The majority of submissions to the inquiry were in strong support for the re‑establishment and re-funding of the Administrative Review Council (ARC).
This chapter outlines the previous role of the ARC and the impact of it being defunded. It also presents the views in support of the re-establishment of the ARC as an independent voice in the administration of the merits review system.
Role of the ARC
The ARC was an independent policy advisory board, established in 1976 under the Administrative Appeals Tribunal Act 1975 (AAT Act). Its establishment was recommended by the Kerr Report, which said that such a body would be a first step in the evolution of Australia's system of administrative law.
It consisted of the President, the Commonwealth Ombudsman, the President of the Australian Human Rights Commission (AHRC), the President of the Australian Law Reform Commission (ALRC), the Australian Information Commissioner and at least three, but no more than 11, other members.
The ARC was tasked with inquiring into and advising on the federal administrative law system, administrative decision-making practices, and tribunal practice and procedure. It also promoted knowledge about the administrative law system and facilitated the training of decision-makers.
An administrative law policy guide issued by the Attorney-General's Department (AGD) in 2011 provided further detail on the role of the ARC, stating that it was 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.
According to the AGD, the ARC produced a number of reports including best practice guides on, among other things, 'lawfulness, natural justice and accountability', and reports on topics as broad as 'automated assistance in administrative decision making, administrative accountability, and information-gathering powers of government agencies'.
While the ARC issued reports and best practice guides on administrative law issues, it did not examine individual claims or hear appeals, nor was it a merits review body with any power to review the decisions of government agencies or tribunals.
During the course of the inquiry the Administrative Appeals Tribunal (AAT) put forward its support for the reports and guidance which had been issued by the ARC in relation to standards and areas of operation of the Tribunal. However, it noted that any decision about the future operation and activity of the ARC was a matter for the Government.
Discontinuation of the ARC
Defunding the ARC
As part of the 2015–16 Budget and the Government's Smaller Government Reform Agenda, it was announced that the ARC would be abolished, with any residual functions to be managed by the AGD. The announcement followed the recommendations of the National Commission of Audit in its 2014 report, 'Towards Responsible Government', which suggested that the functions of the ARC could be done by the portfolio department.
The argument was made by the Minister for Finance at the time, Senator the Hon Mathias Cormann, that this and similar measures were aimed at 'delivering greater value to taxpayers through better services delivered faster and at a lower cost'. Further, the Smaller Government Reform Agenda was to transform the 'public service by improving efficiency, effectiveness and by eliminating waste and duplication'.
Despite it being announced that the ARC would be 'abolished', provisions remain for the establishment and functioning of the ARC at Part V of the AAT Act. This was made clear by the AGD in its submission to the inquiry:
Although Part V of the AAT Act (which provides for the ARC's establishment and operation) has not been repealed and remains in force, the ARC has not received any funding or had any new members appointed since its discontinuation.
As such, rather than being 'abolished', a more accurate characterisation is that the ARC has been defunded and is therefore unable to operate.
On this matter, Professor Greg Weeks of the Australian National University College of Law (who submitted in a private capacity) observed that the Government's initial characterisation of the ARC as having been 'abolished' was misleading. He clarified that the ARC:
…continues to exist as a matter of law but has been prevented from exercising its statutory functions in fact.
Consolidation of functions
After the defunding of the ARC, its functions were consolidated into the AGD. The AGD advised the committee that since consolidation, it continued to 'review the operation of administrative law at the Commonwealth level and guide the development of administrative law policy'. It explained that it did so by:
… amongst other things, considering the application of administrative law in changing contexts and promoting legislative drafting that is consistent with administrative law policy. The department maintains up-to-date expertise on administrative law issues by reviewing and considering changes in case law and developments across the public sector such as automated decision making. The department facilitates the review and strengthening of the administrative law system by providing advice on proposals affecting administrative law issues, primarily facilitated through providing advice on draft Bills under OPC [Office of Parliamentary Counsel] Drafting Direction 4.2.
Observations from the Callinan Report
The 2018 statutory review of the AAT, completed by the Hon Ian Callinan AC QC in 2018 and tabled in Parliament in 2019 (the Callinan Report) canvassed the defunding of the ARC. The final report stated that it was the view of many of those consulted that the decision of the Commonwealth to effectively terminate the operation of the former ARC and instead transfer its functions to the AGD was 'an imprudent one'.
The AHRC pointed to Justice Callinan's observations that it was the duty of the Executive, under section 61 of the Constitution, to 'execute and maintain the laws of the Commonwealth'. To this end, measure 26 of the Callinan Report recommended:
The ARC should be reinstated and constituted in accordance with Part V of the AAT Act.
Support for the ARC
There was near-universal support in evidence to the inquiry for the urgent re‑funding of the ARC. Many submitters highlighted the valuable contributions the body had made in the past and noted the important role it could play in supporting the AAT and its increasingly complex workload into the future.
For example, the Law Council of Australia (Law Council) recommended that the ARC be re-established as a priority. It noted that the composition of the ARC and the functions it was designed to perform provide an appropriate mechanism for the facilitation of 'ongoing, objective and apolitical' review of the performance and integrity of the Australian administrative review system.
Additionally, the Law Council emphasised the valuable contribution the ARC had made in the development of ideas and policy in the field of administrative law, both nationally and internationally. It remarked that the ARC's reports:
… were intensively researched, balanced by the breadth of perspectives of its members drawn from practice, from senior officials and from academies, and were as a consequence highly respected and influential.
The AHRC also recommended the re‑establishment of the ARC, telling the committee that aside from the continuing statutory requirement for an ARC, there were 'good policy reasons' for this course of action. It explained that the ARC's re-establishment would:
… assist in remedying the erosion of review rights in relation to government decision making. During its long period of operation, the ARC provided independent and robust advice to government about the kinds of decisions that should be subject to merits review and judicial review, and the way in which such reviews should take place. This kind of scrutiny and expert analysis is vital to ensuring the continued integrity of the system and protecting individual freedoms.
Professor Gabrielle Appleby, Dr Lynsey Blayden, Dr Chantal Bostock and Dr Janina Boughey, academics at the Faculty of Law and Justice at the University of New South Wales who submitted in their private capacities, called for the immediate re-establishment of the ARC. They asserted that the need for the ARC was 'greater now than it has ever been', and argued that it was necessary that there be an independent body capable of:
periodically reviewing the various elements of the administrative law system to ensure they are functioning as intended;
monitoring administrative practices in general to make recommendations as to whether they meet the standards of accountability that are requisite for good administration, administrative justice and the overall health of Australia's democracy; and
providing guidance to those exercising administrative discretions and making administrative decisions regarding administrative law and accountability standards.
In a similar vein, the New South Wales Bar Association (NSWBA) argued for the re‑establishment of the ARC, given that it could assist in identifying:
cases where systemic issues are arising in the decision‑making process of particular or multiple departments, in order to provide advice to the government on improving the quality of decision‑making;
cases where a particular point of law is repeatedly being raised in the AAT, and selecting a test case for judicial review; and
cases where the AAT has noted systemic problems or injustices in the administration of particular laws and recommend, if necessary, areas for law reform.
Emeritus Professor John McMillan AO, former head of three statutory agencies with administrative law oversight roles and member of the ARC from 2003 to 2015, commented that he found it 'unfathomable' that the Government had not supported the continuation of the ARC. He observed that, collectively, the ARC membership was unmatched in practical experience in the operation of administrative review, and that Australian law and government was the poorer for the disintegration of the body.
In reflecting upon his own experience with the ARC, Professor McMillan reported:
My own experience is that the ARC was an exceptional body that gathered together members from all facets of administrative law — the judiciary, tribunals, ombudsman, information regulation, human rights, government agencies, trade unions, business and consumer advocacy. I was always struck by [how] engaged the members were and how they energetically worked together to improve the functioning of the Australian administrative review system.
A number of submitters drew attention to the role the ARC could play in monitoring the use of emerging technology in administrative law.
For example, a submission from the Faculty of Law at Monash University argued that the need for a body such as the ARC was enhanced due to the 'integrity challenges' and other complexities raised by modern developments, such as the use of technology in government decision-making.
Emeritus Professor Terry Carney AO, an academic specialising in social security law with extensive experience sitting on social security appeals on the Social Services and Child Support Division of the AAT, made a similar point. He argued that emerging systemic challenges posed by the introduction of new technologies like machine learning and artificial intelligence (AI) made an overwhelming case for the restoration of the ARC as a low cost yet highly effective mechanism to ensure good administration.
By way of example, Professor Carney observed that the failures of the online compliance initiative (commonly referred to as 'Robodebt') may have been minimised had the ARC been functioning at the time. He noted:
… what turned out to be a $1.7 billion disaster for public administration and 400,000 or so citizens against whom false or unsupportable debts were alleged, might have been avoided altogether, or at least corrected much more rapidly, had the ARC still been operative.
The Melbourne Law School also emphasised the potential value of a re-established ARC in relation to the digital and automated technologies of contemporary administrative government. It too made mention of the Robodebt scheme, noting that it occurred during the period in which the ARC was 'functionally obsolete' and that the contributing factors were matters squarely within the remit of the ARC's oversight functions. It explained:
In our submission, it is highly likely that a properly functioning ARC would have kept close watch on the relevant debt recovery processes and would very likely have undertaken inquiries and issued strong letters of advice with respect to it. The Robodebt experience provides among the strongest of arguments for why we need to re-establish the ARC.
A legislative obligation
Several submitters highlighted that the operation of the ARC remained a legislative obligation under the AAT Act.
Professor Weeks informed the committee that it was anomalous that the legislation remained operative while the ARC was not. He noted that it was 'far from satisfactory' for a statutory body to exist under a statutory scheme and to have statutory functions which it is unable to perform, merely because the Government decided to no longer fund that body.
Additionally, he argued that the costs of maintaining the ARC were dwarfed by the costs of the failure of public administration that its advice might prevent.
Assistant Professor Narelle Bedford of the Faculty of Law at Bond University (who submitted in a private capacity) emphasised to the committee that the ARC remains a 'legislative obligation'. She stated:
As a matter of urgency the ARC needs to be re-constituted and properly funded to allow it to perform its statutory duties.
The Law Council also drew attention to this matter, noting that 're‑establishing' the ARC would be consistent with the rule of law, given that the terms of the AAT Act require the ARC to exist and operate.
Transfer of functions to AGD
Evidence to the committee suggested the AGD was not best placed to undertake the functions which had previously been completed by the ARC—nor did it appear that the AGD had completed any work analogous with that of the ARC.
The Melbourne Law School submitted that owing to the ARC's unique role and composition, the idea that the specific and unique functions of the ARC could be performed by other entities (such as the AGD) was 'completely misplaced'. It detailed:
To begin, the ARC is the only entity uniquely charged with the function of advising the Attorney-General on the operation and integrity of the administrative law system as a whole. Its statutory functions are not replicated in those assigned to other entities. It was and by statute remains a standing Council dedicated solely to overseeing and ensuring the efficacy and responsiveness of Australia's administrative law system.
Further, the Melbourne Law School highlighted that there was no publicly available evidence to indicate that the AGD had performed any of the ARC's functions since the council's effective abolition.
Refugee Legal questioned the appropriateness of the ARC's statutory functions being consolidated within the AGD. It emphasised that independent oversight, as was provided by the ARC, was integral to maintaining public trust and confidence in the decision-making of the AAT, contending:
… a government department, in this case the AGD, overseeing the adjudication of disputes between the Government and people affected by its administrative decisions erodes such confidence.
A similar point was made by Dr Bruce Baer Arnold, who stressed the value of the independence of the ARC 'in contrast to officials in a department reviewing a tribunal that on occasion rejects the decision-making and condemns the policy interpretation of their peers'.