthening of the proceedings’.96
Similarly, in Campbell v Port Phillip City Council97 the Tribunal rejected the
suggestion that there was an obligation for it to ‘commission its own
building expert’. This was a case in which an objection to a development
proposal had been pending for more than two years, largely as a result of
actions by the applicant. The Tribunal pointed out that natural justice
obligations would require that any expert it called could be cross-examined
on any evidence forming a key basis for a finding of fact, that this would
cause further delay as the report was commissioned and each party was
granted time to consider the report, and that this was unacceptable in the
face of the statutory obligation to deal with the matter ‘expeditiously’. 98 In
other words, the obligation on the Tribunal to be ‘satisfied’ that its decision
94
95
96
97
98
[2000] VCAT 2320.
Ibid [3]–[4].
Ibid [6].
[1999] VCAT 128.
Ibid [32]. For the need for proceedings to be conducted expeditiously, see
Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 98(1)(d). Among
other tribunal hearings in which speed has been cited as the reason for a failure
to make further inquiries is Re Talma and Repatriation Commission [2003] AATA
866.
31
is the ‘correct or preferable one’ could compel the prolongation of the
proceedings in order to obtain further evidence. 99
At the same time, making further inquiries need not extend the length of
the hearing, as Milton Sakkos100 illustrates. In this case the Migration
Review Tribunal did carry out research on its own behalf. This involved an
internet search on the incidence of futsal playing in Australia for the
purpose of deciding eligibility for the distinguished sporting talent visa.
The research was done with little cost and no practical consequences in
terms of delay.
Resource limitations
The absence of resources, both people and financial, has also been put
forward as a reason a tribunal is not able to make its own inquiries. 101 In
particular, the tribunal might be reluctant to impose that obligation on
itself or to put the parties to extra expense by calling for additional
evidence, especially when the parties are not seeking that evidence. 102
These considerations underline the situation in Australia—namely, that
tribunals have been established with insufficient funds of their own to
perform the inquisitorial task. As Deputy President Bannon remarked of
his inability to obtain further evidence in a hearing before the
Administrative Appeals Tribunal:
There is no available fund for the Tribunal to embark on
inquisitorial proceedings outside the hearing room, and no
power to take evidence on commission abroad as provided for
example in the Evidence by Commission Act 1885 (Imp) in the
case of courts.103
Deputy President Forgie noted a consequence of the Tribunal’s practice of
relying largely on the material provided by the parties:
This approach may mean that the issues are not explored with
the thoroughness that would be the hallmark of a perfect world.
We can only do our best and the fact that we cannot do so in the
99
100
101
102
103
32
Re Heard and Repatriation Commission [2004] AATA 773.
[2004] MRTA 7649.
Re Hargreaves and Australian Community Pharmacy Authority (No 2) 41 ALD 147;
Re De Brett Investments and Australian Fisheries Management Authority [2004]
AATA 704.
Re Achurch and Comcare [2003] AATA 902.
Re LNC (Wholesale) Pty Ltd and Collector of Customs [1988] AAT 4818.
detailed and thorough manner desired by the applicants does not
entitle us to walk away from our duty to review the decision.104
Conclusion
The modified form of inquisitorial process adopted for Australian tribunals
does provide them with an essential degree of flexibility in their
operations. Other imperatives, however—such as the need for speed, the
needs of the parties, and the limited resources of the tribunal—have meant
that tribunals have been reluctant to fully adopt an inquisitorial approach.
These factors might explain the somewhat acid comment in Campbell v Port
Phillip City Council that, although Eames J in Bausch v Transport Accident
Commission105 had ‘enthusiastically embraced’ the concept of the tribunal as
‘inquisitorial’ as classically defined by Brennan J in Bushell v Repatriation
Commission106, the concept ‘was never enthusiastically embraced by the
Tribunal itself’.107
In conclusion, although there are exceptions108, it seems that tribunal
processes in this country bear little resemblance to the classic European
model. So, on balance, although tribunals have been established with
powers to operate in a manner that differs from the traditional adversarial
process, in practice they make limited use of this freedom to shape for
themselves a distinct mode of operation.
104
105
106
107
108
Re De Brett Investments and Australian Fisheries Management Authority [2004]
AATA 704 [131].
(1996) 11 VAR 116.
(1992) 175 CLR 408, 424–5.
Campbell v Port Phillip City Council [1999] VCAT 128 [32].
Although the survey was limited, it appeared to be the longer serving or
academic members of tribunals who are more likely to advert to or adopt an
inquisitorial approach to a tribunal hearing.
33
Watching the watchers: how the Inspector-General of
Intelligence and Security helps safeguard the rule of
law
Ian Carnell and Neville Bryan*
Introduction
It has been said that discussion of the rule of law in Australian legal and
academic circles often has more to say about the role of courts than about
the true focus of the doctrine, which is to limit and control the behaviour of
governments.109
Although it is important not to discount the vital role and the proud
history of the courts in ensuring that executive government is subject to the
law, not above it, it must also be recognised that other, non-judicial,
mechanisms are also important in safeguarding the rule of law.110 Among
these other mechanisms are administrative tribunals and ombudsmen.
The position of Inspector-General of Intelligence and Security is also such a
mechanism; it has a specific mandate to oversee the six agencies that
formally constitute the Australian ‘intelligence community’:

the Australian Security Intelligence Organisation—ASIO

the Australian Secret Intelligence Service—ASIS

the Defence Signals Directorate—DSD

the Defence Imagery and Geospatial Organisation—DIGO
*
Ian Carnell is Inspector-General of Intelligence and Security; Neville Bryan is
Principal Investigator, Office of the Inspector-General of Intelligence and
Security. This is a modified version of a paper presented at the Safeguarding
Australia 2005 conference, held in Canberra on 12–14 July 2005.
McMillan, J 2005, ‘The ombudsman and the rule of law’ AIAL Forum, vol. 44,
pp. 1, 3.
Some commentators, such as the Honourable JJ Spigelman and Professor
Ackerman, have even suggested that integrity and accountability agencies
constitute a fourth arm of government—equivalent to the legislature, executive
and judiciary. See Spigelman, JJ 2004, ‘Jurisdiction and integrity’, (speech
delivered for the second lecture in the 2004 National Lecture Series of the
Australian Institute of Administrative Law, Adelaide, 5 August). See also
Ackerman, B 2000, ‘The new separation of powers’, Harvard Law Review,
vol. 113, pp. 633, 694.
109
110
34

the Defence Intelligence Organisation—DIO

the Office of National Assessments—ONA.
Since 11 September 2001 there has been frequent, and sometimes sharp,
debate about the new powers and capabilities that have been given to
Australia’s intelligence and security agencies. The more measured
proponents in the debate have focused on finding a suitable balance
between the intrusiveness of the new powers afforded the agencies on one
hand and the rights of the individual on the other.
With each terrorist atrocity that is committed, the debate is rejoined with
vigour. Proposals for seemingly ever-increasing powers are balanced by
equally passionate arguments that to cede further individual liberties to
the state is to hand to the terrorist perpetrators a complete victory.
The challenge for government is to find a path that offers maximum
protection for its citizens without giving succour to those who would
undermine the foundations on which our society is built.
Adding to the challenge is the secret and secretive nature of much that the
intelligence and security agencies do. As a general rule, most Australians
will not know if they have become someone of interest to the agencies; nor
will they know what is done with any intelligence information that might
have been gathered on them. Rights of appeal to courts or tribunals are
meaningful only if the individual concerned actually knows what has been
done or decided.
Yet it is essential that the intelligence and security agencies have the
community’s confidence. To this end, the agencies must act within the law,
act with propriety, have regard for human rights, and be held accountable
for their actions.
Origins and history
The creation of the Office of the Inspector-General of Intelligence and
Security can be attributed in large measure to the pioneering work of the
late Justice Robert Hope, an eminent jurist and at one time President of the
Australian Council for Civil Liberties.
In both 1974 and 1983 the federal government of the day asked Justice
Hope to comprehensively review the operations of the Australian
intelligence community. These reviews were prompted by concerns that
the constituent members of the intelligence community were not working
together as effectively as they might and were not sufficiently responsive
to ministerial direction and control. In establishing the reviews, the
35
governments asked Justice Hope to consider the appropriateness of
existing coordination arrangements and to review the machinery for
ministerial and official oversight and control of the various agencies.
This was at a time when a proportion of the Australian population was
convinced ASIO targeted socially progressive individuals and groups,
regardless of whether they posed a real threat to national security. There
was also the Murphy ‘raid’ on ASIO in 1973, motivated by a belief that
ASIO was not fully informing the Attorney-General. Another notable event
fostering such concerns was the so-called Combe–Ivanov affair. Further,
about six months after Justice Hope began his second review an ASIS
training exercise at the Sheraton Hotel in Melbourne went badly awry. 111
These incidents fuelled a perception that the intelligence and security
agencies were out of control.
After lengthy and careful consideration, Justice Hope recommended that
the intelligence community’s accountability would be improved if a
specialist overseeing body were created.112 The recommendation was
accepted, and in due course the Inspector-General of Intelligence and Security
Act 1986 (Cth) was passed. The office came into existence on 1 February
1987.
Other influential factors bearing on the creation of the Inspector-General of
Intelligence and Security were the important developments in
administrative law that had occurred in the period between Justice Hope’s
inquiries. The Commonwealth Parliament had enacted the following
statutes:

the Administrative Appeals Tribunal Act 1975;

the Ombudsman Act 1976

the Administrative Decisions (Judicial Review) Act 1977

the Freedom of Information Act 1982.
111
Royal Commission on Australia’s Security and Intelligence Agencies 1984,
Report on the Sheraton Hotel Incident. See also Grabosky, PN 1989, ‘Caught in the
act: the ASIS raid’, in PN Grabosky (ed.), Wayward Governance: illegality and its
control in the public sector, p. 129.
Royal Commission on Australia’s Security and Intelligence Agencies 1984,
General Report, para 3.26.
112
36
These Acts increased the rights of members of the public in relation to the
following:

appealing against government decisions on their merits—as opposed
to the more narrow basis of a point of law

complaining about the conduct of government agencies

providing a clearer basis for judicial review of decisions made by
government agencies and statutory offices

obtaining information on which decisions were made and on the
conduct of government generally.
The Privacy Act 1988 (Cth) subsequently regulated the collection, storage
and use of personal information about individuals by Commonwealth
government agencies.
For the most part, the six agencies that now make up the Australian
intelligence community were, and remain, partially or fully exempt from
much of this administrative law regime. There are good reasons for this.
The most obvious one is that it is necessary for the agencies to protect their
sources, capabilities and methods if they are to function effectively, and
this end is not served if matters of this kind are aired publicly. Despite this,
however, it is not reasonable that these agencies should be exempt from
scrutiny similar to that to which other government agencies are subject.
The passage of the Inspector-General of Intelligence and Security Act and
the creation of the Office of the Inspector-General of Intelligence and
Security reflect government’s desire to ensure that all aspects of
government administration are subject to adequate scrutiny and
accountability.
The role of the Inspector-General of Intelligence and
Security
The role of the Inspector-General of Intelligence and Security is probably
best encapsulated in comments made by the then Attorney-General, the
Hon Lionel Bowen, during the second reading speech for the InspectorGeneral of Intelligence and Security Bill 1986:
We believe that the legislation establishes an Office which will …
provide an independent oversight of the agencies’ activities, give
the public a greater assurance that those activities are proper
ones, and clear the agencies, or bring them to task, as the case
37
may be, if allegations of improper conduct are made against
them.113
The Inspector-General is appointed by the Governor-General and can be
removed from office only by reason of misbehaviour, physical or mental
incapacity, or in other limited circumstances.114 To facilitate an apolitical
approach, the legislation requires that before a recommendation for
appointment is made to the Governor-General ‘the Prime Minister shall
consult with the Leader of the Opposition in the House of
Representatives’.115
In brief, the focus of the Inspector-General is oversight and review of the
Australian intelligence community agencies in four main areas:

compliance with the law

compliance with ministerial directions and guidelines

propriety

respect for human rights.116
This is principally achieved in one of two ways—the conduct of inspection
activities, or the conduct of inquiries. 117
The inspection function
An important aspect of the role of the Inspector-General of Intelligence and
Security is to conduct a proactive inspection program—rather than simply
reacting to complaints or public controversies. This was part of Justice
Hope’s vision for the position and was re-emphasised in March 1995, when
Justice Gordon Samuels AC QC and Mr Michael Codd AC concluded a
commission of inquiry into ASIS.118
In their report Justice Samuels and Mr Codd criticised the InspectorGeneral for devoting too much time to inquiries into staff and other
grievances at the expense of the office’s general monitoring and oversight
113
114
115
116
117
118
38
Commonwealth of Australia 1986, Parliamentary Debates, House of
Representatives, Canberra, 22 May, p. 3703.
Inspector-General of Intelligence and Security Act 1986 s 30.
Ibid s 6.
Ibid ss 4, 8.
Ibid ss 8, 9, 9A.
Commission of Inquiry into the Australian Secret Intelligence Service 1995,
Report on the Australian Secret Intelligence Service (Public Edition),
Commonwealth of Australia, Canberra.
functions. In response, successive inspectors-general have reoriented the
work of the office towards monitoring and oversight.
When considering the value of an inspection program it is interesting to
compare this feature with judicial review, which tends to be intermittent
and fractional. A proactive and thorough inspection program can have a
strong normative effect on the behaviour of agencies. The Commonwealth
Ombudsman has also noted this in connection with similar activities
undertaken by his office in the law enforcement field:
My own experience is that compliance auditing of this kind is a
highly effective and low cost mechanism for ensuring strict
compliance with statutory procedures that are grounded in the
ideals of rule of law and rights protection. Importantly, too, I
have seen how the systematic nature of this oversight has
induced a culture of compliance within the law enforcement
agencies; this is now anchored in the development of internal
procedures for rigorous quality assurance and legal compliance,
and in active support shown by senior law enforcement
managers for the Ombudsman’s oversight role.119
The inspection program
Overall, 60 to 70 per cent of the resources of the Inspector-General of
Intelligence and Security are now devoted to proactive inspection
activities. Each inspection program is agency specific and is especially
tailored with an eye to the mandate and functions of the agency in
question.
The Inspector-General has traditionally devoted more resources to
monitoring the activities of ASIO than to any of the other agencies. This
situation is unlikely to change, simply because ASIO has a domestic focus
and so has the greatest potential to impinge on the rights of Australians.
The broad categories of ASIO activity the Inspector-General monitors are
as follows:

use of questioning and detention warrants obtained under s 34D of the
Australian Security Intelligence Organisation Act 1979 (Cth)120
119
McMillan, J 2005, op. cit., pp. 1, 7–8.
The Parliamentary Joint Committee on ASIO, ASIS and DSD has recently
conducted a review of Division 3, Part III, of the Act as a consequence of s 34Y
of that Act, which dictates that, unless renewed, this division ceases to have
effect three years after it comes into effect.
120
39

all other instances where warrants have been issued to ASIO under
either the ASIO Act or the Telecommunication (Interceptions) Act 1979
(Cth)

all requests within the organisation for authority to investigate
individuals or groups

access to and use of financial transaction reporting information
obtained from AUSTRAC (the Australian Transaction Reports and
Analysis Centre)

access to and use of taxation information obtained from the Australian
Taxation Office

provision of information to and liaison with law enforcement agencies

the official use of alternative documentation to support assumed
identities

compliance with the Archives Act 1983 (Cth).
In relation to ASIO search warrants, the inspection program involves
regular visits to inspect the documentation for all warrants. Thorough
checking is done on the following aspects:

whether the intelligence or security case ASIO has made in support of
an application meets the legislative requirements

that the people named in warrants are in fact those of interest to ASIO

that appropriate internal approvals for the request have been obtained

the individuals to whom the Director-General has given authority to
execute the warrant or to communicate information obtained from a
warrant

the Attorney-General’s approval, when obtained

that reports to the Attorney-General of the outcome of executed
warrants are factual and have been provided in a timely manner

that the activity concerned did not begin before or continue after the
period approved by the Attorney-General.
As an additional safeguard, the Inspector-General and staff also
periodically review a sample of operational management files related to
40
particular warrants, so as to monitor the practical effects of the execution of
some warrants.
After each inspection the Inspector-General writes to the Director-General
of Security, commenting on the results and noting any matters requiring
attention. ASIO usually responds to such comments and often changes its
guidelines and practices as a result.
Search warrants can also be the subject of complaints to the InspectorGeneral. A number of such complaints were finalised in 2003–04. The main
allegation made in the majority of these complaints was that those present
when the warrants were executed had in effect been detained and
prevented from going about their normal business. Search warrants do not
authorise the detention of people, and if people whose premises are being
searched wish to leave they are at liberty to do so.
As noted in the Inspector-General’s 2003–04 annual report121,
investigations of the complaints found no evidence that ASIO tried to
prevent, or actually prevented, people leaving the premises in question. In
fact, there were instances of residents and visitors entering and leaving the
premises during the search process.
There were, however, two instances where the Inspector-General
recommended payment of compensation. In one case a computer was
seized but not returned in the condition it was in when seized;
compensation was paid. In the second case the search took place at
premises other than those specified in the warrant; compensation has now
been settled.
Questioning and detention warrants
Given the controversial nature of questioning and detention warrants
issued under s 34D of the ASIO Act, it is worth touching on the role the
Inspector-General plays in this regard.
The Parliament passed the Australian Security Intelligence Organisation
Legislation Amendment (Terrorism) Act 2003 (Cth) on 26 June 2003. The
practical effect of this Act was to insert a new division into Part III of the
ASIO Act, permitting the Director-General of Security, with the AttorneyGeneral’s consent, to seek a warrant authorising the questioning or
detention of a person where doing so would substantially assist the
collection of intelligence in relation to a terrorism offence. These provisions
were amended by the Australian Security Intelligence Organisation Legislation
121
All annual reports are available at <http://www.igis.gov.au>.
41
Amendment Act 2003 (Cth), which was passed by the Parliament on
5 December 2003. There is a three-year sunset clause in the legislation.
The Inspector-General and his staff examine the warrant documentation
for s 34D warrants in a manner similar to that used for other warrants. The
Inspector-General or a senior member of the office also attends questioning
sessions nominated by the Inspector-General. Among the various
safeguards in the legislation are the following:

Section 34E(1)(e)(i) of the ASIO Act requires the ‘prescribed authority’
(who supervises the questioning and is usually a former judge) to
explain to the subject of a s 34D warrant that they have the right to
make a complaint to the Inspector-General about ASIO, either orally or
in writing.

Section 34HA provides that, where the Inspector-General has a
concern about impropriety or illegality in connection with the exercise
of powers under a warrant, he (or she) may raise that concern with the
prescribed authority, who must take account of the Inspector-General’s
concern.

Section 34Q details those materials ASIO is required to provide to the
Inspector-General in respect of s 34D warrants. These materials include
a copy of any draft requests for a warrant given to the AttorneyGeneral, any warrants issued, a copy of any video recording made of
the questioning of subjects, and a statement containing details of any
seizure, taking into custody, or detention.

Section 34QA imposes a reporting requirement on the InspectorGeneral where multiple warrants involving detention are issued in
respect of an individual.
Practical experience with these safeguards is detailed in written and oral
submissions presented to a review conducted by the then Parliamentary
Joint Committee on ASIO, ASIS and DSD in 2005.122
In the experience of this office to date, the subjects of the warrants have all
been treated humanely (as required by s 34J). The questioning has been
conducted in an appropriate manner and the individuals who have been
122
42
Written submissions to the review of ASIO’s questioning and detention
powers are available at
<http://www.aph.gov.au/house/committee/pjcaad/asio_ques_detention/su
bs.htm>. The Committee’s remit was extended to include ONA, DIO and
DIGO on 2 December 2005, leading the Committee to be retitled the
Parliamentary Joint Committee on Intelligence and Security.
the subject of questioning have been accorded dignity and respect. The
Parliamentary Joint Committee viewed video recordings of some of the
questioning sessions and commented that the questioning was ‘very
formal and certainly polite and dispassionate, if persistent’. 123
Although ASIO has acted appropriately to date, the Inspector-General
made a number of suggestions to improve protection of the rights of
individuals subject to a warrant—for example, automatic access to legal aid
and greater capacity for their legal representatives to address the
prescribed authority, who supervises the questioning, on procedural and
related matters. The suggestions were generally adopted by the
Parliamentary Committee.124
Having regard to the role detention has played historically in oppression,
the Inspector-General also supported retention of a sunset clause but noted
that a six- or even nine-year point (with periodic reviews by the
Parliamentary Committee in the meantime) would be suitable. In the
Inspector-General’s view, current threats are not transitory, it can be very
difficult to collect intelligence on terrorist planning by more conventional
means, and ASIO has been responsible in its use of the warrants to date.
The Committee recommended a five-year sunset clause.125
The inquiry function
About 30 to 40 per cent of the Inspector-General’s resources are devoted to
inquiry work. In respect of ASIO, ASIS, DSD and DIGO an inquiry can be
triggered by a complaint, a ministerial request, or an own-motion review.
Until recently, inquiries into ONA and DIO could be triggered only by a
ministerial request. When the Intelligence Services Legislation Amendment Act
2005 (Cth) came into effect on 2 December 2005 this situation changed as a
consequence of recommendations made by Mr Philip Flood AO after his
Inquiry into Australian Intelligence Agencies.126 In his public report
Mr Flood specifically recommended as follows:
The mandate of the Inspector-General of Intelligence and
Security should be extended to allow IGIS to initiate inquiries at
his or her own discretion into matters relating to ONA and DIO
without ministerial referral, consistent with the IGIS jurisdiction
123
124
125
126
Parliamentary Joint Committee on ASIO, ASIS and DSD 2005, Review of
Division 3 Part III of the ASIO Act 1979—questioning and detention powers,
PJCAAD, Canberra, para 1.44.
Ibid.
Ibid paras 6.23–6.36.
Flood, P 2005, Report of the Inquiry into Australian Intelligence Agencies,
Commonwealth of Australia, Canberra.
43
in respect of ASIO, ASIS and DSD. The Inspector-General should
also conduct a periodic review of ONA’s statutory
independence.127
The primary considerations were as follows:
While it is fully understood that assessment agencies do not have
the capacity to infringe the liberties of individuals in the way that
collection agencies do, it is still appropriate for the InspectorGeneral to have authority in relation to ONA and DIO. There is
significant public interest in the activities of the assessment
agencies, and recent cases have highlighted the questions that
can arise about the propriety of the assessment agencies’
activities, particularly from within their own ranks. It would be
difficult for these questions to be dealt with by the normal public
service processes, in view of the sensitivity and security issues
involved … The mandate of the Inspector-General should,
however, relate to the propriety and legality of ONA and DIO’s
activities; and should not extend to judgments about the accuracy
of their assessments.128
Mr Flood further commented:
A vital element of the product quality question is independence.
ONA argues that its Act represents a strong protection of its
independence, and that this is supported by the culture of the
organisation and its relationships with ministerial staff. The
Inquiry finds this argument persuasive but not sufficient. Given
the nature of the assessment business, where individuals’
judgments are a key factor in the final product, and ONA’s direct
line of responsibility to the Prime Minister, with the consequent
potential for charges of political influence, there is a need for
some external process to ensure independence is preserved, and
is seen to be so.129
Powers and capacity
The manner in which inquiries by the Inspector-General must be
conducted is prescribed in ss 15–20 of the Inspector-General of Intelligence
and Security Act. An important feature that is sometimes not recognised is
that the Inspector-General can, and does, use royal commission powers
when conducting a full inquiry.
These powers mean witnesses can be compelled to appear before the
Inspector-General and must answer—and answer truthfully—questions
127
128
129
44
Ibid p. 180.
Ibid p. 59.
Ibid p. 105.
put to them. Similarly, the Inspector-General can compel the production of
documents. It is an offence to not comply with these requirements,
although ‘use immunity’ exists for the person providing information,
producing a document or answering questions. 130 The Inspector-General
also has the capacity to enter agency premises.
It is also important to appreciate that, when necessary, the InspectorGeneral can have access to resources beyond those staff in his office on a
continuing basis. For example, in 2004 the Inspector-General inquired into
an allegation that there was a deliberate cut in the access of several Defence
Force intelligence officers attached to the INTERFET force in Dili, East
Timor, to a particular intelligence database hosted by DIO. To ascertain
definitively how the access was lost, the Inspector-General used the
services of two IT forensic experts from a part of the Defence Department
that is not within the Inspector-General’s jurisdiction.
Notable inquiries
The following are examples of notable inquiries under the InspectorGeneral of Intelligence and Security Act and their primary results:

The Wispelaere espionage case (1999). This led to major improvements in
the personnel and other security practices of agencies. 131

Whether DSD had foreknowledge of the dangers confronted by the Balibo five
(2000). The allegations were found to be based on incomplete, and in
some cases garbled, information. Although there was intelligence
material relating to journalists in Timor, it was not of the nature
alleged. All relevant intelligence was provided to government, and
there was no evidence of any removal of records. 132

Allegations about DIO by Lt Col Lance Collins (2000 and 2004). Although
there was not an attempt to ‘quash’ Collins’ views and DIO
assessments were not ‘pro-Jakarta’, there had been a deliberate cut in
130
The information, the document produced or the answer to the question is not
admissible in evidence against the person in any court or in any proceedings
before a person authorised to hear evidence (except in a prosecution for an
offence such as refusing to answer a question). See Inspector-General of
Intelligence and Security Act 1986 (Cth) s 18.
Inspector-General of Intelligence and Security 2001, Annual Report 2000–01,
IGIS, Canberra, p. 39.
Inspector-General of Intelligence and Security 2002, Annual Report 2001–02,
IGIS, Canberra, Annex 3.
131
132
45
the access of Australian intelligence staff attached to the INTERFET
force in Dili to a DIO database.133

Whether the intelligence community had intelligence warning of the Bali
bombings (2002). None of the intelligence available could be construed
as possibly providing warning of the attack.134

Allegations about DSD’s conduct in respect of the Tampa affair (2002).
Although DSD did not deliberately target Australian people, four endproduct reports that included incidentally collected material on
Australian people were in breach of the then applicable Rules on Sigint
and Australian Persons. An apology was sent to the three Australians
whose communications were reported.135
The Inspector-General does not have determinative or directive powers but
can make recommendations as a result of inquiries conducted under the
aegis of the Inspector-General of Intelligence and Security Act. These
recommendations can include the payment of compensation, remedial
action, or the offering of formal apologies. Justice Hope saw determinative
or directive powers as potentially confusing the executive responsibility
and accountability of the agency head. Moreover, if the Inspector-General
is the author or part-author of particular arrangements, it potentially
affects the Inspector-General’s capacity to be an objective, independent
critic of those arrangements or the results they produce.
It must also be noted that the agencies in question and the Ministers
responsible for them take the recommendations of the Inspector-General
very seriously and have shown a willingness to effect change when this is
recommended. For example, compensation was recommended in a case
where an asylum seeker was detained for much longer than they otherwise
would have been because of a defective security assessment by ASIO. A
substantial amount of compensation was subsequently paid. In addition,
procedures were improved, additional training was conducted, and other
existing adverse assessments were reviewed. 136
Although it has not been invoked to date, there is provision within the
Inspector-General of Intelligence and Security Act for the Inspector-
133
134
135
136
46
Inspector-General of Intelligence and Security 2005, Annual Report 2004–05,
IGIS, Canberra, pp. 38–40, Annex 3, Annex 4.
Inspector-General of Intelligence and Security 2003, Annual Report 2002–03,
IGIS, Canberra, Annex 2.
Inspector-General of Intelligence and Security 2002, op. cit., Annex 2.
Inspector-General of Intelligence and Security 2000, Annual Report 1999–2000,
IGIS, Canberra; Inspector-General of Intelligence and Security 2004, Annual
Report 2003–04, IGIS, Canberra; The Age, 10 November 2004.
General to raise any concerns about inaction in respect of formal
recommendations with the responsible Minister or the Prime Minister. 137 It
is also open to the Inspector-General to make those concerns public via his
annual report to Parliament.
It is this ability to draw the attention of Parliament and Ministers (and
through them the media and the community) to particular matters that
means the Inspector-General can help ensure his findings and
recommendations result in change. Some might argue that only the
capacity to overturn or amend government decisions or actions constitutes
effective oversight, but a more sophisticated perspective on how
government is kept in check must recognise the importance of the roles
played by the Parliament and the media.
Other accountability mechanisms
As noted, the Parliamentary Joint Committee on ASIO, ASIS and DSD was
established by s 28 of the Intelligence Services Act 2001 (Cth) to provide an
additional layer of parliamentary scrutiny of the activities of those
agencies. The Committee’s remit was expanded to include ONA, DIO and
DIGO with the coming into effect of the Intelligence Services Legislation
Amendment Act 2005 (Cth) on 2 December 2005. The Committee is now
called the Parliamentary Joint Committee on Intelligence and Security.
Although the functions of the Committee are generally limited to
reviewing matters of finance and administration 138, the Committee can
range beyond this limitation when asked to do so by a responsible Minister
or upon a resolution of either House of Parliament. 139 The Committee’s
remit is specified in this way to reduce the risk of unnecessary or
inappropriate duplication of effort with the Inspector-General, who is
principally concerned with overseeing the operational activities of the
Australian intelligence community.
The Inspector-General has met with the Committee regularly to brief it on
his activities and to provide a specialist input and perspective to the
Committee’s various reviews. This will continue. The functions of the
Inspector-General and the Committee are complementary, and the
relationship to date has been cordial and constructive.
137
138
139
Inspector-General of Intelligence and Security Act 1986 (Cth) s 24(2).
See Intelligence Services Act 2001 (Cth) s 29.
An example of this is that the Parliamentary Committee conducted an inquiry
into intelligence on Iraq’s weapons of mass destruction following a Senate
resolution dated 18 June 2003.
47
In addition to Parliamentary scrutiny, the members of the Australian
intelligence community, like all government agencies, are subject to review
by the Commonwealth Auditor-General. The Auditor-General also
complements the review activities of the Inspector-General, as recognised
by s 16 of the Inspector-General of Intelligence and Security Act:
The Inspector-General shall, before commencing an inquiry into
a matter relating to an agency, have regard to the functions of the
Auditor-General in relation to that agency and may consult with
the Auditor-General in relation to that matter with a view to
avoiding inquiries being conducted into that matter by both the
Inspector-General and the Auditor-General.
Another integrity and accountability body that must be taken into account
is the Commonwealth Ombudsman. Although the activities of the
intelligence community do not ordinarily fall within the purview of the
Ombudsman, the Ombudsman will necessarily be exposed to the
intelligence community in instances where the agencies concerned interact
with other Commonwealth agencies. For example, when executing entry
and search warrants, ASIO frequently has operational support from the
Australian Federal Police. The Commonwealth Ombudsman does not have
jurisdiction over ASIO but does have jurisdiction over the AFP.
Although the Inspector-General traditionally has had very strong links and
good relations with the Ombudsman140, the Inspector-General of
Intelligence and Security Act has recently been amended so that the
Ombudsman is placed on the same footing as the Auditor-General in
relation to consultation.141
In addition to the Inspector-General and the external accountability review
bodies just described, individuals who are aggrieved by certain actions of
the Australian intelligence community have recourse to the Security
Appeals Division of the Administrative Appeals Tribunal142 and ultimately
to the Federal Court system.
140
141
142
48
The third Inspector-General, Mr Ron McLeod AM, was appointed
Commonwealth Ombudsman in 1998, following his term as Inspector-General.
The fourth Inspector-General, Mr Bill Blick PSM, was previously a Senior
Assistant Ombudsman.
See Intelligence Services Legislation Amendment Act 2005 (Cth) ss 18–20 (sch 2).
The Security Appeals Division reviews adverse and qualified security
assessments made by ASIO—for example, about individuals who are in
Commonwealth employment and require a security clearance in order to
perform that work or individuals who have their passport cancelled.
Conclusion
The salient features of the Inspector-General of Intelligence and Security
mechanism are as follows:

The position is independent and apolitical.

There is a thorough and rigorous inspection program that identifies
matters of potential concern and has a substantial normative effect.

When conducting an inquiry the Inspector-General can, and does, use
royal commission powers.

There have been a number of high-profile inspections (for example,
ASIO warrants) and inquiries (for example, Tampa) in recent years.
These features confirm that integrity and accountability measures beyond
the courts play a vital part in ensuring the rule of law in Australia. And,
when account is taken of the Parliamentary Joint Committee, the
Commonwealth Auditor-General, the Commonwealth Ombudsman, the
Security Appeals Division of the Administrative Appeals Tribunal, the
Federal Court and the High Court, it is clear that ASIO and the wider
Australian intelligence community are subject to significant external
scrutiny.
49
Regular reports
The Administrative Review Council
Reports and other publications
Since the last edition of Admin Review the Council has published its
guideline publication entitled Legal Training for Primary Decision Makers: a
curriculum guideline, in June 2004, and its report entitled Automated
Assistance in Administrative Decision Making was officially launched by the
Attorney-General, the Hon Philip Ruddock MP on 8 December 2004. The
Council’s 29th annual report, for 2004–05, was tabled in Parliament in
November 2005.
Letters of advice
Since the June 2004 issue of Admin Review the Council has provided letters
of advice dealing with the following matters:

reform of the Administrative Appeals Tribunal

the Administrative Appeals Tribunal Amendment Bill 2004—final
advice on ‘in the interest of justice’

the Administrative Appeals Amendment Bill 2004 inquiry—advice on
ss 23 and 23A

s 23(9)(a) of the Administrative Appeals Tribunal Amendment Bill
2005.
Submissions
In 2004 and 2005 the Council presented submissions in response to the
following government initiatives:

50
the Copyright Law Review Committee on Crown Copyright discussion
paper

the Senate Legal and Constitutional Legislation Committee inquiry
into the Migration Litigation Reform Bill 2005

the Senate Legal and Constitutional Legislation Committee inquiry
into the Administrative Appeals Tribunal Amendment Bill 2005

the Ministerial Council on Energy’s Standing Committee of Officials
Review of Decision-making in the Gas and Electricity Regulatory
Framework discussion paper

the Senate Legal and Constitutional Legislation Committee inquiry
into the provisions of the Anti-Terrorism Bill (No 2) 2005

the Senate Employment, Workplace Relations and Education
Committee inquiry into the Commonwealth Radioactive Waste
Management Bill 2005 and the Commonwealth Radioactive Waste
Management (Related Amendment) Bill 2005.
Recent work program
The scope of judicial review
The Council has finalised its report on the scope of judicial review and
publication is imminent. The report draws on comments received in
response to the Council’s discussion paper The Scope of Judicial Review,
released in 2003. In the report, the Council examines the powers of
Parliament to expand and contract judicial review, some of the
mechanisms that have been used to do this, and some of the arguments
that have been advanced to justify restrictions on judicial review. It also
looks at the extent to which it is appropriate for Parliament to contract the
scope of a judicial review jurisdiction it has earlier created or to seek to
minimise the scope of judicial review practically available. The conclusions
the Council reached as a result of this analysis are brought together in a
framework of indicative principles at the end of the report.
The coercive information-gathering powers of government agencies
The Council is continuing to work on a draft report on the coercive
information-gathering powers of government agencies. This involves
developing best-practice principles for the exercise of such powers with a
view to maintaining an appropriate and cost-effective balance between the
rights of agencies and those of individuals.
51
A practical guide to procedural fairness
The Council has recently begun work on developing a practical guide to
procedural fairness. The outcome will be production of a guideline
publication designed to provide to government decision makers practical
assistance on the rules of procedural fairness that must be complied with
when making administrative decisions.
The Administrative Appeals Tribunal
Changes to jurisdiction
The Administrative Appeals Tribunal may review a decision only if an Act,
Regulation or other enactment provides that the decision is subject to
review by the Tribunal.
The enactments listed here came into operation between 1 July 2004 and
31 December 2005 and either conferred on the Tribunal jurisdiction to
review certain decisions or amended or removed such jurisdiction.
New jurisdiction
The following enactments confer new jurisdiction on the Administrative
Appeals Tribunal:
52

the Aboriginal and Torres Strait Islander Commission Amendment Act 2005

the Agricultural and Veterinary Chemicals (Administration)
Amendment Regulations 2004 (No 1)—introduced merits review of
decisions under the Agricultural and Veterinary Chemicals
(Administration) Regulations 1995

the Anti-Terrorism Act (No 2) 2005—introduced new jurisdiction for the
Administrative Appeals Tribunal under the Criminal Code Act 1995

the Australian Meat and Live-stock Industry (Export Licensing)
Amendment Regulations 2004 (No 1)—introduced merits review of
decisions under the Australian Meat and Live-stock Industry (Export
Licensing) Regulations 1998

the Australian Meat and Live-stock (Beef Export to the USA—Quota
Year 2006) Order 2005

the Australian Passports Act 2005

the Australian Passports Determination 2005

the Aviation Transport Security Act 2004

the Aviation Transport Security Regulations 2005

the Building and Construction Industry Improvement (Accreditation
Scheme) Regulations 2005

the Export Control (Animals) Order 2004

the Export Control (Dairy, Eggs and Fish) Orders 2005

the Export Control (Eggs and Egg Products) Orders 2005

the Export Control (Fish and Fish Products) Orders 2005

the Export Control (Hay and Straw) Orders 2005

the Export Control (Meat and Meat Products) Orders 2005

the Export Control (Milk and Milk Products) Orders 2005

the Export Control (Plants and Plant Products) Orders 2005

the Family Assistance (One-off Payments to Families and Carers)
Scheme 2004

the Federal Court of Australia Regulations 2004

the Film Licensed Investment Company Act 2005

the Health Insurance (Eligible Collection Centres) Approval Principles
2005

the High Court of Australia (Fees) Regulations 2004

the Marine Orders Part 30—Issue 7 (Order No 4 of 2005)

the Marine Orders Part 94—Issue 4 (Order No 5 of 2005)

the Marine Orders Part 95—Issue 4 (Order No 6 of 2005)
53

the Maritime Transport and Offshore Facilities Security Amendment
Regulations 2005 (No 1)—amending the Maritime Transport and
Offshore Facilities Regulations 2003

the Military Rehabilitation and Compensation Act 2004

the Motor Vehicle Compensation Scheme (MRCA Instrument No 2 of
2004)

the Petroleum (Submerged Lands)(Management of Well Operations)
Regulations 2004

the Textile, Clothing and Footwear Post-2005 Strategic Investment
Program Scheme 2005

the Water Efficiency Labelling and Standards Act 2005.
Amended jurisdiction
The following enactments listed in the left-hand column amended the
Administrative Appeals Tribunal’s jurisdiction to review certain decisions
by extending the Tribunal’s jurisdiction or reducing the number of
decisions subject to review. The right-hand column shows the existing
enactments that are affected.
54
Amending enactments
Affected enactments


the Aboriginal and Torres Strait
Islander Commission Act 1989

the Aboriginal and Torres Strait
Islander Act 2005
the Aboriginal and Torres Strait
Islander Commission Amendment Act
2005

the Aged Care Amendment (Extra
Service) Act 2005

the Aged Care Act 1997

the Agricultural and Veterinary
Chemical Legislation Amendment
(Levy and Fees) Act 2005

the Agricultural and Veterinary
Chemical Products (Collection of Levy)
Act 1994

the Anti-Terrorism Act (No 3) 2004

the Passports Act 1938

the Australian Citizenship
Amendment Regulations (No 1)
2005

the Australian Citizenship
Regulations 1960
Amending enactments
Affected enactments

the Australian Passports
(Transitionals and Consequentials) Act
2005

the Passports Act 1938—now known
as the Foreign Passports (Law
Enforcement and Security) Act 2005

the Australian Wine and Brandy
Corporation Amendment
Regulations 2005 (No 1)

the Australian Wine and Brandy
Corporation Regulations 1981

the Australian Wine and Brandy
Corporation Amendment
Regulations 2005 (No 2)

the Australian Wine and Brandy
Corporation Regulations 1981

the Aviation Transport Security
(Consequential Amendments and
Transitional Provisions) Act 2004

the Air Navigation Act 1920

the Bankruptcy and Family Law
Legislation Amendment Act 2005

the Bankruptcy Act 1966

the Civil Aviation Amendment
Regulations 2004 (No 1)

the Civil Aviation Regulations 1988

the Civil Aviation Safety
Regulations 1998

the Civil Aviation Regulations 1988

the Civil Aviation Safety
Regulations 1998

the Civil Aviation Amendment
Regulations 2004 (No 4)

the Customs Legislation Amendment
and Repeal (International Trade
Modernisation) Act 2001

the Customs Act 1901

the Customs Legislation Amendment
(Application of International Trade
Modernisation and Other Measures)
Act 2004

the Customs Act 1901

the Electoral and Referendum
Amendment (Access to Electoral Roll
and other Measures) Act 2004

the Commonwealth Electoral Act 1918

the Food Standards Australia New
Zealand Amendment Regulations
2004 (No 1)

the Food Standards Australia New
Zealand Regulations 1994
55
56
Amending enactments
Affected enactments

the Health Legislation Amendment
(Podiatric Surgery and Other Matters)
Act 2004

the Health Insurance Act 1973

the National Health Act 1953

the Industrial Chemicals (Notification
and Assessment) Amendment (Low
Regulatory Concern Chemicals) Act
2004

the Industrial Chemicals (Notification
and Assessment) Act 1989

the Marine Orders Part 3 (Order No
8 of 2004)

the Marine Orders Part 3

the Marine Orders Part 15 (Order
No 11 of 2004)

the Marine Orders Part 15

the Marine Orders Part 33 (Order
No 3 of 2005)

the Marine Orders Part 33

the Maritime Transport Security
Amendment Act 2005

the Maritime Transport and Offshore
Facilities Security Act 2003

the Migration Legislation Amendment
(Migration Agents Integrity Measures)
Act 2004

the Migration Act 1958

the National Health Amendment
(Private Health Insurance Levies) Act
2003

the National Health Act 1953

the Ozone Protection and Synthetic
Greenhouse Gas Management
Amendment Regulations 2004
(No 2)

the Ozone Protection and Synthetic
Greenhouse Gas Management
Regulations 1995

the Ozone Protection and Synthetic
Greenhouse Gas Management
Amendment Regulations 2005
(No 1)

the Ozone Protection and Synthetic
Greenhouse Gas Management
Regulations 1995

the Patents Amendment
Regulations 2004 (No 1)

the Patent Regulations 1991

the Superannuation Safety
Amendment Act 2004

the Superannuation Industry
(Supervision) Act 1993
Amending enactments
Affected enactments

the Tax Laws Amendment (Small
Business Measures) Act 2004

the A New Tax System (Goods and
Services Tax) Act 1999

the Tax Laws Amendment (2004
Measures No 1) Act 2004

the Taxation Administration Act 1953

the Tax Laws Amendment (2004
Measures No 6) Act 2005

the Income Tax Assessment Act 1997

the Tax Laws Amendment
(Improvements to Self Assessment) Act
(No 2) 2005

the Income Tax Assessment Act 1936

the Taxation Administration Act 1953
the US Free Trade Agreement
Implementation Act 2004

the Agricultural and Veterinary
Chemicals Code Act 1994

the Australian Wine and Brandy
Corporation Act 1980

Removed jurisdiction
The following enactments listed in the left-hand column removed the
Administrative Appeals Tribunal’s jurisdiction by repealing an enactment
or removing the Tribunal’s jurisdiction under an enactment that continues
to exist. The right-hand column shows the enactments affected.
Repealing enactments
Affected enactments


the Australian Meat and Live-stock
Industry (Export of Cattle) Order
2003

the Australian Meat and Live-stock
Industry (Export of Live Sheep and
Goats to the Middle East) Order
2003

the Australian Meat and Live-stock
Industry (Export of Pregnant
Cattle) Order 2002

the Export Control (Animals)
Orders 2004

the Australian Meat and Live-stock
Industry Amendment and Repeal
Order 2004
the Export Control (Animals) Order
2004
57
58
Repealing enactments
Affected enactments

the Export Control (Dairy, Eggs and
Fish) Orders 2005

the Export Control (Processed
Food) Orders 1992

the Export Control (Fish and Fish
Products) Orders 2005

the Export Control (Dairy, Eggs and
Fish Products) Orders 2005

the Export Control (Meat and Meat
Products) Orders 2005

the Export Meat Orders 1985

the Export Control (Plants and
Plant Products) Orders 2005

the Export Control (Dried Fruits)
Orders 1987

the Grains, Plants and Plant
Products Orders 1985

the Federal Court of Australia
Regulations 2004

the Federal Court of Australia
Regulations 1978

the Film Licensed Investment
Company (Consequential Provisions)
Act 2005

the Film Licensed Investment
Company Act 1998

the Health Insurance (Eligible
Collection Centres) Approval
Principles 2005

the Health Insurance (Eligible
Collection Centres) Approval
Principles 2004

the High Court of Australia (Fees)
Regulations 2004

the High Court of Australia (Fees)
Regulations 1991

the Marine Orders Part 30—Issue 7
(Order No 4 of 2005)

the Marine Orders Part 30—Issue 6

the Marine Orders Part 94—Issue 4
(Order No 5 of 2005)

the Marine Orders Part 94—Issue 3

the Marine Orders Part 95—Issue 4
(Order No 6 of 2005)

the Marine Orders Part 95—Issue 3

the Passports Repeal Regulations
2005

the Passports Regulations 1939
The Administrative Appeals Tribunal Amendment Act
The Administrative Appeals Tribunal Amendment Act 2005 (Cth) came into
effect on 16 May 2005, making important amendments to the practice and
procedure of the Administrative Appeals Tribunal. The reforms are
designed to make the Tribunal more efficient, flexible and responsive.
Reforms have been made in four main areas: reforms to tribunal
procedures; the removal of restrictive constitution provisions; better use of
ordinary members; and reform of the role of the Federal Court and Federal
Magistrates Court in relation to appeals. In addition to these reforms, the
amendment Act clarifies the meaning of some provisions, divides existing
parts of the Act into divisions and subdivisions, introduces headings and
notes for some subsections, makes other stylistic changes, and uses plain
English principles to update the Administrative Appeals Tribunal Act 1975
(Cth) in accordance with modern drafting conventions.
More information about the amendment Act is provided in the ‘Admin law
watch’ section of this publication.
Decisions of interest
Declaration of registration to resume Australian citizenship
In Re Skase and Minister for Immigration and Multicultural and Indigenous
Affairs143 Mrs Skase sought review of a refusal by the Minister for
Immigration and Multicultural and Indigenous Affairs to register her
declaration of desire to resume Australian citizenship, made under s 23AA
of the Australian Citizenship Act 1948 (Cth).
In 1990 Mr and Mrs Skase left Australia to take up residence in Spain. In
1998, after Mr Skase’s Australian passport was cancelled and he
subsequently renounced his Australian citizenship, he and his wife sought
to obtain Dominican passports. On 22 June 1998, after Mr and Mrs Skase
had each received a certificate of naturalisation, the Dominican Minister for
Legal Affairs, Immigration and Labour declared that, on taking the oath or
affirmation of allegiance, Mrs Skase would be a citizen of Dominica. Six
days later she received her Dominican passport, stating that she was a
Dominican citizen.
Under s 17(1) of the Australian Citizenship Act, as in force at the time in
question, a person ceased to be an Australian citizen if they did any act or
thing that had the sole or dominant purpose and the effect of acquiring
citizenship of a foreign country. Section 23AA(1)(b)(ii) provided, however,
143
[2005] AATA 308.
59
that a person may submit a declaration of desire to resume Australian
citizenship if the person did not know that the act or thing done would lead
to cessation of their Australian citizenship. If satisfied of the truth of the
matters submitted for consideration and that the person was of good
character, the Minister could then, in his or her discretion, register that
declaration. Registration of the declaration led to reinstatement of
citizenship.
The Administrative Appeals Tribunal considered two questions. First, did
Mrs Skase know that, by obtaining a Dominican passport, she obtained
Dominican citizenship, with the consequence that her Australian
citizenship ceased? Second, if she did not know, should the discretion
granted in s 23AA(1) be exercised to register her declaration, thereby
reinstating her Australian citizenship?
The Tribunal held that the word ‘know’ requires that a person have ‘actual
knowledge that the consequence of his or her act or thing would be the
cessation of Australian citizenship’, rather than constructive knowledge,
because of the importance of citizenship and the expectation that
citizenship is not ‘given away lightly or carelessly’. 144 When determining a
person’s actual knowledge, since ‘[n]o-one can know what another person
knows’145, the Tribunal noted that all it can do is consider the person’s
evidence and actions. It can also consider whether the person had an
opportunity to acquire the requisite knowledge and whether it was
reasonable for the person to acquire that knowledge in the circumstances.
The Tribunal emphasised, however, ‘[t]his is not to suggest that an
assessment is made on the basis of constructive knowledge’.146 Instead,
what a person can reasonably be expected to know is, according to the
Tribunal, evidence that can be used to infer the person’s actual knowledge.
The Tribunal made two findings in respect of Mrs Skase’s actual
knowledge. First, it found that Mrs Skase knew she became a Dominican
citizen, despite having given evidence that she did not recall taking the
required oath or affirmation of allegiance. Second, it found that Mrs Skase
did not know she would lose her Australian citizenship when she acquired
Dominican citizenship: ‘It is one thing for a person’s citizenship to cease by
operation of law because a certain event has occurred and another for the
person to know that this is what has happened’. 147 Although Mrs Skase
simultaneously held an Australian passport and a Dominican passport,
‘[t]hat in itself does not lead to the conclusion that she knew that she had
144
145
146
147
60
Ibid [62] [emphasis added].
Ibid [63].
Ibid [emphasis added].
Ibid [68].
lost Australian citizenship’.148 Further evidence suggesting Mrs Skase’s
lack of knowledge about the loss of her citizenship included her continued
use of her Australian passport after it was cancelled and the failure of the
Department of Immigration and Multicultural and Indigenous Affairs to
notify Mrs Skase of her passport’s cancellation. Finally, Mrs Skase’s media
interviews did ‘not portray a person who considers that she has lost
Australian citizenship’.149
In relation to the Minister’s discretion to register Mrs Skase’s declaration,
the Tribunal held that the Minister was free to adopt a policy to guide
himself or herself, provided it was consistent with the Act and did not
require him or her to take irrelevant circumstances into account. The
Tribunal expressed reservations that a person’s good character was
relevant at this stage because, as required by the Act, a ‘person must satisfy
the Minister of his or her good character before the Minister need consider
the exercise of discretion at all’.150 Thus, it need not be considered twice.
After consideration of a number of factors—including Mrs Skase’s desire to
remain an Australian citizen, her strong family connections in Australia,
and the reason for her earlier refusal to return to Australia (loyalty to her
husband)—the Tribunal overturned the Minister’s decision and registered
Mrs Skase’s declaration, reinstating her Australian citizenship.
Review of fishing quota allocation methods
Re Fischer and Anor and Australian Fisheries Management Authority151
concerned the quota allocations for gummy and school shark assigned to
specific fishing operators as well as the calculation method for determining
the total allowable catch for all operators.
In 2001, following the release of the Jenkinson Panel report, fishing
restrictions were changed from a method of input controls (limiting the
equipment that could be used) to output controls (limiting the amount of
fish that could be taken). In transferring operators to the new scheme, the
Australian Fisheries Management Authority endeavoured ‘to minimize
any adverse differential economic impacts on individual operators’. 152 The
new quota allocations were based on a combination of the previous
entitlements under the input control permits and the catch history of the
individual operator.
148
149
150
151
152
Ibid [69].
Ibid [74].
Ibid [80].
[2005] AATA 936.
Ibid [33].
61
Several operators sought review by the Administrative Appeals Tribunal,
arguing that their quota allocations should be calculated either by sole
reference to previous permit entitlements or with less emphasis on their
catch history. The Tribunal rejected this argument.
The Tribunal stated it would ordinarily apply a policy set by the fishing
body unless the policy was unlawful or unjust and that the applicant
therefore had to show that the determination of the total allowable catch
method for 2004 was unlawful or unjust. After reviewing the findings of
the Lockhart Panel, which created the calculations, the Tribunal found that
the current quota allocation policy was ‘preferable’ and that it did not
contradict the Australian Fisheries Management Authority’s differential
economic impact policy and was not unlawful. Since ‘[n]o method of quota
allocation would please all operators’, the Tribunal stated, ‘[u]ltimately a
decision-maker has to choose one method which the decision-maker
considers to be the preferable one’. 153
In accepting the Authority’s evidence on fish reserves, the Tribunal also
rejected the claim that the method for calculating the total allowable catch
was based on flawed evidence. It noted that it [the Tribunal] ‘could not
commission an assessment of [fish] reserves. That is not its role. It does not
have the resources available to it. The Tribunal must do the best it can with
the material before it’.154
The availability of review for veterans’ disability entitlements
A determination of the Veterans’ Review Board was the subject of review
in Re Moon and Repatriation Commission.155 At issue were three questions:
first, whether the Administrative Appeals Tribunal had jurisdiction to
accept the application for review; second, whether the Tribunal had
jurisdiction to inquire into the merits; and, third, whether the applicant’s
arrears were calculated according to incorrect principles.
Nine years after unsuccessfully applying for a pension under the Veterans’
Entitlements Act 1986 (Cth) in 1992, the applicant, Dr Moon, was found to
be entitled to a pension for the period from 1992 to 2001. The sum paid in
arrears was calculated using the amount Dr Moon would have been paid
had he been receiving the pension from 1992 onwards. Dr Moon claimed
that, because of the effects of inflation, the rate of payment for the entire
period should have been the rate applicable in 2001. The initial decision
had been made by the Repatriation Commission and was reviewed by the
Veterans’ Review Board. The Board held that it did not have jurisdiction to
153
154
155
62
Ibid [75].
Ibid [106].
[2004] AATA 1264.
review the matter because there was no ‘decision’. It held that the
calculation of the rate of pay was ‘self-executing’ and therefore a
reviewable decision was not made by the Repatriation Commission.
On the first question—whether the Tribunal could accept the application
for review—the Tribunal found that it could only review a ‘decision’ of the
Veteran’s Review Board. Under s 175 of the Act, a ‘decision’ of the
Veteran’s Review Board includes situations where the Board affirms or
varies the decision of the Repatriation Commission. Even though the Board
determined it did not have jurisdiction, the Tribunal found it did have
jurisdiction to consider the application because, quoting Nicholson J in
Meyza v Repatriation Commission156, ‘[i]f a board decides it does not have
jurisdiction its decision has the effect of affirming the decision under
review because it does not vary it or set it aside’. 157 Thus, the Board’s
decision that it did not have jurisdiction was a decision for the purposes of
the Act.
Second—when determining whether the Tribunal had jurisdiction to
inquire into the merits—the Tribunal concluded that, although the
calculation of Dr Moon’s arrears was made using a computer, ‘the
computer was nothing more than a sophisticated adding machine,’ 158
emphasising that the calculation ‘did not take place in a vacuum, nor did a
computer automatically print out a cheque. There was a significant amount
of human input from the people who are charged with administering the
[Act] in relation to Dr Moon’s claim for a pension’. 159 Thus, a decision had
been made and the Tribunal could review its merits.
Finally—after reviewing the Act—the Tribunal determined that there was
no error made in Dr Moon’s calculation since the Act specifies that ‘arrears
are payable at the rates that were applicable during the periods in
question, not at the increased rate’160 and because the Act ‘contains no
provision to allow for the calculation or payment of interest on pension
arrears’.161
156
157
158
159
160
161
(1997) 142 ALR 580, 588.
[2004] AATA 1264 [8].
Ibid [14].
Ibid [22].
Ibid [50].
Ibid [53].
63
Entitlement to compensation—cease liability orders
The cases of Re Liu and Comcare162, Re Kelleher and Telstra Corporation
Limited163 and Re Fuad and Telstra Corporation Limited 164 all concern the
entitlement to compensation or other benefits under the Safety,
Rehabilitation and Compensation Act 1988 (Cth).
A determination of entitlement to compensation under the Act normally
incorporates two findings in favour of the complainant—one under s 14
and one under another provision of the Act. The first finding, under s 14,
determines that the complainant has a compensable injury; the second
finding, under another provision, determines the nature and amount of
compensation payable. The existence of a compensable injury (the first
finding) does not, however, always result in the payment of compensation
(the second finding).
In all three cases a person had made a claim for compensation, a
compensable injury had been found, and compensation had been paid
under the Act. In Liu, the parties had then reached an agreement stating
the employer no longer had any liability to pay future compensation to the
employee under the Act.
For the Administrative Appeals Tribunal to give effect to this agreement of
the parties under s 42C of the Administrative Appeals Tribunal Act 1975
(Cth), two conditions precedent must have been present:
1.
The Tribunal must be satisfied that a decision in or
consistent with the terms of the agreement ‘would be within
the powers of the Tribunal’.
2.
It must appear to the Tribunal to be appropriate for the
Tribunal to make such a decision.165
Therefore, the Tribunal could make a decision in accordance with the
parties’ agreement only if it was ‘satisfied both of the lawfulness of the
proposed decision and also of its propriety’. 166
In these circumstances the Tribunal could not make a decision in
accordance with the agreement because the terms of the agreement
contained some provisions that were not lawful. Neither the parties nor the
162
163
164
165
166
64
[2004] AATA 617.
[2004] AATA 1156.
[2004] AATA 1182.
Re Liu and Comcare [2004] AATA 617 [8].
Ibid.
Tribunal could prevent future claims for compensation being made under
the Act. In Fuad, the Tribunal stated:
Once liability has been established under s 14 … although it is
possible that, as a result of the injury resolving, there may be no
actual entitlement to compensation for periods of time, even long
periods of time, an employee can never be deprived of his
entitlement to claim further compensation relating to the
established injury if the injury again causes some incapacity.167
Thus, even if the injury is resolved, the entitlement to claim because of the
existence of a compensable injury never expires. The employers could not
create arrangements with their employees stating they were absolved of all
future liability for a particular compensable injury.
In Kelleher, an authorised officer of the Government Insurance Office had
made a decision stating that Mr Kelleher was no longer entitled to
compensation. As a result of Liu and other cases, both Mr Kelleher and his
employer, Telstra, admitted the initial decision was incorrect and should
be set aside. With no substantive matter before the Tribunal, it was
necessary to decide how to deal with the matter—whether to remit it to the
decision maker pursuant to s 42D of the Administrative Appeals Tribunal
Act, to reconsider it under s 62 of that Act, or for the ‘matter to be simply
dealt with before the Tribunal now’. 168 Consistent with the legislative
requirement that proceedings be conducted with as much expedition as
possible, the Tribunal held that matters such as these should be finalised
without remitting them to the original decision maker, instead dealing
with them under s 42C or s 43.
No jurisdiction—application for review made outside migration zone
In Re He and Minister for Immigration and Multicultural and Indigenous
Affairs169 Mr He’s residence visa was cancelled without his knowledge on
3 June 2004 on character grounds, pursuant to s 501(2) of the Migration Act
1958 (Cth). Mr He had failed the character test because he had a criminal
record.
On 24 July 2004 Mr He left Australia and went to China. After being
refused permission to board an aircraft in order to return to Australia, he
discovered his visa had been cancelled. Although Mr He was not notified
of the cancellation, the Act explicitly provided that failure to notify does
not affect the cancellation’s validity. On 24 August 2004 Mr He’s solicitors
167
168
169
[2004] AATA 1182 [3].
[2004] AATA 1156 [3].
[2004] AATA 1096.
65
lodged an application for review of the decision by the Tribunal. The
question of jurisdiction was raised as a preliminary consideration.
In determining whether it had jurisdiction, the Tribunal considered
s 500(3) of the Act, which stated:
A person is not entitled to make an application under subsection
(1) for review of a decision referred to in paragraph (1)(b) or (c)
unless the person would be entitled to seek review of the
decision under Part 5 or 7 if the decision had been made on
another ground.
Thus, for the Tribunal to have jurisdiction to review the decision, the
decision must be reviewable under Part 5 or 7 of the Act on a ground other
than character. Although Part 7 of the Act did not apply to Mr He, s 338, in
Part 5, provided that a ‘decision to cancel a visa held by a non-citizen who
is in the migration zone at the time of cancellation is an MRT-reviewable
decision unless’ an exception applies. None of the exceptions applied, and
Mr He was in the migration zone at the time of cancellation.
After finding that ‘a visa can be cancelled on a ground other than
character’, the Tribunal considered the question of who has standing to
apply for Migration Review Tribunal–reviewable decisions. Section 347(3)
of the Act provided:
If the MRT-reviewable decision was covered by subsection
338(2), (3), (3A) or (4), an application for review may only be
made by a non-citizen who is physically present in the migration
zone when the application for review is made.
Although the decision fell within s 338(3), Mr He was not physically
present in the migration zone when the application for review was made.
Because Mr He did not comply with s 347(3), his application was not
reviewable under Part 5 or Part 7 of the Act, so the Tribunal did not have
jurisdiction to hear the matter. The Tribunal also found it had no power to
order the respondent to ‘grant a visa to the applicant to enable him to
return to Australia in order to proceed with this application’. 170
170
66
Ibid [28].
Whether compensation should be awarded for a breach of privacy
In Re Rummery and Federal Privacy Commissioner171 the Tribunal considered
whether compensation should be awarded to Mr Rummery for a breach of
the Privacy Act 1988 (Cth) and, if so, how much.
Mr Rummery was an employee of the ACT Department of Justice and
Community Safety. In the course of his employment he became concerned
about under-age drinking in Canberra. He made a public interest
disclosure to the ACT Ombudsman under the Public Interest Disclosure Act
1994 (ACT), alleging that his Department had failed to enforce provisions
of the Liquor Act 1975 (ACT). The Department disclosed personal
information relating to Mr Rummery to an officer of the Ombudsman
during the course of the Ombudsman’s investigation. Mr Rummery learnt
of this disclosure and lodged a complaint with the Federal Privacy
Commissioner, alleging that the breach had caused him great distress and
humiliation and injured his feelings. The Commissioner found that Mr
Rummery’s complaint was substantiated but decided not to make a
declaration as to compensation for the breach. Mr Rummery applied to the
Tribunal to review the decision not to award compensation.
Section 52 of the Privacy Act 1988 (Cth) provides that, after an investigation
into a complaint, the Commissioner may find the complaint substantiated
and may make a declaration that the complainant is entitled to
compensation for any loss or damage suffered by reason of the breach. The
Act provides no guidance as to when compensation should be awarded or
how it is to be calculated.
The Tribunal set aside the determination of the Commissioner to make a
declaration as to compensation and decided that Mr Rummery was
entitled to compensation of $8000 for the injury to his feelings and the
humiliation he suffered. The Tribunal adopted the view of French J in Hall
v A & A Sheiban Pty Ltd172, that once loss is proved there would need to be a
good reason shown as to why compensation for that loss should not be
awarded. The Tribunal found that no such reason appeared in this case. It
also noted the Federal Court’s comments in Hall v Sheiban that to ignore
items of damage such as injury to feelings, distress and humiliation simply
because of the difficulty in demonstrating the correctness of a particular
figure would be to visit an injustice on the complainant.
Taking into account relevant factors, the Tribunal found that a restrained,
but not minimal, award of compensation would be $8000. In reaching this
decision, it noted it was generally appropriate to measure damages to be
171
172
[2004] AATA 1221
(1989) 20 FCR 217.
67
awarded under a statute in accordance with the principles of tort law, if
those principles did not conflict with the terms of the statute.
The Commonwealth Ombudsman
In March 2003 Prof. John McMillan was appointed seventh
Commonwealth Ombudsman, returning to an office where, in 1979–80, he
worked as Principal Investigation Officer for the first Commonwealth
Ombudsman, Professor Jack Richardson. This article, prepared by the
Ombudsman’s office, summarises some of the more important
developments in the office since 2003.
Keeping pace with public sector change
The Commonwealth Ombudsman’s office, although well established, is a
part of a system of government that is undergoing constant change. The
primary role of the Ombudsman has been unchanged for nearly 30 years: it
is to receive and investigate complaints from members of the public about
government administrative action occurring in any Australian government
agency anywhere in Australia.
That stability and tradition have been matched by adaptation and
evolution in the structure and procedures of the office. One illustration of
change is that the office now hosts a range of specialist functions that sit
alongside its generalist role and jurisdiction. The Commonwealth
Ombudsman also holds the separately titled roles of Australian Capital
Territory Ombudsman, Defence Force Ombudsman, Taxation Ombudsman
and, since December 2005, Immigration Ombudsman. The Commonwealth
Parliament is expected to pass legislation in 2006 to add the role of Postal
Industry Ombudsman.
In June 2005 Parliament enacted amendments to the Migration Act 1958
(Cth). These changes give the Ombudsman a statutory role in reviewing
the cases of detainees who have been held in immigration detention for
more than two years (cumulative), with follow-up reviews every six
months if the person remains in detention. This monitoring role
substantially augments the Ombudsman’s capacity to oversee the
administration of important and sensitive legislation that can have a major
impact on people’s lives.
68
Changes to the Ombudsman Act 1976 (Cth) in December 2005 also give the
Ombudsman jurisdiction in relation to many Commonwealth contractors
and make it easier for agencies to provide information to the Ombudsman.
The creation of the specialist Ombudsman roles is a response to a growing
trend in government and society to call for specialist review mechanisms in
designated areas of government. The Ombudsman’s office has followed
through on that development by creating specialist teams within the office.
The way complaints are handled and investigations are carried out in the
office has also undergone great change. Monitoring complaint handling by
Australian government departments and agencies is now an important
activity. The office has learnt that complaints against government are often
best resolved informally, quickly and knowledgeably in the area in which a
complaint arises. Direct agency handling of complaints also promotes
greater accountability and responsiveness in service delivery.
A related development is that the Ombudsman’s office now gives
comparatively more emphasis to finding a practical solution to and
remedy for a problem than to passing judgment on whether the complaint
arose from the fault of the agency or the misapprehension of the
complainant.
Improving work practices
Accompanying this change in focus is the implementation of new work
practices and a new complaints-management system to better manage
complaint data and statistical recording in the office.
The office has established a single national point of initial contact for
telephone complaints and inquiries. This is a far-reaching change to the
way in which the office handles complaints. Among the benefits expected
from this change are the following:

efficient dispatch of simpler inquiries

greater consistency in public contact activities

better allocation of cases to the most suitable investigation officer

early detection of emerging problem areas in government
administration

greater uniformity in data entry

better supervision by senior officers of the work of the office.
69
Another objective motivating this change is to strengthen the role of the
state and territory branches of the national office. Among the advantages
of a national office structure are personal contact with complainants, local
knowledge of government service delivery, and interaction with
community gatekeepers. Staff in state and territory offices can spend more
time on developing that side of their work and on investigating difficult
cases if they are able to spend less time on routine public contact work and
preliminary complaint analysis.
Fostering good public administration
An important role of the Ombudsman is to foster good public
administration. One main way of doing this to make suggestions and
recommendations to agencies, to conduct own-motion investigations in
order to encourage resolution of systemic problems, and to make
submissions to government and parliamentary inquiries.
Since 2002–03 the Ombudsman has publicly released reports on 15 ownmotion and major investigations. Several of these have achieved a high
profile because of the public interest concerns they have dealt with:

complaint handling in the Job Network—the Department of
Employment and Workplace Relations (August 2003)

the administration of ‘change of assessment decisions’ made on the
basis of parents’ income, earning capacity, property and financial
resources—the Child Support Agency (May 2004)

the Review of Australian Defence Force Redress of Grievance System
2004—a joint report by the Department of Defence and the office of the
Commonwealth Ombudsman (April 2005)

the Inquiry into the Circumstances of the Vivian Alvarez Matter—the
Department of Immigration and Multicultural and Indigenous Affairs
(October 2005)

Australian Defence Force: Management of Service Personnel under the
Age of 18 Years—the Australian Defence Force (October 2005)

administration of s 501 of the Migration Act 1958 (Cth) as it applies to
long-term permanent residents—the Department of Immigration and
Multicultural Affairs (February 2006).
It is a measure of the working relationship between the Ombudsman’s
office and the agencies concerned that almost all of the Ombudsman’s
70
recommendations have been accepted and have been or are being
implemented.
Monitoring and inspection
In addition to its complaint investigation function, the Ombudsman’s
office performs a variety of monitoring functions to ensure compliance
with legislation applying to selected law enforcement and regulatory
activities.
Under the Telecommunications (Interception) Act 1981 (Cth) and the Crimes
Act 1914 (Cth) the Ombudsman is responsible for monitoring the integrity
of the records of telecommunications interceptions and controlled (covert)
operations conducted by the Australian Federal Police and the Australian
Crime Commission. This function was expanded during 2004–05 with the
passage of the Surveillance Devices Act 2004 (Cth), which gives the
Ombudsman a similar role in relation to AFP and Crime Commission use
of listening devices and similar technology.
International cooperation and regional support
The Ombudsman’s office is playing an active role in Australia’s region and
in the global network of ombudsman institutions, promoting principles of
administrative justice and good governance.
The office’s international program has expanded considerably in the last
three years, particularly during 2004–05, with the support of funding from
AusAID (the Australian Agency for International Development). The office
has worked closely with other Australian ombudsman offices to establish a
program of mutual cooperation and assistance with ombudsman offices in
Asia and the Pacific.
Funding from various AusAID programs supported the Commonwealth
Ombudsman’s international activities in facilitating the exchange of
specialist advice, training, technical assistance and support to
ombudsman’s institutions in Indonesia, Thailand and Papua New Guinea.
The office has also taken a coordinating role in working to strengthen
regional sharing of skills and knowledge among ombudsmen in the Cook
Islands, Fiji, Samoa, the Solomon Islands, Tonga and Vanuatu.
In addition, the office has hosted study tours by senior-level delegations
from China, Korea, Indonesia, Japan, Mauritius, the Republic of Maldives,
Thailand and the United Kingdom. Representatives of other countries have
also visited the office.
71
Outreach
Although the office has always conducted outreach activities to raise
awareness of the role and function of the Commonwealth Ombudsman,
the Australian Government recognised the importance of the outreach
function by making a commitment in the 2004–05 Budget to support a
four-year program of regional outreach. This funding has allowed the
office to embark on a program of visits to rural and regional centres
around Australia, supported by a range of information activities. Where
possible, the office is also working on collaborative outreach activities with
other complaint organisations and ombudsman offices, as well as
organisations such as chambers of commerce.
In 2004–05 the Ombudsman’s office achieved its aim of conducting, or
participating in, an average of at least one focused outreach activity each
week. Staff visited 40 regional and rural communities and made
presentations to a wide variety of gatherings. It is estimated that around
1.2 million Australians were directly exposed to information about the
Commonwealth Ombudsman during the year.
Freedom of information
Part II of Schedule 2 to the Freedom of Information Act 1982 (Cth) lists
agencies that are exempt in respect of particular documents; one such
agency is the Australian Broadcasting Authority. The Australian
Communications and Media Authority (Consequential and Transitional
Provisions) Act 2005 (Cth) amended the Schedule by substituting
‘Australian Communications and Media Authority’ for ‘Australian
Broadcasting Authority’ as a result of the merger of the Australian
Broadcasting Authority and the Australian Communications Authority to
form the Australian Communications and Media Authority. This
amendment came into force on 1 July 2005.
The Administrative Appeals Tribunal Amendment Act 2005 (Cth) amended the
Freedom of Information Act in order to do the following:
72

replace references in s 58D to s 42(1) of the Administrative Appeals
Tribunal Act 1975 (Cth) with references to s 42(3) and to delete the
expression ‘(including the question whether a particular question is
one of law)’

provide in s 64 that, if an agency voluntarily produces an exempt
document to the Administrative Appeals Tribunal, then the Tribunal is
prohibited from disclosing the document to any person other than a
member of the Tribunal as constituted for the proceeding or a member
of the staff of the Tribunal in the course of performing his or her duties

clarify that the Administrative Appeals Tribunal may require the
production of a document claimed to be exempt at any time after the
date by which the agency is required to lodge the non-exempt
documents with the Tribunal, pursuant to s 37 of the Administrative
Appeals Tribunal Act.
These amendments came into force on 16 May 2005.
73
The courts: case notes
‘Made under an enactment’ reconsidered
In Griffith University v Tang173 the High Court considered the meaning of
the requirement that a decision be ‘made … under an enactment’ before it
is susceptible to judicial review. A majority of the Court held that the
decisions of an assessment board and appeals committee at Griffith
University did not meet this requirement.
Ms Tang was excluded from her PhD candidature program on the grounds
that she had engaged in academic misconduct. After exhausting avenues of
appeal within the university, she sought judicial review of the decision
under s 20 of the Judicial Review Act 1991 (Qld), alleging breaches of natural
justice, failures to comply with mandatory procedural requirements,
improper exercises of power, and errors of law. The question before the
Court was, however, whether the decisions of two sub-committees were
made ‘under’ the Griffith University Act 1998 (Qld) or any other enactment.
The University Act specified the functions of Griffith University, a body
corporate, as including the provision of education at university standard,
the encouragement of study and research, and the conferral of higher
education awards. The University’s governing body had the power to
make statutes on matters including the admission, enrolment and
disciplining of students and to make and notify university rules. Although
nothing in the University Act specifically dealt with ‘matters of admission
to or exclusion from a research programme or any course of study [or]
academic misconduct’174, there was no question of any committee acting
ultra vires. The Higher Education (General Provisions) Act 1993 (Qld) had the
effect of granting universities a monopoly on the conferral of higher
education awards.
In a joint judgment Gummow, Callinan and Heydon JJ adopted a twostage test for determining whether a decision was made under an
enactment:
173
174
74
(2005) 221 CLR 99.
Ibid 107 [8].
1.
The decision must be expressly or implicitly required or authorised by
the enactment.
2.
The decision must itself confer, alter or otherwise affect legal rights or
obligations, and in that sense it must derive from the enactment. 175
Although both criteria must be met, the decision need not affect existing
rights or obligations: ‘it will be sufficient that the enactment requires or
authorises decisions from which new rights or obligations arise’.176 The
right or obligations may derive from general law or statute.177
In coming to their conclusion, Gummow, Callinan and Heydon JJ rejected
several alternative tests. First, they rejected the ‘proximate source of power’
test, which required that the statute be ‘the immediate or proximate source
of power’ for the decision; Kirby J also expressly rejected this test. Second,
the majority rejected the ‘what anyone in the community would do’, or, as
labelled by Kirby J, the ‘need for statutory authority’, test. This test asked
whether:
members of the community at large possess [the] power [to make
the decision], either at common law or by statute: if the answer is
in the affirmative, the decision was not made under an
enactment; if in the negative, then the source of power must be
statutory in the relevant sense.178
This test was favoured by Kirby J in dissent. Third, all the judges rejected
the ‘core functions’ test, which required that a decision be made ‘in
pursuance of a “core function” of the public official or authority concerned’
for it to be ‘under an enactment’. 179
Under the test adopted in the joint judgment, the decisions of the subcommittees were not made under an enactment for the following reason:
no legal rights and obligations under private law … were
susceptible of affection by the decisions in question. There was at
best a consensual relationship, the continuation of which was
dependent upon the presence of mutuality. That mutual
consensus had been brought to an end, but there had been no
decision made by the University under the University Act. 180
175
176
177
178
179
180
Ibid 130–1 [89].
Ibid [emphasis added].
Ibid 130 [85]–[86].
Ibid 125 [70].
Ibid 148–51 [149].
Ibid 141 [91].
75
Their Honours did accept:
that the circumstances had created an expectation in the
respondent that any withdrawal from the PhD candidature
programme would only follow upon the fair treatment of
complaints against her. But such an expectation would create in
the respondent no substantive rights under the general law.181
In coming to this conclusion, their Honours drew a distinction between
authorisation of the decision and the requirement that rights or obligations
be affected:
The decisions of which the respondent complains were
authorised, albeit not required, by the University Act … But that
does not mean that the decision of which the respondent
complains were ‘made under’ the University Act in the sense
required to make them reviewable under the Review Act. The
decisions did not affect legal rights and obligations. They had no
impact upon matters to which the University Act gave legal force
and effect.182
In his dissenting judgment, Kirby J argued that the majority adopted ‘an
unduly narrow approach to the availability of statutory judicial review
directed to the deployment of public power’. 183 Emphasising the
‘beneficial’ nature of administrative review legislation, he argued:
In elaborating the phrase ‘made … under an enactment’, courts
should not strain themselves to adopt artificial interpretations in
order to confine the text. The text itself provides for its own
restrictions. Unnecessary restraints, without the clearest
foundation in the statute, should not be introduced by judges. 184
Kirby J stressed the public nature of universities, their monopoly on the
conferral of higher education awards, the susceptibility of universities in
other common law countries to judicial review, and the nature of the
complaint to suggest that Griffith University should be subject to the legal
requirements of procedural fairness and administrative justice.
Using the ‘need for statutory authority’ test, his Honour found that the
decision was clearly made under an enactment because the conferral of
higher education awards and the provision of education at university
standard was something that no ordinary individual or corporation could
181
182
183
184
76
Ibid 131–2 [92].
Ibid 132 [96].
Ibid 133 [99].
Ibid 152–3 [153].
do. He observed that the decisions relating to Ms Tang must have, by
necessity, been ‘made “under” the Act or they were unlawful’. 185
Notification of decision—rejection of protection visa
application
The High Court examined the question of what constitutes a notification of
decision in WACB v Minister for Immigration and Multicultural and
Indigenous Affairs.186
On 17 December 2000 the appellant arrived in Australia by boat and was
placed in immigration detention because he was an unlawful non-citizen
within the meaning of the Migration Act 1958 (Cth). He was also a minor
who could not write or read in either English or his native language.
On 15 March 2001 the Refugee Review Tribunal affirmed the decision of
the Minister’s delegate to deny the appellant’s application for a protection
visa. On 16 March 2001 a facsimile, written in English, was sent to the
detention centre, outlining the reasons for the Tribunal’s decision. There
was disputed evidence as to what occurred during a meeting held on the
same day between Mr Wallis, manager of the detention centre, the
appellant, and Ms Alamar, a translator working for the detention centre.
Through the interpreter, Mr Wallis informed the appellant that his
application had been rejected. The appellant became upset and started to
cry. Ms Alamar then explained to the appellant that his application was
denied because he was unable to prove to the Tribunal that he was an
Afghani citizen. According to the appellant, the reasons for the decision
were given to Ms Alamar, and not him, and he did not see the papers until
several weeks later, when he asked for them. Although the High Court
proceeded on the basis that this claim was correct, the matter was
unresolved by the primary judge.
Section 478(1)(b) of the Migration Act required that an application for
review ‘be lodged with a Registry of the Federal Court within 28 days of
the applicant being notified of the decision’. Because the appellant filed his
application on 3 May 2001, the date of notification was crucial to the
success of his claim. Division 5 of Part 7 of the Act created a ‘code’
governing ‘the making, handing down and notification of the decisions’ of
the Refugee Review Tribunal. In particular, s 430(1) required the Tribunal
185
186
Ibid 155 [159].
[2004] HCA 50.
77
to prepare a written statement setting out the reasons for its decision, and
ss 430B–430D provided five methods by which the applicant may be
notified, depending on his or her circumstances. If an applicant was in
detention, as in the appellant’s case, s 430D(2) required the Tribunal to give
the applicant and the Secretary of the Department of Immigration and
Multicultural and Indigenous Affairs a copy of the written statement
within 14 days of the decision.
A majority of the Court (Gleeson CJ, McHugh, Gummow and Heydon JJ)
concluded as follows:
When regard is had to the legislative history of the notification
provisions, their subsequent amendment, the operation and
function of the code, and the purpose of s 478, it will be apparent
that what is required to constitute notification of the decision
under s 478(1)(b) is a fulfilment of the code. This requires, in a
case such as the present where a written rather than oral decision
was given by the RRT, the giving of the written statement
provided for in s 430(1).187
Notification of the decision—and therefore the start of the 28-day appeal
period—‘did not occur until the written statement was given to the
appellant’.188
Additionally, the majority stated that the word ‘give’ required ‘that the
written statement be physically given to the applicant’ and that ‘[i]t will
not be enough to communicate to the applicant orally that the document
has arrived, or to communicate the gist of the document, or even to read
the document to the applicant’.189 It was, however, held that the document
need not be translated: ‘The Act does not distinguish between notification
given to a person in the position of the appellant and any other visa
applicant. Nor does it distinguish between applicants with differing levels
of education or literacy’.190
In dissent, Kirby J expressed ‘much sympathy for the appellant’s
predicament … If I could properly find in his favour, I would’. 191 But his
Honour stressed, ‘It is not part of this Court’s function to adopt a strained
interpretation in order to cure or avoid the apparent injustice of the
particular case’.192 Instead of adopting the majority’s interpretation of the
Act, which he believed was ‘an artificial and contra-textual
187
188
189
190
191
192
78
Ibid [15].
Ibid [29].
Ibid [37].
Ibid [43].
Ibid [89].
Ibid.
interpretation’,193 Kirby J favoured the Full Court of the Federal Court’s
distinction between notification of the decision and provision of the
written statements of the decision. Since ‘[s]eparate provision is made for
the “written statement”’,194 the Act merely required the applicant be
notified of the outcome of the decision. According to Kirby J, because the
appellant was clearly notified of the outcome on 16 March 2001, the time
for the 28-day limit started then, not when the appellant was given the
reasons for the decision.
Procedural fairness—‘dob–in’ letters
In the previous edition of Admin Review it was noted that the Federal Court
had held that, even when information was provided in confidence—such
as the ‘dob-in’ letter in Applicant Veal of 2002 v Minister for Immigration and
Multicultural and Indigenous Affairs195—and was not taken into account by
the Refugee Review Tribunal in making its decision, procedural fairness
might require that the substance of the information be disclosed. The
decision was appealed to the Full Court of the Federal Court and
subsequently to the High Court. In Applicant Veal of 2002 v Minister for
Immigration and Multicultural and Indigenous Affairs196 the High Court held
that the Refugee Review Tribunal was duty bound to afford procedural
fairness in relation to a dob-in letter.
The appellant sought review by the Tribunal of a decision to refuse him a
protection visa. The dob-in letter, which the Tribunal received before the
hearing, brought the appellant’s credibility into question. The Tribunal
neither showed the appellant the letter nor gave him an opportunity to
respond to the allegations in it. In the reasons for its decision, the Tribunal
stated it did not consider the letter when coming to its conclusion to affirm
the visa refusal.
In a unanimous decision, the High Court affirmed Brennan J’s principle in
Kioa v West, that an opportunity should be given to an appellant to respond
to any ‘adverse information that is credible, relevant and significant to the
decision to be made’. 197 The Court held that a decision maker must
determine whether information is ‘credible, relevant and significant’ to the
decision before that decision is made. ‘Credible, relevant and significant’
193
194
195
196
197
Ibid [92].
Ibid [90].
(2003) 197 ALR 741.
[2005] HCA 72.
(1985) 159 CLR 550, 628–9.
79
refers to information that ‘cannot be dismissed from further consideration
by the decision-maker before making the decision’. 198
In particular, the Court emphasised:
References to information that is ‘credible, relevant and
significant’ are not to be understood as depending upon
whatever characterisation of the information the decision-maker
may later have chosen to apply to the information when
expressing reasons for the decision that has been reached.199
Thus, the Refugee Review Tribunal’s statement that it gave no weight to
the letter failed to demonstrate that there was no obligation to provide an
opportunity to respond to the letter. Nor was the Tribunal relieved from its
procedural fairness obligations because it could reach its decision on other
bases. The letter’s contents could not ‘be dismissed as a matter of no
relevance or of little or no significance to the decision’. 200
Considering that the letter was given to the Tribunal in confidence and that
the Tribunal was not bound by the same procedural fairness requirements
as courts (because the Tribunal is part of the executive arm of government),
the Court held that neither the letter nor the identity of the informant need
be revealed to the appellant. Instead, the Tribunal was required to notify
the appellant of the substance of the allegations made in the letter and to
ask him to respond to those allegations.
Error of law—failure to take into account relevant
considerations
In Minister for the Environment and Heritage v Queensland Conservation
Council Inc201 the Full Court of the Federal Court reviewed the scope of a
requirement that a decision maker consider ‘all adverse impacts’ on the
environment of a proposed dam construction.
The Environment Protection and Biodiversity Conservation Act 1999 (Cth)
created a scheme for assessing and then regulating actions that could
adversely affect certain aspects of the environment. Under s 75 of the Act,
the Minister for the Environment and Heritage had to decide whether a
proposed action, such as the construction of a dam, is a ‘controlled action’.
198
199
200
201
80
[2005] HCA 72 [17].
Ibid.
Ibid [20].
[2004] FCAFC 190.
In deciding whether a proposed action is a controlled action, the Minister
must have regard to ‘all adverse impacts’ the action has, will have or is
likely to have on environmental matters, including the World Heritage
values of a declared World Heritage property, listed migratory species,
and listed threatened species or threatened ecological communities (the
‘controlling provisions’). If the action is deemed a controlled action, the
Minister must then choose one of five assessment methods that will be
used to further investigate the proposed action’s environmental impacts
before deciding whether that action can take place.
Sudaw Developments Limited proposed to construct a dam on
Queensland’s Dawson River, which flows east to the coast and enters the
Great Barrier Reef World Heritage Area. The dam was to be about
500 kilometres from the World Heritage Area. By his first decision of
16 September 2002, the Minister determined that the proposed action was a
controlled action and the relevant controlling provisions were those
relating to listed threatened species and ecological communities. The
Minister did not consider the controlling provisions relating to World
Heritage property or listed migratory species as relevant. As a result, in his
second decision of 4 December 2002, he determined that the method for
assessing the environmental impact of the proposed dam would be a
public environment report.
The case turned on whether the Minister had considered the correct
controlling provisions because the chosen method of assessment (the
public environment report) depended on which controlling provisions
applied. Thus, the Federal Court held ‘[a]ny error in deciding which
“controlling provisions” apply will therefore infect with error the choice of
assessment approach’.202
The Full Court found the Minister’s decision involved an error of law
because the Minister had construed the phrase ‘all adverse impacts’ in an
‘impermissibly narrow way’. Before the first decision, some public
submissions had contended that the ‘cumulative impacts of … irrigation of
agricultural land’, which the dam would facilitate, would adversely affect
the World Heritage Area and various listed migratory species. Thus,
although the Minister had found that one set of controlling provisions
applied, these public submissions suggested that additional controlling
provisions should also apply. But the Minister rejected these submissions,
claiming the potential impacts of irrigation were not relevant to the proposed
action because irrigation was not conducted by the person proposing to do
the action. That is, because farmers—and not Sudaw—did the irrigating, it
202
Ibid [15].
81
was not an impact of the proposed dam but merely incidental to the dam’s
construction.
The Full Court rejected this narrow definition of impact: ‘“[I]mpact” in its
ordinary meaning can readily include the “indirect” consequences of an
action and may include the results of acts done by persons other than the
principal actors’.203 Instead, the Court adopted a definition that ‘includes
effects which are sufficiently close to the action to allow it to be said,
without straining the language, that they are, or would be, the
consequences of the action on the protected matter’. 204 The Court admitted
‘the width of the enquiry in each case will depend on its facts and on what
may be inferred from the description of the “action” which the Minister is
required to consider’.205 Since the Minister himself had acknowledged that
there could be some environmental impacts from irrigation, he was bound
to consider them when considering ‘all adverse impacts’ of the proposed
dam.
Procedural fairness—notification of adverse information
In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs206
the High Court examined the content of a statutory procedural fairness
requirement in the Migration Act 1958 (Cth) and whether breach of this
requirement led to invalidity of the decision.
The case concerned two family members who sought protection visas.
Pursuant to s 424A of the Act, the Refugee Review Tribunal ‘must’ give
visa applicants ‘particulars of any information the Tribunal considers
would be the reason, or a part of the reason, for affirming the decision
under review’. Section 425 obliged the Tribunal to ‘invite the applicant to
appear before the Tribunal to give evidence and present arguments
relating to the issues arising in relation to the decision under review’.
During the course of a s 425 hearing, the Tribunal asked the first
appellant’s daughter about certain facts without the first appellant being
present. The daughter’s evidence was potentially adverse to the appellant’s
visa application case. Although the Tribunal did not tell the appellant what
the daughter said, it invited the appellant to respond to the three adverse
evidentiary matters raised by the daughter. The appellant responded to
203
204
205
206
82
Ibid [53].
Ibid.
Ibid [61].
[2005] HCA 24.
each matter. The Tribunal then ended the hearing, stating it would write to
the appellant about other evidence given by the daughter. This did not
happen.
On the question of what s 424A of the Act requires, McHugh J, with whom
Kirby and Hayne JJ agreed, held that the section, along with the Migration
Regulations (Cth), evinced a legislative intention for the particulars to be
given in writing: ‘Section 424A(2)(b) refers to a method for “giving
documents” to the person and, hence, contemplates that the information
will be in writing’.207 Gleeson CJ dissented on this point:
Presumably, where there is no unfairness involved, the Tribunal
could invite comment, orally, at the hearing … Provided the
invitation is given fairly and clearly, the requirement of writing
appears superfluous, especially in cases where fairness does not
require an adjournment of the hearing.208
McHugh, Kirby and Hayne JJ all held that the provisions in Part 7 of
Division 4 of the Act, which includes ss 424A and 425, were not sequential
in operation. Consistent with the inquisitorial nature of the Tribunal and
the wording of the Act, their Honours stated:
the Division does not necessarily compel a sequential process, so
that once the s 425 procedure has commenced or is in progress, s
424A no longer has any role to play. The obligation to deal fairly
with applications for review must continue throughout the
Tribunal’s review … Because that is so, the Division should be
interpreted so as to require the Tribunal to give the applicant the
opportunity to comment on adverse material obtained at a
hearing before the Tribunal.209
Gummow J dissented on this point, saying the Act’s wording and history
indicate ‘the sequential chain which is provided through Div 4’. 210 For
Gummow J, therefore, s 424A ‘operates at a time before and may operate to
qualify the discharge by the [Tribunal] of its obligations under s 425(1)’. 211
Because the Tribunal did not present the particulars of the daughter’s
evidence in writing and was required to do so (Gleeson CJ dissented on
this) and this requirement (s 424A) continued even after the beginning of a
s 425 hearing (Gummow J dissented on this), a majority held that the
Tribunal had breached s 424A.
207
208
209
210
211
Ibid [67].
Ibid [20].
Ibid [60] (McHugh J).
Ibid [124].
Ibid.
83
In view of the importance of the procedural fairness requirements and the
mandatory nature of s 424A (the Tribunal ‘must’ give particulars of the
information), which could be contrasted with other discretionary
provisions in the Division, the three majority judges held that a breach of
s 424A went to jurisdiction and therefore invalidated the Tribunal’s
decision.
Compulsory acquisition of land: ‘urgent necessity’—
procedural fairness
One set of questions in South Australia v Honourable Peter Slipper MP212
concerned whether a statutory land acquisition power was used for a
proper purpose and whether an obligation to afford procedural fairness
existed in relation to a particular compulsory acquisition.
The Lands Acquisition Act 1989 (Cth) created a scheme whereby the
Commonwealth was empowered to compulsorily acquire land after
completing various pre–acquisition procedures, such as the creation of a
declaration and subjecting the decision to merits review by the
Administrative Appeals Tribunal. Under s 41, however, the relevant
Minister could authorise, by declaration, a compulsory acquisition of land
without compliance with the pre–acquisition procedures if a certificate had
been issued under s 24 of the Act. Section 24(1)(b) permitted issuance of
such a certificate if the Minister was satisfied that ‘there is an urgent
necessity for the acquisition and it would be contrary to the public interest
for the acquisition to be delayed’. But s 42 prohibited the Minister from
making a s 41 declaration if that land was in a public park and the relevant
state or territory government had not consented.
On 9 May 2003 the Commonwealth announced its intention to establish a
national repository for the disposal of radioactive waste in a remote region
of South Australia. Determined to stop the Commonwealth acquiring the
land needed for the repository, the South Australian Government
introduced the Public Park Bill 2003 (SA) into Parliament on 3 June 2003.
The Bill was to create a public park in respect of the land which the
Commonwealth sought to acquire. Before the South Australian Parliament
could fully consider the Bill, the Commonwealth Minister for Finance and
Administration signed a s 24 certificate, stating there was an urgent need to
acquire the land, and then signed a s 41 declaration, purporting to
compulsorily acquire the relevant land. The Minister admitted that the
212
84
[2004] FCAFC 164.
primary reason for certifying the existence of an ‘urgent necessity’ was to
stop South Australia from declaring the land as a public park, which
would have frustrated the lengthy investigation process that led to the
choosing of that particular area of land as the best site for the repository.
Branson J, with whom Finn and Finkelstein JJ agreed, held the Minister
had exercised his power to issue a s 24 certificate for an improper purpose:
‘I do not believe that s 24(1) can be understood to reflect a legislative intent
that the power thereby given to the Minister may be exercised for the
purpose of preventing s 42 from applying to the acquisition in question’.213
Therefore, Branson J concluded, ‘the power conferred on the Minister by
s 24(1)(a) of the Lands Acquisition Act was not conferred for the purpose
of authorising the Minister to limit or control the operation of s 42 of that
Act’.214
Finn J, with whom Branson and Finkelstein JJ agreed, held that the
Minister was obliged to afford procedural fairness to South Australia in the
circumstances. Although s 24 envisages exclusion of merits review in cases
of urgent necessity, Finn J noted:
It is one thing positively to exclude merits review, particularly
review of an expansive kind. It is another positively to exclude
procedural fairness as such. In many instances adequate
procedural fairness falling short of the Act’s merits review
system could be afforded an affected landowner within a
timeframe that would not occasion delay of such possible length
as would be contrary to the public interest.215
Determining the requirements of procedural fairness in this particular case,
his Honour stated:
When one has regard to the actual circumstances of the present
matter, it cannot properly be said that a situation of such
exceptional urgency existed as would justify the reduction of the
requirements of procedural fairness to ‘nothingness’.216
Finn J held that at least a ‘truncated’ right to be heard should be afforded,
particularly since the rights of people other than the state—a private land
holder in the relevant area—could be affected by the acquisition.
213
214
215
216
Ibid [65].
Ibid [69].
Ibid [110].
Ibid [115].
85
Admin law watch
Amendments to the Administrative Appeals Tribunal
Act
The Administrative Appeals Tribunal Amendment Act 2005 (Cth), which came
into force on 16 May 2005, introduced reforms to the Administrative
Appeals Tribunal in four important areas: changes to procedures for
dealing with review applications; amendments to the provisions for
constituting tribunals; more extensive use of Tribunal members; and
reforms relating to the appellate role of the Federal Court and the Federal
Magistrates Court. In addition to these amendments, the Amendment Act
inserts an object clause into the Administrative Appeals Tribunal Act 1975
(Cth), requiring the Tribunal to ‘pursue the objective of providing a
mechanism of review that is fair, just, economic, informal and quick’. 217
Tribunal procedures
The Amendment Act introduces a new set of provisions relating to
alternative dispute resolution processes available to the Tribunal. As a
result of the amendments, alternative dispute resolution processes now
include neutral evaluation, case appraisal, conciliation, and any procedures
or services specified in the Regulations in addition to the existing processes
of conferencing and mediation.
Under the new s 34A of the Administrative Appeals Tribunal Act, the
President of the Tribunal may compulsorily direct that a proceeding be
referred to an alternative dispute resolution process. Parties directed to
such a process must act in good faith (ss 34A and 34B).
As with previously provided alternative dispute resolution processes, the
Tribunal may make a decision in accordance with an agreement reached by
the parties under the new processes. This may be done if the Tribunal is
satisfied that the terms of the agreement are consistent with the powers of
the Tribunal, and the Tribunal considers it appropriate to make a decision
217
86
Administrative Appeals Tribunal Act 1975 (Cth) s 2A.
in accordance with those terms. The Tribunal may, however, give effect to
an agreement only after a seven-day ‘cooling–off’ period (s 34D).
Section 34E provides that evidence of anything said or done during
alternative dispute resolution is not admissible in any court. Such evidence
is, however, admissible at the hearing of a proceeding before the Tribunal
if the parties agree or the evidence is a case appraisal report or a neutral
evaluation report and neither party has objected to the report’s
admissibility.
Finally, if a tribunal member conducts an alternative dispute resolution
process, that member cannot participate in the hearing of the same matter
if any party objects (s 34F).
The scope of the decision under review
New s 25(4A) specifically provides that the Tribunal may determine the
scope of the review of a decision by limiting the questions of fact, the
evidence and the matters it considers.
Constitution and reconstitution of tribunals
A number of changes have been made to the provisions dealing with the
constitution of tribunals. First, multi–member panels consisting solely of
members are now permitted.
Second, the Tribunal can now be reconstituted in a wider range of
circumstances. Reconstitution can occur where a member ceases to be
available. A member ceases to be available if they stop being a member, are
not available for the proceedings, or are directed by the President not to
continue to take part in the proceedings. The President may direct that a
member not continue only if it is in the interests of justice and the
President has consulted both the member and the parties to the
proceeding.
The President may also reconstitute a Tribunal if it is in the interest of
achieving the expeditious and efficient conduct of the proceeding and the
President has consulted the parties.
When the Tribunal is being constituted, s 23B of the Administrative
Appeals Tribunal Act provides an expanded list of factors the President
must have regard to. Among these are the degree of public importance, the
complexity of the matter, the status of the decision maker, whether the
decision concerns national security, the financial importance of the matter,
the purpose of the enactment under which the reviewable decision was
made, and the degree to which it is desirable for any or all of the persons
87
who are to constitute the Tribunal to have knowledge or expertise in
relation to the matter.
Third, the majority of special constitution provisions, which require the
Tribunal to be constituted in a particular way for the exercise of certain
review powers, have been repealed. Special constitution provisions
continue to exist for hearings dealt with in the Tribunal’s Security Appeals
Division, for review of certain decisions under the Archives Act 1983 (Cth),
decisions under the Freedom of Information Act 1982 (Cth) concerning
conclusive certificates, and decisions under the Commonwealth Electoral Act
1918 (Cth) relating to political parties.
Expanded use of tribunal members
As a result of the Amendment Act, a range of powers previously
exercisable only by judges, deputy presidents and senior members can
now be exercised by members under presidential authorisation before
constitution of the Tribunal. These powers include:
88

extending the time for lodging an application—s 29(7)

deciding whether a person’s interests are sufficiently affected by a
decision to enable them to be made a party to the proceedings—
s 30(1A)

making a decision in accordance with an agreement lodged by the
parties—ss 34D and 42C

making confidentiality orders in respect of documents lodged with the
tribunal—s 35(2)(b)

making an order staying the operation or implementation of a
reviewable decision—ss 41(2) and (3)

dismissing or reinstating an application on a range of procedural
grounds—s 42A

authorising the refusal of a request to issue a summons—s 40(1C)

giving parties leave to inspect documents produced under a
summons—s 40(1D).
The role of the Federal Court and the Federal Magistrates
Court
The Federal Court and the Federal Magistrates Court can now make
limited findings of fact in certain circumstances where there has been an
appeal against a decision of the Tribunal under s 44(1) of the
Administrative Appeals Tribunal Act. The Court may make findings of fact
if the findings are not inconsistent with the findings made by the
Tribunal—unless the Tribunal’s findings are the result of an error of law—
and it appears convenient to make findings of fact having regard to a range
of factors, including necessity, efficiency, expense, delay and
appropriateness.
Other amendments
Under new s 33(1AA) of the Administrative Appeals Tribunal Act, the
decision maker must use his or her best endeavours to help the Tribunal
make its decision. Section 37 requires the decision maker to provide all
relevant documents to the Tribunal. Section 37(1)(b) has been amended to
change the test of a document’s relevance from a subjective to an objective
one.
If the Tribunal considers an applicant’s statement of reasons does not
sufficiently enable it to determine why the applicant believes the decision
is not the correct or preferable one, the new s 29(1B) enables the Tribunal to
ask the applicant to amend their statement within a specified period.
The Amendment Act also repeals certain provisions relating to tenure. A
member can now hold office for up to seven years.
Establishment of the Western Australian State
Administrative Tribunal
Beginning operation on 1 January 2005, the Western Australian State
Administrative Tribunal amalgamates the review, civil and disciplinary
functions of nearly 50 industry and public sector boards and tribunals, as
well as a number of courts. Pursuant to s 9 of the State Administrative
Tribunal Act 2004 (WA), the State Administrative Tribunal’s main
objectives are to review decisions as speedily and fairly and with as little
formality and technicality as is practicable and to minimise the costs to
parties. The Tribunal’s caseload is divided into four streams—human
89
rights, development and resources, vocational regulation, and commercial
and civil.
As a result of the Western Australian Law Reform Commission’s 1999
Review of the Criminal and Civil Justice System and the 2002 Western
Australian Civil and Administrative Review Tribunal Taskforce’s Report on
the Establishment of the State Administrative Tribunal, the Tribunal is
modelled on the Victorian Civil and Administrative Tribunal, the New
South Wales Administrative Decisions Tribunal and, to a lesser extent, the
Commonwealth Administrative Appeals Tribunal.
The State Administrative Tribunal does not create a general right of appeal
against administrative decisions; instead, it relies on other Acts that confer
jurisdiction on the Tribunal. The State Administrative Tribunal Act also
confers some limited jurisdiction upon the Tribunal. Depending on the
nature of the conferral, the Tribunal exercises both original jurisdiction—in
areas such as guardianship and vocational matters—and review
jurisdiction.
Like the legislation establishing other tribunals, s 27 of the State
Administrative Tribunal Act provides, ‘[t]he review of a reviewable
decision is to be by way of a hearing de novo, and it is not confined to
matters that were before the decision-maker’ and ‘[t]he purpose of the
review is to produce the correct and preferable decision at the time of the
decision upon the review’. Section 29 places the Tribunal in the position of
original decision maker and allows it to affirm, vary or set aside the
decision under review. In setting aside the decision, the Tribunal may
either substitute its own decision or send the matter back to the decision
maker for reconsideration.
Sections 20 to 24 create a framework for obtaining written reasons for a
decision from the original decision maker. Under s 28, if the original
decision maker relied on a lawful statement of government policy in
making their decision, the Tribunal must have regard to that policy. The
Tribunal is not bound by the rules of evidence and, unless expressly
excluded, the rules of natural justice apply (s 32). Witnesses may be
summoned (s 66), and the Tribunal’s compulsion powers relating to
answering questions and producing documents are the same as those of
the Western Australian Supreme Court (s 69).
In addition to the Tribunal’s ordinary proceedings, s 52 provides for
mediation, private compulsory conferences and other alternative dispute
resolution processes. Section 55 renders inadmissible in subsequent
proceedings evidence of things said or done in a compulsory conference or
mediation unless the parties agree; unless it is evidence of a formal order,
direction, or reasons for that order or decision; or unless it is evidence
90
relevant to a proceeding for an offence relating to the giving of false or
misleading information, contempt or proceedings conducted with an
absent party.
Although the Tribunal can order costs in favour of or against a party, the
basic principle stated in s 87(1) is that each of the parties bears its own costs
of proceedings in the Tribunal.
The President of the Tribunal decides who constitutes the tribunal on each
occasion, but an Act conferring jurisdiction may provide for a specific
number of members or for members with specific qualifications. In
deciding how a Tribunal is to be constituted, the President is to have
regard to a number of factors, similar to those the President of the
Commonwealth Administrative Appeals Tribunal must take into account.
Section 105 sets out the general rule that a person is entitled to appeal
against a tribunal decision on a question of law with leave. Section 105(13),
however, allows an appeal on fact or law under a range of Acts listed in
Schedule 1 of the State Administrative Tribunal Act.
In its first six months, the Tribunal finalised 83 per cent of the 897 legacy
matters that were transferred to it upon its commencement and 71 per cent
of the 2723 new applications. On 17 October 2005 new practices governing
the Tribunal’s operation were formally introduced. The Rules Committee
creates both rules and practice notes, which are designed to explain the
practices of the Tribunal in the different areas of its jurisdiction.
More information about the Western Australia State Administrative
Tribunal is available at <http://www.sat.justice.wa.gov.au>.
Tasmanian and ACT tribunal developments
The Tasmanian Administrative Review Advisory Council was established
in August 2004 following a recommendation resulting from the Review of
Administrative Appeals Processes carried out in 2003 by Greg Vines, the
Tasmanian State Service Commissioner. The Council’s role is to provide to
the Tasmanian Attorney–General advice on the development of
administrative law in the state.
Members of the Council are appointed by the Attorney–General for threeyear terms and are drawn from four categories. The inaugural chairperson
is Stephen Carey, Chief Commissioner of the Workers Rehabilitation and
Compensation Tribunal. The other members are Rick Snell, Lecturer in
Law at the University of Tasmania; Judith Paxton, Tasmanian Legal
91
Ombudsman; Michael Lynch, Director of the Tasmanian Conservation
Trust; and Lisa Hutton, Deputy Secretary of the Department of Justice.
The Council’s formal terms of reference require it, among other things, to
review administrative law developments and recommend improvements,
to review the classes of administrative decisions not currently subject to
review and recommend any necessary changes, to facilitate the training of
Tasmanian authorities in making administrative decisions, and to promote
knowledge about Tasmania’s administrative law system.
The Council received its first reference in August 2004—to ‘verify if there is
a need for a combined Tribunals model in Tasmania, including advising as
to the advantages and disadvantages of a combined Tribunal model’.
More information about the Tasmanian Administrative Review Advisory
Council and its first reference is available on the Council’s website
<http://www.tarac.tas.gov.au/>.
In July 2004 ACT Chief Minister and Attorney–General John Stanhope
noted the possibility of making a number of reforms to the ACT tribunals
system. Mr Stanhope’s primary concern was the duplication and
inefficiency in the current system as a result of many tribunals operating in
isolation from each other. He said this problem could be remedied in one
of several ways—consolidating tribunals, rationalising jurisdictions, or
rationalising tribunal registries. The most significant reform option, he
suggested, would be to create a single ACT tribunal with a number of
divisions, similar to the amalgamation that has occurred in Victoria and
Western Australia. The ACT Department of Justice and Community Safety
is to develop a discussion paper outlining the various options for reform.
The 2002 security legislation review and new security
laws
On 12 October 2005, as required by s 4 of the Security Legislation Amendment
(Terrorism) Act 2002 (Cth), the Commonwealth Attorney-General set up an
independent committee to assess the operation, effectiveness and
implications of amendments made by the following Commonwealth Acts:
92

the Security Legislation Amendment (Terrorism) Act 2002

the Suppression of the Financing of Terrorism Act 2002

the Criminal Code Amendment (Suppression of Terrorist Bombings) Act
2002

the Border Security Legislation Amendment Act 2002

the Telecommunications Interception Legislation Amendment Act 2002.
The Security Legislation Review Committee is chaired by the Hon Simon
Sheller, a recently retired New South Wales Supreme Court judge, and
began public hearings in 2006.
The Committee’s duties include identification of alternative approaches
and mechanisms for these statutes and provision of a written report, to be
tabled in Parliament, within six months of starting the review. More
information is available at <http://www.ag.gov.au/agd/WWW/
agdhome.nsf/0/C2CE3EBE73794EF8CA2570A5001FAB3C>.
On 7 December 2005 the Anti-Terrorism Bill (No 2) 2005 was passed after
the House of Representatives approved the amendments made by the
Senate. The Bill introduces a wide range of changes to Australia’s current
anti-terrorism laws. The full report of the Senate inquiry into the legislation
is available at <http://www.aph.gov.au/Senate/committee/legcon_ctte
/terrorism/index.htm>.
Inquiries into the detention of Cornelia Rau and Vivian
Alvarez
The report of the Inquiry into the Circumstances of the Immigration
Detention of Cornelia Rau (the Palmer Inquiry) was publicly released on
14 July 2005; the report of the Inquiry into the Circumstances of the Vivian
Alvarez Matter (the Comrie Inquiry), was publicly released on 6 October
2005.
After finding evidence of cultural problems, inadequate staff training and
poor oversight within the Department of Immigration and Multicultural
and Indigenous Affairs, the Palmer Inquiry made a series of
recommendations that the Commonwealth Government has sought to
implement. Among the report’s recommendations were proposals for
frequent reviews when the identity or immigration status of a detainee
remains unresolved, a restructuring of the Detention Review Committee to
ensure comprehensive review of complex or difficult detainee cases, the
establishment of an Immigration Detention Health Review Commission as
an independent body under the Commonwealth Ombudsman to review
93
health and medical services provided to detainees, development of a case
management system to further improve review of detainee cases, and
immediate review (within 24 hours) of detentions made on the basis of
reasonable suspicion that the detainee is an unlawful non-citizen.
The report of the Comrie Inquiry confirmed many of the findings and
recommendations of the Palmer Inquiry, concluding that ‘many of the
systemic problems identified by both investigations have been present in
DIMIA for some years’.218
On 6 October 2005 the Government announced a package of measures and
an implementation plan to respond to the recommendations in both
reports, with a commitment of $231 million over five years. Together, these
measures comprise a substantial program of improvement for what is now
the Department of Immigration and Multicultural Affairs. More than
60 initiatives have been implemented in response to specific
recommendations and the expressed broader concerns about culture,
leadership, governance, training, client service, records management,
systems, and support for staff. In order to meet the expectations of the
Government, the Parliament and the wider community, the Department
must be an open and accountable organisation, deal fairly and reasonably
with clients, and have staff that are well trained and supported.
Important initiatives designed to ensure that these objectives are met are
establishment of the College of Immigration, Border Security and
Compliance, improved training for compliance officers, leadership and
management training, improved service delivery and complaints handling,
development of a new case management framework (including better case
management for clients with exceptional circumstances), better approaches
to identity verification, improved health services for detainees, and
improvements to detention infrastructure. The recommendations in
relation to the Department’s IT systems and record-keeping arrangements
are being taken up by means of a Records Management Improvement
Programme and Systems for People, a strategy to move towards clientfocused IT system solutions and to provide staff with all the information
they need to make good decisions. The Secretary of the Department will
report, through the Minister for Immigration and Multicultural Affairs, to
the Parliament later in 2006 on progress in implementing the reform
program.
218
94
Commonwealth Ombudsman 2005, Inquiry into the Circumstances of the Vivian
Alvarez Matter, Report no. 3, Commonwealth Ombudsman, Canberra, p. xvi.
UK tribunal reforms: an update
In July 2004 the UK Government released Transforming Public Services:
complaints, redress and tribunals, a white paper outlining the government
response to a report by Sir Andrew Leggatt that recommended major
reforms to the UK tribunal system.
The white paper details implementation of the Leggatt report’s primary
recommendation—to create a unified Tribunals Service located within a
central agency, replacing the previous system whereby individual
tribunals were separate and located within the department whose
decisions they reviewed. The white paper seeks, however, to go beyond
the recommendations of the Leggatt report by placing the tribunal system
in the wider context of reforming the ‘whole end to end process for
administrative justice’ and dispute resolution systems more generally. 219
The new Tribunals Service will aim to resolve disputes in the best way
possible, whether by formal or informal methods, and to prevent disputes
from arising by improving the quality of decision making in the first
instance. The organisation will focus on providing common administrative
support to the 10 largest tribunals administered by central government,
which account for more than 90 per cent of current cases. These and other
tribunals will come together to promote greater independence from their
associated departments, to share facilities in order to allow better access,
and to standardise application and appeal procedures and provide
common pathways through the process.
The white paper also proposes to change the Council on Tribunals, which
was established in 1958, to the Administrative Justice Council. This new
Council will carry more authority within government and place greater
emphasis on the direction of administrative justice generally, rather than
focusing on specific matters. It will also devote more time to producing
general tribunal information for applicants and best-practice guides for the
tribunals.
On 4 April 2005 the start of the ‘transitional year’ was announced, one year
before the official launch of both the Tribunals Service and the
Administrative Justice Council.
More information about the changes is available at
<http://www.tribunalservice.gov.uk/>.
219
UK Secretary of State for Constitutional Affairs 2004, Transforming Public
Services: complaints, redress and tribunals, HMSO, London, para 1.12.
95
Protecting classified and security sensitive information
On 31 May 2004 the Australian Law Reform Commission presented to the
Attorney-General its report Keeping Secrets: the protection of classified and
security sensitive information. The report reviews the current procedures for
dealing with classified and security sensitive information and how such
information is handled in the courts. It also makes a number of
recommendations for reform in the policy, procedures and associated law.
The report focuses on a number of areas that are of particular importance
to security sensitive information—for example, the Commonwealth
Protective Security Manual; the use of security clearances for public servants,
lawyers and judges; and the use of security sensitive evidence in courts
and tribunals. On the last point, the ALRC proposes the creation of a
National Security Information Procedures Act that would set out ‘a
procedural framework for the disclosure and admission of classified and
security sensitive information in court and tribunal proceedings’. 220
The proposed regime would operate on the principle that ‘all parties are
given a fair hearing or a fair trial, and that any departures from the usual
standards of judicial process and procedural fairness are limited to those
strictly necessary to protect the national interest’. 221 In relation to
administrative law proceedings, the ALRC recommended a range of
measures in connection with the use of secret evidence and made the
following observation: ‘The use of any secret evidence is highly
undesirable and generally should not be allowed in … civil proceedings
other than those involving judicial review of administrative decisions
withholding evidence or based on evidence withheld from a party’. 222
In situations when it is necessary (and required by statute) to use secret
evidence, the ALRC lists several safeguards that must be met before such
action is taken. The report rejects suggestions that the Migration Act 1958
(Cth) should be used as a general precedent for regulating the use of secret
information. It notes that the Act ‘does not provide for any alternative
methods of disclosure to the applicant of the secret evidence relied on; nor
does it contain other safeguards that are a feature of comparable legislation
220
221
222
96
Australian Law Reform Commission 2004, Keeping Secrets: the protection of
classified and security sensitive information, Report no. 98, ALRC, Sydney,
para 11.4.
Ibid para 11.48.
Ibid para 11.262.
overseas’ and, moreover, the decision of the Minister to withhold
information is determinative and not subject to review. 223
In substance, there are seven safeguards:

Ministerial certificates should generally not be determinative of the
manner in which any evidence may be used.

In the case of tribunal proceedings, before consenting to any
application that evidence be led in secret, the tribunal should consider
alternative methods of presenting the evidence—such as summaries,
stipulations and redactions—and the decision of the tribunal in respect
of alternative methods is reviewable by a court.

The affected person should always retain the option of being
represented by a lawyer, but the court or tribunal may order that
specified material not be disclosed to a lawyer unless he or she holds a
security clearance at a specified level.

Any tribunal proceedings involving secret evidence should be heard
by a judicial member of the tribunal (or someone in a similar position
of authority).

The affected person should be notified that secret evidence is being
used and be allowed to appeal the decision to withhold the evidence.

The normal rules of evidence should apply when adducing secret
evidence, even where a tribunal is normally not bound by those rules,
because ‘secret evidence already represents a significant erosion of a
party’s rights’.224

A complete record of the proceedings should be prepared to allow for
appeal and review.
The full report is available on the ALRC website
<http://www.alrc.gov.au>.
223
224
Ibid para 11.214.
Ibid para 11.259.
97
Review of the Privacy Act
In January 2006 the Attorney-General announced that the Australian Law
Reform Commission would conduct a comprehensive review of the Privacy
Act 1988 (Cth). A particular focus of the review will be the needs of
individuals for privacy protection in the light of evolving technology. In
conducting its review, the ALRC will have regard to developments in state
and territory privacy law since the Commonwealth Privacy Act came into
force. The ALRC is to report to the Attorney-General no later than
31 March 2008.
More information about the review will be available on the ALRC website
<http://www.alrc.gov.au>.
The Business Council of Australia report on regulation
In May 2005 the Business Council of Australia released a report entitled
Business Regulation Action Plan for Future Prosperity, which outlines a set of
reform proposals relating to Australia’s regulatory system. The report
notes the rise in government regulation, particularly in the last two
decades, and suggests a number of principles for making such regulation
more efficient. Among these are suggestions that regulation be subject to a
cost–benefit analysis to ensure that benefits outweigh the administrative
and compliance costs, that regulation set a framework and not try to cover
a field, and that there be full transparency and accountability in the process
of making and administering regulation.
The full report is available on the Business Council of Australia website
<http://www.bca.com.au/>.
ACT and Victorian human rights developments
On 1 March 2006 the ACT Human Rights Office and the Community and
Health Services Complaints Commission merged to form the Human
Rights Commission. The new Commission will comprise a president, a
disability and community services commissioner, a health services
commissioner, and a human rights and discrimination commissioner. The
Human Rights Commission Act 2005 (ACT) repeals the Community and Health
Services Complaints Act 1993 (ACT) and makes amendments to the
98
Discrimination Act 1991 (ACT) to provide a uniform system of complaint
handling. It also amends the Human Rights Act 2004 (ACT), transferring
some powers of the Human Rights Commissioner to the new Commission.
In December 2005 the Victorian Government announced it would
introduce a charter of human rights and responsibilities, in keeping with
the central recommendations of the Human Rights Consultation
Committee, which was created to examine the need for human rights laws.
The Committee’s report recommended the introduction of human rights
legislation similar to the ACT’s Human Rights Act 2004. The finalised
legislation will be introduced into the Victorian Parliament in 2006.
The full report is available on the Victorian Department of Justice website
<http://www.justice.vic.gov.au/humanrights/>.
The Age Discrimination Act
Adding to existing Commonwealth disability, sex and racial discrimination
laws, the Age Discrimination Act 2004 (Cth) began operation on 23 June
2004. Like other discrimination legislation, the Act prohibits both direct
and indirect discrimination in areas such as employment, education, access
to premises, accommodation, and goods, services and facilities. General
exemptions apply under the Act for superannuation, insurance, pensions,
allowances and benefits, migration, youth and health programs.
Review of uniform evidence Acts
In partnership with state governments and law reform bodies, the
Australian Law Reform Commission’s review of the uniform evidence Acts
seeks to harmonise Australia’s evidence laws. In July 2005 the ALRC
released its discussion paper on the subject. 225 The discussion paper
highlights some possible areas for reform, among them legal professional
privilege, the hearsay rule and its exceptions, exceptions for oral evidence
of Aboriginal and Torres Strait Islander traditional laws and customs, and
the impact of evidence laws on vulnerable witnesses.
225
Australian Law Reform Commission 2005, Review of the Uniform Evidence Acts,
Discussion Paper no. 69, ALRC, Sydney.
99
The ALRC’s final report, Uniform Evidence Law, was tabled in the
Commonwealth and Victorian Parliaments and released in New South
Wales on 8 February 2006. The report contains 63 recommendations,
including a recommendation that Australia have a single set of
streamlined, flexible evidence laws that will protect witnesses as well as
parties, recognise the importance of confidential relationships, and curb
legal ‘games’ in the courtroom.
More information about the review is available on the ALRC website
<http://www.alrc.gov.au/inquiries/title/alrc102/index.html>.
The Postal Industry Ombudsman
As reported in the previous edition of Admin Review, a dedicated office of
Postal Industry Ombudsman is to be established by the office of the
Commonwealth Ombudsman. The Postal Industry Ombudsman Bill 2004
(Cth) was introduced to Parliament on 12 August 2004, but its passage was
delayed and it was re-introduced on 17 November 2005 as the Postal
Industry Ombudsman Bill 2005. The Bill is currently before the Senate. The
scheme is expected to commence within six months of the legislation being
enacted.
The Migration Litigation Reform Act
The Migration Litigation Reform Act 2005 (Cth) was assented to and came
into effect on 15 November 2005.226 The Act amends the Migration Act 1958
(Cth) and other legislation and is part of a raft of amendments designed to
ensure more efficient management of migration litigation.
The main amendments introduced by the Act are as follows:
100

directing migration cases to the Federal Magistrates Court for more
efficient handling

ensuring identical grounds of review in migration cases

imposing uniform time limits in all migration cases
226
The amendments contained in Schedule 2 of the Act came into effect on
1 December 2005.


facilitating speedier handling of cases by improving court processes,
including
–
requiring applicants to disclose previous applications for judicial
review of the same migration decision
–
providing that appeals against decisions of federal magistrates
made under the Migration Act will be heard by a Federal Court
judge sitting alone, unless a judge considers it is appropriate to
refer the case to a Full Court
–
expressly providing for the High Court to remit migration and
other cases filed in the High Court’s original jurisdiction on the
papers
deterring unmeritorious applications by broadening the ground on
which the High Court, the Federal Court and the Federal Magistrates
Court can summarily dispose of proceedings.
The Migration and Ombudsman Legislation Amendment
Act
The Migration and Ombudsman Legislation Amendment Act 2005 (Cth) began
operation on 14 December 2005. The Act amends the Ombudsman Act 1976
(Cth) to give the Commonwealth Ombudsman power to establish an
immigration ombudsman. In summary, the legislation does the following:

amends the Migration Act 1958 (Cth) to enable the Commonwealth
Ombudsman to contact an immigration detainee when that person has
not made a complaint to the Ombudsman

amends the Ombudsman Act 1976 (Cth) to allow the Ombudsman to use
the title ‘Immigration Ombudsman’ when performing functions
related to immigration and detention

makes it explicit that the Ombudsman can perform functions and
exercise powers under other Commonwealth or ACT legislation

enables an agency or person to provide information to the
Ombudsman notwithstanding any law that would otherwise prevent it
doing so—for example, privacy legislation
101

clarifies that the actions of contractors and sub-contractors, in
exercising powers or performing functions on behalf of Australian
government agencies, will be taken to be the actions of the relevant
agency.
Further information about the changes effected by this Act is available on
the Commonwealth Ombudsman’s website
<http://www.ombudsman.gov.au>.
102
Personalia
The Administrative Appeals Tribunal
On 15 December 2005 the Commonwealth Attorney-General announced
the following presidential appointments to the Administrative Appeals
Tribunal:

from the Federal Court—Justices Annabelle Bennett AO, Richard
Edmonds, Andrew Greenwood, Roger Gyles AO, Peter Heerey, Bruce
Lander, Antony Siopis and Brian Tamberlin

from the Family Court—Justices Robert Benjamin, Christine Dawe,
Mary Finn and Nahum Mushin.
Between May 2004 and December 2005 the following appointments were
also made:

Justice Garry Downes AM, as President of the Tribunal

Mr Philip Hack SC, as a full-time Deputy President based in
Queensland

Associate Professor Stanley Hotop, as a full-time Deputy President
based in Western Australia (formerly part-time Deputy President)

Professor Emeritus Geoffrey Walker, as a full-time Deputy President
based in New South Wales

the Hon Raymond Groom, as a part-time Deputy President based in
Tasmania

the Hon Howard Olney AM, as a part-time Deputy President based in
Victoria

Ms Narelle Bell, as a full-time senior member based in New South
Wales (formerly a full-time member)

Mr James Constance, as a full-time senior member based in the
Australian Capital Territory
103
104

Mr Graham Friedman, as a full-time senior member based in Victoria
(formerly a full-time member)

Ms Robin Hunt, as a full-time senior member based in New South
Wales

Ms Josephine Kelly, as a full-time senior member based in New South
Wales

Mr Rodney Dunne, as a part-time senior member based in South
Australia

Ms Lesley Hastwell, as a part-time senior member based in South
Australia

Associate Professor Peter McDermott, as a part-time senior member
based in Queensland

Mr Steven Penglis, as a part-time senior member based in Western
Australia

Professor Emeritus Ivan Shearer QC RFD, as a part-time senior
member based in New South Wales

Mr Andre Sweidan, as a part-time senior member based in Western
Australia

Mr Egon Fice, as a full-time member based in Victoria (formerly a parttime member)

Ms Regina Perton, as a full-time member based in Victoria

Dr Ian Alexander, as a part-time member based in New South Wales

Ms Lisa Campbell-Tovey, as a part-time member based in Western
Australia

Dr Marella Denovan, as a part-time member based in Queensland

Associate Professor Simon Fisher, as a part-time member based in
Queensland

Dr Gordon Hughes, as a part-time member based in Victoria

Dr Kenneth Levy RFD, as a part-time member based in Queensland

Brigadier Graham Maynard, as a part-time member based in
Queensland

Dr Roderick McRae, as a part-time member based in Victoria

Mr John Short, as a part-time member based in South Australia

Brigadier Anthony Warner AM LVO, as a part-time member based in
Western Australia.
Twenty-six reappointments were also made during the same period.
The Federal Court
The following appointments to the Federal Court were made between May
2004 and December 2005:

Mr Antony Siopis SC, as a judge

Mr Richard Edmonds SC, as a judge

Mr Peter Graham QC, as a judge

Mr Andrew Greenwood, as a judge

Mr Neil Young QC, as a judge

Mt Steven Rares SC, as a judge

Professor Berna Collier, as a judge

Justice Dennis Cowdroy OAM, as a judge.
The High Court
In November 2005 Justice Susan Crennan became the 45th person to be
appointed to the High Court. Justice Crennan was formerly a justice of the
Federal Court and replaces Justice Michael McHugh, who turned 70 on
1 November 2005. Justice McHugh served the Australian judiciary for over
21 years and was appointed to the High Court in February 1989.
105
The Federal Magistrates Court
The following appointments to the Federal Magistrates Court were made
between May 2004 and December 2005:

Mr John Pascoe AO (Chief Federal Magistrate)

Ms Louise Henderson

Ms Judith Housego

Mr Kevin Lapthorn

Mr Keith Slack

Mr Daniel O’Dwyer

Mr Grant Riethmuller

Mr Michael Lloyd-Jones

Mr Graham Mowbray

Mr Nicholas Nicholls

Mr Matthew Smith

Ms Sylvia Emmett

Ms Robyn Sexton.
The Family Court
The following appointments to the Family Court were made between May
2004 and December 2005:
106

Chief Federal Magistrate Diana Bryant, as Chief Justice

Justice John Faulks, as Deputy Chief Justice

Mr Garry Watts, as a judge

Federal Magistrate Victoria Bennett, as a judge

Mr Robert Benjamin, as a judge

Judge Stephen Thackray, as a judge

Justice Jennifer Boland, to the Appeal Division of the Family Court.
The Administrative Review Council
In June 2004 Mr Richard Humphry AO and Major General Paul Stevens
AO were appointed to the Administrative Review Council for three years.
Mr Peter Anderson and Mr Ian Carnell were appointed part-time members
of the Council in July 2005.
Jillian Segal AM was appointed the Council’s new President in September
2005. Ms Segal replaces Mr Wayne Martin QC, who served the Council as a
member from July 1997 and as President from August 2002 until August
2005.
Professor Robin Creyke was reappointed to the Council on 15 February
2006 for three years. Stephen Gageler SC left the Council on 7 December
2005, having served since 8 December 1999.
The Council will celebrate its 30th anniversary in December 2006. It
proposes to mark this milestone with an event in the second half of the
year. Details are yet to be determined, but when they are they will be
posted on the Council’s website <www.law.gov.au/arc>.
The National Alternative Dispute Resolution Advisory
Council
In August 2004 five new members—Ms Josephine Akee, Mr Fabian Dixon
SC, Mr Ian Hanger QC, Mr Greg Hansen, and Dr Gaye Sculthorpe—were
appointed to the National Alternative Dispute Resolution Advisory
Council, which advises the Commonwealth Attorney-General on ways of
resolving disputes without the need for a judicial decision.
A new Privacy Commissioner
In June 2004 the Commonwealth Attorney-General announced the
appointment of Ms Karen Curtis as the new Federal Privacy
Commissioner. Ms Curtis was formerly the Director of Industry Policy for
the Australian Chamber of Commerce and Industry and was appointed for
five years, beginning on 12 July 2004.
107
In March 2005 Ms Suzanne Pigdon, Dr Bill Pring and Ms Joan Sheedy were
appointed part-time members of the Privacy Advisory Committee, which
advises the Federal Privacy Commissioner.
A new Human Rights Commissioner
In December 2005, following the expiration of Dr Sev Ozdowski’s term,
Mr Graeme Innes AM was appointed Human Rights Commissioner and
Acting Disability Discrimination Commissioner to the Human Rights and
Equal Opportunity Commission. Mr Innes was previously Deputy
Disability Discrimination Commissioner and has been Chair of Vision
Australia and President of the World Blind Union (Asia–Pacific Region).
The Australian Law Reform Commission
Associate Professor Les McCrimmon was appointed a full-time member of
the Australian Law Reform Commission in December 2004. In August 2005
Professor David Weisbrot was reappointed President of the Commission
for a further four years.
108