Report on the Role and Function of the Administrative Review Council

Work and focus of the ARC

1.11 The submission from the ARC identified a broad range of activities that it currently performs. [11]

1.12 The ARC provides advice to the Attorney-General in the form of reports based on research projects either referred to it by the Attorney-General or initiated by the ARC itself. In many cases the consultation leading to a report has involved the publication of an issues paper or other consultative document. ARC project reports have been tabled in the Parliament and published. On the page opposite is a list of the project reports produced by the ARC since its inception in 1976.

1.13 The ARC told the Committee that it continuously monitors administrative law and practice and identifies issues which require inquiry or other action. [12] The Committee notes that several of the research projects undertaken by the ARC have arisen from this sort of monitoring. [13]

1.14 In addition to the advice and recommendations in its project reports, the ARC provides letters of advice to the Attorney-General. The ARC advised the Committee that many matters which formed the basis of a report in its earlier years would now be dealt with in a letter of advice, and this has meant a significant change in the types of issues on which the ARC concentrates its major project activity. [14] In more recent years the ARC has also provided advice to Parliamentary committees, including several to this Committee, [15] and to other reviews and inquiries.

1.15 For the last decade the letters of advice have been published in the ARC's Annual Reports, although publication may be deferred in the public interest, for example where the matter is still under active consideration by the Government. [16] The table on the following page lists the letters of advice made in 1995-96, and illustrates the varied topics addressed and the range of recipients with whom the ARC deals.

1.16 In the course of giving advice on whether the exercise of a decision-making power is appropriate for external merits review, the ARC developed principles and consolidated them into guidelines. It first published these in 1984, and the most recent consolidation was published in 1993. [17]

Table 3: Letters of Advice by the Administrative Review Council in 1995-96

Source: ARC, Annual Report 1995-96, pp. 40-41.

1.17 In addition to the advice provided to Ministers and agencies, the ARC provides comments on the Government's legislative proposals that have administrative law implications by providing co-ordination comments on recommendations to Cabinet. These comments are not published. It also works informally with government agencies and decision makers to assist in policy development and to help improve government decision making generally. For example, the ARC told the Committee that its representatives were invited to a briefing session held jointly by the Department of Social Security and the Department of Employment, Education, Training and Youth Affairs to discuss proposals for the new corporatised Commonwealth Employment Service. [18] The ARC said it had also been consulted recently by the Government Service Charter Task Force as part of its process of developing principles and guidelines for introducing customer service charters across the Commonwealth public sector. [19]

1.18 In addition to providing advice in various forms, the ARC liaises with administrative review tribunals on matters relating to decision-making and overall effectiveness. For example, it holds regular meetings between the ARC President and tribunal heads and it organises a regular Tribunals Conference which is attended by members and staff of a number of Commonwealth, State and Territory tribunals. The ARC told the Committee that these conferences provide a forum for the formal and informal exchange and discussion of ideas and experiences, allow for cross-fertilisation between tribunals, and foster experiments and innovations. [20]

1.19 The ARC is required to produce annual reports on its own operations which must be tabled in the Parliament. [21] In these the ARC includes case-flow statistics, with accompanying ARC comments, for the main Commonwealth merits review tribunals.The ARC provides assistance and training to persons involved in making government decisions and also to those affected by such decisions by, for example, providing information to community organisations.

1.20 1.21 More generally, the ARC promotes awareness of administrative review through participation in seminars, conferences and lectures. Since 1984 it has published a bulletin called Admin Review, which provides information about recent developments in administrative review as well as the work of the ARC. The bulletin mostly appeared quarterly for the first ten years, but now appears less frequently, with two editions being published in the 1995-96 year.

Assessing the ARC's effectiveness

1.22 The Committee's terms of reference require it to inquire into "the effectiveness of the ARC in performing its functions".

1.23 It should be noted that a range of organisations told the Committee that in their view the ARC had been generally effective in performing its functions. [22]

1.24 However, the Committee found that objective assessment of the ARC's effectiveness was not easy, due to the wide range of the ARC's activities and the inherent difficulties in objectively assessing such things as the quality of its advice, the value of its policy recommendations, and the success of its efforts to promote administrative law values.

1.25 The submission from the Attorney-General's Department commented: "In the absence of accepted performance indicators for bodies such as the Council, it is difficult to come to an overall objective assessment of its effectiveness". [23] The Department, however, did suggest two criteria that could be considered: the regard in which the ARC is held, and its record in completing references and agreed projects.

1.26 The ARC told the Committee:

In the Council's view there is no single indicator that can effectively take into account both the measurable successes of the Council and the more general benefits that flow from its work. Any attempt at a quantitative costs benefits analysis would, in the Council's view, be simplistic. [24]

1.27 The ARC identified a range of factors that it believed should be taken into consideration in assessing its effectiveness. These were the extent to which:

• its advice was accepted and its recommendations implemented, or, if not implemented in full, acted as catalysts for change;
• its reports and advices served as useful summaries and analyses of the law, thereby making an important contribution to debate and discussion;
• its other forms of policy input, such as its comments on proposals being submitted to Cabinet and its submissions to Parliamentary and other inquiries, were successful;
• its reputation was high in the eyes of those outside government; and
• its contribution as a facilitator led to worthwhile exchanges of ideas, cross-pollination of best-practices, and experiments and innovations. [25]

1.28 The Committee found it helpful to use the factors suggested by the Attorney-General's Department and the ARC in making its assessment.

Regard in which the ARC is held

1.29 The submissions to the Committee, by being broadly supportive of the ARC, suggested that it is generally held in high regard. The submission from the Attorney-General's Department said:

So far as the regard with which the Council is held, the Department believes that the Council is held in high regard. The work of the Council is frequently mentioned in relevant academic circles and the Department understands that the Council and its work is favourably known in foreign countries, particularly those with a common law tradition. [26]

1.30 Submissions from others also referred to the ARC's international reputation. [27]

1.31 One element in assessing the regard in which the ARC is held is the extent to which its advice is sought in situations where it could usefully contribute. The Attorney-General's Department said in its submission: "there is a discernible trend among departments and agencies not only to display an awareness of the Council but to approach either the Council or its Secretariat for advice at an early stage of policy or program development". [28]

1.32 The ARC told the Committee that the extent to which its advice had been sought had varied over time, but that there was a fairly healthy degree of interchange and consultation. [29] However, the ARC agreed that in some cases departments failed to consult the ARC in situations when they might have been expected to do so. [30] In Chapter 3, the Committee considers suggestions for improving the extent of consultation.

1.33 The submission from the Department of Immigration and Multicultural Affairs was generally supportive of the ARC. However, in relation to the proposals for changes to the method of review of decisions regarding migration and refugees, the Department commented:

In relation to some of these changes, the ARC has, on occasion, been seen by the Department as committed to an administrative law "package" and a particular institutional framework without sufficient regard being given to cost, the uniqueness of situations and to alternative methods to achieving the desired results of improving accountability and access to government by all people regardless of background. [31]

Record on completing references and agreed projects

1.34 The submission from the Attorney-General's Department stated that the ARC's record in completing references and agreed projects indicated a general timeliness, an awareness of competing workload priorities, and an appreciation of the need to keep the Attorney-General informed of its progress. [32]

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Footnotes

[11]. Submission No. 16, ARC, para. 28.

[12]. Submission No. 16, ARC, para. 28.

[13]. See for example ARC, Report to the Attorney-General: Rule Making by Commonwealth Agencies: Report No 35, March 1992, p. 1 for the genesis of that report.

[14]. Submission No. 16, ARC, para. 22.

[15]. See for example, the ARC's submission in May 1995 to this Committee's inquiry into the Migration Legislation Amendment Bill (No 5) 1994.

[16]. ARC, Annual Report 1995-96, p. 40.

[17]. ARC, Annual Report 1983-84, pp. 11-20; ARC, Annual Report 1992-93, pp. 70-77.

[18]. Submission No. 16, ARC, para. 216.

[19]. Submission No. 16, ARC, para. 216.

[20]. Submission No. 16, ARC, para. 227.

[21]. Administrative Appeals Tribunal Act 1975, s. 58.

[22]. Submission No. 12, Administrative Appeals Tribunal, pp. 8-9; Submission No. 17, Public Interest Advocacy Centre, p. 2; Submission No. 18, Victorian Bar Council, p. 3; Submission No. 19, Australian Council of Social Service, p. 5; Submission No. 22, Department of Immigration and Multicultural Affairs, p. 3.

[23]. Submission No. 25, Attorney-General's Department, p. 8.

[24]. Submission No. 16, ARC, para. 196 (footnote omitted).

[25]. Submission No. 16, ARC, paras. 197-230.

[26]. Submission No. 25, Attorney-General's Department, p. 9.

[27]. Submission No. 7, Mr J Barnes, p. 3. See also Submission No. 11, Prof E Campbell, p. 4; Submission No. 24, Prof M Partington, p. 3.

[28]. Submission No. 25, Attorney-General's Department, p. 9.

[29]. Evidence, ARC (Prof M Neave, Mr S Skehill), p. 34.

[30]. Evidence, ARC (Prof M Neave), pp. 33-34. See also Submission No. 16, ARC, paras. 216-17.

[31]. Submission No. 22, Department of Immigration and Multicultural Affairs, p. 1 (emphasis in original).

[32]. Submission No. 25, Attorney-General's Department, p. 9.