Acceptance of ARC advice and recommendations

Report on the Role and Function of the Administrative Review Council

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: