Possible changes to the ARC's functions

Report on the Role and Function of the Administrative Review Council

Possible changes to the ARC's functions

3.39 In Chapter 1, the Committee set out s. 51 of the Act, which defines the functions of the ARC, and described the range of activities that the ARC carries out. In Chapter 2 the Committee described the ARC's increased focus on improving primary decision-making.

3.40 Broadly, the evidence to the Committee displayed support for the activities being carried out and for the increased focus on primary decision-making. However, some suggested that the way the ARC's functions were defined in s. 51 of the Act could be improved, in order to reflect more clearly its current work and focus.

3.41 The Committee was told that the drafting of s. 51 reflected the early focus of the ARC's work.[34] To fit many of the ARC's current activities within the Act required either a broad reading of the functions set out in s. 51(1) of the Act, or a heavy reliance on the "incidental power" conferred by s. 51(2). The latter provides that the ARC "may do all things necessary or convenient to be done for or in connexion with the performance of its functions".

3.42 For example, Professor Enid Campbell told the Committee: "Some of the functions which have been undertaken by the ARC (e.g. publication of Admin Review, compilation and publication of statistics, organisation of Commonwealth tribunal conferences) are not specifically authorised by s 51 but are probably authorised by s 51(2)".[35]

3.43 The Committee was told by Mr Skehill that, although it might not be strictly necessary, it would be appropriate to amend the Act to reflect the ARC's new focus on primary decision-making:

While we can probably continue to do that without amendment of the act, and I do not think there is a problem there, I think it would be appropriate to amend the act to highlight that the focus ought to be on the right decision first time round and that the council ought to see itself, and the tribunals ought to see themselves, as working in aid of the primary decision maker so the lessons are learnt from review and fed back into the system.[36]

3.44 The submission from the Refugee Review Tribunal stated: "The RRT believes that ... it would be useful to spell out the [ARC's] educational and support role in s. 51 of the Act".[37] The submission from the Australian Council of Social Service stated: "The ARC's role in monitoring the operations of all components of the administrative law system needs to be acknowledged in the Act".[38]

3.45 Overlapping with the possibility of amending s. 51 of the Act to make it reflect more closely the ARC's current activities and focus were suggestions for giving the ARC broader functions. The submission from the ARC stated:

If specific statutory reference is needed to broader functions that the Council considers it is well placed to perform, the following matters might be considered for inclusion as further functions of the Council in section 51:
* to keep the Commonwealth administrative law system under review, monitor developments in administrative law and recommend to the Minister improvements that might be made to the system;
* to consult with and advise decision makers and agencies about the procedures they use in making administrative decisions;
* to make recommendations to the Minister about the membership qualifications, jurisdiction and operation of bodies (tribunals and other decision makers) that review administrative decisions;
* to facilitate training for members of tribunals, government agencies and other bodies in better decision making and other relevant areas;
* to consult with and advise bodies and agencies that review administrative decisions;
* to promote knowledge about the Commonwealth administrative law system; and
* to report to the Minister on matters referred to the Council by the Minister.

3.46 Other submissions also mentioned some of these points.[40]

3.47 The Government's intention to merge the five main merits review tribunals into a single Administrative Review Tribunal was set out above. As described in Chapter 1, the ARC carries out functions and activities that derive to some extent from the existence of the five independent tribunals. These include monitoring tribunal operations, assisting in training and in facilitating the flow of best-practices among tribunals and tribunal staff. The Committee received suggestions, prior to the announcement of the intention to merge, that these activities should be increased.[41]

3.48 The Committee considers that if the tribunals are merged into a single unit, it would be useful to examine whether any of the ARC's tribunal-related functions are better carried out, either wholly or in part, within the new tribunal, rather than externally by the ARC. The Committee also records the view of Mr Skehill that, if the merger goes ahead, there will be a need to monitor and evaluate whether it achieves its objectives, and the ARC would be well-placed to take on this task.[42] Conclusion and Recommendation Nos. 7 and 8

The Committee considers that it is undesirable to place extensive reliance on the incidental power conferred by s. 51(2) of the Administrative Appeals Tribunal Act 1975.

Accordingly, the Committee recommends that s. 51(1) of the Administrative Appeals Tribunal Act 1975, which sets out the Administrative Review Council's functions, should be amended to reflect more clearly all the major activities that it currently performs, in particular to underpin its current focus on improving primary decision-making.

The Committee recommends that, if the proposed merger of the five main merits review tribunals goes ahead, the amendments to the Administrative Review Council's functions take into account the impact of the merger on them.

ARC's Relationship with other bodies

3.49 In assessing the improvements that might be made to the work of the ARC, the Committee had regard to the evidence it received of ways in which the ARC's relationships with a range of other bodies could be improved. The bodies referred to in this evidence were:

Tertiary institutions

3.50 The Committee considered whether the ARC was taking full advantage of the knowledge and skills available in tertiary institutions. Professor Neave told the Committee that the ARC had in the past used academics to do consultancy work for it on either a voluntary or a paid basis. She said she thought the ARC would be doing probably more of this in the future.[43] The ARC also told the Committee that it had on-going relationships with bodies such as the Centre for International and Public Law at the Australian National University and the Australian Institute of Administrative Law. The ARC considered that joint activities with such bodies provided valuable opportunities to develop its educative role.[44]

3.51 Professor John Goldring told the Committee it would be appropriate for the ARC to work with universities in conducting some research. He noted the difficulty he had experienced in securing funding for such collaborative research.[45] The Committee asked Professor Neave to respond. She told the Committee

It is possible to apply for a grant [from the Australian Research Council] with an industry partner and, for those purposes, a government department or an agency counts as an industry partner, but that agency has got to devote some of its resources to the collaborative exercise. What I said to ... [Professor Goldring] at that time was that, just at the moment, our priorities would not fit in with what he wanted to do. But certainly, in principle, we are interested and there are a number of areas I have thought of where some collaborative research could actually be very helpful to us.[46]

Commonwealth departments

3.52 The Attorney-General's Department and the Department of Immigration and Multicultural Affairs were the only departments to make a submission to the inquiry.[47]

3.53 The submission from the Attorney-General's Department suggested that consideration should be given to improving the ARC's relationships with other Commonwealth departments and agencies through regular staff exchange programs. It said that a process of staff "cross pollination" would contribute to an increased understanding of issues from both the departmental/agency perspective as well as the Council perspective.[48]

3.54 Mr Stephen Lloyd, an officer of the Department who has also worked at the ARC, said in his submission that there was scope for improving the current arrangements for officers to move between the Department and the ARC:

In the early 1990s, there was an arrangement for a position to be created for a project that would see the main project officer go to the Department at the conclusion of the project in order to assist the Government in implementing the recommendations. I think that this is an excellent model. It would cost little or nothing. ... There are potential pitfalls with such schemes but I think that they hold a key to greater efficiency for the ARC and the Department, and for interesting career opportunities for the officers concerned.[49]

3.55 In this context, the Committee notes that the ARC has for many years experienced recurring difficulty in recruiting and retaining suitable staff. For example, the ARC's Annual Report 1995-96 stated: "The Council experienced operational difficulties as a result of a delay in filling the position of Deputy Director of Research and was unable to find a full-time replacement for a permanent officer who was seconded elsewhere".[50]

3.56 More generally, the ARC suggested that there was scope for improving the way departments interacted with it when they were considering initiatives. Professor Neave told the Committee: "I think it would sometimes be helpful if departments consulted us at an earlier stage when they are formulating proposals, because sometimes things come to us rather late in the process".[51]

3.57 Professor Neave indicated that the degree of awareness of the ARC's role was a factor in determining whether departments and agencies sought the views of the ARC. She and Mr Skehill accepted that the ARC might need to do more to bring to the attention of departments what it could add to their process.[52] Mr Skehill also commented that the ARC's new focus on primary decision-making to try to reduce the need for recourse to administrative review would give particular importance to the ARC's relations with departments.

3.58 The submission from the ARC said it believed that ministers should encourage their departments and agencies to consult with it at the earliest stages of the development of proposals that may involve administrative law issues. It hoped that this matter would be dealt with in the next edition of the Cabinet Handbook.[53] The Committee notes that the current edition states:

Particular note should be taken of the Administrative Review Council's role when Cabinet Submissions involving legislation with administrative review implications are being prepared. Consultation at an early stage with the Council should occur through the Attorney-General's Department (Justice Division). The Legislation Handbook contains further guidelines.[54]

Government and the Attorney-General

3.59 The submission from the Attorney-General's Department indicated that the relationship between the ARC and its portfolio Minister, currently the Attorney-General, is a good one.[55] However, the Committee received suggestions for amending the Act to clarify aspects of the relationship.

3.60 The Act does not in terms provide for the Minister to issue directions to the ARC, or to refer projects to it for inquiry and report. Nor does it provide that the Minister is to table ARC project reports in the Parliament. However, in practice the Minister does table ARC project reports. Also, the Committee received evidence that some of the ARC's reports result from requests by the Minister,[56] although it was told that this has happened "on infrequent occasions" only.[57]

3.61 The submission from the Attorney-General's Department stated:

there would be benefit in amending the Act to provide greater statutory clarity on the appropriate procedures applicable to the Council's work. The Act should state that reports by the Council are to be provided to the Minister and that the Minister is to table any such report in Parliament. The Act should also provide the Minister with the ability to refer matters to the Council for its consideration.[58]

3.62 Similarly, Professor Enid Campbell said in her submission that consideration should be given to whether to amend the Act to provide that the Minister may refer matters to the ARC and to give the Minister power to issue general directions. She argued:

Clauses of this kind are increasingly common in Commonwealth statutes and they can be defended. In the absence of a clear statutory mandate for a Minister to exercise some control over the activities of an advisory body like the ARC, there is always a risk that the body will set for itself agenda which, though authorised by the body's statutory charter, are not sufficiently attuned to the priorities of the Government of the day. It may also be argued that if a project is 'commanded' by a Minister, the Government is thereby placed under a moral obligation to ensure that adequate funds are made available to support the project.[59]

Recommendation Nos. 9 and 10

The Committee recommends that the Administrative Appeals Tribunal Act 1975 be amended to explicitly empower the Minister to issue directions to the Administrative Review Council and to refer matters to it for inquiry and report.

The Committee further recommends that the Administrative Appeals Tribunal Act 1975 be amended to provide that Administrative Review Council project reports are to be delivered to the Minister and tabled by the Minister in the Parliament.

3.63 Another aspect of the relationship between the ARC and the government of the day concerns the provision by the latter of responses to recommendations made in reports of the ARC. Implementation of ARC recommendations is of course a matter for the government, and not within the control of the ARC. The Act at present imposes no requirement on the relevant Minister to respond to ARC reports.

3.64 The submission from the Australian Council of Social Service said: "the effectiveness of the ARC can be limited by the government's delay or failure to respond to its reports".[60] It suggested that there "should be some obligation for the government to respond to major reports within a particular time frame".[61]

3.65 Mr Jeffrey Barnes, a lecturer in law and legal studies at La Trobe University and a former member of the ARC's staff, also referred to this issue: "one obstacle to its effectiveness is the lack of guarantee that the government will respond to the ARC's report or respond promptly".[62] He suggested that there should be a statutory obligation on the government to respond within a specified time to those ARC reports which it had specifically commissioned, but the obligation would not apply to those which the ARC had undertaken on its own initiative.

3.66 The Senate Standing Committee on Regulations and Ordinances said that the Act should be amended to require the Minister to respond to all ARC reports.[63]

3.67 The ARC said in its submission that it was "concerned at a tendency for governments not to provide any formal response to its reports".[64] It listed five of its reports that were more than 18 months old and for which there had been no indication of the Government's view on the contents. It pointed out that, due to the constant change occurring, "if you leave a report for too long you will then have to have a further report on whether the first report is still current, which obviously is not efficient".[65]

3.68 The ARC suggested that there should be an undertaking from government that the ARC will receive a formal response on each project report within 12 months of its presentation to the Minister.[66] It said a response deadline was useful in flagging the matter as one having some urgency, and thereby increasing the likelihood of a timely response.[67]

3.69 However, Mr Skehill did not share the ARC's view on this issue. He told the Committee that he understood the arguments for having a formal response deadline:

it seems to me that these are all valid views, but it is an issue that gives precedence to form over substance. If there is a requirement to give a response within X period and the government, because of the way in which it chooses to order its priorities, has not been able to consider the matter in depth, it will give a response because it is statute bound to do so. The response will either be ill-considered or favour the status quo, when better consideration might favour change as recommended. Or it will be a response that says, 'We have not made up our minds. We are going to take our own good time but, nevertheless, we have had a response.' I would have thought the far preferable outcome was for the council to be working on matters that are so closely aligned with the needs and priorities of government that they necessarily attract attention of government when a report is lodged and that the reports are so well done that the government says, 'Look, there is a package that we can largely pick up and run with.'[68]

3.70 The Committee observes that the Senate has long taken the view that the government should respond to reports of its Standing and Select Committees within three months.[69] Governments since the 1970s have given undertakings to respond to these reports.[70] Where the government of the day has not found it feasible to respond fully within the specified time, it has often provided interim responses which indicate the reason for the delay.

3.71 The Committee considers that government should undertake to respond publicly to ARC reports within twelve months. In the case of a new government following an election, the period should be either twelve months from the date of the report or six months from the date of taking office, whichever is the greater. The Committee does not consider it necessary that the obligation to respond be imposed by statute, and takes the view that a government undertaking would suffice.

3.72 Such an undertaking would provide some incentive for government to respond speedily. The degree to which it was complied with would provide an indicator of government performance. As part of the undertaking, the government should agree that, where it is not feasible to provide a final response with the twelve-month period, an interim response explaining the reason for the delay will be provided. To the extent that this is complied with, the public would be informed of the progress, or lack of progress, on particular ARC proposals. Recommendation No. 11

The Committee recommends that the Government give an undertaking to respond to all Administrative Review Council project reports within twelve months of their delivery.


[34]. Evidence, ARC (Prof M Neave), p. 23.

[35]. Submission No. 11, Prof E Campbell, p. 2.

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

[37]. Submission No. 5, Refugee Review Tribunal, p. 1.

[38]. Submission No. 19, Australian Council of Social Service, p. 5.

[39]. Submission No. 16, ARC, para. 235. The submission stated that the suggestions were cast in general language and did not represent an attempt to draft possible amendments to the AAT Act.

[40]. See for example Submission No. 10, Mr B Dyer, p. 3 ("disseminating information promoting good administration and observance of the principles of administrative law"); Submission No. 17, Public Interest Advocacy Centre, p. 2 ("If any new role were considered, we would like to seen the ARC possibly take a more active role in providing community information about utilising aspects of the Commonwealth's administrative law"); Submission No. 19, Australian Council of Social Service, p. 3 ("... explicitly confer a general discretionary power on the ARC to reinforce its proactive role in ensuring high quality, best practice decision-making on Commonwealth agencies").

[41]. See for example Submission No. 15, Mr J Gallagher, p. 1. Mr Gallagher, when he made the submission in October 1996, was the Principal Member of the Veterans' Review Board. He advocated giving the ARC an on-going regulatory role in relation to Commonwealth merits review tribunals which would include constant review of the constitution and workings of such tribunals, responsibility for the representation and inter-relationship of those tribunals, overseeing appointments to and the independence of tribunals and a monitoring of the effectiveness of the tribunals on Commonwealth administration.

[42]. Evidence, ARC (Mr S Skehill), p. 33.

[43]. Evidence, ARC (Prof M Neave), p. 45.

[44]. Submission No. 16, ARC, para. 195.

[45]. Submission No. 2, Prof J Goldring, p. 3.

[46]. Evidence, ARC, p. 45.

[47]. Although not intended as a formal submission to the Committee from the Department of Veterans' Affairs, a letter from the head of its Legal Services Branch, Mr R Wilde, 21 February 1997, stated that "the ARC is considered to have performed well" and supported the retention of the ARC (p. 1).

[48]. Submission No. 25, Attorney-General's Department, p. 6.

[49]. Submission No. 26, Mr S Lloyd, p. 8.

[50]. At p. 36. For earlier examples, see the ARC's Annual Report 1984-85, p. 71 ("... difficulties in recruiting suitable research staff ..."); Annual Report 1986-87, p. 60 (vacancies in project officer positions disrupted work of the ARC); Annual Report 1989-90, p. 64 ("... difficulties in attracting experienced and qualified staff ..."); Annual Report 1993-94, p. 41 (operational difficulties as a result of changes in secretariat staff, and time spent on recruitment).

[51]. Evidence, ARC (Prof M Neave), pp. 33-34.

[52]. Evidence, ARC (Prof M Neave, Mr S Skehill), p. 34.

[53]. Submission No. 16, ARC, para. 217.

[54]. Department of Prime Minister and Cabinet, Cabinet Handbook, 4th edn., Canberra, 1994, para. 5.30. The same Department's Legislation Handbook, Canberra, July 1988, para. 5.21 does not in fact add anything on the question of consultation, merely repeating the point that matters should be raised at an early stage.

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

[56]. See for a recent example, ARC, Better Decisions: Review of Commonwealth Merits Review Tribunals (ARC Report No. 39), September 1995, p. iii.

[57]. Submission No. 9A, Australian Law Reform Commission, p. 2. See also Submission No. 16, ARC, para. 28: "... reports may be referred to the Council by the Attorney-General ...".

[58]. Submission No. 25, Attorney-General's Department, p. 9. See also Submission No. 16, ARC, para. 235.

[59]. Submission No. 11, Prof E Campbell, p. 2.

[60]. Submission No. 19, Australian Council of Social Service, p. 6.

[61]. Submission No. 19, Australian Council of Social Service, p. 6.

[62]. Submission No. 7, Mr J Barnes, p. 6.

[63]. Submission No. 23, Senate Committee on Regulations and Ordinances, p. 2.

[64]. Submission No. 16, ARC, para. 205. See also the ARC Annual Report 1995-96, para. 3.12 which states:

the Council notes its disappointment that there has been no response to its Report No 32, Administrative Decisions (Judicial Review) Act: The Ambit of the Act and Report No 33, Review of the Administrative Decisions (Judicial Review) Act: Statements of Reasons for Decisions. Both reports address a variety of important matters in relation to the scope and operation of the Administrative Decisions (Judicial Review) Act 1977. The reports were tabled in Parliament in June 1989 and June 1991 respectively.

See Evidence, ARC (Mr Skehill), p. 35 for an explanation for the lack of response:

they have simply been reports that are very difficult for government. The previous government had got up to the point of consideration and possibly deciding and found that there was still more thought that it wanted to give to the matters. The present government, to some extent, found similarly.

[65]. Evidence, ARC (Mr A Robertson), p. 36.

[66]. Submission No. 16, ARC, para. 208.

[67]. Evidence, ARC (Mr A Robertson), p. 36.

[68]. Evidence, ARC (Mr Skehill), p. 37.

[69]. See the Senate resolution of continuing effect that was agreed to on 14 March 1973 and last amended on 24 August 1994.

[70]. See Senate, Hansard, 26 May 1978, p. 1933; 24 August 1983, p. 141; and 5 November 1991, p. 2397 (reference to correspondence).