3.1 In this Chapter, the Committee considers the suggestions
made to it in order to optimise the role and functions of the ARC. The
Committee discusses the suggestions under three broad headings:
- possible changes to the ARC's membership structure;
- possible changes to the ARC's functions; and
- ways of improving its relationships with other bodies.
3.2 As noted in Chapter 1, the ARC consists of three ex officio
members - the President of the Administrative Appeals Tribunal, the Ombudsman
and the President of the Australian Law Reform Commission - and from three
to ten other members appointed by the Governor-General. At present, there
are only seven of these members. Their terms of appointment are staggered,
so the make-up of the ARC changes at frequent intervals.
3.3 These appointed members have always included a senior representative
of the Attorney-General's Department, and currently its Secretary is a
member.[1] Secretaries or senior
representatives of other Departments have also been appointed from time
to time. Currently the Secretary of Department of Immigration and Multicultural
Affairs and a Deputy Secretary from the Department of Prime Minister and
Cabinet are members.
3.4 Non-public service members have come from a very wide range of backgrounds,
including senior positions in commerce and industry, the law and academia.
At present, the non-public service members are:
- Professor Marcia Neave, a professor of law at Monash University;
- Ms Jill Anderson, a senior lecturer in law at the University of NSW;
- Professor Ian Lowe of the School of Science at Griffith University;
and
- Mr Alan Robertson SC, a barrister in private practice in NSW.
3.5 The ARC told the Committee:
The Council believes that its existing mix of membership is its
greatest asset. The Council has always had a varied mix of members from
both the public, private and community sectors. This diversity of membership
has contributed greatly to the quality of the Council's work and the Council
believes that a continued mix of membership is vital. The Council brings
together legal, social, academic and administrative streams to achieve
balanced and pragmatic outcomes. This mix of membership allows the Council
to resolve more effectively the tensions inherent in an administrative
review system where government administration is answerable not only to
the Government but also to individual citizens.[2]
3.6 Dr Susan Kenny, a former ARC President, noted the advantages of a
relatively small ARC: "Because it is a relatively small body, it
is possible for the Council to give speedy responses in its letters of
advice. If the Council were made much larger, this would become more difficult."[3]
The ARC told the Committee that significant alteration to the size of
its membership should be avoided, lest its effectiveness be jeopardised.
The ARC said: "The Council is strongly of the view that its current
maximum membership of 13 is around the optimum number of members".[4]
3.7 Evidence to the Committee largely supported the current membership
structure. Proposals made to improve it are set out in the following sections.
These proposals related to:
- improving representation of the merits review tribunals on the ARC;
- improving representation of "users" on the ARC;
- adding a chief executive of a government business enterprise;
- making representation mandatory on the ARC;
- altering the structure of ex officio membership; and
- use of co-opted members.
3.8 Several submissions suggested that the membership structure of the
ARC would be improved if the main merits review tribunals were better
represented on it, so as to incorporate their specialist experience and
concerns.[5] At present, the Administrative
Appeals Tribunal is represented but not the four other main tribunals
- the Social Security Appeals Tribunal, the Veterans' Review Board, the
Immigration Review Tribunal and the Refugee Review Tribunal. The submissions
differed in the precise detail of how the structure should be altered.
The mechanisms suggested were to have the head of one of the other tribunals,
possibly on a rotating basis, as a member of the ARC in addition to, or
possibly instead of, the President of the Administrative Appeals Tribunal.
3.9 These submissions were made in October and November 1996. On 20 March
1997, the Attorney-General, the Hon Daryl Williams QC MP, informed the
House of Representatives that the Government was actively considering
the 1995 recommendation by the ARC for the merger of the main merits review
tribunals.[6] Mr Williams said that
Cabinet had decided in principle to amalgamate the five tribunals into
a single new tribunal, which would be called the Administrative Review
Tribunal. He also said that an interdepartmental committee comprising
senior Commonwealth officers would devise a strategy for implementing
the amalgamation.[7]
3.10 The Committee observes that this decision, if implemented, will
remove the need to consider the issue of separate ARC membership for the
four specialised merits review tribunals.
3.11 Section 50 of the Act provides that a person shall not be appointed
as a member of the ARC:
unless he or she has had extensive experience at a high level in
industry, commerce, public administration, industrial relations, the practice
of a profession or the service of a government or of an authority of a
government or has an extensive knowledge of administrative law or public
administration.
3.12 There was general agreement in the evidence on the ARC's membership
received by the Committee that the ARC's work would benefit if its membership
included persons able to represent the perspective of the "users"
or "consumers" of administrative law and administrative review.
Section 50 does not recognise such expertise as a qualification.
3.13 However, persons having one or more qualifications recognised by
the Act but also having such expertise have been appointed to the ARC
from time to time.[8] For example,
one of the current members, Ms Jill Anderson has worked in community legal
centres, with the Australian Council of Social Service and with the Intellectual
Disability Rights Service.[9] Another
current member, Professor Ian Lowe, has been Deputy Chair of the Australian
Consumer's Association.[10]
3.14 Nonetheless, several submissions argued that s. 50 of the Act should
be amended to recognise such expertise as a qualification in its own right.
For example, the submission from the Australian Council of Social Service
stated:
Section 50 of the Act is not very helpful in this regard. It currently
seems to recognise 'users/consumers' only in the areas of industry, commerce,
industrial relations and the public sector. As it stands it is deficient
in failing to explicitly recognise that consumers of publicly-funded social
services, especially low income consumers who are disproportionately reliant
on them, deserve their own experts on the ARC - people with experience
and expertise in the community welfare sector who are able to reflect
their perspective. ... Associated with this is the need to ensure that
the membership of the ARC includes people with recent experience in the
operation of the review system. While section 50 currently recognises
the qualification of '... extensive experience at a high level in ...
the practice of a profession', this is a somewhat circuitous way of catching
someone who, for example, regularly appears in the Social Security Appeals
Tribunal on behalf of applicants. Indeed if that person were not a lawyer,
the current formulation might not cover them.[11]
3.15 The Department of Immigration and Multicultural Affairs stated in
its submission:
In reflecting on the membership over time the Department believes
that the membership has overall placed too great an importance on administrators
and lawyers with an under representation of user group representatives.
The greater direct participation of user groups or their representatives
on the Council may assist in achieving a wider understanding of administrative
law issues and the role of the Council by those who utilise the review
processes and bring their perspective to bear on the Council's deliberations.[12]
3.16 The ARC's submission also advocated broadening the qualifications
for membership:
The Council emphasises the point that people who have experience
in dealing with large numbers of users of administrative law remedies
and bodies are able to contribute useful practical insights on matters
such as the level of (and how better to promote) awareness of review rights
and the effects that different procedures have on the capacity of people
effectively to pursue their rights. ... the Council notes that there is
no specific qualification for membership to allow for representation of
users of the administrative review system. ... Accordingly the Council
considers that the qualifications for membership in section 50 should
include a person with knowledge of the needs of groups of individuals
significantly affected by government decisions.[13]
3.17 The Committee notes that the broadening of qualifications suggested
by the ARC is sufficiently wide to include small business and taxpayer
groups, not just recipients of social services and those involved in immigration
decisions. Some submissions mentioned giving representation to the former
categories on the ARC, though without providing any detailed argument
in support.[14]
3.18 The submission from the ARC advocated the addition of a chief executive
of a government business enterprise to the ARC's membership:
With the increasing emphasis on corporatisation and commercialisation
of government agencies and the creation of government business enterprises
(GBEs) the Council believes that it would be appropriate and desirable
for the Government to appoint a chief executive officer of a GBE to the
Council. Such a member would be able to straddle interests and concerns
of the private and public sector. With the heightened emphasis on the
efficient and cost effective provision of services such a CEO would bring
a unique perspective to the work of the Council. The role of such a member
would become increasingly important as the distinction between the private
and public sectors become increasingly blurred, especially in the area
of government service delivery.[15]
3.19 The Committee observes that the current membership qualifications
refer to person with "extensive experience at a high level in industry,
commerce ...". Thus, the Act as it stands would permit the appointment
of a chief executive of a GBE having these qualifications, or indeed any
of the other qualifications set out in the Act.
3.20 The Act enables, but does not actually require, that the holder
of any one of the eligible qualifications for appointment be appointed.
Some submissions raised the issue whether this was satisfactory or whether
the Act should require the appointment of a person having a particular
qualification. As noted above, the submission from the Australian Council
of Social Service advocated amending the qualifications to enable the
appointment of persons well-equipped to represent the perspective of "users".
The submission then stated:
ACOSS believes it is so critical for this [users] perspective to
be represented on the ARC that the Act should not only specifically allow
for such appointments but should require
them, and further that at least two members should have this expertise.[16]
3.21 The submission from the Senate Standing Committee on Regulations
and Ordinances did not recommend any changes to the qualifications for
membership. However, it did put the view that the ARC would benefit from
a geographical bias in appointments that did not favour Canberra, and
by the appointment of non-lawyer members from commerce and industry. In
relation to the latter, it recommended that the Act should be amended
to make mandatory the appointment of some members representing industry
and commerce.[17]
3.22 The Committee notes that mandatory categories of appointment, beyond
the current three ex officio members, may have the disadvantage
of reducing flexibility in making appointments. The present system allows
the government of the day to fill vacancies as they arise with persons
whose qualifications best suit the current and expected future directions
of the ARC's work. Recommendation Nos 3, 4 and 5
The Committee recommends that the qualifications required for
membership of the Administrative Review Council be amended to enable the
appointment of persons with direct knowledge and experience of the needs
of groups or individuals significantly affected by government decisions.
The Committee recommends that in selecting persons for appointment,
the Government should continue to have regard to the need for the Administrative
Review Council's membership to contain a broad spectrum of qualifications
and to represent a variety of interests.
However, the Committee recommends that the Act should not be amended
to require the appointment of a person having any specific qualification
or representing any specific interest.
3.23 The evidence received by the Committee generally supported having
the ex officio members as at present, with only four possible changes
being suggested. These related respectively to:
- the Privacy Commissioner;
- the proposed Freedom of Information Commissioner;
- the Australian Law Reform Commission President; and
- the President of the AAT.
3.24 Three submissions suggested the possible addition of the Privacy
Commissioner as an ex officio member of the ARC.[18]
Ms Sue Kenny, a former ARC President, said: "The Privacy Commissioner
represents interests which are not infrequently forgotten, notwithstanding
their importance".[19]
3.25 However, the ARC noted that there were differing views on whether
the Privacy Act should be considered to be part of the administrative
law system.[20] The ARC's submission
stated:
The Council has no strong view on whether the Privacy Commissioner
should become a member of the Council ex officio. On balance, it considers
that such membership might not be warranted, particularly if the current
Government proposal to extend the operation of the Privacy Act to the
private sector comes into effect.[21]
Such a change would mean that the Privacy Commissioner would be focused
on the new private sector environment for some time, especially given
that there are mechanisms in operation in the (Commonwealth) public sector
already. The functions of the Privacy Commissioner would in these circumstances
become further removed from the central concerns of administrative law.[22]
3.26 The Committee notes that, since the ARC's submission was received
in November 1996, the Prime Minister, the Hon John Howard MP, has announced
that the Commonwealth will not be implementing privacy legislation for
the private sector.[23] This has
removed one of the ARC's grounds for not having the Privacy Commissioner
as an ARC member.
3.27 However, the Committee notes the view that it is desirable to maintain
the current size of the ARC's membership and the balance between ex
officio and other members. It also notes the view that the work of
the Privacy Commissioner is not central to the ARC's core concerns, and
the possibility of obtaining input from the Privacy Commissioner without
there being any need to have the Commissioner as an ARC member.
3.28 The Committee has no concluded view on whether the Privacy Commissioner
should be made an ex officio member of the Administrative Review
Council.
3.29 The second suggested change to the ex officio membership
related to the proposed FOI Commissioner. In their report on the Freedom
of Information Act, the ARC and ALRC recommended the creation of the office
of FOI Commissioner to oversee all aspects of the operation of the FOI
Act.[24] In its submission to
the Committee, the ARC said that if the office were to be established,
it considered that there would be strong grounds to suggest that the Commissioner
should be a member of the ARC ex officio.[25]
3.30 The Committee considers that it would be premature to express any
conclusion of its own on this suggestion before the decision to create
the office of FOI Commissioner has been made, and the exact scope of the
office is determined.
3.31 The third suggested change to the ex officio membership related
to the ALRC President. The view was noted above that the overall number
of ARC members should not be increased. In the context of possibly adding
the Privacy Commissioner and/or the proposed FOI Commissioner, the Committee
asked the ARC if any current category of member could be dispensed with.
Professor Neave responded:
the one person we think we possibly could do without is the President
of the Australian Law Reform Commission. But we have not fervently argued
for that proposition. I think that having the President of the Law Reform
Commission there is helpful - not essential, but helpful.[26]
3.32 The ARC's submission explained that the key benefit to it from having
the ALRC President as a member was the opportunity it created for cross-fertilisation
of ideas between the two agencies. It considered that the exchange of
ideas meant that duplication of research efforts could be avoided. In
addition, the two bodies had co-operated in many projects over the years.
However, the submission noted:
the Council does not believe that the relationship between the
two bodies has been as close as was originally envisaged. The majority
of ALRC references to date have either been outside the Council's area
of concern altogether or the Council's focus has only been a small part
of a broader inquiry by the ALRC.[27]
3.33 The submission also stated that some ARC members took the view that
there would be other equally effective ways of achieving co-operation
between the two bodies without the ALRC President having to be an ex
officio member of the Council: "This could be achieved through
the Minister appointing the ALRC President to the Council for the purposes
of a particular project".[28]
3.34 However, the submission noted that the President of the ALRC did
not agree with this view. The Committee received a supplementary submission
from the ALRC arguing the case for its President to retain ex officio
membership of the ARC. In this, the ALRC put forward two grounds. Firstly,
the submission argued that the interests and work of the two bodies were
closer, and the benefits of having the ALRC President as a member were
greater, than the ARC submission gave credit for. Secondly, it argued
"that the adding of one or two additional ex officio members would
not be a burden but would broaden the perspectives brought to bear around
the ARC table".[29]
3.35 The fourth issue raised about the ex officio members concerned
the membership of the President of the AAT, who is a judge of the Federal
Court. Professor Enid Campbell raised with the Committee the possibility
that a recent High Court decision cast doubt on the constitutionality
of having a Federal judge involved in non-judicial activity through being
a member of the ARC.[30] The case
clarified the extent to which the principle of the separation of powers
between the judicial and executive branches of government prevents non-judicial
functions from being conferred on a federal judge.
3.36 The Committee raised this issue with the ARC and was told the ARC
had obtained legal advice from the Attorney-General's Department that
the membership of the AAT President was constitutionally permissible.
3.37 The Committee noted that the need to ensure that the ARC had access
to relevant expertise could be met in ways other than by appointing appropriate
full members. Members could be appointed to assist with a particular project
as noted above in relation to the President of the ALRC. As a further
example, a senior officer from the Department of Finance could be co-opted
for a project in which the costing of alternative proposals was a major
element.[31]
3.38 Professor Neave told the Committee that there had been ARC sub-committees
with members appointed informally who were not members of the ARC itself.[32]
However, these persons did not have voting rights and could not sign ARC
reports. Mr Skehill said there was at present no mechanism by which persons
could be formally co-opted as ARC members.[33]
Conclusions and Recommendation No. 6
The Committee considers that the Administrative Review Council may benefit
in carrying out a particular project from expertise not available within
its existing membership.
Accordingly the Committee recommends that the Administrative
Appeals Tribunal Act 1975 be amended to enable persons to be appointed
as Administrative Review Council members for the purpose of a particular
project.
The Committee considers that such an amendment would remove the need
for the President of the Australian Law Reform Commission to remain a
permanent ex officio member of the Administrative Review Council.
Footnotes:
[1]. Submission No. 16,
ARC, para. 150.
[2]. Submission No. 16,
ARC, para. 116.
[3]. Submission No. 14,
Dr S Kenny, p. 3.
[4]. Submission No. 16,
ARC, para. 148 and see also para. 117; Evidence, ARC (Prof M Neave),
p. 39. See similarly Submission No. 12, Administrative Appeals
Tribunal, p. 7.
[5]. Submission No. 3, Ms
S Tongue, p. 2; Submission No. 5, Refugee Review Tribunal, p. 1;
Submission No. 12, Administrative Appeals Tribunal, p. 7; Submission
No. 14, Dr S Kenny, p. 2; Submission No. 16, ARC, paras. 134-39;
Submission No. 18, Victorian Bar Council, p. 2; Submission No.
22, Department of Immigration and Multicultural Affairs, p. 2.
[6]. The recommendation was made
in ARC, Better Decisions: Review of Commonwealth Merits Review Tribunals
(ARC Report No. 39), Canberra, September 1995, recommendation 87.
[7]. House of Representatives,
Hansard, 20 March 1997, p. 2602.
[8]. Evidence, Mr J Barnes,
p. 14; ARC (Mr S Skehill), p. 40; ARC (Prof M Neave), p. 47.
[9]. Submission No. 16,
ARC, Appendix 9.
[10]. Submission No. 16,
ARC, Appendix 9.
[11]. Submission No. 19,
Australian Council of Social Service, p. 4 (footnote omitted).
[12]. Submission No. 22,
Department of Immigration and Multicultural Affairs, p. 2. See also for
suggestions on improving "user" or stakeholder representation:
Submission No. 7, Mr J Barnes, p. 4; Submission No. 9, Australian
Law Reform Commission, p. 3; Submission No. 12, Administrative
Appeals Tribunal, pp. 7, 10; Submission No. 20, Welfare Rights
Centre, p. 2; Submission No. 25, Attorney-General's Department,
p. 4; Submission No. 26, Mr S Lloyd, p. 5.
[13]. Submission No. 16,
ARC, paras. 159, 161.
[14]. Submission No. 9,
Australian Law Reform Commission, p. 2 (taxation); Submission No. 16,
ARC, para. 160 (small business, consumers); Submission No. 21,
Hon D Kerr MP, p. 2 (small business).
[15]. Submission No. 16,
ARC, para. 154.
[16]. Submission No. 19,
Australian Council of Social Service, p. 4 (emphasis in original).
[17]. Submission No. 23,
Senate Committee on Regulations and Ordinances, p. 2.
[18]. Submission No. 14,
Dr S Kenny, p. 2; Submission No. 18, Victorian Bar Council, p.
2; Submission No. 26, Mr S Lloyd, p. 4.
[19]. Submission No. 14,
Dr S Kenny, p. 2. See also House of Representatives Standing Committee
on Legal and Constitutional Affairs, Inquiry into the Law Reform Commission:
Transcript of Evidence given at Public Hearing, 3 November 1993, pp.
37-38 (Dr Kenny, Mr S Lloyd).
[20]. Submission No. 16,
ARC, para. 143.
[21] Attorney-General's Department
Discussion Paper, Privacy Protection in the Private Sector, September
1996 (footnote in original).
[22]. Submission No. 16,
ARC, para. 147.
[23]. Prime Minister, Media
Release: Privacy Legislation, 21 March 1997.
[24]. 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, para. 6.4.
[25]. Submission
No. 16, ARC, para. 146.
[26]. Evidence, ARC (Prof
M Neave), p. 39.
[27]. Submission No. 16,
ARC, para. 132.
[28]. Submission No. 16,
ARC, para. 133.
[29]. Submission No. 9A,
Australian Law Reform Commission, p. 2.
[30]. Submission No. 11,
Prof E Campbell, p. 2, referring to Wilson v Minister for Aboriginal
and Torres Strait Islander Affairs (1996) 138 ALR 220.
[31]. See Evidence, ARC
(Prof M Neave, Mr A Robertson), p. 33 for discussion of the possible benefits
such an officer could provide to the work of the ARC.
[32]. Evidence, ARC (Prof
M Neave), pp. 39-40.
[33]. Evidence, ARC (Mr
S Skehill), p. 40. See also Submission No. 16, ARC, para. 162.