3.39 In Chapter 1, the Committee set out s. 51 of the Act, which defines
the functions of the ARC, and described the range of activities that the
ARC carries out. In Chapter 2 the Committee described the ARC's increased
focus on improving primary decision-making.
3.40 Broadly, the evidence to the Committee displayed support for the
activities being carried out and for the increased focus on primary decision-making.
However, some suggested that the way the ARC's functions were defined
in s. 51 of the Act could be improved, in order to reflect more clearly
its current work and focus.
3.41 The Committee was told that the drafting of s. 51 reflected the
early focus of the ARC's work.[34]
To fit many of the ARC's current activities within the Act required either
a broad reading of the functions set out in s. 51(1) of the Act, or a
heavy reliance on the "incidental power" conferred by s. 51(2).
The latter provides that the ARC "may do all things necessary or
convenient to be done for or in connexion with the performance of its
functions".
3.42 For example, Professor Enid Campbell told the Committee: "Some
of the functions which have been undertaken by the ARC (e.g. publication
of Admin Review, compilation and publication of statistics, organisation
of Commonwealth tribunal conferences) are not specifically authorised
by s 51 but are probably authorised by s 51(2)".[35]
3.43 The Committee was told by Mr Skehill that, although it might not
be strictly necessary, it would be appropriate to amend the Act to reflect
the ARC's new focus on primary decision-making:
While we can probably continue to do that without amendment of
the act, and I do not think there is a problem there, I think it would
be appropriate to amend the act to highlight that the focus ought to be
on the right decision first time round and that the council ought to see
itself, and the tribunals ought to see themselves, as working in aid of
the primary decision maker so the lessons are learnt from review and fed
back into the system.[36]
3.44 The submission from the Refugee Review Tribunal stated: "The
RRT believes that ... it would be useful to spell out the [ARC's] educational
and support role in s. 51 of the Act".[37]
The submission from the Australian Council of Social Service stated: "The
ARC's role in monitoring the operations of all components of the administrative
law system needs to be acknowledged in the Act".[38]
3.45 Overlapping with the possibility of amending s. 51 of the Act to
make it reflect more closely the ARC's current activities and focus were
suggestions for giving the ARC broader functions. The submission from
the ARC stated:
If specific statutory reference is needed to broader functions
that the Council considers it is well placed to perform, the following
matters might be considered for inclusion as further functions of the
Council in section 51:
* to keep the Commonwealth administrative law system under review, monitor
developments in administrative law and recommend to the Minister improvements
that might be made to the system;
* to consult with and advise decision makers and agencies about the procedures
they use in making administrative decisions;
* to make recommendations to the Minister about the membership qualifications,
jurisdiction and operation of bodies (tribunals and other decision makers)
that review administrative decisions;
* to facilitate training for members of tribunals, government agencies
and other bodies in better decision making and other relevant areas;
* to consult with and advise bodies and agencies that review administrative
decisions;
* to promote knowledge about the Commonwealth administrative law system;
and
* to report to the Minister on matters referred to the Council by the
Minister.[39]
3.46 Other submissions also mentioned some of these points.[40]
3.47 The Government's intention to merge the five main merits review
tribunals into a single Administrative Review Tribunal was set out above.
As described in Chapter 1, the ARC carries out functions and activities
that derive to some extent from the existence of the five independent
tribunals. These include monitoring tribunal operations, assisting in
training and in facilitating the flow of best-practices among tribunals
and tribunal staff. The Committee received suggestions, prior to the announcement
of the intention to merge, that these activities should be increased.[41]
3.48 The Committee considers that if the tribunals are merged into a
single unit, it would be useful to examine whether any of the ARC's tribunal-related
functions are better carried out, either wholly or in part, within the
new tribunal, rather than externally by the ARC. The Committee also records
the view of Mr Skehill that, if the merger goes ahead, there will be a
need to monitor and evaluate whether it achieves its objectives, and the
ARC would be well-placed to take on this task.[42]
Conclusion and Recommendation Nos. 7 and 8
The Committee considers that it is undesirable to place extensive reliance
on the incidental power conferred by s. 51(2) of the Administrative
Appeals Tribunal Act 1975.
Accordingly, the Committee recommends that s. 51(1) of the Administrative
Appeals Tribunal Act 1975, which sets out the Administrative Review
Council's functions, should be amended to reflect more clearly all the
major activities that it currently performs, in particular to underpin
its current focus on improving primary decision-making.
The Committee recommends that, if the proposed merger of the five
main merits review tribunals goes ahead, the amendments to the Administrative
Review Council's functions take into account the impact of the merger
on them.
3.49 In assessing the improvements that might be made to the work of
the ARC, the Committee had regard to the evidence it received of ways
in which the ARC's relationships with a range of other bodies could be
improved. The bodies referred to in this evidence were:
- Tertiary institutions;
- Commonwealth departments; and
- Government and the Attorney-General.
3.50 The Committee considered whether the ARC was taking full advantage
of the knowledge and skills available in tertiary institutions. Professor
Neave told the Committee that the ARC had in the past used academics to
do consultancy work for it on either a voluntary or a paid basis. She
said she thought the ARC would be doing probably more of this in the future.[43]
The ARC also told the Committee that it had on-going relationships with
bodies such as the Centre for International and Public Law at the Australian
National University and the Australian Institute of Administrative Law.
The ARC considered that joint activities with such bodies provided valuable
opportunities to develop its educative role.[44]
3.51 Professor John Goldring told the Committee it would be appropriate
for the ARC to work with universities in conducting some research. He
noted the difficulty he had experienced in securing funding for such collaborative
research.[45] The Committee asked
Professor Neave to respond. She told the Committee
It is possible to apply for a grant [from the Australian Research
Council] with an industry partner and, for those purposes, a government
department or an agency counts as an industry partner, but that agency
has got to devote some of its resources to the collaborative exercise.
What I said to ... [Professor Goldring] at that time was that, just at
the moment, our priorities would not fit in with what he wanted to do.
But certainly, in principle, we are interested and there are a number
of areas I have thought of where some collaborative research could actually
be very helpful to us.[46]
3.52 The Attorney-General's Department and the Department of Immigration
and Multicultural Affairs were the only departments to make a submission
to the inquiry.[47]
3.53 The submission from the Attorney-General's Department suggested
that consideration should be given to improving the ARC's relationships
with other Commonwealth departments and agencies through regular staff
exchange programs. It said that a process of staff "cross pollination"
would contribute to an increased understanding of issues from both the
departmental/agency perspective as well as the Council perspective.[48]
3.54 Mr Stephen Lloyd, an officer of the Department who has also worked
at the ARC, said in his submission that there was scope for improving
the current arrangements for officers to move between the Department and
the ARC:
In the early 1990s, there was an arrangement for a position to
be created for a project that would see the main project officer go to
the Department at the conclusion of the project in order to assist the
Government in implementing the recommendations. I think that this is an
excellent model. It would cost little or nothing. ... There are potential
pitfalls with such schemes but I think that they hold a key to greater
efficiency for the ARC and the Department, and for interesting career
opportunities for the officers concerned.[49]
3.55 In this context, the Committee notes that the ARC has for many years
experienced recurring difficulty in recruiting and retaining suitable
staff. For example, the ARC's Annual Report 1995-96 stated: "The
Council experienced operational difficulties as a result of a delay in
filling the position of Deputy Director of Research and was unable to
find a full-time replacement for a permanent officer who was seconded
elsewhere".[50]
3.56 More generally, the ARC suggested that there was scope for improving
the way departments interacted with it when they were considering initiatives.
Professor Neave told the Committee: "I think it would sometimes be
helpful if departments consulted us at an earlier stage when they are
formulating proposals, because sometimes things come to us rather late
in the process".[51]
3.57 Professor Neave indicated that the degree of awareness of the ARC's
role was a factor in determining whether departments and agencies sought
the views of the ARC. She and Mr Skehill accepted that the ARC might need
to do more to bring to the attention of departments what it could add
to their process.[52] Mr Skehill
also commented that the ARC's new focus on primary decision-making to
try to reduce the need for recourse to administrative review would give
particular importance to the ARC's relations with departments.
3.58 The submission from the ARC said it believed that ministers should
encourage their departments and agencies to consult with it at the earliest
stages of the development of proposals that may involve administrative
law issues. It hoped that this matter would be dealt with in the next
edition of the Cabinet Handbook.[53]
The Committee notes that the current edition states:
Particular note should be taken of the Administrative Review Council's
role when Cabinet Submissions involving legislation with administrative
review implications are being prepared. Consultation at an early stage
with the Council should occur through the Attorney-General's Department
(Justice Division). The Legislation Handbook contains further guidelines.[54]
3.59 The submission from the Attorney-General's Department indicated
that the relationship between the ARC and its portfolio Minister, currently
the Attorney-General, is a good one.[55]
However, the Committee received suggestions for amending the Act to clarify
aspects of the relationship.
3.60 The Act does not in terms provide for the Minister to issue directions
to the ARC, or to refer projects to it for inquiry and report. Nor does
it provide that the Minister is to table ARC project reports in the Parliament.
However, in practice the Minister does table ARC project reports. Also,
the Committee received evidence that some of the ARC's reports result
from requests by the Minister,[56]
although it was told that this has happened "on infrequent occasions"
only.[57]
3.61 The submission from the Attorney-General's Department stated:
there would be benefit in amending the Act to provide greater statutory
clarity on the appropriate procedures applicable to the Council's work.
The Act should state that reports by the Council are to be provided to
the Minister and that the Minister is to table any such report in Parliament.
The Act should also provide the Minister with the ability to refer matters
to the Council for its consideration.[58]
3.62 Similarly, Professor Enid Campbell said in her submission that consideration
should be given to whether to amend the Act to provide that the Minister
may refer matters to the ARC and to give the Minister power to issue general
directions. She argued:
Clauses of this kind are increasingly common in Commonwealth statutes
and they can be defended. In the absence of a clear statutory mandate
for a Minister to exercise some control over the activities of an advisory
body like the ARC, there is always a risk that the body will set for itself
agenda which, though authorised by the body's statutory charter, are not
sufficiently attuned to the priorities of the Government of the day. It
may also be argued that if a project is 'commanded' by a Minister, the
Government is thereby placed under a moral obligation to ensure that adequate
funds are made available to support the project.[59]
Recommendation Nos. 9 and 10
The Committee recommends that the Administrative Appeals Tribunal
Act 1975 be amended to explicitly empower the Minister to issue directions
to the Administrative Review Council and to refer matters to it for inquiry
and report.
The Committee further recommends that the Administrative Appeals
Tribunal Act 1975 be amended to provide that Administrative Review
Council project reports are to be delivered to the Minister and tabled
by the Minister in the Parliament.
3.63 Another aspect of the relationship between the ARC and the government
of the day concerns the provision by the latter of responses to recommendations
made in reports of the ARC. Implementation of ARC recommendations is of
course a matter for the government, and not within the control of the
ARC. The Act at present imposes no requirement on the relevant Minister
to respond to ARC reports.
3.64 The submission from the Australian Council of Social Service said:
"the effectiveness of the ARC can be limited by the government's
delay or failure to respond to its reports".[60]
It suggested that there "should be some obligation for the government
to respond to major reports within a particular time frame".[61]
3.65 Mr Jeffrey Barnes, a lecturer in law and legal studies at La Trobe
University and a former member of the ARC's staff, also referred to this
issue: "one obstacle to its effectiveness is the lack of guarantee
that the government will respond to the ARC's report or respond promptly".[62]
He suggested that there should be a statutory obligation on the government
to respond within a specified time to those ARC reports which it had specifically
commissioned, but the obligation would not apply to those which the ARC
had undertaken on its own initiative.
3.66 The Senate Standing Committee on Regulations and Ordinances said
that the Act should be amended to require the Minister to respond to all
ARC reports.[63]
3.67 The ARC said in its submission that it was "concerned at a
tendency for governments not to provide any formal response to its reports".[64]
It listed five of its reports that were more than 18 months old and for
which there had been no indication of the Government's view on the contents.
It pointed out that, due to the constant change occurring, "if you
leave a report for too long you will then have to have a further report
on whether the first report is still current, which obviously is not efficient".[65]
3.68 The ARC suggested that there should be an undertaking from government
that the ARC will receive a formal response on each project report within
12 months of its presentation to the Minister.[66]
It said a response deadline was useful in flagging the matter as one having
some urgency, and thereby increasing the likelihood of a timely response.[67]
3.69 However, Mr Skehill did not share the ARC's view on this issue.
He told the Committee that he understood the arguments for having a formal
response deadline:
it seems to me that these are all valid views, but it is an issue
that gives precedence to form over substance. If there is a requirement
to give a response within X period and the government, because of the
way in which it chooses to order its priorities, has not been able to
consider the matter in depth, it will give a response because it is statute
bound to do so. The response will either be ill-considered or favour the
status quo, when better consideration might favour change as recommended.
Or it will be a response that says, 'We have not made up our minds. We
are going to take our own good time but, nevertheless, we have had a response.'
I would have thought the far preferable outcome was for the council to
be working on matters that are so closely aligned with the needs and priorities
of government that they necessarily attract attention of government when
a report is lodged and that the reports are so well done that the government
says, 'Look, there is a package that we can largely pick up and run with.'[68]
3.70 The Committee observes that the Senate has long taken the view that
the government should respond to reports of its Standing and Select Committees
within three months.[69] Governments
since the 1970s have given undertakings to respond to these reports.[70]
Where the government of the day has not found it feasible to respond fully
within the specified time, it has often provided interim responses which
indicate the reason for the delay.
3.71 The Committee considers that government should undertake to respond
publicly to ARC reports within twelve months. In the case of a new government
following an election, the period should be either twelve months from
the date of the report or six months from the date of taking office, whichever
is the greater. The Committee does not consider it necessary that the
obligation to respond be imposed by statute, and takes the view that a
government undertaking would suffice.
3.72 Such an undertaking would provide some incentive for government
to respond speedily. The degree to which it was complied with would provide
an indicator of government performance. As part of the undertaking, the
government should agree that, where it is not feasible to provide a final
response with the twelve-month period, an interim response explaining
the reason for the delay will be provided. To the extent that this is
complied with, the public would be informed of the progress, or lack of
progress, on particular ARC proposals. Recommendation No. 11
The Committee recommends that the Government give an undertaking
to respond to all Administrative Review Council project reports within
twelve months of their delivery.
Footnotes:
[34]. Evidence, ARC (Prof
M Neave), p. 23.
[35]. Submission No. 11,
Prof E Campbell, p. 2.
[36]. Evidence, ARC (Mr
S Skehill), p. 50.
[37]. Submission No. 5,
Refugee Review Tribunal, p. 1.
[38]. Submission No. 19,
Australian Council of Social Service, p. 5.
[39]. Submission No. 16,
ARC, para. 235. The submission stated that the suggestions were cast in
general language and did not represent an attempt to draft possible amendments
to the AAT Act.
[40]. See for example Submission
No. 10, Mr B Dyer, p. 3 ("disseminating information promoting
good administration and observance of the principles of administrative
law"); Submission No. 17, Public Interest Advocacy Centre,
p. 2 ("If any new role were considered, we would like to seen the
ARC possibly take a more active role in providing community information
about utilising aspects of the Commonwealth's administrative law");
Submission No. 19, Australian Council of Social Service, p. 3 ("...
explicitly confer a general discretionary power on the ARC to reinforce
its proactive role in ensuring high quality, best practice decision-making
on Commonwealth agencies").
[41]. See for example Submission
No. 15, Mr J Gallagher, p. 1. Mr Gallagher, when he made the submission
in October 1996, was the Principal Member of the Veterans' Review Board.
He advocated giving the ARC an on-going regulatory role in relation to
Commonwealth merits review tribunals which would include constant review
of the constitution and workings of such tribunals, responsibility for
the representation and inter-relationship of those tribunals, overseeing
appointments to and the independence of tribunals and a monitoring of
the effectiveness of the tribunals on Commonwealth administration.
[42]. Evidence, ARC (Mr
S Skehill), p. 33.
[43]. Evidence, ARC (Prof
M Neave), p. 45.
[44]. Submission No. 16,
ARC, para. 195.
[45]. Submission No. 2,
Prof J Goldring, p. 3.
[46]. Evidence, ARC, p.
45.
[47]. Although not intended as
a formal submission to the Committee from the Department of Veterans'
Affairs, a letter from the head of its Legal Services Branch, Mr R Wilde,
21 February 1997, stated that "the ARC is considered to have performed
well" and supported the retention of the ARC (p. 1).
[48]. Submission No. 25,
Attorney-General's Department, p. 6.
[49]. Submission No. 26,
Mr S Lloyd, p. 8.
[50]. At p. 36. For earlier examples,
see the ARC's Annual Report 1984-85, p. 71 ("... difficulties
in recruiting suitable research staff ..."); Annual Report 1986-87,
p. 60 (vacancies in project officer positions disrupted work of the ARC);
Annual Report 1989-90, p. 64 ("... difficulties in attracting
experienced and qualified staff ..."); Annual Report 1993-94,
p. 41 (operational difficulties as a result of changes in secretariat
staff, and time spent on recruitment).
[51]. Evidence, ARC (Prof
M Neave), pp. 33-34.
[52]. Evidence, ARC (Prof
M Neave, Mr S Skehill), p. 34.
[53]. Submission No. 16,
ARC, para. 217.
[54]. Department of Prime Minister
and Cabinet, Cabinet Handbook, 4th edn., Canberra, 1994, para.
5.30. The same Department's Legislation Handbook, Canberra, July
1988, para. 5.21 does not in fact add anything on the question of consultation,
merely repeating the point that matters should be raised at an early stage.
[55]. Submission No. 25,
Attorney-General's Department, p. 8.
[56]. See for a recent example,
ARC, Better Decisions: Review of Commonwealth Merits Review Tribunals
(ARC Report No. 39), September 1995, p. iii.
[57]. Submission No. 9A,
Australian Law Reform Commission, p. 2. See also Submission No. 16,
ARC, para. 28: "... reports may be referred to the Council by the
Attorney-General ...".
[58]. Submission No. 25,
Attorney-General's Department, p. 9. See also Submission No. 16,
ARC, para. 235.
[59]. Submission No. 11,
Prof E Campbell, p. 2.
[60]. Submission No. 19,
Australian Council of Social Service, p. 6.
[61]. Submission No. 19,
Australian Council of Social Service, p. 6.
[62]. Submission No. 7,
Mr J Barnes, p. 6.
[63]. Submission No. 23,
Senate Committee on Regulations and Ordinances, p. 2.
[64]. Submission No. 16,
ARC, para. 205. See also the ARC Annual Report 1995-96, para. 3.12
which states:
the Council notes its disappointment that there has been no response
to its Report No 32, Administrative Decisions (Judicial Review) Act:
The Ambit of the Act and Report No 33, Review of the Administrative
Decisions (Judicial Review) Act: Statements of Reasons for Decisions.
Both reports address a variety of important matters in relation to
the scope and operation of the Administrative Decisions (Judicial Review)
Act 1977. The reports were tabled in Parliament in June 1989 and June
1991 respectively.
See Evidence, ARC (Mr Skehill), p. 35 for an explanation for the
lack of response:
they have simply been reports that are very difficult for government.
The previous government had got up to the point of consideration and possibly
deciding and found that there was still more thought that it wanted to
give to the matters. The present government, to some extent, found similarly.
[65]. Evidence, ARC (Mr
A Robertson), p. 36.
[66]. Submission No. 16,
ARC, para. 208.
[67]. Evidence, ARC (Mr
A Robertson), p. 36.
[68]. Evidence, ARC (Mr
Skehill), p. 37.
[69]. See the Senate resolution
of continuing effect that was agreed to on 14 March 1973 and last amended
on 24 August 1994.
[70]. See Senate, Hansard,
26 May 1978, p. 1933; 24 August 1983, p. 141; and 5 November 1991, p.
2397 (reference to correspondence).