2.1 With one exception, all the submissions received by the
Committee considered that the ARC preformed a valuable role and that it
should continue to carry out this role. Amongst these submissions were
three from former Ministers who had had portfolio responsibility for the
ARC.[1] With respect to the present
Minister, who is the Attorney-General, the submission from his Department
stated: "The Department understands that the Attorney-General considers
the Council to be the pre-eminent specialist administrative law policy
adviser to the Government".[2]
The submission also stated that "from the Department's perspective,
there is a clear and continuing requirement for the Council".[3]
2.2 To the extent that the submissions supportive of the ARC advocated
any changes at all, the proposals were for relatively minor adjustments
intended to enhance its work and to clarify the legislation under which
it operates.
2.3 Only the submission from Mr Anthony Morris QC put a fundamentally
different view. In it, he expressed a broad concern that the Commonwealth's
administrative review system had become over-elaborate and over-expensive,
and that money spent seeking a "deluxe" system would be better
spent in areas of greater need. In the light of this concern he made two
points about the ARC:
The first is that the ARC has, historically, failed to stem the
mush-rooming cost of the administrative review systems which exist under
Federal law. The second point is that the ARC, far from offering a solution
to the spiralling magnitude of the administrative review infrastructure,
is itself a part of the problem. It is just one more bureaucratic institution,
which adds to the cost of providing a "deluxe" system of administrative
review in this country.[4]
2.4 Mr Morris QC noted that the ARC's functions, as set out in the Act,
suggested that the major role of the ARC was to assist in establishing
and bedding down the administrative law reforms of the 1970's. He then
argued:
Surely the process of reviewing and recommending has, after 21
years, taken its full course. Even if the systems which now exist are
not perfect, it is hardly to be expected that after 21 years there is
sufficient scope for improvement to justify the existence of a permanent
review body to recommend further improvements. ... As it seems to me,
the time has now been reached - if it was not reached some years ago -
that the ARC has achieved its "use by date".[5]
2.5 Mr Morris QC said that if there were any continuing functions that
the ARC might usefully perform, these could readily be absorbed into the
normal systems of policy making within government. They did not in his
view justify the retention of a permanent body like the ARC.[6]
2.6 The ARC and others responded to Mr Morris's view by saying he gave
insufficient weight to the constant changes that occur in the structures
and processes of public administration, and therefore understated the
continuing need for the ARC. Mr Alan Robertson SC, a member of the ARC,
criticised Mr Morris for appearing to assume that there was a fixed set
of statutes, and that once the ARC had reviewed the statute book, its
task was completed.[7]
2.7 Professor Marcia Neave, the President of the ARC, told the Committee:
while government continues to change and evolve, I think there
is a continuing role for a body that can oversee what the effects of that
might be and what changes might need to be made to the administrative
law system.[8]
2.8 The ARC gave as an illustration the need to consider how government
accountability should be maintained in a period when it is becoming increasingly
common for government to contract out for the delivery of services that
it previously provided directly.[9]
The ARC is currently addressing issues in this area, and told the Committee
its issues paper "has had an incredible response".[10]
2.9 Professor Neave also pointed out that the ARC was an advisory body:
the expansion of administrative review has been the result of decisions
made by governments, albeit that the decisions may well have been supported
by the ARC.[11]
2.10 The submission from the Attorney-General's Department also referred
to changes that have occurred since the ARC was created. The submission
stated:
In an era of increasingly sophisticated and changing public administration,
there is an ongoing need for monitoring and reporting on administrative
law issues and a requirement for high quality specialist administrative
law advice. ... changes in the conduct and practices of government make
issues of openness and accountability more critical and support the ongoing
existence of an independent body able to advise government on the appropriate
legal and structural mechanisms for scrutiny of government actions.[12]
2.11 The Committee asked the ARC if there would ever come a time when
there was no longer a need for it. Mr Skehill responded:
while ever we have dynamic public administration I think it probably
will not. Having said that, I think we as a council ought to work as though
we were trying to put ourselves out of business - that is, we ought to
try and work as part of the administration with a view to making the administration
so good that citizens do not feel the need to seek recourse to review
mechanisms.[13]
2.12 The Committee invited Mr Morris QC to respond to these criticisms.
He did so, rejecting the criticism that he had assumed a fixed and static
set of statutes. However, he said it did not follow that a permanent body
like the ARC was needed to monitor and review the constant changes in
the law, because few of those changes made a significant impact on administrative
review procedures:
But whilst I acknowledge that the Commonwealth Parliament, in modern
times, generates huge volumes of legislation, it is very rare for such
legislation to bring about fundamental changes in the way that decision-making
processes are undertaken at the public service level. ... I reject the
suggestion that my submission was based upon a mistaken assumption that
'there is a fixed or static set of statutes'. My assumption is, and remains,
that existing administrative procedures, including administrative review
procedures, are generally sufficient to accommodate the consequences of
legislative change.[14]
2.13 The ARC in turn replied to Mr Morris's response by saying:
Mr Morris also makes the point ... that it is rare for legislation
to bring about fundamental changes in decision making processes. The Council's
point is that there have, nevertheless, been profound changes in the last
20 years in the way in which government services are provided and government
decisions are made. ... The Council sees itself as having a continuing
role in providing advice to the government on how these changes in service
delivery and decision making might be implemented while retaining the
core values that administrative law seeks to protect and uphold, namely
lawfulness, fairness, rationality, openness and efficiency.[15]
2.14 Mr Morris responded to evidence that while there is change in government
there will always be a need for the ARC. He noted that this implied that
the ARC would become a permanent feature of government, and he said that
he was "quite frankly alarmed" at this prospect.[16]
2.15 The Committee is also concerned if bodies whose original tasks have
largely been completed are allowed without close scrutiny to assume new
roles and thereby perpetuate their existence. The Committee notes that
there was a measure of agreement between the views of Mr Skehill and Mr
Morris on the appropriate role for the ARC. Mr Skehill told the Committee:
we need to be careful that we do not have an administrative review
structure that is better than it should be and that we have a focus that
is firmly directed to getting the right decision first time round. The
aim of tribunals and the aim of the council should be to do themselves
out of a job. The aim should be to work back into administration through
improving the quality of primary decision making in such a way that citizens
less and less have need to have recourse to an external review arrangement.[17]
2.16 Mr Morris commented on Mr Skehill's observation: "That, with
respect, is my entire argument expressed with admirable brevity and clarity".[18]
Mr Morris added:
Australia, as a country with a "Holden Commodore" economy
(i.e., one that is efficient and reliable, with some degree of comfort,
but without the highest standards of luxurious appointments) cannot afford
a "Rolls Royce" system of administrative decision-making and
review.
2.17 The Committee observes that Mr Skehill's view of the current role
of the ARC is consistent with the revised mission statement recently adopted
by it. The ARC told the Committee that in May 1996 it had re-defined its
direction and on-going mission so as to give a greater focus on the quality
of primary decision-making.[19]
The ARC said that it had identified two fundamental roles for Commonwealth
administrative law. These were improving the quality, efficiency and effectiveness
of government decision making generally; and enabling people to test the
lawfulness and merits of decisions that affect them. The ARC concluded
that although the first of these roles had always been recognised, it
had not always been given as much attention by the players in the administrative
law system as it warranted.
2.18 The ARC decided that it should place greater emphasis on its role
in advising the Attorney-General on ways and means of improving the processes
of primary decision making, and on actively promoting better administrative
decision making by providing advice and assistance to decision makers
throughout the system of decision making and review. As a result, since
May 1996 the ARC has defined its on-going mission as being:
to ensure that the administrative decision-making processes of
the Federal Government are correct according to law and accord with administrative
law values, by working with all relevant interests - political, bureaucratic
and community based.[20]
2.19 The ARC said that the vision it was seeking to achieve was that
decisions made in the administration of Commonwealth Government policies
and programs should be of consistently high quality.
2.20 The Attorney-General's Department told the Committee that the Department
endorsed the ARC's definition of its current mission.[21]
Conclusion
The Committee concludes that there is a continuing need for the Commonwealth
Government to receive advice and recommendations on administrative review
and decision-making, and to promote a comprehensive, affordable and cost-effective
administrative law system.
2.21 Having concluded that the ARC's current functions need to be performed,
the Committee considered whether the ARC should continue to perform them
as a separate and permanent body. The evidence given to the Committee
identified several inter-related reasons for keeping the ARC in this form,
rather than alternatives such as absorbing it into the Attorney-General's
Department or some other body, and having its project work done by ad
hoc inquiries. The main strands in this evidence are illustrated in
the following paragraphs.
2.22 The Senate Standing Committee on Regulations and Ordinances said
in its submission: "The Committee considers that administrative review
and administrative law generally are important aspects of personal rights,
which justify a separate and permanent administrative law advisory body".[22]
The submission stated that "any dilution of the independence or powers
of the ARC would be undesirable" and that "the worst outcome
for the effectiveness of the ARC would be if it was absorbed by, or became
under the control of, the Attorney-General's Department".[23]
It illustrated this by saying that the quality of ARC's report on rule-making
by Commonwealth agencies[24] "would
not have been as good if it had, for instance, been passed through the
sieve of a Department of State".[25]
2.23 Mr Bruce Dyer, a senior lecturer in law at Monash University, also
saw advantages in having an independent adviser:
In comparison with the A-G's department, a separate and independent
statutory body must be better placed to give advice which is unaffected
by the vested interests of the administration itself. This, of course,
is particularly important in the area of administrative law, given its
concern with the mechanisms by which the administration is held accountable.[26]
2.24 Similarly, the Welfare Rights Centre said it valued the ARC's independent
status. In its submission, it argued that if the ARC were to be absorbed
into a department or agency, this would create a public perception that
the body was less receptive to the views of other stake-holders and might
not be impartial in balancing the competing interests involved. This,
the Centre said, would undermine confidence in and acceptance of the ARC's
recommendations, reducing the value of the ARC to all stake-holders.[27]
2.25 The Australian Council of Social Service told the Committee that
to entrust responsibility for administrative law advice to a body with
other areas of responsibility would lead to a dissipation in the effort
and priority given to administrative law.[28]
ACOSS also said:
The permanence of the ARC is one of its great strengths and crucial
to the effective performance of its oversight role. This characteristic
allows the ARC to learn from and build upon its work, facilitating the
development and retention of institutional knowledge and wisdom. ... permanence
enables an organisation to build up on-going relationships and a body
of contacts that it can draw upon continually in its work.[29]
2.26 ACOSS added that, because the ARC was a separate and permanent body,
its credibility was enhanced and bodies like ACOSS were more willing to
contribute to its work and governments were more willing to take the ARC's
recommendations seriously.[30]
2.27 Mr Stephen Lloyd, an officer of the Attorney-General's Department
and former member of the ARC's staff, said in his submission that the
various elements and agencies making up the administrative law system
were intended to work together as a comprehensive package:
In my view, the efficiency and effectiveness of the package will
be put at risk if there is not a voice advocating that end. Sometimes,
the short term interest of one of the players may be to put its own desires
above that of the efficiency of the package as a whole. If there is no
process for monitoring any such ambit claims, there is a real risk that
the package will seriously deteriorate. The ARC is ideally placed to maintain
the integrity of the administrative law package because it consists of
the main players in the field.[31]
2.28 Similarly, the ARC said that its separate status enabled it to take
a whole-of-government approach: "It does not suffer from the 'turf
protection' difficulties which would make it particularly difficult for
a unit within a government department to take a similar approach".[32]
The ARC also said that its status as a separate and permanent body allowed
it to develop a more consistent, coherent and cohesive approach to administrative
law and administration in this country.[33]
2.29 In relation to dealing pro-actively with new issues, the ARC said
that as a permanent body, the ARC could "anticipate and respond to
new questions as they arise".[34]
The submission from the Welfare Rights Centre made a similar point: "The
ARC should remain a permanent body in order to provide advice at the time
new initiatives are being developed to ensure that appropriate administrative
review accountability mechanisms are established at the outset."[35]
2.30 If the ARC were not to continue as a separate body, the alternative
to absorbing its functions into the Attorney-General's Department would
be to have its functions undertaken by another agency. The agency mentioned
in this context has been the Australian Law Reform Commission (ALRC).
2.31 The possibility of the ALRC amalgamating with or assuming the functions
of the ARC was examined by the House of Representatives Standing Committee
on Legal and Constitutional Affairs in 1993-94. Its report did not support
a merger.[36] It did however,
recommend that the ALRC "should develop and maintain mechanisms to
avoid wasteful duplication and to foster cooperative work" with,
amongst others, the ARC, and that there should be joint projects between
the two bodies.[37] A joint project
has since occurred.[38]
2.32 The evidence in the current inquiry did not disclose any lack of
co-operation or co-ordination between the ARC and the ALRC in the areas
where their work might or does overlap. Nor did it disclose any wasteful
duplication of effort.[39] However,
the evidence was that the two bodies performed different functions, and
there was no support for merging them.[40]
2.33 For example, Professor Neave told the Committee:
We do not support merger with the Australian Law Reform Commission,
both because we are a body with an emphasis on an expertise in one particular
area of the law - that is, administrative law - and because we also do
things other than write major reports. We provide letters of advice. We
make cabinet coordination comments. We monitor, evaluate and educate.
We interact with tribunals. Those functions are quite different from the
sorts of functions that the Australian Law Reform Commission discharges.[41]
2.34 The evidence given to the Committee suggested that there would not
be any significant cost-savings if the ARC were to be abolished and its
functions transferred elsewhere. Mr Skehill, speaking as Secretary of
the Attorney-General's Department rather than in his capacity as an ARC
member, told the Committee:
If this function were transferred into the department, I would
very much want to continue to have access to the type of expertise that
we have on the council - expertise from user groups, from academics, from
the practising bar - because, frankly, we cannot emulate that within the
department. ... I think if I had my druthers and the council were abolished
I would be wanting to create an ad hoc advisory committee of pretty much
the same type of configuration to get access to that input that we cannot
provide as officers ourselves. CHAIR
- What about a cost benefit analysis? About $1 million a year is spent
on the ARC. If you were to do what you have just suggested, would that
mean any saving at all? Mr Skehill -
I suspect not. We would still have the staff. We would still provide the
support service they need. I would like to think we would still pursue
the publication of a discussion paper to gather greater community input.
I would like to think we would still provide a report that government
could deliberate upon and, again, seek its own input on. I think the chance
is that there would be in fact increased costs because the sitting fees
we currently pay to the members would in many cases be significantly below
the consultancy fee that they could otherwise charge. I think it is a
relatively well recognised phenomenon that people who might otherwise
earn significantly more are often prepared to discount to an independent
advisory body where they would not discount to the great unwashed bureaucracy.[42]
2.35 A lesser form of merger might see the Council itself continue, but
with its secretariat services provided in common with those of another
agency. The submission from the Attorney-General's Department commented
on this option:
it is unlikely that there would by any significant economies to
be gained in seeking to provide common secretariat services for the Council
from some other source, for example, amalgamation with ALRC. Rather, it
is likely that an amalgamation would generate additional cost in the immediate
short term and would risk the dissipation or dilution of expertise in
the longer term.[43]
Recommendation No. 1
The Committee notes suggestions that the Administrative Review Council
should be abolished and its functions transferred to the Attorney-General's
Department or merged with those of the Australian Law Reform Commission.
The Committee recommends that the Administrative Review Council
should remain as a separate and permanent body, provided that it is making
a significant contribution towards an affordable and cost-effective system
of administrative decision-making and review.
2.36 The Committee notes that it may be possible to improve the scope
of the information provided by the ARC on its performance, in order to
assist the community to assess the value of its work more precisely.
2.37 The current Commonwealth guidelines for reporting by departments
include a requirement that performance information be provided. As part
of this, the guidelines state that departments should list the performance
measures of a quantitative and qualitative kind that have been adopted
for the activity concerned, and should discuss past-year performance in
terms of these measures.[44] The
Committee notes that the departmental guidelines do not expressly apply
to agencies, and the ARC does not have formal performance measures of
this kind. By way of comparison, the Committee observes that the Australian
Law Reform Commission and the Family Law Council are bodies that are broadly
similar to the ARC in their respective subject areas. The former does
have formal performance measures in place,[45]
while the latter does not.[46]
Recommendation No: 2
The Committee recommends that, in its annual reports, the Administrative
Review Council consider providing performance measures of a quantitative
and qualitative kind for the activities that it performs, and discussing
past-year performance in terms of these measures.
In the Committee's view, this use of performance indicators will facilitate
a better public appreciation of the performance of the Administrative
Review Council.
[Return to Table of Contents]
Footnotes:
[1]. Submission No. 6, Hon
L Bowen AC, p. 1; Submission No. 13, Hon P Durack QC, p. 2; Submission
No. 21, Hon D Kerr MP, p. 1.
[2]. Submission No. 25,
Attorney-General's Department, p. 8.
[3]. Submission No. 25,
Attorney-General's Department, p. 3.
[4]. Submission No. 1, Mr
A Morris QC, pp. 8-9.
[5]. Submission No. 1, Mr
A Morris QC, pp. 9, 10.
[6]. Submission No. 1, Mr
A Morris QC, pp. 10-11.
[7]. Evidence, ARC (Mr A
Robertson SC), pp. 28, 29.
[8]. Evidence, ARC (Prof
M Neave), p. 27. See similarly Evidence, Mr J Barnes, p. 16; Submission
No. 26, Mr S Lloyd, p. 3.
[9]. Evidence, ARC (Prof
M Neave), p. 27, (Mr A Robertson SC), p. 28, (Mr S Skehill), p. 29.
[10]. Evidence, ARC (Prof
M Neave), p. 24, referring to ARC, The Contracting Out of Government
Services: Issues Paper, February 1997.
[11]. Evidence, ARC (Prof
M Neave), p. 27.
[12]. Submission No. 25,
Attorney-General's Department, p. 3.
[13]. Evidence, ARC (Mr
S Skehill), p. 32.
[14]. Submission No. 1A,
Mr A Morris QC, pp. 7, 8.
[15]. Submission No. 16A,
ARC, p. 2.
[16]. Submission No. 1A,
Mr A Morris QC, p. 4.
[17]. Evidence, ARC (Mr
S Skehill), p. 50.
[18]. Submission No. 1A,
Mr A Morris QC, p. 13.
[19]. Submission No. 16,
ARC, paras. 164-67.
[20]. Submission No. 16,
ARC, para. 167; ARC Annual Report 1995-96, para. 1.6.
[21]. Submission No. 25,
Attorney-General's Department, p. 4.
[22]. Submission No. 23,
Senate Committee on Regulations and Ordinances, p. 1.
[23]. Submission No. 23,
Senate Committee on Regulations and Ordinances, pp. 1, 2.
[24]. ARC, Report to the Attorney-General:
Rule Making by Commonwealth Agencies: Report No 35, March 1992.
[25]. Submission No. 23,
Senate Committee on Regulations and Ordinances, p. 1.
[26]. Submission No. 10,
Mr B Dyer, p. 2.
[27]. Submission No. 20,
Welfare Rights Centre, p. 2.
[28]. Submission No. 19,
Australian Council of Social Service, p. 2.
[29]. Submission No. 19,
Australian Council of Social Service, p. 3.
[30]. Submission No. 19,
Australian Council of Social Service, p. 3.
[31]. Submission No. 26,
Mr S Lloyd, p. 2 (footnote omitted).
[32]. Submission No. 16,
ARC, para. 52.
[33]. Submission No. 16,
ARC, para. 59.
[34]. Submission No. 16,
ARC, para. 66.
[35]. Submission No. 20,
Welfare Rights Centre, p. 2.
[36]. House of Representatives
Standing Committee on Legal and Constitutional Affairs, Law Reform:
the Challenge Continues: A report of the inquiry into the role and function
of the Law Reform Commission of Australia, May 1994, para. 8.3.16.
[37]. House of Representatives
Standing Committee on Legal and Constitutional Affairs, Law Reform:
the Challenge Continues: A report of the inquiry into the role and function
of the Law Reform Commission of Australia, May 1994, recommendations
34 and 35.
[38]. ALRC and ARC, Open Government:
a review of the federal Freedom of Information Act 1982,
(ALRC Report No. 77 and ARC Report No. 40), January 1996. Collaboration
between the ALRC and ARC had also occurred before the House of Representatives
Committee's report: see Submission No. 16, ARC, Appendix 8.
[39]. Submission No. 9,
Australian Law Reform Commission, p. 1; Submission No. 16, ARC,
para. 94; Evidence, Ms S Tongue, p. 4.
[40]. See for example, Submission
No. 2, Prof J Goldring, p. 2; Submission No. 9, ALRC, p. 1;
Submission No. 11, Prof E Campbell, p. 1; Submission No. 16,
ARC, paras. 91-97; Submission No. 19, Australian Council of Social
Service, p. 2; Submission No. 20, Welfare Rights Centre, p. 2;
Submission No. 25, Attorney-General's Department, p. 6; Submission
No. 26, Mr S Lloyd, p. 7.
[41]. Evidence, ARC (Prof
M Neave), p. 24.
[42]. Evidence, ARC (Mr
S Skehill), pp. 30-31.
[43]. Submission No. 25,
Attorney-General's Department, pp. 6-7.
[44]. Department of Prime Minister
and Cabinet, Requirements for Departmental Annual Reports, March
1994 (updated to February 1996), p. 6.
[45]. Australian Law Reform Commission,
Annual Report 1995-96, paras. 3.7 - 3.11.
[46]. Family Law Council, Annual
Report 1995-96, p. x is headed "Powers, Functions and Objectives"
but the following text deals only with functions, and does not refer to
objectives or performance measures.