Chapter 1
The work and effectiveness of the Administrative Review Council
Establishment of the ARC
1.1 Part V of the Administrative Appeals Tribunal Act 1975 (the Act)
provides for the constitution, membership and functions of the Administrative
Review Council (ARC). The ARC was constituted on 11 November 1976
and first met on 15 December 1976. [1]
1.2 The creation of the ARC was part of the broad changes to administrative
law and administrative review that occurred in the 1970s, a key feature
of which was the creation of the Administrative Appeals Tribunal (AAT).
The Bill that the ALP Government introduced into the House of Representatives
in March 1975 to create the AAT did not contain any provision for an ARC.
The then Opposition said it would move an amendment to do this. Its spokesman,
Mr John Howard MP, said:
In general terms, the purpose of the administrative review council
will be to provide an on-going review of how the Administrative Appeals
Tribunal is operating, to keep under constant examination areas of legislation
which ought to be added to those which come within the purview of the
Tribunal's operations, and generally to recommend improvements and alterations
to the procedures under which the Tribunal operates. [2]
1.3 The Government later indicated its agreement in principle to the
Opposition proposal. [3] When the Bill
came before the Senate, the Government itself moved the amendment which
inserted the provisions establishing the ARC. [4]
Composition of the ARC
1.4 All the members of the ARC serve part-time. Three serve ex officio:
they are the President of the AAT, the Ombudsman, and the President of
the Law Reform Commission. The Act provides that there should be not less
than three nor more than ten other members with expertise relevant to
the work of the ARC. The members are appointed for terms of up to three
years, and are eligible for re-appointment.
1.5 When the ARC was established the President of the AAT presided at
its meetings. The Act was amended in 1979 to provide that the Governor-General
shall appoint one of the members to be the Chairman of the ARC, and the
title was changed from Chairman to President in 1988. [5]
The following table contains details of the heads of the ARC since 1979.
Table 1: Chairs/Presidents of the ARC since 1979
Chair/President |
From |
To |
Occupation |
Mr Ernest Tucker |
1 Dec 1979 |
8 Feb 1987 |
accountant, businessman |
Professor Cheryl Saunders |
9 Feb 1987 |
8 Feb 1993 |
professor of law |
Dr Susan Kenny |
9 Feb 1993 |
30 Sept 1995 |
barrister |
Professor Marcia Neave |
1 Oct 1995 |
term ends on 30 Sept 1997 |
professor of law |
Source: compiled from information in Submission No. 16, ARC, Appendix
9
1.6 The full ARC meets about eight times a year, and it has committees
that meet to deal with matters referred by the full ARC. The Committee
was told that in addition a lot of the ARC's work was done through correspondence.
[6]
Funding
1.7 The ARC is part of the Attorney-General's portfolio and the Attorney-General's
Department provides support services to the Council, the costs of which
come out of the ARC's budget. Total expenditure on the ARC in 1995-96
was $1,013,400, of which some $438,000 was for salaries and payments in
the nature of salary, $172,000 for property operating expenses, and the
remainder for administrative expenses. [7]
Estimated expenditure for 1996-97 is $1,095,000. The Budget allocation
for 1997-98 is $1,031,000, which is a reduction of 3.1 per cent on the
1996-97 amount. [8] ARC expenditure has
been at broadly similar levels in previous years, after allowing for inflation
and changes in accounting methods.
1.8 ARC members who are otherwise employed by the Commonwealth
the ex officio members and public servants are not paid for being
members of the ARC. Other members except the President are remunerated
by way of sitting fees. The President does not receive sitting fees but
is remunerated by means of an allowance. For the 1995-96 financial year
the President's remuneration was $47,257. [9]
Staffing
1.9 The ARC is supported by a small secretariat whose staff, although
located separately in Canberra, are part of the Attorney-General's Department.
They are employed under the Public Service Act, as required by s. 57 of
the Act. As at the end of 1996, the secretariat consisted of a Director
of Research who is a Senior Executive Service Band 1 officer, a Deputy
Director, two Project Officers, and two support staff (one part time).
[10]
Statutory functions of the ARC
1.10 Section 51 of the Administrative Appeals Tribunal Act 1975 sets
out the functions of the ARC:
51. (1) The functions of the Council are
(a) to ascertain, and keep under review, the classes of administrative
decisions that are not the subject of review by a court, tribunal or other
body;
(b) to make recommendations to the Minister as to whether any of those
classes of decisions should be the subject of review by a court, tribunal
or other body and, if so, as to the appropriate court, tribunal or other
body to make that review;
(c) to inquire into the adequacy of the law and practice relating to
the review by courts of administrative decisions and to make recommendations
to the Minister as to any improvements that might be made in that law
or practice;
(d) to inquire into the adequacy of the procedures in use by tribunals
or other bodies engaged in the review of administrative decisions and
to make recommendations to the Minister as to any improvements that might
be made in those procedures;
(e) to make recommendations to the Minister as to the manner in which
tribunals engaged in the review of administrative decisions should be
constituted;
(f) to make recommendations to the Minister as to the desirability of
administrative decisions that are the subject of review by tribunals other
than the Administrative Appeals Tribunal being made the subject of review
by the Administrative Appeals Tribunal; and
(g) to make recommendations to the Minister as to ways and means of improving
the procedures for the exercise of administrative discretions for the
purpose of ensuring that those discretions are exercised in a just and
equitable manner.
(2) The Council may do all things necessary or convenient to be done
for or in connexion with the performance of its functions.
Table 2: Reports of the Administrative Review Council
Year |
Report No. |
Report Title |
1978 |
1. |
Administrative Decisions (Judicial Review) Act 1977
Exclusions under Section 19 |
1979 |
2. |
Repatriation Appeals |
|
3. |
Review of Import Control and Customs By-Law Decisions |
|
4. |
Administrative Appeals Tribunal Act 1975 Amendments |
|
5. |
Defence Force Ombudsman |
|
6. |
Entry to Cocos (Keeling) Islands and Christmas Island |
1980 |
7. |
Citizenship Review and Appeals System |
|
8. |
Social Security Appeals |
|
9. |
Administrative Decisions (Judicial Review) Amendment
Bill 1980 |
|
10. |
Shipping Registration Bill |
1981 |
11. |
Student Assistance Review Tribunals |
|
12. |
Australian Broadcasting Tribunal Procedures |
|
13. |
Commonwealth Employees' Compensation Tribunal |
|
14. |
Land Use in the ACT |
1982 |
15. |
Australian Federal Police Act 1979: Sections 38 and
39 |
|
16. |
Review of Decisions under the Broadcasting and Television
Act 1942 |
1983 |
17. |
Review of Taxation Decisions by Boards of Review |
|
18. |
Compensation (Commonwealth Government Employees)
Act 1971 Amendments |
|
19. |
Rights of Review under the Migration Act 1958 and
Related Legislation Interim Report on the Constitution
of the Administrative Appeals Tribunal |
|
20. |
Review of Pension Decisions under Repatriation Legislation |
1984 |
21. |
The Structure and Form of Social Security Appeals |
1985 |
22. |
The Relationship between the Ombudsman and the Administrative
Appeals Tribunal |
|
23. |
Review of Customs and Excise Decisions: Stage Two |
|
24. |
Review of Customs and Excise Decisions: Stage Four
Censorship |
|
25. |
Review of Migration Decisions |
1986 |
26. |
Review of Administrative Decisions (Judicial Review)
Act: Stage One |
|
27. |
Access to Administrative Review: Stage One
Notification of Decisions and Rights of Review |
1987 |
28. |
Review of Customs and Excise Decisions: Stage Three
Anti-Dumping and Countervailing Duty Decisions |
|
29. |
Constitution of the Administrative Appeals Tribunal |
1988 |
30. |
Access to Administrative Review: Provision of Legal
and Financial Assistance in Administrative Law Matters |
|
31. |
Review of Decisions under Industry Research and Development
Legislation |
1989 |
32. |
Review of the Administrative Decisions (Judicial
Review) Act: The Ambit of the Act |
1991 |
33. |
Review of the Administrative Decisions (Judicial
Review) Act: Statements of Reasons for Decisions |
|
34. |
Access to Administrative Review by Members of Australia's
Ethnic Communities |
1992 |
35. |
Rule Making by Commonwealth Agencies |
1994 |
36. |
Environmental Decisions and the Administrative Appeals
Tribunal |
|
37. |
Administrative Review and Funding Decisions (A Case
Study of Community Services Programs) |
1995 |
38. |
Government Business Enterprises and Commonwealth
Administrative Law |
|
39. |
Better Decisions: Review of Commonwealth Merits Review
Tribunals |
|
40. |
Open Government: a review of the federal Freedom
of Information Act 1982 (report done jointly with the Australian
Law Reform Commission) |
Source: ARC Annual Report 1995-96, pp. vii-viii.
Footnotes
[1]. ARC, Annual Report 1976-77, p. 7
and p. i.
[2]. House of Representatives, Hansard,
14 May 1975, p. 2281.
[3]. House of Representatives, Hansard,
22 May 1975, p. 2743.
[4]. Senate, Hansard, 3 June 1975, p.
2150.
[5]. Administrative Appeals Tribunal Amendment
Act 1979, s. 10; Statute Law (Miscellaneous Provisions) Act 1988,
Schedule 1.
[6]. Evidence, ARC (Prof M Neave), p.
38.
[7]. ARC, Annual Report 1995-96, pp.
36, 103.
[8]. Portfolio Budget Statements 1997-98,
Attorney-General's Portfolio (Budget Related Paper No. 1.1), p. 83.
[9]. ARC, Annual Report 1995-96, p. 103.
[10]. Submission No. 16, ARC, p. 167.