Report on the Role and Function of the Administrative Review Council

Chapter 1

The work and effectiveness of the Administrative Review Council

Establishment of the ARC

1.1 Part V of the Administrative Appeals Tribunal Act 1975 (the Act) provides for the constitution, membership and functions of the Administrative Review Council (ARC). The ARC was constituted on 11 November 1976 and first met on 15 December 1976. [1]

1.2 The creation of the ARC was part of the broad changes to administrative law and administrative review that occurred in the 1970s, a key feature of which was the creation of the Administrative Appeals Tribunal (AAT). The Bill that the ALP Government introduced into the House of Representatives in March 1975 to create the AAT did not contain any provision for an ARC. The then Opposition said it would move an amendment to do this. Its spokesman, Mr John Howard MP, said:

In general terms, the purpose of the administrative review council will be to provide an on-going review of how the Administrative Appeals Tribunal is operating, to keep under constant examination areas of legislation which ought to be added to those which come within the purview of the Tribunal's operations, and generally to recommend improvements and alterations to the procedures under which the Tribunal operates. [2]

1.3 The Government later indicated its agreement in principle to the Opposition proposal. [3] When the Bill came before the Senate, the Government itself moved the amendment which inserted the provisions establishing the ARC. [4]

Composition of the ARC

1.4 All the members of the ARC serve part-time. Three serve ex officio: they are the President of the AAT, the Ombudsman, and the President of the Law Reform Commission. The Act provides that there should be not less than three nor more than ten other members with expertise relevant to the work of the ARC. The members are appointed for terms of up to three years, and are eligible for re-appointment.

1.5 When the ARC was established the President of the AAT presided at its meetings. The Act was amended in 1979 to provide that the Governor-General shall appoint one of the members to be the Chairman of the ARC, and the title was changed from Chairman to President in 1988. [5] The following table contains details of the heads of the ARC since 1979.

Table 1: Chairs/Presidents of the ARC since 1979

Source: compiled from information in Submission No. 16, ARC, Appendix 9

1.6 The full ARC meets about eight times a year, and it has committees that meet to deal with matters referred by the full ARC. The Committee was told that in addition a lot of the ARC's work was done through correspondence. [6]

Funding

1.7 The ARC is part of the Attorney-General's portfolio and the Attorney-General's Department provides support services to the Council, the costs of which come out of the ARC's budget. Total expenditure on the ARC in 1995-96 was $1,013,400, of which some $438,000 was for salaries and payments in the nature of salary, $172,000 for property operating expenses, and the remainder for administrative expenses. [7] Estimated expenditure for 1996-97 is $1,095,000. The Budget allocation for 1997-98 is $1,031,000, which is a reduction of 3.1 per cent on the 1996-97 amount. [8] ARC expenditure has been at broadly similar levels in previous years, after allowing for inflation and changes in accounting methods.

1.8 ARC members who are otherwise employed by the Commonwealth – the ex officio members and public servants – are not paid for being members of the ARC. Other members except the President are remunerated by way of sitting fees. The President does not receive sitting fees but is remunerated by means of an allowance. For the 1995-96 financial year the President's remuneration was $47,257. [9]

Staffing

1.9 The ARC is supported by a small secretariat whose staff, although located separately in Canberra, are part of the Attorney-General's Department. They are employed under the Public Service Act, as required by s. 57 of the Act. As at the end of 1996, the secretariat consisted of a Director of Research who is a Senior Executive Service Band 1 officer, a Deputy Director, two Project Officers, and two support staff (one part time). [10]

Statutory functions of the ARC

1.10 Section 51 of the Administrative Appeals Tribunal Act 1975 sets out the functions of the ARC:

51. (1) The functions of the Council are—

(a) to ascertain, and keep under review, the classes of administrative decisions that are not the subject of review by a court, tribunal or other body;

(b) to make recommendations to the Minister as to whether any of those classes of decisions should be the subject of review by a court, tribunal or other body and, if so, as to the appropriate court, tribunal or other body to make that review;

(c) to inquire into the adequacy of the law and practice relating to the review by courts of administrative decisions and to make recommendations to the Minister as to any improvements that might be made in that law or practice;

(d) to inquire into the adequacy of the procedures in use by tribunals or other bodies engaged in the review of administrative decisions and to make recommendations to the Minister as to any improvements that might be made in those procedures;

(e) to make recommendations to the Minister as to the manner in which tribunals engaged in the review of administrative decisions should be constituted;

(f) to make recommendations to the Minister as to the desirability of administrative decisions that are the subject of review by tribunals other than the Administrative Appeals Tribunal being made the subject of review by the Administrative Appeals Tribunal; and

(g) to make recommendations to the Minister as to ways and means of improving the procedures for the exercise of administrative discretions for the purpose of ensuring that those discretions are exercised in a just and equitable manner.

(2) The Council may do all things necessary or convenient to be done for or in connexion with the performance of its functions.

Table 2: Reports of the Administrative Review Council

Source: ARC Annual Report 1995-96, pp. vii-viii.

Footnotes

[1]. ARC, Annual Report 1976-77, p. 7 and p. i.

[2]. House of Representatives, Hansard, 14 May 1975, p. 2281.

[3]. House of Representatives, Hansard, 22 May 1975, p. 2743.

[4]. Senate, Hansard, 3 June 1975, p. 2150.

[5]. Administrative Appeals Tribunal Amendment Act 1979, s. 10; Statute Law (Miscellaneous Provisions) Act 1988, Schedule 1.

[6]. Evidence, ARC (Prof M Neave), p. 38.

[7]. ARC, Annual Report 1995-96, pp. 36, 103.

[8]. Portfolio Budget Statements 1997-98, Attorney-General's Portfolio (Budget Related Paper No. 1.1), p. 83.

[9]. ARC, Annual Report 1995-96, p. 103.

[10]. Submission No. 16, ARC, p. 167.