Work and focus of the ARC
1.11 The submission from the ARC identified a broad range of activities
that it currently performs. [11]
1.12 The ARC provides advice to the Attorney-General in the form of reports
based on research projects either referred to it by the Attorney-General
or initiated by the ARC itself. In many cases the consultation leading
to a report has involved the publication of an issues paper or other consultative
document. ARC project reports have been tabled in the Parliament and published.
On the page opposite is a list of the project reports produced by the
ARC since its inception in 1976.
1.13 The ARC told the Committee that it continuously monitors administrative
law and practice and identifies issues which require inquiry or other
action. [12] The Committee notes that several of the research
projects undertaken by the ARC have arisen from this sort of monitoring.
[13]
1.14 In addition to the advice and recommendations in its project reports,
the ARC provides letters of advice to the Attorney-General. The ARC advised
the Committee that many matters which formed the basis of a report in
its earlier years would now be dealt with in a letter of advice, and this
has meant a significant change in the types of issues on which the ARC
concentrates its major project activity. [14] In more recent years the ARC has also provided
advice to Parliamentary committees, including several to this Committee,
[15] and to other reviews and inquiries.
1.15 For the last decade the letters of advice have been published in
the ARC's Annual Reports, although publication may be deferred in the
public interest, for example where the matter is still under active consideration
by the Government. [16] The table on the following page lists the letters
of advice made in 1995-96, and illustrates the varied topics addressed
and the range of recipients with whom the ARC deals.
1.16 In the course of giving advice on whether the exercise of a decision-making
power is appropriate for external merits review, the ARC developed principles
and consolidated them into guidelines. It first published these in 1984,
and the most recent consolidation was published in 1993. [17]
Table 3: Letters of Advice by the Administrative Review Council in
1995-96
1. |
Submission to the Australian Law Reform Commission
inquiry into litigation costs rules |
2. |
Advice to the Minister for Justice concerning the
review of decisions made under meat inspection legislation |
3. |
Advice to the Minister for Justice concerning review
of decisions under the Trade Practices Regulations |
4. |
Advice to the Minister for Justice concerning certain
non-reviewable ministerial determinations under the Social Security
(Non-Budget Measures) Legislation Amendment Bill 1995 and the
Student and Youth Assistance Amendment (Youth Training Allowance)
Bill 1995 |
5. |
Submission to the National Road Transport Commission
concerning its Review of Administrative Decisions under a National
Road Transport Law |
6. |
Advice to the Minister for Justice concerning merits
review of third-party assessments relevant to decision making
under the Migration Act 1958 |
7. |
Advice to the Minister for Justice concerning review
of Pharmaceutical Benefits Advisory Committee recommendations
and decisions of the Pharmaceutical Benefits Pricing Authority |
8. |
Advice to the Minister for Justice concerning the
review of decisions under the Superannuation Act 1976 |
9. |
Submission to the Senate Standing Committee for the
Scrutiny of Bills and the Senate Standing Committee on Regulations
and Ordinances concerning Scrutiny of National Scheme Legislation
and the desirability of Uniform Scrutiny Principles |
10. |
Submission to the Australian Law Reform Commission
inquiry into the law of standing |
11. |
Submission to the Australian Taxation Office concerning
a Taxpayers' Charter |
12. |
Submission to the Attorney-General's Legal Practice
Review of ATSIC's decision-making and its reconsideration of decisions |
13. |
Submission to the Australian Law Reform Commission's
inquiry into Complaints against the Australian Federal Police
and the National Crime Authority |
14. |
Submission to the Corporations Law Simplification
Task Force concerning Takeovers: Proposal for Simplification |
15. |
Submission to the Office of Indigenous Affairs, Department
of Prime Minister and Cabinet concerning proposals for amendment
to the Native Title Act 1993 |
Source: ARC, Annual Report 1995-96, pp. 40-41.
1.17 In addition to the advice provided to Ministers and agencies, the
ARC provides comments on the Government's legislative proposals that have
administrative law implications by providing co-ordination comments on
recommendations to Cabinet. These comments are not published. It also
works informally with government agencies and decision makers to assist
in policy development and to help improve government decision making generally.
For example, the ARC told the Committee that its representatives were
invited to a briefing session held jointly by the Department of Social
Security and the Department of Employment, Education, Training and Youth
Affairs to discuss proposals for the new corporatised Commonwealth Employment
Service. [18] The ARC said it had also been consulted recently
by the Government Service Charter Task Force as part of its process of
developing principles and guidelines for introducing customer service
charters across the Commonwealth public sector. [19]
1.18 In addition to providing advice in various forms, the ARC liaises
with administrative review tribunals on matters relating to decision-making
and overall effectiveness. For example, it holds regular meetings between
the ARC President and tribunal heads and it organises a regular Tribunals
Conference which is attended by members and staff of a number of Commonwealth,
State and Territory tribunals. The ARC told the Committee that these conferences
provide a forum for the formal and informal exchange and discussion of
ideas and experiences, allow for cross-fertilisation between tribunals,
and foster experiments and innovations. [20]
1.19 The ARC is required to produce annual reports on its own operations
which must be tabled in the Parliament. [21] In these the ARC includes case-flow statistics,
with accompanying ARC comments, for the main Commonwealth merits review
tribunals.The ARC provides assistance and training to persons involved
in making government decisions and also to those affected by such decisions
by, for example, providing information to community organisations.
1.20 1.21 More generally, the ARC promotes awareness of administrative
review through participation in seminars, conferences and lectures. Since
1984 it has published a bulletin called Admin Review, which provides information
about recent developments in administrative review as well as the work
of the ARC. The bulletin mostly appeared quarterly for the first ten years,
but now appears less frequently, with two editions being published in
the 1995-96 year.
Assessing the ARC's effectiveness
1.22 The Committee's terms of reference require it to inquire into "the
effectiveness of the ARC in performing its functions".
1.23 It should be noted that a range of organisations told the Committee
that in their view the ARC had been generally effective in performing
its functions. [22]
1.24 However, the Committee found that objective assessment of the ARC's
effectiveness was not easy, due to the wide range of the ARC's activities
and the inherent difficulties in objectively assessing such things as
the quality of its advice, the value of its policy recommendations, and
the success of its efforts to promote administrative law values.
1.25 The submission from the Attorney-General's Department commented:
"In the absence of accepted performance indicators for bodies such as
the Council, it is difficult to come to an overall objective assessment
of its effectiveness". [23] The Department, however, did suggest two criteria
that could be considered: the regard in which the ARC is held, and its
record in completing references and agreed projects.
1.26 The ARC told the Committee:
In the Council's view there is no single indicator that can effectively
take into account both the measurable successes of the Council and the
more general benefits that flow from its work. Any attempt at a quantitative
costs benefits analysis would, in the Council's view, be simplistic. [24]
1.27 The ARC identified a range of factors that it believed should be
taken into consideration in assessing its effectiveness. These were the
extent to which:
- its advice was accepted and its recommendations implemented, or, if
not implemented in full, acted as catalysts for change;
- its reports and advices served as useful summaries and analyses of
the law, thereby making an important contribution to debate and discussion;
- its other forms of policy input, such as its comments on proposals
being submitted to Cabinet and its submissions to Parliamentary and
other inquiries, were successful;
- its reputation was high in the eyes of those outside government; and
- its contribution as a facilitator led to worthwhile exchanges of ideas,
cross-pollination of best-practices, and experiments and innovations.
[25]
1.28 The Committee found it helpful to use the factors suggested by
the Attorney-General's Department and the ARC in making its assessment.
Regard in which the ARC is held
1.29 The submissions to the Committee, by being broadly supportive
of the ARC, suggested that it is generally held in high regard. The
submission from the Attorney-General's Department said:
So far as the regard with which the Council is held, the Department
believes that the Council is held in high regard. The work of the Council
is frequently mentioned in relevant academic circles and the Department
understands that the Council and its work is favourably known in foreign
countries, particularly those with a common law tradition. [26]
1.30 Submissions from others also referred to the ARC's international
reputation. [27]
1.31 One element in assessing the regard in which the ARC is held is
the extent to which its advice is sought in situations where it could
usefully contribute. The Attorney-General's Department said in its submission:
"there is a discernible trend among departments and agencies not only
to display an awareness of the Council but to approach either the Council
or its Secretariat for advice at an early stage of policy or program
development". [28]
1.32 The ARC told the Committee that the extent to which its advice
had been sought had varied over time, but that there was a fairly healthy
degree of interchange and consultation. [29] However, the ARC agreed that in some cases departments
failed to consult the ARC in situations when they might have been expected
to do so. [30] In Chapter 3, the Committee considers suggestions
for improving the extent of consultation.
1.33 The submission from the Department of Immigration and Multicultural
Affairs was generally supportive of the ARC. However, in relation to
the proposals for changes to the method of review of decisions regarding
migration and refugees, the Department commented:
In relation to some of these changes, the ARC has, on occasion,
been seen by the Department as committed to an administrative law "package"
and a particular institutional framework without
sufficient regard being given to cost, the uniqueness of situations
and to alternative methods to achieving the desired results of improving
accountability and access to government by all people regardless of
background. [31]
Record on completing references and agreed projects
1.34 The submission from the Attorney-General's Department stated that
the ARC's record in completing references and agreed projects indicated
a general timeliness, an awareness of competing workload priorities,
and an appreciation of the need to keep the Attorney-General informed
of its progress. [32]
[Retutn to Table of Contents]
Footnotes
[11]. Submission No. 16, ARC, para.
28.
[12]. Submission No. 16, ARC, para.
28.
[13]. See for example ARC, Report to the
Attorney-General: Rule Making by Commonwealth Agencies: Report No 35,
March 1992, p. 1 for the genesis of that report.
[14]. Submission No. 16, ARC, para.
22.
[15]. See for example, the ARC's submission
in May 1995 to this Committee's inquiry into the Migration Legislation
Amendment Bill (No 5) 1994.
[16]. ARC, Annual Report 1995-96, p.
40.
[17]. ARC, Annual Report 1983-84, pp.
11-20; ARC, Annual Report 1992-93, pp. 70-77.
[18]. Submission No. 16, ARC, para.
216.
[19]. Submission No. 16, ARC, para.
216.
[20]. Submission No. 16, ARC, para.
227.
[21]. Administrative Appeals Tribunal Act
1975, s. 58.
[22]. Submission No. 12, Administrative
Appeals Tribunal, pp. 8-9; Submission No. 17, Public Interest
Advocacy Centre, p. 2; Submission No. 18, Victorian Bar Council,
p. 3; Submission No. 19, Australian Council of Social Service,
p. 5; Submission No. 22, Department of Immigration and Multicultural
Affairs, p. 3.
[23]. Submission No. 25, Attorney-General's
Department, p. 8.
[24]. Submission No. 16, ARC, para.
196 (footnote omitted).
[25]. Submission No. 16, ARC, paras.
197-230.
[26]. Submission No. 25, Attorney-General's
Department, p. 9.
[27]. Submission No. 7, Mr J Barnes,
p. 3. See also Submission No. 11, Prof E Campbell, p. 4; Submission
No. 24, Prof M Partington, p. 3.
[28]. Submission No. 25, Attorney-General's
Department, p. 9.
[29]. Evidence, ARC (Prof M Neave, Mr
S Skehill), p. 34.
[30]. Evidence, ARC (Prof M Neave),
pp. 33-34. See also Submission No. 16, ARC, paras. 216-17.
[31]. Submission No. 22, Department
of Immigration and Multicultural Affairs, p. 1 (emphasis in original).
[32]. Submission No. 25, Attorney-General's
Department, p. 9.