Report on the Role and Function of the Administrative Review Council



Evidence for and against the ARC

2.1 With one exception, all the submissions received by the Committee considered that the ARC preformed a valuable role and that it should continue to carry out this role. Amongst these submissions were three from former Ministers who had had portfolio responsibility for the ARC.[1] With respect to the present Minister, who is the Attorney-General, the submission from his Department stated: "The Department understands that the Attorney-General considers the Council to be the pre-eminent specialist administrative law policy adviser to the Government".[2] The submission also stated that "from the Department's perspective, there is a clear and continuing requirement for the Council".[3]

2.2 To the extent that the submissions supportive of the ARC advocated any changes at all, the proposals were for relatively minor adjustments intended to enhance its work and to clarify the legislation under which it operates.

2.3 Only the submission from Mr Anthony Morris QC put a fundamentally different view. In it, he expressed a broad concern that the Commonwealth's administrative review system had become over-elaborate and over-expensive, and that money spent seeking a "deluxe" system would be better spent in areas of greater need. In the light of this concern he made two points about the ARC:

The first is that the ARC has, historically, failed to stem the mush-rooming cost of the administrative review systems which exist under Federal law. The second point is that the ARC, far from offering a solution to the spiralling magnitude of the administrative review infrastructure, is itself a part of the problem. It is just one more bureaucratic institution, which adds to the cost of providing a "deluxe" system of administrative review in this country.[4]

2.4 Mr Morris QC noted that the ARC's functions, as set out in the Act, suggested that the major role of the ARC was to assist in establishing and bedding down the administrative law reforms of the 1970's. He then argued:

Surely the process of reviewing and recommending has, after 21 years, taken its full course. Even if the systems which now exist are not perfect, it is hardly to be expected that after 21 years there is sufficient scope for improvement to justify the existence of a permanent review body to recommend further improvements. ... As it seems to me, the time has now been reached - if it was not reached some years ago - that the ARC has achieved its "use by date".[5]

2.5 Mr Morris QC said that if there were any continuing functions that the ARC might usefully perform, these could readily be absorbed into the normal systems of policy making within government. They did not in his view justify the retention of a permanent body like the ARC.[6]

2.6 The ARC and others responded to Mr Morris's view by saying he gave insufficient weight to the constant changes that occur in the structures and processes of public administration, and therefore understated the continuing need for the ARC. Mr Alan Robertson SC, a member of the ARC, criticised Mr Morris for appearing to assume that there was a fixed set of statutes, and that once the ARC had reviewed the statute book, its task was completed.[7]

2.7 Professor Marcia Neave, the President of the ARC, told the Committee:

while government continues to change and evolve, I think there is a continuing role for a body that can oversee what the effects of that might be and what changes might need to be made to the administrative law system.[8]

2.8 The ARC gave as an illustration the need to consider how government accountability should be maintained in a period when it is becoming increasingly common for government to contract out for the delivery of services that it previously provided directly.[9] The ARC is currently addressing issues in this area, and told the Committee its issues paper "has had an incredible response".[10]

2.9 Professor Neave also pointed out that the ARC was an advisory body: the expansion of administrative review has been the result of decisions made by governments, albeit that the decisions may well have been supported by the ARC.[11]

2.10 The submission from the Attorney-General's Department also referred to changes that have occurred since the ARC was created. The submission stated:

In an era of increasingly sophisticated and changing public administration, there is an ongoing need for monitoring and reporting on administrative law issues and a requirement for high quality specialist administrative law advice. ... changes in the conduct and practices of government make issues of openness and accountability more critical and support the ongoing existence of an independent body able to advise government on the appropriate legal and structural mechanisms for scrutiny of government actions.[12]

2.11 The Committee asked the ARC if there would ever come a time when there was no longer a need for it. Mr Skehill responded:

while ever we have dynamic public administration I think it probably will not. Having said that, I think we as a council ought to work as though we were trying to put ourselves out of business - that is, we ought to try and work as part of the administration with a view to making the administration so good that citizens do not feel the need to seek recourse to review mechanisms.[13]

2.12 The Committee invited Mr Morris QC to respond to these criticisms. He did so, rejecting the criticism that he had assumed a fixed and static set of statutes. However, he said it did not follow that a permanent body like the ARC was needed to monitor and review the constant changes in the law, because few of those changes made a significant impact on administrative review procedures:

But whilst I acknowledge that the Commonwealth Parliament, in modern times, generates huge volumes of legislation, it is very rare for such legislation to bring about fundamental changes in the way that decision-making processes are undertaken at the public service level. ... I reject the suggestion that my submission was based upon a mistaken assumption that 'there is a fixed or static set of statutes'. My assumption is, and remains, that existing administrative procedures, including administrative review procedures, are generally sufficient to accommodate the consequences of legislative change.[14]

2.13 The ARC in turn replied to Mr Morris's response by saying:

Mr Morris also makes the point ... that it is rare for legislation to bring about fundamental changes in decision making processes. The Council's point is that there have, nevertheless, been profound changes in the last 20 years in the way in which government services are provided and government decisions are made. ... The Council sees itself as having a continuing role in providing advice to the government on how these changes in service delivery and decision making might be implemented while retaining the core values that administrative law seeks to protect and uphold, namely lawfulness, fairness, rationality, openness and efficiency.[15]

2.14 Mr Morris responded to evidence that while there is change in government there will always be a need for the ARC. He noted that this implied that the ARC would become a permanent feature of government, and he said that he was "quite frankly alarmed" at this prospect.[16]

2.15 The Committee is also concerned if bodies whose original tasks have largely been completed are allowed without close scrutiny to assume new roles and thereby perpetuate their existence. The Committee notes that there was a measure of agreement between the views of Mr Skehill and Mr Morris on the appropriate role for the ARC. Mr Skehill told the Committee:

we need to be careful that we do not have an administrative review structure that is better than it should be and that we have a focus that is firmly directed to getting the right decision first time round. The aim of tribunals and the aim of the council should be to do themselves out of a job. The aim should be to work back into administration through improving the quality of primary decision making in such a way that citizens less and less have need to have recourse to an external review arrangement.[17]

2.16 Mr Morris commented on Mr Skehill's observation: "That, with respect, is my entire argument expressed with admirable brevity and clarity".[18] Mr Morris added:

Australia, as a country with a "Holden Commodore" economy (i.e., one that is efficient and reliable, with some degree of comfort, but without the highest standards of luxurious appointments) cannot afford a "Rolls Royce" system of administrative decision-making and review.

2.17 The Committee observes that Mr Skehill's view of the current role of the ARC is consistent with the revised mission statement recently adopted by it. The ARC told the Committee that in May 1996 it had re-defined its direction and on-going mission so as to give a greater focus on the quality of primary decision-making.[19] The ARC said that it had identified two fundamental roles for Commonwealth administrative law. These were improving the quality, efficiency and effectiveness of government decision making generally; and enabling people to test the lawfulness and merits of decisions that affect them. The ARC concluded that although the first of these roles had always been recognised, it had not always been given as much attention by the players in the administrative law system as it warranted.

2.18 The ARC decided that it should place greater emphasis on its role in advising the Attorney-General on ways and means of improving the processes of primary decision making, and on actively promoting better administrative decision making by providing advice and assistance to decision makers throughout the system of decision making and review. As a result, since May 1996 the ARC has defined its on-going mission as being:

to ensure that the administrative decision-making processes of the Federal Government are correct according to law and accord with administrative law values, by working with all relevant interests - political, bureaucratic and community based.[20]

2.19 The ARC said that the vision it was seeking to achieve was that decisions made in the administration of Commonwealth Government policies and programs should be of consistently high quality.

2.20 The Attorney-General's Department told the Committee that the Department endorsed the ARC's definition of its current mission.[21]


The Committee concludes that there is a continuing need for the Commonwealth Government to receive advice and recommendations on administrative review and decision-making, and to promote a comprehensive, affordable and cost-effective administrative law system.

Need for a separate and permanent ARC

2.21 Having concluded that the ARC's current functions need to be performed, the Committee considered whether the ARC should continue to perform them as a separate and permanent body. The evidence given to the Committee identified several inter-related reasons for keeping the ARC in this form, rather than alternatives such as absorbing it into the Attorney-General's Department or some other body, and having its project work done by ad hoc inquiries. The main strands in this evidence are illustrated in the following paragraphs.

2.22 The Senate Standing Committee on Regulations and Ordinances said in its submission: "The Committee considers that administrative review and administrative law generally are important aspects of personal rights, which justify a separate and permanent administrative law advisory body".[22] The submission stated that "any dilution of the independence or powers of the ARC would be undesirable" and that "the worst outcome for the effectiveness of the ARC would be if it was absorbed by, or became under the control of, the Attorney-General's Department".[23] It illustrated this by saying that the quality of ARC's report on rule-making by Commonwealth agencies[24] "would not have been as good if it had, for instance, been passed through the sieve of a Department of State".[25]

2.23 Mr Bruce Dyer, a senior lecturer in law at Monash University, also saw advantages in having an independent adviser:

In comparison with the A-G's department, a separate and independent statutory body must be better placed to give advice which is unaffected by the vested interests of the administration itself. This, of course, is particularly important in the area of administrative law, given its concern with the mechanisms by which the administration is held accountable.[26]

2.24 Similarly, the Welfare Rights Centre said it valued the ARC's independent status. In its submission, it argued that if the ARC were to be absorbed into a department or agency, this would create a public perception that the body was less receptive to the views of other stake-holders and might not be impartial in balancing the competing interests involved. This, the Centre said, would undermine confidence in and acceptance of the ARC's recommendations, reducing the value of the ARC to all stake-holders.[27]

2.25 The Australian Council of Social Service told the Committee that to entrust responsibility for administrative law advice to a body with other areas of responsibility would lead to a dissipation in the effort and priority given to administrative law.[28] ACOSS also said:

The permanence of the ARC is one of its great strengths and crucial to the effective performance of its oversight role. This characteristic allows the ARC to learn from and build upon its work, facilitating the development and retention of institutional knowledge and wisdom. ... permanence enables an organisation to build up on-going relationships and a body of contacts that it can draw upon continually in its work.[29]

2.26 ACOSS added that, because the ARC was a separate and permanent body, its credibility was enhanced and bodies like ACOSS were more willing to contribute to its work and governments were more willing to take the ARC's recommendations seriously.[30]

2.27 Mr Stephen Lloyd, an officer of the Attorney-General's Department and former member of the ARC's staff, said in his submission that the various elements and agencies making up the administrative law system were intended to work together as a comprehensive package:

In my view, the efficiency and effectiveness of the package will be put at risk if there is not a voice advocating that end. Sometimes, the short term interest of one of the players may be to put its own desires above that of the efficiency of the package as a whole. If there is no process for monitoring any such ambit claims, there is a real risk that the package will seriously deteriorate. The ARC is ideally placed to maintain the integrity of the administrative law package because it consists of the main players in the field.[31]

2.28 Similarly, the ARC said that its separate status enabled it to take a whole-of-government approach: "It does not suffer from the 'turf protection' difficulties which would make it particularly difficult for a unit within a government department to take a similar approach".[32] The ARC also said that its status as a separate and permanent body allowed it to develop a more consistent, coherent and cohesive approach to administrative law and administration in this country.[33]

2.29 In relation to dealing pro-actively with new issues, the ARC said that as a permanent body, the ARC could "anticipate and respond to new questions as they arise".[34] The submission from the Welfare Rights Centre made a similar point: "The ARC should remain a permanent body in order to provide advice at the time new initiatives are being developed to ensure that appropriate administrative review accountability mechanisms are established at the outset."[35]

Merger with the Australian Law Reform Commission?

2.30 If the ARC were not to continue as a separate body, the alternative to absorbing its functions into the Attorney-General's Department would be to have its functions undertaken by another agency. The agency mentioned in this context has been the Australian Law Reform Commission (ALRC).

2.31 The possibility of the ALRC amalgamating with or assuming the functions of the ARC was examined by the House of Representatives Standing Committee on Legal and Constitutional Affairs in 1993-94. Its report did not support a merger.[36] It did however, recommend that the ALRC "should develop and maintain mechanisms to avoid wasteful duplication and to foster cooperative work" with, amongst others, the ARC, and that there should be joint projects between the two bodies.[37] A joint project has since occurred.[38]

2.32 The evidence in the current inquiry did not disclose any lack of co-operation or co-ordination between the ARC and the ALRC in the areas where their work might or does overlap. Nor did it disclose any wasteful duplication of effort.[39] However, the evidence was that the two bodies performed different functions, and there was no support for merging them.[40]

2.33 For example, Professor Neave told the Committee:

We do not support merger with the Australian Law Reform Commission, both because we are a body with an emphasis on an expertise in one particular area of the law - that is, administrative law - and because we also do things other than write major reports. We provide letters of advice. We make cabinet coordination comments. We monitor, evaluate and educate. We interact with tribunals. Those functions are quite different from the sorts of functions that the Australian Law Reform Commission discharges.[41]

Financial implications of alternatives to the ARC

2.34 The evidence given to the Committee suggested that there would not be any significant cost-savings if the ARC were to be abolished and its functions transferred elsewhere. Mr Skehill, speaking as Secretary of the Attorney-General's Department rather than in his capacity as an ARC member, told the Committee:

If this function were transferred into the department, I would very much want to continue to have access to the type of expertise that we have on the council - expertise from user groups, from academics, from the practising bar - because, frankly, we cannot emulate that within the department. ... I think if I had my druthers and the council were abolished I would be wanting to create an ad hoc advisory committee of pretty much the same type of configuration to get access to that input that we cannot provide as officers ourselves. CHAIR - What about a cost benefit analysis? About $1 million a year is spent on the ARC. If you were to do what you have just suggested, would that mean any saving at all? Mr Skehill - I suspect not. We would still have the staff. We would still provide the support service they need. I would like to think we would still pursue the publication of a discussion paper to gather greater community input. I would like to think we would still provide a report that government could deliberate upon and, again, seek its own input on. I think the chance is that there would be in fact increased costs because the sitting fees we currently pay to the members would in many cases be significantly below the consultancy fee that they could otherwise charge. I think it is a relatively well recognised phenomenon that people who might otherwise earn significantly more are often prepared to discount to an independent advisory body where they would not discount to the great unwashed bureaucracy.[42]

2.35 A lesser form of merger might see the Council itself continue, but with its secretariat services provided in common with those of another agency. The submission from the Attorney-General's Department commented on this option:

it is unlikely that there would by any significant economies to be gained in seeking to provide common secretariat services for the Council from some other source, for example, amalgamation with ALRC. Rather, it is likely that an amalgamation would generate additional cost in the immediate short term and would risk the dissipation or dilution of expertise in the longer term.[43]

Recommendation No. 1

The Committee notes suggestions that the Administrative Review Council should be abolished and its functions transferred to the Attorney-General's Department or merged with those of the Australian Law Reform Commission.

The Committee recommends that the Administrative Review Council should remain as a separate and permanent body, provided that it is making a significant contribution towards an affordable and cost-effective system of administrative decision-making and review.

2.36 The Committee notes that it may be possible to improve the scope of the information provided by the ARC on its performance, in order to assist the community to assess the value of its work more precisely.

2.37 The current Commonwealth guidelines for reporting by departments include a requirement that performance information be provided. As part of this, the guidelines state that departments should list the performance measures of a quantitative and qualitative kind that have been adopted for the activity concerned, and should discuss past-year performance in terms of these measures.[44] The Committee notes that the departmental guidelines do not expressly apply to agencies, and the ARC does not have formal performance measures of this kind. By way of comparison, the Committee observes that the Australian Law Reform Commission and the Family Law Council are bodies that are broadly similar to the ARC in their respective subject areas. The former does have formal performance measures in place,[45] while the latter does not.[46] Recommendation No: 2

The Committee recommends that, in its annual reports, the Administrative Review Council consider providing performance measures of a quantitative and qualitative kind for the activities that it performs, and discussing past-year performance in terms of these measures.

In the Committee's view, this use of performance indicators will facilitate a better public appreciation of the performance of the Administrative Review Council.

[Return to Table of Contents]


[1]. Submission No. 6, Hon L Bowen AC, p. 1; Submission No. 13, Hon P Durack QC, p. 2; Submission No. 21, Hon D Kerr MP, p. 1.

[2]. Submission No. 25, Attorney-General's Department, p. 8.

[3]. Submission No. 25, Attorney-General's Department, p. 3.

[4]. Submission No. 1, Mr A Morris QC, pp. 8-9.

[5]. Submission No. 1, Mr A Morris QC, pp. 9, 10.

[6]. Submission No. 1, Mr A Morris QC, pp. 10-11.

[7]. Evidence, ARC (Mr A Robertson SC), pp. 28, 29.

[8]. Evidence, ARC (Prof M Neave), p. 27. See similarly Evidence, Mr J Barnes, p. 16; Submission No. 26, Mr S Lloyd, p. 3.

[9]. Evidence, ARC (Prof M Neave), p. 27, (Mr A Robertson SC), p. 28, (Mr S Skehill), p. 29.

[10]. Evidence, ARC (Prof M Neave), p. 24, referring to ARC, The Contracting Out of Government Services: Issues Paper, February 1997.

[11]. Evidence, ARC (Prof M Neave), p. 27.

[12]. Submission No. 25, Attorney-General's Department, p. 3.

[13]. Evidence, ARC (Mr S Skehill), p. 32.

[14]. Submission No. 1A, Mr A Morris QC, pp. 7, 8.

[15]. Submission No. 16A, ARC, p. 2.

[16]. Submission No. 1A, Mr A Morris QC, p. 4.

[17]. Evidence, ARC (Mr S Skehill), p. 50.

[18]. Submission No. 1A, Mr A Morris QC, p. 13.

[19]. Submission No. 16, ARC, paras. 164-67.

[20]. Submission No. 16, ARC, para. 167; ARC Annual Report 1995-96, para. 1.6.

[21]. Submission No. 25, Attorney-General's Department, p. 4.

[22]. Submission No. 23, Senate Committee on Regulations and Ordinances, p. 1.

[23]. Submission No. 23, Senate Committee on Regulations and Ordinances, pp. 1, 2.

[24]. ARC, Report to the Attorney-General: Rule Making by Commonwealth Agencies: Report No 35, March 1992.

[25]. Submission No. 23, Senate Committee on Regulations and Ordinances, p. 1.

[26]. Submission No. 10, Mr B Dyer, p. 2.

[27]. Submission No. 20, Welfare Rights Centre, p. 2.

[28]. Submission No. 19, Australian Council of Social Service, p. 2.

[29]. Submission No. 19, Australian Council of Social Service, p. 3.

[30]. Submission No. 19, Australian Council of Social Service, p. 3.

[31]. Submission No. 26, Mr S Lloyd, p. 2 (footnote omitted).

[32]. Submission No. 16, ARC, para. 52.

[33]. Submission No. 16, ARC, para. 59.

[34]. Submission No. 16, ARC, para. 66.

[35]. Submission No. 20, Welfare Rights Centre, p. 2.

[36]. House of Representatives Standing Committee on Legal and Constitutional Affairs, Law Reform: the Challenge Continues: A report of the inquiry into the role and function of the Law Reform Commission of Australia, May 1994, para. 8.3.16.

[37]. House of Representatives Standing Committee on Legal and Constitutional Affairs, Law Reform: the Challenge Continues: A report of the inquiry into the role and function of the Law Reform Commission of Australia, May 1994, recommendations 34 and 35.

[38]. ALRC and ARC, Open Government: a review of the federal Freedom of Information Act 1982, (ALRC Report No. 77 and ARC Report No. 40), January 1996. Collaboration between the ALRC and ARC had also occurred before the House of Representatives Committee's report: see Submission No. 16, ARC, Appendix 8.

[39]. Submission No. 9, Australian Law Reform Commission, p. 1; Submission No. 16, ARC, para. 94; Evidence, Ms S Tongue, p. 4.

[40]. See for example, Submission No. 2, Prof J Goldring, p. 2; Submission No. 9, ALRC, p. 1; Submission No. 11, Prof E Campbell, p. 1; Submission No. 16, ARC, paras. 91-97; Submission No. 19, Australian Council of Social Service, p. 2; Submission No. 20, Welfare Rights Centre, p. 2; Submission No. 25, Attorney-General's Department, p. 6; Submission No. 26, Mr S Lloyd, p. 7.

[41]. Evidence, ARC (Prof M Neave), p. 24.

[42]. Evidence, ARC (Mr S Skehill), pp. 30-31.

[43]. Submission No. 25, Attorney-General's Department, pp. 6-7.

[44]. Department of Prime Minister and Cabinet, Requirements for Departmental Annual Reports, March 1994 (updated to February 1996), p. 6.

[45]. Australian Law Reform Commission, Annual Report 1995-96, paras. 3.7 - 3.11.

[46]. Family Law Council, Annual Report 1995-96, p. x is headed "Powers, Functions and Objectives" but the following text deals only with functions, and does not refer to objectives or performance measures.