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Speakers at this conference included academics, legal practitioners, a couple of ombudspersons, a judge, a journalist, and a token politician.
The most important themes to emerge were the way the High Court has been dealing with natural justice, especially in the immigration area, and its emerging conception of what was called the 'constitutionalisation of administrative law'.
The conference should heighten awareness of the as yet unreached boundaries of natural justice and reinforcement of the cliche about the courts as 'the least dangerous branch of government'.
Will the High Court and state courts of appeal be up to acting as the only bulwarks against rapidly approaching unaccountable secret government, at international, federal and state levels?
In the first session titled 'Natural Justice Developments: From Salemi to S157', a speculative question was put about how the High Court would apply natural justice principles to terrorism legislation, but alas no one ventured an answer. I hope the High Court strikes down the legislation as unconstitutional, but if not it should at least require all security apparatus actions to be open to litigation, whatever the cunning displayed by the legislative draftsperson's pen seeking the contrary.
This session also raised an issue about whether the rules of natural justice should apply to decisions about road closures: is such a decision merely about traffic flows or should residents have a say? The question was not answered but it kept being referred to in sessions later that day and on the second day.
A theme lurking in the background was what really is the impact on ministerial and bureaucratic decision-makers of judicial decisions about natural justice principles? We do not really know how agencies embrace the principles, how agency cultures change, how agency 'corporate memories' store and pass on the principles or how day-to-day decisions are made after a High Court decision about, say, migration is received and acted on in other federal agencies or in a state agency.
Future conferences might get contributions from actual decision-makers who would be prepared to go beyond platitudes and report on how decisions are really made, irrespective of what might be committed to paper.
The Federal Ombudsman gave a very interesting paper on the Rule of Law. He espoused a view about recognition of a fourth branch of government-an integrity branch to join the traditional trinity of the Executive, the judiciary and the legislature. The offices of the ombudsman around the country regularly report actual day-to-day decision-making in public administration that affects citizens. Systemic issues are often identified by such bodies but how well agencies actually change is harder to measure compared to what result is obtained in a specific case (ie just like court decisions).
The annual and special reports of ombudspersons show increased workloads and expanded jurisdiction so something must be wrong in public agency decision-making processes. Unanswered was the question about how open to review should the decisions by such bodies as ombudspersons be.
A session on freedom of information (Fol) was excellent as a result of the contribution of the Fol Editor of The Australian, who, while lamenting the lack of reform in Fol law, was at least optimistic about his own efforts to use FoI to generate stories of national interest. He awaits a favourable MT decision before Christmas. An ALP politician also spoke about reform that might have been. Reform via an ALP government won't be on the agenda, if at all, for at least 10 years. We must put our faith in the High Court, although the refusal to grant leave to appeal in the matter of Burden v Ainsworth [2004] HCA Transcript 144 does not inspire confidence.
The Australian's Fol editor recognised the ongoing need for the growth of an Fol constituency among lawyers, journalists and citizens. Fol law probably does not cause the pulse to quicken in most people, but it should.
The last session addressed regulatory bodies dealing with issues such as monopolies, mergers etc and the setting of energy prices. The session generated considerable debate and questions. This is an area where courts are, in effect, using administrative law principles to second guess decision-makers who have to apply a wide range of legislatively prescribed criteria covering, economic, financial, accounting, social and other relevant factors to their choices. Roll on a High Court appeal about gas prices, it would beat an episode of Australian Idol.
Who went to the conference and who should have? There were 189 names on the list of attendees, of which 23 were speakers, organisers and chairs of sessions. Of the 166 left, 22 were tribunal/judicial types (mainly the Refugee Review Tribunal), 60 were federal bureaucrats (lots of legal officers and folk from DIMIA), 17 state and territory bureaucrats, 27 legal practitioners, 19 academics and the rest a mixed bag.
Other than the speakers no other journalist or politician was present More state bureaucrats were needed, especially making contributions. Overseas visitors comprised the Belgium Federal Ombudsman and three New Zealanders (although I wondered momentarily if one of them, from the Royal New Zealand Navy, was off course).
As for this attendee, he is now feverishly working on an article about natural justice and road closures by way of re examination of a NSW Supreme Court decision about two years ago when the Roads and Traffic Authority overruled a local council decision to alter traffic on a road after intense media interest. ·
PETER WILMSHURST teaches law at University of Western Sydney.
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URL: http://www.austlii.edu.au/au/journals/AltLawJl/2004/94.html