Acceptance of ARC advice and recommendations
1.35 The evidence to the Committee generally suggested that the ARC has
provided useful advice and made worthwhile recommendations. For example,
the submission from Mr John Basten QC stated that the ARC's "recommendations
on many issues have been treated with respect and have frequently been
acted upon". [33]
1.36 ARC annual reports provide an overview of responses during the reporting
year to its recommendations, identifying also those for which no response
had yet been received. However, the ARC did not provide any quantitative
indicators of the extent to which its advice and recommendations were
acted upon. In regard to recommendations in its reports, the ARC told
the Committee:
The Council has not attempted to calculate a percentage figure
for implementation rates. Given the breadth and complexity of the reports
of the Council, especially the more recent ones, it is not easy to identify
a method that would meaningfully quantify implementation rates.
For example, the Council would consider that the Rule Making Report
[34] will be precisely or fully
implemented by the passage of the Legislative Instruments Bill 1996. The
fact that that Bill may not pick up each recommendation of the report
is irrelevant, in the Council's view, to assessing the value of the report.
Another difficulty in relying on implementation as a measure of effectiveness
is that not all reports set out law reform proposals. Some reports set
out guidelines and considerations that should be taken into account by
the Government in future action. The Council's GBEs Report is such
a report. [35]
1.37 The ARC also argued that even where a report or recommendation was
not adopted, it may still have influenced legislation or other changes,
and this needed to be taken into account in assessing the ARC's effectiveness.
[36] The submission from the Attorney-General's
Department supported this:
Where some of the Council's recommendations have not been accepted,
they have nevertheless been the catalyst for debate and change. Indeed,
the existence of the Council's advice and recommendations as a catalyst
for change is at least as important as the precise implementation of particular
items of advice or individual recommendations. [37]
1.38 Professor John Goldring expressed a similar view:
The ARC has not always been right. I have differed from its recommendations
on Migration decisions and more recently, from the proposals in its report,
Better Decisions, [38]
but I consider that the recommendations made by the ARC have given a sounder
basis for the final decisions of the governments of the time. [39]
1.39 Despite caveats about the utility of the criterion of implementation
rates and the lack of precise measurements of it, the Committee was told
that the ARC had been reasonably effective according to the criterion.
The ARC said its reports "have been implemented to a significant
extent". [40] Mr Stephen Skehill,
who is a member of the ARC and also the Secretary of the Attorney-General's
Department, said:
It is an imperfect measure, but by and large I think that the ARC
has had a pretty good track record of either having its reports adopted
in whole or in part or in it having significantly influenced decisions
that have been taken in a particular area. [41]
1.40 However, the Committee received some suggestions that a lack of
comprehensiveness in the work of the ARC may have made it more difficult
for governments to adopt its recommendations quickly and perhaps affected
the implementation rate. The Department of Immigration and Multicultural
Affairs said in its submission that a greater emphasis in ARC reports
on cost-effectiveness "may assist in informing government more appropriately
and shorten the lead times for implementation of recommendations in certain
situations as the major cost implications of issues would have been considered
in reaching recommendations". [42]
1.41 The Attorney-General's Department said it considered that:
the Council should be more active in engaging with relevant departments
and agencies in the course of developing and preparing advice for the
Attorney-General. To this end the Council should:
- make greater use of the "issues/discussion paper"
technique for identifying issues and inviting input at an early stage
from all relevant stake-holders;
- engage in early and on-going consultation with relevant agencies
and identify options for meeting perceived difficulties that might arise
from its recommendations;
- provide the Attorney-General with advice that not only reflects
the expert and considered opinion of the Council, but that also alerts
the Attorney-General to possible difficulties that Government may encounter
if the Council's recommendations or advice were either accepted or rejected;
and
- seek to develop a "financial impact statement" to
accompany all advice (including recommendations) presented to the Attorney-General.
[43]
1.42 The Department's submission also conveyed the Attorney's view:
The Attorney-General takes the general view that the value of
the Council's work is likely to be enhanced where the Council takes,
in consultation with him, the initiative in selecting its work projects,
and where the Council seeks to engage all relevant stakeholders in the
formulation and development of its advice. [44]
1.43 The Committee notes that the suggestions in the preceding paragraphs
are to some extent matters of degree and emphasis. For example, the
ARC told the Committee that it had not ignored cost-effectiveness in
its work to date, [45] and similarly
it had endeavoured to consult widely before reporting. [46]
ARC reports as useful summaries of the law and contributions to debate
1.44 The evidence to the Committee indicated that the ARC's reports
and advices served as useful summaries and analyses of the law, thereby
making an important contribution to debate and discussion.
1.45 The comments cited in the previous section on the role of ARC
reports as catalysts for change are equally relevant in assessing the
contribution made by the ARC's work to debate and discussion. On this
point, the Administrative Appeals Tribunal's submission said: "There
are a number of significant [ARC] reports that are awaiting the government's
response. Many of these latter reports have been very influential in
shaping debate and discussion in the relevant area." [47]
1.46 The Committee was told that ARC reports were highly regarded and
valued in the community, especially by academics. For example, Professor
Enid Campbell of Monash University said in her submission:
I wish to highlight the value and importance of the publications
of the ARC to teachers and researchers in tertiary educational institutions
who are concerned with matters of administrative law and practice. My
own collection of publications of the ARC is one upon which I continually
draw in the course of my own teaching and research. [48]
1.47 The Public Interest Advocacy Centre said in its submission: "We
have relied on the work of the ARC to provide research, monitoring and
analysis of the development of administrative law". [49]
1.48 However, Professor John Goldring criticised what he saw as a lack
of empirical research underpinning some of the ARC's work: "When
the task of an institution is to consider and evaluate practical matters,
mere studies of law and management theory are seldom an adequate basis
for action". [50] He acknowledged
that what he saw as the lack of adequate research was because the ARC
"has always had inadequate resources", rather than the fault
of the ARC itself.
Success of other forms of policy input
1.49 The Committee received little comment on the success of the ARC's
other forms of policy input, such as its comments on proposals being
submitted to Cabinet, its advice to departments, and its submissions
to Parliamentary and other inquiries.
ARC's role as a facilitator
1.50 The submissions that commented on the ARC's role in fostering
exchanges of ideas and cross-pollination of best-practices did so favourably.
For example, Ms Susanne Tongue, the Principal Member of the Immigration
Review Tribunal, said in her submission:
The Council promotes cooperation between the tribunals and is
available to work cooperatively with tribunals as a group or individually
on particular projects. I welcome its current initiatives in promoting
links between the tribunals. It reports collectively and separately
on tribunals' performance in its Annual Report. The Council also hosts
regular meetings of heads of tribunals and convenes the annual tribunals
conference. These arrangements promote exchange of information between
the tribunals and provide excellent networking opportunities. The 1996
Tribunals Conference was more workshop-based than previously and this
Tribunal found that approach to be a valuable supplement to its own
member and staff professional development activities. [51]
Conclusion
The Committee found that it is difficult to identify objective criteria
against which to assess the effectiveness of the Administrative Review
Council.
Nonetheless, the evidence received by the Committee supports the view
that the Administrative Review Council has been an effective body, providing
useful and timely advice on administrative review matters.
[Return to Table of Contents]
Footnotes
[33]. Submission No. 4, Mr J Basten
QC, p. 1.
[34]. ARC, Report to the Attorney-General:
Rule Making by Commonwealth Agencies: Report No 35, March 1992 (footnote
added).
[35]. Submission No. 16, ARC, paras.
198-200. The GBEs Report referred to is the ARC's Report to the Attorney-General:
Government Business Enterprises and Administrative Law: Report No 38,
February 1995.
[36]. Submission No. 16, ARC, para.
203.
[37]. Submission No. 25, Attorney-General's
Department, p. 9.
[38]. ARC, Report to the Minister for
Justice: Better Decisions: Review of Commonwealth Merits Review Tribunals:
Report No 39, September 1995 (footnote added).
[39]. Submission No. 2, Prof J Goldring,
p. 2. See also Submission No. 22, Department of Immigration and
Multicultural Affairs, p. 2.
[40]. Submission No. 16, ARC, para.
201. See also Submission No. 12, Administrative Appeals Tribunal,
p. 9.
[41]. Evidence, ARC (Mr S Skehill),
p. 35. See also Submission No. 25, Attorney-General's Department,
p. 9.
[42]. Submission No. 22, Department
of Immigration and Multicultural Affairs, p. 2.
[43]. Submission No. 25, Attorney-General's
Department, p. 6. The Department's submission recognised that these
practices may require amendment to s. 51 of the Act.
[44]. Submission No. 25, Attorney-General's
Department, p. 8.
[45]. Evidence, ARC (Prof M Neave),
pp. 33.
[46]. Submission No. 16, ARC, para.
28.
[47]. Submission No. 12, Administrative
Appeals Tribunal, p. 9.
[48]. Submission No. 11, Prof E Campbell,
p. 4. Other academics made similar comments: see Submission
No. 7, Mr J Barnes, p. 2; Submission No. 10, Mr B Dyer,
p. 3.
[49]. Submission No. 17, Public Interest
Advocacy Centre, p. 2.
[50]. Submission No. 2, Prof J Goldring,
p. 2.
[51]. Submission No. 3, Ms S Tongue,
pp. 2-3. See also Submission No. 5, Refugee Review Tribunal,
p. 1.