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Cornall, Robert --- "The 30th Anniversary: An Administrative Perspective" [2007] AdminRw 5; (2007) 58 Admin Review 27


The 30th anniversary: an administrative perspective

Robert Cornall AO

Secretary, Attorney-General’s Department

On 15 December 1976 the then Attorney-General, Bob Ellicott, opened the first meeting of the Administrative Review Council with these words: ‘[This] is an historical occasion. The group is small, but the event is considerably significant. This is a body which … has brought together a number of people with diverse experience and with considerable expertise’. The same observation could be made 30 years on.

It is a pleasure to have this opportunity to put forward six issues I think we will have to grapple with in the future from an administrator’s perspective.

Electronic decision making

The first issue is to gauge the impact that computerisation, expert systems and global electronic networking will have on the process of making decisions and administrative review.

The Administrative Review Council has already taken the first step in this direction by publishing its well-received report Automated Assistance in Administrative Decision Making.

The process of producing that report would disabuse a keen observer of any notion that the ARC is an insular Canberra think-tank. One Friday afternoon, Council members arrived en masse at Centrelink in North Ringwood, much to the bemusement of staff and clients. They spread quickly around the office and, working in small groups, interrogated computer operators in depth about the procedures they went through to derive decisions from the automated system they were developing at that time.

Given the rapid rate of computer development, it is impossible to predict where technology will take us, but a few points can be asserted with some confidence.

First, more and more decisions will be made through automated systems. At the last count, eight Australian government agencies were using automated systems in administrative decision making.

Second, provided the systems are well designed and regularly audited, automated decisions will generally be accepted as fair.

Finally, the ARC and government policy makers will need to take care, in designing both the automated systems and the legislation under which they operate, to make proper provision for review of those aspects of the automated decisions that involve the exercise of judgment or discretion.

Globalisation

The next issue is globalisation.

There is no doubt we are now living in a global village. The barriers of distance and national borders are daily becoming less and less significant. The Attorney-General’s Department and other departments are actively expanding Australia’s international markets for goods and services and negotiating free-trade agreements to break down barriers that still exist. In this context, the question is how will administrative review operate internationally?

An early indication may be seen in the regulation of therapeutic goods under the Trans Tasman Mutual Recognition Agreement. In a treaty made under that Agreement in 2003 Australia and New Zealand agreed to set up a joint agency to regulate therapeutic goods. The agency’s decisions—which affect the ability to market therapeutic goods in both countries—are subject to administrative review. The treaty provides for tribunal members in both jurisdictions to be drawn from a Merits Review Panel established by the Australian and the New Zealand ministers.

The early thinking in relation to therapeutic goods was that there would not be administrative review. One reason for this approach was that administrative review was seen as too difficult, particularly since New Zealand does not have a tribunal equivalent to the Administrative Appeals Tribunal. It is a feather in the ARC’s cap that its persistence was a major factor in the development of a bilateral international regime for administrative review in this important area.

The nature of the Australian Public Service

The third issue is the future make up of the Australian Public Service and the impact that will have on our established processes for reviewing administrative decisions.

The public service is increasingly made up of a mix of permanent officers, non-ongoing staff and contractors. Many traditional public service functions are outsourced altogether.

The problem this poses was well articulated by the ARC in its 1998 report The Contracting Out of Government Services. The Council noted that contracting out ‘has the potential to result in a loss of the benefits which the administrative law system provides for individuals’.[1] The report contained 30 recommendations to address the problem.

A significant improvement was made last year when the Ombudsman Act 1976 was changed,[2] giving the Ombudsman jurisdiction to investigate the actions of ‘Commonwealth service providers’[3] as if those actions had been taken by the relevant department or agency. That extended authority will be particularly relevant to immigration oversight and Welfare to Work programs.

Nonetheless, the issue is still with us. The government will have to be constantly on guard to see that reforms designed to improve the efficiency of government services do not come at the expense of diminished access to administrative review.

Another, but less obvious, human resource problem relates to the average length of service and its implications for staff training. Along with other big employers, the Australian Public Service is finding that its staff are becoming more mobile and less likely to stay in one place for very long. This changing employment demographic raises questions about staff’s preparation to make sound administrative decisions. Will they have had enough time in the job to learn how to do so? It highlights the need to have good training programs that get staff up to an acceptable level of performance very quickly.

An Administrative Review Tribunal

Next I want to comment on the question of a combined Administrative Review Tribunal. The ARC had urged the formation of a single tribunal to replace a number of existing federal merits review tribunals in its Better Decisions report.[4] In his second reading speech on the Administrative Review Tribunal Bill in June 2000, Attorney‑General Daryl Williams noted that the government had accepted that recommendation.

The Bill was not passed by Parliament. However, in my view, it is likely that a similar proposal will be brought forward again at some stage in the future because it makes good sense for all the reasons previously advanced. The success of the Victorian Civil and Administrative Tribunal also supports that opinion.

As before, the aim would be to establish one tribunal with centralised administration and accommodation, a common registry and common procedures (to the maximum extent practicable).

A redeveloped Administrative Review Tribunal could sit in separate divisions with different levels of appointment and member remuneration and entitlements. It would also be important for a single tribunal to have sufficient flexibility in its separate divisions to bring appropriate levels of procedure and decision making to the review of different sorts of administrative decisions.

In other words, simple and quick processes should apply in cases where that is appropriate, with lengthier and more complicated procedures applying to matters that justify more detailed consideration. This will be necessary to meet any concern that applicants could use a complex review process in some unmeritorious matters simply to create delay in implementing administrative decisions.

Legislation

The fifth point is to do with the volume of legislation passed and regulations made each year. The rate at which new laws are made is not expected to decrease much in the foreseeable future, even though some improvements will be made by concerted attacks on red tape. This is in large part due to community expectations that the government will legislate to regulate or outlaw most unfortunate events or unpleasantnesses that arise in the ordinary course of daily life.

The British Prime Minister, Tony Blair, has sharply criticised this community expectation. He has called it ‘a wholly disproportionate attitude to the risks we should expect to see as a normal part of life’, resulting in ‘a plethora of rules, guidelines, responses to “scandals” of one nature or another that ends up having utterly perverse consequences’.[5]

However, while it is desirable to get out of what Richard Humphry—a member of the Banks red tape review taskforce—has called a ‘regulate first, ask questions later culture’, that will take some time to achieve. So there will be no shortage of new legislation and regulation over the next few years, which will present continual challenges for effective administrative review.

The nature of democracy

The final point deals largely with the same issue but from a different perspective. It concerns the nature of our democracy.

Administrative review is really about ensuring that everyone gets a fair go. It is about establishing an acceptable balance between the executive arm of government and individual rights and ensuring that the judiciary and administrative tribunals have the authority to enforce that balance.

However, the way the Australian community defines ‘a fair go’ will change over time, and administrative review will need to adjust to that change. For example, people may come to accept automated decisions as fair and not be inclined to challenge them.

Right now, however, we are towards the other end of the complaint spectrum. Robert Hughes believes we have developed ‘a culture of complaint’ and was sufficiently concerned to write a book about it.[6]

Other commentators have observed that Australians are now much more likely to complain or insist on what they see as their entitlements than they were 10 years ago. My observation in my former role of dealing with complaints against Victorian solicitors is that many complainants ‘want justice’ but that ‘justice’, when expressed in this way, is a very personalised concept. It usually means the outcome that suits them the best.

These community attitudes indicate that citizens have very high expectations of their right to have official decisions reviewed and, they certainly hope, to get a more favourable outcome from the reviewer. A challenge for administrators will be to ensure that future policy proposals strike the appropriate balance between the exercise of proper authority by official decision makers and an individual’s right to merits review.

Conclusion

Given the nature of our open democracy, the steady passage of new laws, and our strong expectation that we will receive a fair go, administrative law and administrative review will grow and prosper in Australia over the next 30 years. However, my perspective on these issues as an administrator could be quite different to the perspective of a judge, a tribunal member, an academic, a person in business or a member of the community affected by an administrative decision.

This message was highlighted by Justice Kirby’s comment, at the ARC’s 25th anniversary celebration, that Prime Minister Bob Hawke and the head of his department, Sir Geoffrey Yeend, used to watch the television program Yes Minister together on Monday nights. Justice Kirby observed, ‘They both laughed. But in different places’.[7]


[1] Administrative Review Council 1998, The Contracting Out of Government Services, ARC, Canberra, p vii.

[2] Migration And Ombudsman Legislation Amendment Act 2005, No. 141, 2005, Schedule 2.

[3] Ombudsman Act 1976 s 3BA.

[4] Administrative Review Council 1995, Better Decisions: review of Commonwealth merits review tribunals, ARC, Canberra.

[5] Blair, A 2005, ‘Full Text: Tony Blair’s speech on compensation culture’, Speech to the Institute of Public Policy Research, Guardian Unlimited, 26 May, <http://politics.guardian.co.uk/speeches/story/0,11126,1493151,00.html>.

[6] Robert Hughes 1993, Culture of Complaint, Oxford University Press, New York.

[7] Administrative Review Council 2002, Record of 25th Anniversary Proceedings, ARC, Canberra, p 57.


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