CHAPTER 4
UNDUE DEPENDENCE UPON NON-REVIEWABLE DECISIONS
Application of criterion set out in Standing Order 24 (1)(a)(iii)
Legislation may contain provisions which make 'rights, liberties or obligations
unduly dependent upon non-reviewable decisions'. For example, legislation
may exclude review on the merits by an appropriate appeal tribunal or
may exclude judicial review of the legality of a decision.
(a) Review on the Merits
Since its establishment, the Committee has consistently drawn attention
to clauses which explicitly exclude review by relevant appeal bodies such
as the Social Security Appeals Tribunal. In its Alert Digest No. 1
of 1995, the Committee dealt with the Social Security (Non-Budget
Measures) Legislation Amendment Bill 1994.
The Committee noted that clauses 40 and 41 would ensure that certain
decisions of the Minister exercising a power or function under the Act
would not be reviewable whether within the Department or externally through
the Social Security Appeals Tribunal (SSAT) or the Administrative Appeals
Tribunal (AAT). The explanatory memorandum suggested that it had always
been assumed that decisions of the Minister under the relevant sections
were not reviewable but that recent legal advice had brought this assumption
into question.
The question for the Committee was whether exempting the Minister's decision
from the review process made personal rights and liberties unduly dependent
upon non-reviewable decisions. The Committee was unconvinced that decisions
should be spared review just because they were made by a Minister. Otherwise
effective administrative review could be avoided by having a Minister
make all the contentious decisions. The Committee acknowledged that it
was not appropriate to carry out administrative review of general policy
decisions; nor a range of others. But the nature of the decisions, not
the status of the decision-maker, was the relevant issue to take into
account when considering whether they should be reviewed on their merits
or not.
The decisions in question were to be made under sections 1099E and 1099L
of the Act. The Act provides that, for the purposes of the income test
on social security payments, income includes amounts deemed to be earned
on moneys deposited in accounts which, in fact, bear little or no interest
or on moneys, in fact, loaned out at little or no interest. Sections 1099E
and 1099L enable the Minister to decide that certain moneys deposited
by a person or lent out by him or her should not be taken into account
for the purposes of the income test. Further, the Minister may decide
that the moneys of a certain class of persons and a certain class of loans
should not be taken into account for that purpose. The result of such
decisions would be that no deeming of income occurs and so no deemed amount
is included in the income test. Where the Minister makes a decision in
respect of a class of persons or a class of loans, it may be characterised
as a general policy decision and, accordingly, inappropriate for review.
But fairness requires that where an individual is disappointed on seeking
the favourable exercise of what is clearly a discretion, he or she should
be able to have the matter reviewed.
The Committee considered that people might well develop a troubled perception
of things were the Minister's decisions to be reviewed by departmental
officers or by a tribunal whose members were appointed by him. The Committee
suggested that the AAT could appropriately provide an appeal mechanism.
This would be in keeping with its former jurisdiction in respect of certain
migration appeals.
The Committee sought the Minister's advice on this matter. The Minister
responded:
Your Committee has recognised that it would be inappropriate for decisions
of the Minister to be reviewed by the Department and by the SSAT. I
agree. However, the Committee has suggested that such decisions might
be reviewable by the Administrative Appeals Tribunal. I do not accept
that such a review would be appropriate.
When the Minister makes a decision under the relevant provisions in
relation to an individual, and there would be very few of them, that
decision would be informed by policy considerations of a similar nature
to those applying to a decision in relation to a class of persons. The
Committee has already acknowledged that it is inappropriate for those
class decisions to be reviewed. I consider it is inappropriate for the
AAT to review decisions of the Minister in relation to individuals,
as they are effectively the same in nature as class decisions. I believe
this view is supported by the fact that section 1099L gives the Minister
the power to make determinations in relation to "specified loans",
permitting a determination to be made on policy grounds in relation
to a number of loans (possibly made by several individuals) that have
some common feature.
There is of course nothing that would prevent an individual, or indeed
any member of a class of persons, from seeking the Minister's reconsideration
of any decision. [1]
The Administrative Review Council (ARC) also dealt with the matter. It
wrote to the Minister for Justice, the Hon Duncan Kerr MP, about non-reviewable
ministerial determinations. In its Twelfth Report of 1995 [2]
the Committee published a copy of the letter from the ARC to Mr Kerr.
It endorsed the recommendations of the Council that ministerial determinations
with respect to individual persons or discrete loans should be subject
to merits review by the SSAT and that class determinations should either
be reviewable by the SSAT or be dealt with as disallowable instruments.
In paragraph 8 of its letter the Council wrote:
Finally, the Council notes that the Committee had suggested that the
AAT, not the SSAT, may be the appropriate review forum as "It may
be felt there is some difficulty in review of ministerial decisions
by departmental officers or by a tribunal whose members are appointed
by the Minister." The Council considers that all tribunal members
are independent of the relevant portfolio Minister and does not understand
the Committee's comments to suggest that there is any difficulty in
such a system of merits review.
The Committee took the opportunity to clarify its position on the appropriate
forum for review and pointed out that, in saying, 'It may be felt there
is some difficulty in review of ministerial decisions by departmental
officers or by a tribunal whose members are appointed by the Minister',
the Committee, far from suggesting any lack of independence on the part
of tribunal members, was alluding to:
- a possible perception on the part of the Minister and the Department
that internal review was not appropriate: this was confirmed by the
Parliamentary Secretary to the Minister in her response to the Committee;
- a possible apprehension on the part of an applicant for review of
such a decision that an appeal from Caesar's decision to Caesar's 'employees'
gives the appearance of a lack of procedural fairness which is fundamental
to external review; and
- the precedent which the Committee believed had been set by the procedures
for review by the AAT of certain decisions of the Minister for Immigration.
In suggesting the AAT as an appropriate forum, the Committee was seeking
a solution to what could be seen as a problem and as the reason for removing
the Minister's decisions from the jurisdiction of authorised review officers
and of the SSAT.
As the AAT is the forum for appeals from SSAT decisions, the Committee
was happy to endorse the Administrative Review Council's opinion that
ministerial determinations with respect to individual persons or discrete
loans should be subject to merits review by the SSAT and that class determinations
should either be reviewable by the SSAT or be dealt with as disallowable
instruments.
(b) Judicial Review
In the course of the 37th Parliament, the Committee has drawn attention
to administrative decisions affecting the well-being of people which are
not amenable to review by a court under the Administrative Decisions
(Judicial Review) Act 1977 (ADJR Act). An example is the unfettered
discretion of the Police Commissioner to decide who may be included in
the witness protection program.
In Alert Digest No. 6 of 1994, the Committee noted that
a provision of the Witness Protection Bill 1994 would amend the Administrative
Decisions (Judicial Review) Act 1977 to preclude its application to
decisions under this bill. The Committee was concerned that there would
be no review of the Commissioner's discretion to decide who may or may
not be included in the witness protection program. Consequently, the people
affected by that decision would have no opportunity to test whether it
had been made in accordance with the law.
The Committee noted that the ousting of the ADJR Act not only prevented
judicial review but also denied access to reasons for relevant decisions.
So a person refused inclusion in the program could not challenge the decision
or obtain reasons for it. Accordingly, the Committee sought the Attorney-General's
advice on the necessity for granting such an unfettered discretion.
The Minister for Justice, as the Minister responsible for the legislation,
responded as follows:
... the decision to exclude the operation of the AD(JR) Act was not
taken lightly. It was done only after careful consideration of the issues
and by ensuring that there were internal review mechanisms, that key
decisions could not be delegated below Deputy Commissioner level and
that there was a special clause to ensure that the Ombudsman had a right
of access to the Register required to be maintained under clause 12.
The Bill's measures relating to assessment for placement or removal
from the program, the secrecy provisions and provisions on access to
documents belonging to the program, as well as the exemption from the
AD(JR) Act, are all designed to protect the integrity of the NWPP. The
importance of ensuring the safety of the witnesses, their relatives
and the AFP officers means that information must be subject to strict
safeguards. The wider the information net extends, the greater the likelihood
that the integrity of the scheme will be breached. Once a matter is
in the arena of court-based review, the information net is significantly
expanded, because of the procedures required for such review. It is
for these reasons that the usual administrative arrangements have been
modified. A balance has to be struck between the protection of the integrity
of the scheme and the requirements of administrative law. [3]
After dealing with another issue, the Minister continued:
An additional feature of the Bill designed to compensate for the exclusion
of the AD(JR) Act appears in clause 12. Clause 12 deals with access
to the Register of participants. Subclause 12(2) provides that the Commissioner
must give the Commonwealth Ombudsman access to the Register or part
of a Register for the purposes of an investigation under Part III or
IV of the Complaints Act. As mentioned above, the decision whether to
place or remove a person from the Program cannot be delegated below
Deputy Commissioner (cl 18(1)(b)). A witness may appeal to the Commissioner
against the decision the decision of the Deputy Commissioner. The Commissioner
may confirm, vary or reverse the decision (cl 18(2)-(4).
In 1988, the Parliamentary Joint Committee on the National Crime Authority
tabled its report entitled Witness Protection. Paragraph 5.53
of that Report states -
All decisions made by officers in relation to the operation of the
program are subject to investigation by the Ombudsman. This review process
is hence in accordance with the observations in the Witness Protection
report. The provisions of the Bill relating to access, together with
the operation of the Complaints Act, ensure that all decisions made
under the Bill are subject to review by the Ombudsman. [4]
The Committee thanked the Minister for this clarification which met the
concerns of the Committee. A viable complaints mechanism subject to review
by the Ombudsman had been put in place.
Footnotes
[1] Senate Standing Committee for the Scrutiny
of Bills, First to Nineteenth Reports of 1995 (Parliamentary Paper
No. 493/1995), pp. 136.
[2] Senate Standing for the Scrutiny of Bills,
First to Nineteenth Reports of 1995 (Parliamentary Paper No. 493/1995),
pp. 268-270. See also pp. 259-260.
[3] Senate Standing Committee for the Scrutiny
of Bills, First to Eighteenth Reports of 1994 (Parliamentary Paper
No. 472/1994), p. 201.
[4] ibid., pp. 203-204.