Moira Coombs
The Government has announced that the Administrative Review
Council (ARC) will be abolished, with residual functions to be managed by the
Attorney-General’s Department.[1] The National Commission
of Audit had recommended in 2014 that the ARC be consolidated within the
Department.[2]
The Minister for Finance, Mathias Cormann, noted that, as
part of the fourth phase of the Smaller Government Reform Agenda, the Budget
would further reduce the number of government bodies by 35 to ensure that the
public sector is as streamlined, effective and transparent as possible.[3]
The Administrative Review Council is one such body. This is part of the
efficiencies to be made in the Attorney-General’s portfolio, which will save
$54.2 million over five years from 2014-15.[4]
The ARC was established in 1976 as a key element of the
administrative review system. The functions and powers of the ARC are set out
in section 51 of the Administrative Appeals Tribunal Act 1975.[5]
The ARC is recognised as having ‘played an important role in the
development and maintenance of the system as a check on the unchallenged
exercise of executive power’.[6]
The ARC consists of the President, the Commonwealth
Ombudsman, the President of the Australian Human Rights Commission, the President
of the Australian Law Reform Commission, the Australian Information
Commissioner and at least three, and not more than 11, other members.[7]
The ARC came into existence through amendments proposed to
the Administrative Appeals Tribunal Bill 1975 by the then Liberal–Country Party
Opposition. John Howard considered the proposal to establish the ARC a matter
of particular importance[8] while Bob Ellicott noted:
Another basic and far sighted amendment which the Opposition
will press is to establish an administrative review council and so implement
another recommendation of the Kerr Committee. This council would consist of
officials, including the president, the ombudsman, the chairman of the Law
Reform Commission, a senior administrative official and a parliamentary
draftsman. It would enable a permanent and informed consideration of the
process of administrative and judicial review. It would review further
discretions to see whether they were appropriate for review by the
administrative appeals tribunal. It would have a small staff to assist it.[9]
At the first meeting of the Council on 15 December 1976 Bob
Ellicott, as Attorney-General, noted that the role of the ARC was:
... to ensure that our system of administrative review is as
effective and significant in its protection of the citizen as it can be.[10]
The current role of the ARC is to:
... monitor and provide advice to the Government in relation to
Commonwealth administrative review. The “monitoring” function arises from the
nature of the administrative review system, and the several institutions that
perform different but complementary review functions. The Council contributes
to maintaining the integrity of the entire system by ensuring that, as laws and
government decision making processes change, the various administrative review
mechanisms continue to perform appropriate, effective and complementary
functions.
As envisaged by the Kerr Committee, the Council examines
existing and new administrative decision making powers in Commonwealth
legislation, and assesses the availability of review of decisions made under
those powers. The Council also conducts larger projects that deal with broader
issues of change, such as corporatisation and contracting out of government
services.[11]
In a recent press report Professor George Williams noted
that the ARC is ‘like the law reform council, it may not be glamorous, but it
plays an essential role’. Further:
Professor Williams said moving its independent functions to
the department was “not an appropriate substitute”.[12]
Another report notes that the decision to abolish the ARC
‘will be hotly contested’.[13]
The ARC is currently funded from the budget of the
Attorney-General’s Department, which has sole responsibility for the Council’s
expenditure.[14] However, the annual
reports for the Department do not include specific figures quantifying the
support provided to the ARC.[15] Although the ARC is
required to provide an annual report to the Minister for tabling in Parliament,
it appears that ARC has not done so since the 2011–12 financial year.[16]
[1].
Australian Government, Budget
measures: budget paper no. 2: 2015–16, p. 65.
[2].
National Commission of Audit, Towards
responsible government, Phase 2, report, March 2014, p. 125.
[3].
M Cormann (Minister for Finance), Smaller
government—transforming the public sector, media release, 11 May 2015.
[4].
Ibid.
[5]. Administrative Appeals
Tribunal Act 1975.
[6].
D Pearce, ‘Administrative
Review Council’, AIAL Forum, 35, December 2002, p. 53.
[7].
Subsection 49(1), Administrative
Appeals Tribunal Act 1975 and regulation 22 of the Administrative Appeals
Tribunal Regulations 1976.
[8].
J Howard, ‘Second
reading speech: Administrative Appeals Tribunals Bill 1975’, House of
Representatives, Debates, 14 May 1975, p. 2281.
[9].
R Ellicott, ‘Second
reading speech: Administrative Appeals Tribunal Bill 1975’, House of
Representatives, Debates, 14 May 1975, p. 2287.
[10].
Administrative
Review Council website.
[11].
Attorney-General’s Department (AGD), Australian
administrative law policy guide, AGD website, 2011, p. 18.
[12].
‘Long-term
legal body faces the axe in federal budget’, Northern Star, 11 May
2015.
[13].
V Burgess, ‘War
of attrition on the public service may drag on’, Australian Financial
Review, 12 May 2015, p. 7.
[14].
Administrative Review Council, Thirty-sixth
annual report 2011–2012, ARC, Canberra, 2012, p. 9.
[15]. Attorney-General’s
Department, ‘Annual
reports’, ARC website.
[16].
The reporting requirement is at section 58 of the Administrative Appeals
Tribunal Act 1975. The last published annual report for the ARC is at: Administrative
Review Council, ‘Annual
reports’, ARC website.
All online articles accessed May 2015.
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