CHAPTER 4


CHAPTER 4

UNDUE DEPENDENCE UPON NON-REVIEWABLE DECISIONS

Application of criterion set out in Standing Order 24(1)(a)(iii)

4.1       The criterion in Standing Order 24(1)(a)(iii) requires the Committee to report on legislation that makes ‘rights, liberties or obligations unduly dependent upon non-reviewable decisions’. A bill may seek to exclude review on the merits by an appropriate appeal tribunal, or it may exclude judicial review of the legality of a decision, or it may provide that reasons need not be given for a decision.

No reasons for decisions

4.2       The Committee is concerned where a bill provides that no reasons need be given for a decision, thereby excluding the possibility of review. Where a bill so provides, the Committee expects to see the need for the provision justified in the explanatory memorandum to the bill.

4.3       In Alert Digest No. 11 of 2004, the Committee noted that item 2 of Schedule 1 of the National Security Information (Criminal Proceedings) (Consequential Amendments) Bill 2004 proposed to amend the Administrative Decisions (Judicial Review) Act 1977 to exclude from the purview of the Act a decision of the Attorney-General to issue a certificate under the National Security (Criminal Proceedings) Bill 2004, relating to possible evidence or documents, the disclosure of which in criminal proceedings could prejudice national security. The proposed amendment removed the requirement for the Attorney-General to furnish reasons for the decision to issue such a certificate. The explanatory memorandum sought to justify this provision on the basis that the nature of such a decision ‘is such that exposure of the reasons for the decision could itself prejudice Australia’s national security’.[1] The Committee accepted this justification and made no further comment on the provision.

4.4       Similarly, in Alert Digest No. 4 of 2006, the Committee noted that item 1 of Schedule 1 of the Law Enforcement Integrity Commissioner (Consequential Amendments) Bill 2006 would amend the Administrative Decisions (Judicial Review) Act 1977 (ADJR) to include certain decisions made by the Integrity Commissioner in the class of decisions to which section 13 of the ADJR Act would not apply. As a result, the Integrity Commissioner would not be obliged to provide the reasons for decisions made under the Law Enforcement Integrity Commissioners Bill 2006, in relation to corruption investigations or a public inquiry. The Committee accepted the justification for this provision, included in the explanatory memorandum to the bill, that disclosure of the Commissioner’s reasons may prejudice an operation by the Australian Commission for Law Enforcement Integrity, or another law enforcement agency, or may prejudice a person’s right to a fair trial.[2]

Excluding merits review

4.5       Since its establishment, the Committee has consistently drawn attention to provisions that explicitly exclude review by relevant appeal bodies (for example, the Social Security Appeals Tribunal) or otherwise fail to provide for administrative review.

Example: Environment and Heritage Legislation Amendment Bill (No. 1) 2006

4.6       In Alert Digest No. 12 of 2006, the Committee commented on proposed new subsections 221A(2), 243A(2) and 263A(2) of the Environment Protection and Biodiversity Conservation Act 1999, to be inserted by this bill. These new subsections would remove the existing provision for merits review by the Administrative Appeals Tribunal for decisions made personally by the Minister in relation to permits of various types.

4.7       The Committee noted that the explanatory memorandum provided no explanation as to why it was considered appropriate to remove merits review of these Ministerial decisions, merely stating that this approach ‘leaves the merits of these important decisions to be dealt with by the Government.’[3]  The Committee sought the Minister’s advice as to the justification for this apparent reduction in merits review.

4.8       The Minister for the Environment and Heritage responded that merits review would be retained in relation to decisions taken by public servants, as delegates of the Minister, but it would be removed in respect of decisions taken by the Minister. The Minister sought to justify this removal of merits review on the basis that many of the decisions taken under the Environment Protection and Biodiversity Conservation Act 1999 ‘require careful balancing of competing interests and judgements’ and that:

The Government considers that where decisions are sufficiently important to be taken by the Minister as an elected representative, those judgments should not be able to be overturned by an unelected tribunal such as the AAT [Administrative Appeals Tribunal].[4]

The Minister also emphasised that:

The Government is not removing any appeal rights in relation to judicial review or reducing the extended standing provisions provided by the EPBC [Environment Protection and Biodiversity Conservation] Act. Anyone affected by a particular decision will still be able to appeal that decision under the Administrative Decisions (Judicial Review) Act 1977.[5]

4.9       The Committee thanked the Minister for this response but reiterated its concern at the removal of merits review for decisions made by the Minister. The Committee indicated that it “finds the explanation that such important and complex decisions ‘should not be able to be overturned by an unelected tribunal such as the AAT’ obscure.”[6] The Committee continued to draw Senator’s attention to the provisions. The bill was passed without amendment.

Example: Human Services (Enhanced Service Delivery) Bill 2007

4.10         This bill sought to establish a framework for the introduction of a Health and Social Services Access Card, including authorising the establishment of a register and setting the eligibility criteria and process for applying for an Access Card. In Alert Digest No. 2 of 2007, the Committee noted that the bill provided for the Secretary of the Department of Human Services to make a range of decisions in respect of the register and access card, including decisions as to whether or not to admit a person to the register (clause 14) and whether or not to issue an access card (clause 24), but remained silent on any appeal mechanisms in respect of these decisions.

4.11         The Committee noted from the explanatory memorandum to the bill that ‘appeal mechanisms in relation to the access card and registration system will be included in the second tranche of legislation’ and that such ‘appeal rights will not be diminished and will be consistent with those in place for existing cards and entitlements.’[7] However, the explanatory memorandum did not contain any information as to the nature of these existing appeal rights, nor whether they were consistent across all cards and entitlements. As such, the Committee remained unclear as to what the appeal rights might entail and sought the Minister’s advice as to whether the appeal rights could be included in this bill, along with the decision-making powers.

4.12         The Minister for Human Services responded to the Committee on
27 March 2007, indicating that, as announced by press release on 15 March 2007, the bill would be withdrawn and the Government would bring forward a combined bill ‘to deal with the framework for the access card in addition to remaining aspects of the access card system, including privacy and security safeguards.’[8]  In respect of rights of review, the Minister indicated that:

The question of what type of review rights should be included in the Bill is a matter that is currently under consideration by the Access Card Privacy and Consumer Taskforce, chaired by Professor Allan Fels, AO. The Taskforce has been asked to consider how the appeals from administrative decisions under the access card legislation could be most appropriately taken forward with other administrative appeals that might arise under existing legislation relating to health benefits and veterans’ and social services...

On that basis, I propose that an appropriate appeal mechanism will be included in the further combined bill relating to the access card.[9]

4.13         The Committee thanked the Minister for this response and for the assurance that appropriate appeal mechanisms would be included in the combined bill, along with the decision-making powers.[10] A combined bill for the Health and Social Services Access Card was not introduced in the 41st Parliament.

Example: Northern Territory National Emergency Response Bill 2007

4.14         In Alert Digest No. 9 of 2007, the Committee commented on clause 78 of this bill, which would permit the Commonwealth Minister to suspend all the members of a community government council on his or her being satisfied as to matters outlined in paragraph 78(2)(b) of the bill. The Committee noted, however, that there did not appear to be any provision for merits review of such a decision under the Administrative Appeals Tribunal Act 1975. The Committee sought the Minister’s advice as to the reason for this lack of review. 

4.15         The Minister for Families, Community Services and Indigenous Affairs responded that clause 78 provided the Commonwealth Minister with ‘essentially the same power as the Northern Territory Minister under Part 13 of the Local Government Act (NT)’ and noted that the Local Government Act (NT) ‘does not provide for merits review of a decision of the Northern Territory Minister... to suspend the members of a council.’[11]  The Minister further advised that:

In any event, it is considered appropriate that a decision of the Commonwealth Minister under Part 13 of the Local Government Act (NT) should not be subject to merits review. To open such a decision to merits review would lead to uncertainty regarding the status of an affected community government council. This in turn would severely impede the capacity of the council, under the direction of the appointed external manager, to continue to perform local government functions and deliver essential services in the relevant prescribed community. In the context of the Northern Territory emergency response, this level of uncertainty and delay in implementing reform and improving governance and service delivery in prescribed communities would be unacceptable.[12]

4.16         The Committee thanked the Minister for this response but, not withstanding the Minister’s advice that the clause was consistent with the powers of the Northern Territory Minister under Part 13 of the Local Government Act (NT), expressed its continued concern at the absence of merits review. The Committee was of the view that this provision could be considered to make rights, liberties or obligations unduly dependent upon non-reviewable decisions and indicated its hope that ‘careful consideration will be given to the possibility of providing for merits review of the decision when the Act is reviewed in two years time.’[13]

4.17         The Committee also commented on clauses in the Northern Territory National Emergency Response Bill 2007 that gave the Secretary of the Department the discretion to grant or refuse a community store licence (clause 97) and to revoke an existing community store licence (clause 106). The Committee noted from the explanatory memorandum that a ‘decision to refuse to grant a community store licence will not be subject to internal review or to external review by the Administrative Appeals Tribunal (AAT).’[14] The Committee further noted that the explanatory memorandum sought to justify the lack of merits review on the basis that ‘given the emergency response, opening the licensing process to review could unduly prolong matters before action to improve the operation of community stores could be confirmed and hence such review processes are not considered appropriate in the circumstances.’[15]

4.18         The Committee expressed concern that a decision to revoke a community store licence because the community store does not comply with newly developed ‘assessable matters’ and a decision to refuse to grant a community store licence to a new applicant, who had taken into account the ‘assessable matters’ in their application, were treated in the same way in terms of access to merits review. The Committee considered that the first decision more clearly fitted within the ‘emergency response’ scenario outlined in the explanatory memorandum than did the second decision. The Committee sought the Minister’s advice about whether a decision not to grant a licence to a new applicant should be subject to merits review, as this process would occur in full cognisance of the new ‘assessable matters’ and would not result in a non-compliant community store continuing to operate pending the review.[16]

4.19         The Minister for Families, Community Services and Indigenous Affairs responded that:

The rationale for not extending merits review from either type of decision is the same. The overarching concern is to address long-standing concerns that some stores in Indigenous communities are poorly managed and have low quality goods sold at high prices. Given the geographical location of many community stores, the way they operate and the quality of the food that they provide are critical to the Australian Government’s efforts to improve the lives of Indigenous people in the Northern Territory. Providing merits review to people who were refused the grant of a community store licence could prolong matters, as stated in the explanatory memorandum for the Northern Territory National Emergency Response Bill 2007, and could jeopardise the Government’s attempts in its emergency response to address these concerns.

It is also important when considering this issue to put the decision not to grant a community store licence into its proper context as such a decision is likely to be taken only after all possible options have been examined and their feasibility exhausted in relation to the particular community store. For example, it may be that concerns about some stores could be addressed by imposing a condition on a licence to take such steps in relation to appointing an external or independent manager to improve the quality of the services delivered by the store and these conditions monitored.[17]

4.20         The Committee thanked the Minister for this response but continued to express concern at the absence of merits review of a decision not to approve a new community store licence on the basis that it would ‘prolong matters’. The Committee was of the view that this argument could be made in respect of any merits review process and was not a justification for refusing such review. The Committee was also unclear as to how a review process in respect of a refusal to issue a new community store licence could jeopardise the Government’s emergency response efforts, as the application would be for a new store and an appeal by one applicant would not necessarily preclude the issuing of a licence to another applicant.

4.21         The Committee continued to draw these provisions to the attention of Senators on the basis that they may be considered to make rights, liberties or obligations unduly dependent upon non-reviewable decisions. The Committee expressed its hope that careful consideration would be given to the possibility of providing for merits review of these decisions when the Act was reviewed in the future.[18] The bill was passed without amendment.

Example: Social Security and Other Legislation Amendment (Welfare Payment Reform) Bill 2007

4.22         In Alert Digest No. 9 of 2007, the Committee commented on proposed new paragraphs 123UC(b) and 123UF(1)(b) of the Social Security (Administration) Act 1999, to be inserted by item 17 of Schedule 1 of this bill, which would allow a Child Protection Officer of a State or Territory or the Queensland Commission, respectively, to give the Secretary of the Department a written notice requiring that a person be subject to the income management regime set up by proposed new Part 3B of that Act. The Committee noted that the Social Security (Administration) Act 1999 makes provision for review by the Social Security Appeals Tribunal of ‘all decisions of an officer under the social security law’ (with some specified exceptions).[19] However, the Committee was unclear as to whether a ‘Child Protection Officer of a state or territory’ or the ‘Queensland Commission’ would be classified as ‘an officer under the social security law’.

4.23         The Committee noted that the explanatory memorandum was silent as to whether a person subject to such a notice had any right to seek review of the exercise of the discretion by the Child Protection Officer or the Queensland Commission. The Committee sought the Minister’s advice as to whether there was such a right of review and, if not, whether one should be provided for.

4.24         The Minister for Families, Community Services and Indigenous Affairs responded that while a decision of an officer under new Part 3B of the Social Security (Administration) Act 1999 would be appealable to the Social Security Appeals Tribunal and the Administrative Appeals Tribunal, a decision by a State or Territory Child Protection Officer or the Queensland Commission would not be appealable under that Act, as these officers ‘would not be performing duties, or exercising powers or functions, under or in relation to the social security law’.[20] In respect of a decision made by the Queensland Commission, the Minister indicated that the Australian Government would be ‘seeking to ensure, in its negotiations with the Queensland Government, that affected individuals will have access to appropriate appeal mechanisms under Queensland law for decisions taken by the Queensland Commission.[21] 

4.25         In respect of decisions by a Child Protection Officer of a State or Territory, the Minister advised that the ‘process for review of such a decision by a child protection officer is a matter that appropriately falls within the responsibility of State and Territory Governments’ and that the Government would work with each State and Territory to ‘establish agreements guiding the operation of this tool.’[22]

4.26         The Committee thanked the Minister for this response and noted the advice that a decision by a Child Protection Officer or the Queensland Commission would not be subject to review under the Social Security (Administration) Act 1999. The Committee welcomed the Minister’s assurance that the Government would seek to ensure, in its negotiations with the Queensland Government, that affected individuals would have access to appropriate appeal mechanisms under Queensland law for decisions taken by the Queensland Commission. In respect of decisions taken by a Child Protection Officer, the Committee sought the Minister’s assurance that the Government would, in their negotiations with each State and Territory, seek to ensure that provision was made for merits review of decisions taken by a Child Protection Officer.

4.27          A further response in relation to this issue was not received during the
41st Parliament. The bill was passed without amendment. 

Excluding judicial review

4.28         The Committee is of the view that, where a decision may have a substantial impact on a person’s rights and interests, judicial review should generally be available to ensure that such decisions are lawfully made. Since its establishment, the Committee has drawn attention to provisions that explicitly exclude judicial review.  

4.29         In Alert Digest No. 13 of 2005, the Committee commented on clause 7 of the Commonwealth Radioactive Waste Management Bill 2005, which gave the Minister an absolute discretion to:

  • declare that a site, or part of a site, was selected as the site for a radioactive waste management facility; and
  • declare that all or specified rights or interests in land in the Northern Territory were required for providing all-weather access to such a site.

4.30         The Committee also commented on clause 8 of the bill, which provided that no person was ‘entitled to procedural fairness in relation to the Minister’s making of’[23] either of those declarations. The Committee noted that the explanatory memorandum to the bill did not set out any justification for these measures, merely repeating the text of the relevant provisions.

4.31         The Committee concluded that these clauses ‘clearly make rights, liberties or obligations dependent upon non-reviewable discretions’[24] and sought the Minister’s advice about the justification for the inclusion of this absolute Ministerial discretion and for the abrogation of procedural fairness.

4.32         The Minister for Education, Science and Training responded that:

These provisions are designed to avoid collateral legal challenges to the site selection process. ...there have been a series of publicly threatened actions by the Northern Territory government and others to delay, obstruct or prevent the Commonwealth’s activities. Such challenges caused significant delays and, ultimately, the abandonment of the proposed national low-level repository in South Australia.[25]

4.33         The Committee thanked the Minister for this response, noting that it confirmed the possibility that any rights that might be affected by decisions made under clause 7 of the bill would be dependent upon non-reviewable decisions. The Committee left it to the Senate as a whole to determine whether such rights were unduly dependent upon non-reviewable decisions.[26]

Decisions for which review was accepted as unnecessary

4.34         During the 41st Parliament the Committee accepted that certain decisions need not be subject to review. These included:

  • decisions made under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006, which were to be removed from the purview of the Administrative Decisions (Judicial Review) Act 1977 by item 1 of Schedule 1 of the Anti-Money Laundering and Counter-Terrorism Financing (Transitional Provisions and Consequential Amendments) Bill 2006. The Committee accepted that this approach was consistent with the position of similar decisions under the Financial Transactions Reports Act 1988[27];
  • classes of decisions under the Taxation Administration Act 1953 that were exempted from the Administrative Decisions (Judicial Review) Act 1977 by item 1 of Schedule 1 of the Tax Laws Amendment (2007 Measures No. 1) Bill 2007. The Committee accepted that their exemption was ‘consistent with existing laws relating to disclosures of information to law enforcement agencies’[28]; and
  • a decision by the Minister under the Health Insurance Act 1973, reviewing a decision by an accreditation provider not to grant accreditation for diagnostic imaging, not to renew accreditation, or to revoke or vary an existing accreditation. The Committee noted that the Minister’s decision ‘is a review of a decision of an approved accreditation provider, which itself will be required to have a full and proper review mechanism in place...’[29]

4.35         During the 41st Parliament, the Committee also considered provisions in the
Anti-Terrorism Bill (No. 2) 2005, which provided for the making of an initial preventative detention order (proposed new section 105.8 of the Criminal Code Act 1995) or a continued preventative detention order (proposed new section 105.12 of the Criminal Code Act 1995). The Committee concluded that these powers ‘might appear to make rights or liberties dependent on non-reviewable decisions.’[30]

4.36         The Committee noted, however, that proposed new section 105.51 of the Criminal Code Act 1995, also to be inserted by this bill, would allow the subject of such a detention order to apply to the Administrative Appeals Tribunal for a review of the decision, but only after the order had ceased to be in force. Furthermore, proposed new paragraph 105.51(7)(b) of the Criminal Code Act 1995 authorised the Administrative Appeals Tribunal, ‘in appropriate circumstances, to determine that the Commonwealth should compensate the subject of such an order.’[31]

4.37         The Committee concluded that these provisions took the proposed new sections 105.8 and 105.12 of the Criminal Code Act 1995 outside of the Committee’s terms of reference and that it was not, therefore, necessary for the Committee to bring the provisions to the attention of the Senate.[32]

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