Abolition of the Administrative Review Council

Budget Review 2015–16 Index

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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