Lessons from the Past/Challenges for the Future : Merits Review in the New Millennium

The Hon. Justice Deirdre O'Connor

Paper presented at the 2000 National Administrative Law Forum - Sunrise or Sunset? Administrative Law in the New Millennium
June 2000

One of the advantages of a new millennium is the natural desire created to review the past and plan or even predict the future.

WHY HAVE MERITS REVIEW?

The substantial increase in the level of interaction between government and citizen in post-war Australia provided the setting and contributed to the momentum for administrative law reform. The war had been fought to protect the citizens of this country and post-war developments were directed to improving the quality of life of individuals. By the 1970s the Commonwealth government had assumed a significant role in civil regulation and the provision of services to the public. As the Kerr Committee noted, this involved Ministers, public servants and statutory authorities making a vast and increasing range of decisions which affected individuals in many aspects of their daily lives. (1) The means for testing the correctness and value of these decisions, however, were inadequate. In particular, judicial review was expensive, highly technical and did not give individuals affected by a decision what would be of most immediate benefit to them - a review of that decision on the merits.

This desire to provide individuals with an opportunity to challenge government decisions affecting their interests in a country without a Bill of Rights was the primary motivation for establishing an administrative review tribunal with broad jurisdiction. The subsequent development of the administrative review system in Australia would appear to represent the realisation of this objective. The administrative review system currently provides for the review of decisions made under more than 350 legislative enactments and in 1998-99 administrative review tribunals received more than 35000 applications for review.(2)

The Kerr Committee believed that the existence of the review system would lead decision makers to be more careful to avoid error in their decisions and stimulate administrative efficiency but did not give detailed consideration to the impact that administrative review might have on the quality of public administration. (3) The availability of administrative review has led to increased awareness among decision makers about the exercise of decision making power within the terms of authorising legislation, promoted the consistent application of the law by decision makers and led to improvements in the quality of primary decision making.

Administrative review is now an integral part of the framework of government accountability together with the other elements of the administrative law system - the Ombudsman, judicial review in the courts and the Freedom of Information Act 1982. In the report Accountability in the Commonwealth Public Sector, accountability is described in the following terms:

Accountability is fundamental to good governance in modern, open societies. Australians rightly see a high level of accountability of public officials as one of the essential guarantees and underpinnings, not just of the kinds of civic freedoms they enjoy, but of efficient, impartial and ethical public administration. Indeed, public acceptance of government and the roles of officials depends upon trust and confidence founded upon the administration being held accountable for its actions. (4)

The administrative law system, when working properly, supplements and enhances the traditional processes of ministerial and parliamentary accountability in our system of government. As the Administrative Review Council (ARC) has stated, the administrative law remedies ensure that the administration is accountable to an individual in respect of its decisions that affect that person. Moreover, administrative law remedies improve the whole system of government decision making by increasing its openness and transparency and providing feedback on its performance. (5) Confident executive government should welcome this kind of audit.

The proposition that merits review and the other elements of the administrative law system add value to society has not gone unchallenged in the 25 years since it was introduced. On occasions commentators have questioned whether the costs of administrative review can justify any alleged benefits. Critiques of this kind can be attributed, in part, to the tension that has arisen between the rationale underpinning the system and the economic rationalist approach that has come to dominate public policy and public sector management. As Helen Murphy has observed, this approach has centred on the rationalised use of resources, personnel and time and an overriding emphasis on strictly economic goals. (6) Ministers and public servants not surprisingly have become increasingly accountable for the cost-effective expenditure of public monies. In such a climate, inevitably, less worth is attached to values that cannot be measured in dollar terms such as administrative justice for individuals, openness and transparency in decision making or the normative effect of administrative review decisions, particularly when implementing such values costs money.

However, more recent government initiatives which affect the relationship between government and individuals could be interpreted as representing a shift away from an approach which focuses solely on the "bottom line". Since July 1997 government bodies providing services to the public have been required to develop service charters in consultation with their customers. Service charters must articulate the service standards that customers can expect from the Department, agency or enterprise as well as the rights and responsibilities of customers when dealing with that organisation. (7) The development and publication of charters was designed and is expected to improve the quality of services by facilitating "a greater client focus for the public sector by bringing to the foreground of public administration the interests of the community we serve and our responsibilities and commitments to them".(8)

This notion that government and individuals have obligations to each other also underpins the concept of mutual obligation which is being developed in the area of social welfare. The content and potential for application of this concept has been articulated most recently in the interim report of the Reference Group on Welfare Reform.(9) More than just a requirement on individuals in receipt of income support to make a reciprocal contribution to society, mutual obligation recognises the interdependence of government, business, community organisations, families and individuals and the obligations they owe each other.(10) Government, in this analysis, has particular responsibilities as a funder and provider of income support and services.

It seems trite to say that in an environment which emphasises quality service and mutual obligation, the responsibilities of government must include not only a system for making correct and fair decisions but also an effective mechanism for the review of decisions if they do not comply with the objectives. Directly or indirectly, the government continues to exercise a significant amount of decision making power and administrative review remains a useful tool of accountability both for individuals whose interests are affected by specific decisions and, in a more general sense, for the community. Do we then have for the new millennium a merits review system which can deliver these checks?

WHAT IS THE CURRENT STATE OF MERITS REVIEW?

An examination of the current state of the administrative review system involves the consideration of three fundamental questions:

  • What administrative decisions are subject to merits review?

  • What is the scope of the review that administrative tribunals undertake?

  • Who is conducting merits review and under what conditions?

The answers, if there are answers, to these questions will expose the quality, indeed the integrity of the administrative review system and its fitness for the new millennium.

What decisions are subject to merits review?

The notion that administrative decisions affecting people's interests should, in general, be subject to external merits review is now accepted. In fact it has become a norm in the legislative process, both at the development stage and at the stage of parliamentary scrutiny. Guidelines on the types of decisions that should be subject to merits review have been published by the Administrative Review Council (ARC) for use in the development of proposals or legislation that involve the creation of administrative decision making powers.(11) The Senate Standing Committee for the Scrutiny of Bills and the Senate Standing Committee on Regulations and Ordinances examine bills and disallowable instruments to ensure that enactments do not make rights, liberties or obligations unduly dependent on non-reviewable administrative decisions. (12)

As we are all aware, however, a right to merits review can exist only where a legislative enactment creates a decision making power and also provides that a person may apply to an administrative tribunal for review of that decision. Quite properly the Parliament creates the right. Where decisions are made under a non-statutory scheme, there can be no right to merits review. This is particularly significant when considering the ramifications for administrative review of the contracting out of the delivery of government services. If contracted service providers are authorised to make decisions affecting people's interests outside a statutory framework, there can be no right to external merits review in respect of those decisions.

This legal conclusion is of increasing significance in the new millennium where the greater use of contracting out for service delivery and the privatisation of government decision making raises issues not only in relation to the availability of merits review but also to the application of the other administrative law remedies. The jurisdiction of the Commonwealth Ombudsman, the coverage of the FoI Act and the availability of judicial review are limited in respect of the activities and decisions of contracted service providers. Recipients of outsourced services and others affected by the actions or decisions of contractors are unlikely to be able to use the traditional public law remedies to seek redress against either the service provider or the government agency purchasing the services. If there is injury, then the remedy lies in the courts by virtue of the common law.

The ARC and a number of commentators have noted the difficulties that may arise in the pursuit of private law remedies in contract, torts or consumer protection against contracted service providers.(13) Remedies under contract law are unlikely to be effective because service recipients will not generally be parties to the contract. In relation to tort law, an action in negligence against the contracting agency or the service provider may be difficult to maintain. Then there is the inhibition of cost.

Quite apart from the difficulties that may be encountered in attempting to establish a legal right to a remedy, ordinary citizens are unlikely to pursue remedies in the courts which could rarely provide them with what would be of most immediate benefit to them - a review of a contractor's decision on the merits. It is also important to bear in mind that recipients of government services may suffer a range of disadvantages such as language difficulties or intellectual or physical disability which would make adversarial litigation even more out of reach.

The effect of removing or shrinking access to merits review and the other administrative law remedies could result in a partial return to the situation that existed prior to the introduction of the administrative reforms. Individuals adversely affected by decisions relating to government services must in such situations seek remedies from the courts which are by no means straightforward to establish nor inexpensive to assert. This is not to deny that there are other avenues for redress that can provide service recipients with a means of challenging the decisions of contractors. These include complaint handling mechanisms which a contractor may be required to establish under the contract with the government agency. However, such avenues for redress do not provide for independent merits review of a contractor's decision. As Hans Schoombee has observed: "Motherhood and apple pie promises in the form of non-actionable performance standards and soft-edged remedies such as mediation and supervision by an Ombudsman (valuable though they are) will not be enough." (14) - certainly not enough to preserve the credibility of the system.

The difficulties that individuals face in seeking to challenge decisions of contractors is only one of the negative consequences that flow from not maintaining the universality of a right to merits review. A further negative consequence of general significance for the community is the absence of one of the established mechanisms for the systemic review of the decision making system. As the ARC has noted, private law remedies do not provide the same type of feedback and enhancement of decision making and accountability that is provided by the administrative law remedies. (15) Other forms of accountability for monitoring the quality of decision making such as internal complaint handling mechanisms, the development of performance standards and the assessment of levels of service recipient satisfaction can play a role in this respect. However, unlike administrative tribunals which provide feedback in the context of decision making practices across the whole of government, these tailored accountability mechanisms are concentrated in the particular area of the contract.

In its recent report on the contracting out of government services, the ARC adopted as its central principle that "the contracting out of government services should not result in a loss or diminution of government accountability or the ability of members of the public to seek redress where they have been affected by the actions of a contractor delivering a government service." (16) If the administrative law remedies would have applied were the service to be delivered by a government agency, those remedies should continue to be available when the service is delivered by a contractor. In relation to maintaining the availability of a right to merits review, the application of this principle has ramifications for the implementation of any outsourcing proposal. It should be part of the negotiating process, one would hope, a mandatory condition of the contract.

As the ARC has observed, there are no constitutional impediments to vesting decision making power under Commonwealth legislation in a person other than an officer of the Commonwealth. (17) Nor is there anything to prevent the delegation of decision making power under Commonwealth legislation to a person who is not an officer of the Commonwealth. In either case the relevant legislation can also provide a right to merits review in respect of decisions made in exercise of the legislative power. Non-Commonwealth entities make reviewable decisions in a number of the AAT's existing jurisdictions. For example, a range of companies have been authorised under the Air Navigation Regulations 1947 to make decisions in relation to the issue of security identification cards for use in airports. Decisions made by these issuing bodies are subject to merits review.(18)

There is no legal impediment to contracted service providers exercising decision making power under Commonwealth legislation which also provides a right to merits review in respect of those decisions. The challenge, however, is to ensure that contracting out occurs in a way which facilitates the availability of a right to merits review. Clearly, the onus is on agencies to make certain that, if a contracted service provider will be making decisions that affect people's interests, the decision making process occurs within a statutory framework which provides for external merits review. The roles of the contractor and the agency in relation to the merits review process and the obligation on the contractor to give effect to any tribunal decision on review can be made part of the contract design. Without doubt, the availability of merits review will add to the cost of delivering the relevant service. However, this cost can be factored into the tendering process and should be seen as a necessary component of the cost to government in ensuring accountability in the delivery of a government service to the public. It is a means of quality control to maintain standards. It seems to me to be worth the money.

Maintaining the right of individuals to seek review of decisions affecting their interests is one of the significant challenges that exists for the integrity of the administrative review system. A further challenge to the ongoing role of administrative tribunals exists in relation to the types of decisions which tribunals review.

What is the scope of merits review? Where has all the discretion gone?

The task that an administrative tribunal must undertake when reviewing a decision on the merits was explained early in the life of the Administrative Appeals Tribunal. In Drake v Minister for Immigration and Ethnic Affairs Bowen CJ and Deane J stated:

The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal. (19)

This has been taken to mean that a tribunal must make a decision that is correct in law but that, if a range of decisions could be made, all of which are correct in law, the tribunal can choose the preferable decision. (20) Scope for making a preferable decision exists when discretion is available in the exercise of the decision making power.

In the 20 years since Drake was decided, the definition of the task that administrative tribunals must undertake remains unchanged. However, there have been significant changes in the nature of reviewable decisions. In particular, discretionary powers have largely been removed from legislation conferring benefits or regulating activity including immigration and social welfare law. A variety of reasons can be cited for this trend including the desire to have legislation express the scope of its application more clearly on its face and to improve the targeting of benefits by identifying more specifically the circumstances in which a benefit will be granted. It has also been suggested that the propensity of administrative tribunals to exercise discretions in favour of applicants regardless of the financial or policy implications of adopting such a course has played its part in the elimination of discretion. (21)

The effect of the removal of residual discretion from legislation is to limit the scope of administrative tribunals to make the correct or preferable decision in respect of an application for review. In particular, it removes any flexibility for tribunals to deal with those difficult cases in which strict legislative criteria fail to make provision for the unique and otherwise legitimate circumstances of a specific individual. Discretion is often included in legislation precisely because it is impossible "to foresee accurately all the permutations and combinations of circumstance which might arise for decision". (22)

There is an important role for discretion in administrative decision making and for tribunals in reviewing the exercise of those discretions. This does entail, however, certain responsibilities for tribunals. An administrative tribunal must be careful to exercise discretionary power in accordance with the terms and purpose of the relevant legislation and with due regard for government policy. In some jurisdictions, this obligation is made clearer by the imposition of a legislative requirement to have regard to ministerial or departmental directions or guidelines. (23)

It is inevitable that tensions will arise between agencies and administrative review tribunals when the exercise of discretionary power is subject to review. Tribunals will set aside or vary primary decisions that may be both correct in law and reasonable. As the ARC observed in its Better Decisions report, different outcomes are to be expected on review. (24) Review tribunals have greater time and resources to devote to identifying and obtaining relevant factual material and to determining each individual case. New or additional information will often cause the tribunal to change the decision. Review tribunals also bring a fresh and independent perspective to the consideration of the merits of each application in the context of the relevant law and policy. This is one of the significant advantages of having independent external merits review, particularly in relation to decisions that are politically contentious.

However, the existence of tension between agencies and administrative review tribunals should not be interpreted as something which is essentially negative. If administrative tribunals are undertaking review with appropriate regard to their proper function, tension can be interpreted as a sign of a healthy system of accountability. The tendency to remove all discretion from primary decision making or to shield the exercise of discretionary decision making from merits review disadvantages individuals and diminishes the utility of administrative tribunals.

Who is conducting merits review and under what conditions?

The most significant challenge facing the administrative review system in the new millennium relates to administrative tribunals themselves and the environment in which merits review is conducted. The issues that arise in this regard relate to the status and independence of tribunal members and the independence of tribunals as organisations. These are issues which are fundamental to the integrity and quality of the administrative review system.

The skill and experience of tribunal members and their independence in decision making have a substantial influence on the quality of the review system and its value in the framework of government accountability. Equally significant for the legitimacy of the tribunal system is the community's acceptance that the system has value to them as citizens. As the ARC noted in its review of Commonwealth merits review tribunals:

It is crucial that members of the community feel confident that tribunal members are of the highest standard of competence and integrity, and that they perform their duties free from undue government or other influence. (25)

In terms of ensuring competence of tribunal members, the trend in Commonwealth tribunals is to advertise vacancies for tribunal members and undertake a selection process which includes assessing the candidates against publicly-available selection criteria. (26) This would seem to be essential to ensure that tribunal members possess the necessary personal qualities and skills to work effectively in tribunals.

A rigorous process for testing the competence of potential members is, however, only one aspect of ensuring that tribunals comprise members with the skills required for tribunal work. The remuneration for tribunal members must be set at a suitable level to ensure that tribunals attract people with high-level skills who will add value to the merits review process. As is the case among the existing Commonwealth tribunals, differences in the nature of the work to be undertaken will mean it is appropriate for there to be variations in the level of remuneration for different tribunal members. However, the range of remuneration must be at a level that properly reflects the role of tribunal members in providing high-level external merits review of administrative decisions.

Ensuring that tribunal members are free from undue influence, and are perceived to be free from such influence, in their decision making raises more difficult issues. The principal mechanism employed to guarantee the independence of the AAT when it was first established was tenure for the presiding members coupled with narrow powers to suspend or remove members from office. In an environment in which tenure is no longer considered appropriate for appointments to review tribunals, other ways must be found to secure the independence of tribunal members and to enhance the perception of independence. The principal areas to which attention must be given in this regard are the process of appointing tribunal members, the length of terms of appointment and the reappointment process.

The legislative provisions relating to the appointment of members to the current Commonwealth review tribunals provide only that members are to be appointed by the Governor-General. (27) The process leading to recommendation for appointment is a ministerial responsibility and occurs outside any statutory framework. There is no uniform practice among the existing merits review tribunals in relation to this process.

An interesting example of the possibilities in this area is a proposal developed in Victoria. In a Discussion Paper on tribunal reform in that state, the Department of Justice proposed the establishment of a Victorian Tribunal Council which would oversee the process of appointments to the Victorian Civil and Administrative Tribunal (VCAT). (28) It was envisaged that the Council would comprise:

  • the President of VCAT;

  • an additional Supreme Court judge nominated by the Chief Justice to hold office for 7 years;

  • a Deputy President of VCAT nominated by the Attorney-General to hold office for 7 years or until ceasing to be a Deputy President;

  • an ordinary member of another Division of VCAT nominated by the President of VCAT to hold office for 7 years or until ceasing to be a member;

  • 3 nominees of the Attorney-General, at least one of whom is not a lawyer, to hold office for 7 years; and

  • the Legal Ombudsman. (29)

The Council's role would have been to advertise for applications for tribunal members. It would have considered applications received and any persons proposed by the Attorney-General or the Department of Justice and provided the Attorney-General with a list of suitable candidates containing more names than the number of vacancies. After consultation with Cabinet, the Attorney-General would have put forward the names of the successful candidates for appointment, all chosen from the list provided. If the Attorney-General considered the names on the Council's list to be unsuitable, he or she could have required the Council to submit a fresh list. (30)

The proposal for the Victorian Tribunal Council was not adopted in the legislation establishing VCAT. However, an appointment process of this kind which institutionalises a consistent merit-based selection process would do much to reassure the community that members have been appointed on the basis of their skills and abilities. It would minimise the potential for allegations to be made that appointments were on the basis of political affiliations or bias. A transparent merit-based appointment process would be a significant part of any comprehensive system to support the independence of tribunal members.

Another important aspect of such a system relates to the appropriate length of appointments for tribunal members. The legislative provisions regarding terms of appointment to Commonwealth tribunals prescribe only a maximum term ranging from three to seven years with the potential for reappointment. (31) Recently, terms of appointment for tribunal members have rarely been for the maximum number of years and in some cases have been for relatively short periods of time. The proposal to establish the Administrative Review Tribunal has been cited as the explanation for this.

The ARC has noted that, in general, terms of appointment shorter than three years "are undesirable since they do not give the members any sense of security". (32) Short term appointments do not allow members to develop their skills and expertise and may also discourage suitable people from applying for a position as a tribunal member. More significantly, however, it has been said that appointing tribunal members for short periods of time with the prospect of reappointment may undermine their independence. (33) As Paul Dawson has noted, the argument is that the possibility of reappointment increases the likelihood of tribunal members being more inclined to uphold government decisions than they would otherwise have considered appropriate in order to secure reappointment. (34) It is reasonable to conclude that the combination of short term appointments and the prospect of reappointment can give rise to a perception that tribunal members may be unduly influenced in their decision making.

Tribunal members should be appointed for a reasonable minimum period unless there are particular circumstances that would warrant a shorter term of appointment. A suitable period of appointment would also be complimented by a transparent reappointment process. As with the legislative provisions relating to appointment of tribunal members, there is no detail in the relevant statutes about how the process for the reappointment of tribunal members should occur. There are no common guidelines for Commonwealth administrative review tribunals on reappointment. Nor is there a uniform practice among the tribunals in relation to the reappointment of members.

The ARC has suggested that concerns about reappointment decisions can be minimised if all members seeking reappointment are assessed according to public criteria. (35) The view of the ARC is that the process need not be identical to that applying to new applicants but should involve a selection panel assessing a member's suitability for reappointment against the selection criteria in order to provide the minister with relevant information on the field of candidates. A process of a similar nature formed part of the proposal for a Victorian Tribunal Council.(36) Members seeking reappointment would apply to the Council which would consider their applications as if they were being appointed for the first time.

The establishment of a consistent and transparent reappointment process would complete a comprehensive system for the appointment of tribunal members that would enhance confidence in their skills and independence. Such a process is likely to be assisted by a performance management scheme for tribunal members and the reappointment process could be developed in conjunction with such a scheme. While performance appraisal of one kind or another has become an accepted practice in the Commonwealth tribunals, it is not conducted in a uniform way in the different tribunals. (37)

Concerns have been expressed about measuring performance and, in particular, its impact on the independence of tribunal members. (38) The existence of a performance management scheme can give rise to speculation about the potential for pressure to be placed on members in respect of decisions in particular cases. This is so even if review outcomes are not included as one of the performance measures. As the ARC has noted, too much pressure to conform to an expected norm may threaten the willingness of members to make what they consider to be the correct or preferable decision in a particular case. (39) The more significant issue, however, relates to the imposition of performance standards and, in particular, the reasonableness of standards relating to how tribunal members deal with their caseload. If standards relating to the conduct of the review are unreasonable, the pressure to meet performance targets may negatively affect the ability of tribunal members to give adequate attention to individual cases.

A performance management scheme developed by tribunals based on consultation with the membership is likely to arrive at appropriate standards in relation to the quantity and quality of work by tribunal members and best serve the needs of management and individual members. In addition to providing a means for assessing members for the purposes of reappointment, such a performance management scheme would be a valuable tool for the ongoing assessment and accountability of members and for identifying areas in which members may require assistance to undertake their function better.

Who pays the piper?

The challenges that exist in relation to the capacity of tribunals to undertake high-quality merits review extend beyond issues about individual members to the independence and financial security of tribunals as organisations. In large part, these issues concern the way in which tribunals are funded and the adequacy of the financial resources allocated to them. The perception of independence and the quality of the review process are closely connected with these issues.

The method of funding is not consistent among the existing Commonwealth merits review tribunals. The AAT, the Migration Review Tribunal and the Refugee Review Tribunal are separate agencies for the purposes of the Financial Management and Accountability Act 1997 and receive a single allocation of funding from the Department of Finance and Administration. The Social Security Appeals Tribunal and Veterans' Review Board, on the other hand, are funded directly by the agencies with portfolio responsibility. As the ARC has noted, where a review tribunal receives its funding from an agency whose decisions form all, or a large part of, its workload, it is possible that the tribunal's independence will be, or will be perceived to be, compromised by that arrangement. (40) In terms of perception, there is the danger that the tribunal may be considered to be under pressure to make decisions which favour the agency. In terms of actual effects, a tribunal's independence may be adversely affected if the agency does not allocate sufficient funds to enable the tribunal to undertake its review function properly.

The allocation of sufficient funding to a tribunal is an issue which also arises for tribunals funded by a central agency. They are not immune from the possibility that the appropriation they receive will not be sufficient to perform their review function adequately. The challenge in this area is to devise a method of funding which will provide tribunals with adequate funding and which also enhances the perception of independence from agencies whose decisions it reviews. As the ARC has recognised, under an ideal funding model tribunals should have complete discretion in the use of the funds in pursuit of their objectives. (41) Tribunals are fully accountable for the appropriations they receive through the normal governmental processes. Tribunals must be in a financial position, however, to support their members in making the correct or preferable decision in each application and to provide a high-quality audit of the quality of government decision making.

CONCLUSION

This country does not have a Bill of Rights. However, for the last 25 years it has had an administrative review system which gives individuals "rights" to have reviewed adverse decisions of government in a wide variety of situations. There is no decline in the demand for such review, in fact it is increasing, and the current system built around the centrepiece of the AAT has been regarded for that 25 years as world best practice. The challenge for the new millennium must be to preserve this system's best characteristics.

  1. To have the scope, i.e., coverage of the system as wide as possible and to minimise the potential effects of privatisation on individual rights.

  2. To fund the system appropriately and make sure it can do its work effectively without political pressure. Funding tied to performance is antithetical to this goal, as is funding supervision by agencies whose decisions are being reviewed.

  3. To have members of Tribunals who are competent, well-trained and meeting acceptable publicly known standards. These members should be appointed, considered for reappointment and removed from office by transparent publicly known processes.

A system without any one of these features might be seen as less than perfect. However, a system lacking all of these features would in my view negate the very point of having a merits review system in the first place, i.e., accountability for the system of public administration. Merits review conducted properly, i.e., independently and at a high standard will retain the confidence of the community. This should be the goal of the system in the new millennium.

Footnotes

  1. Australia, Parliament 1971, Commonwealth Administrative Review Committee - Report, Parl. Paper 144, Canberra, p. 5.

  2. Administrative Appeals Tribunal, Annual Report 1998-99, p. 105; Immigration Review Tribunal/Migration Review Tribunal, Annual Report 1998-99, pp. 6 and 18; Refugee Review Tribunal, Annual Report 1998-99, p. 6; Social Security Appeals Tribunal, Annual Report 1998-99, p. 48; Veterans' Review Board, Annual Report 1998-99, p. 17.

  3. Commonwealth Administrative Review Committee, pp. 107 and 109.

  4. Management Advisory Board and Management Improvement Advisory Committee, Accountability in the Commonwealth Public Sector, Report No. 11, AGPS, Canberra, 1993, p. 3.

  5. Administrative Review Council, The Contracting Out of Government Services, Report No. 42, Canberra, 1998, p. 15.

  6. Murphy H, 'Administrative Review Rights and Changes to Commonwealth Government Service Provision', (1998) 2 Flinders Journal of Law Reform 235, p. 235.

  7. Department of Industry, Science and Tourism, Putting Service First: Principles for Developing a Service Charter, March 1997.

  8. id.

  9. Reference Group on Welfare Reform, Participation Support for a More Equitable Society, Canberra, 2000.

  10. ibid., p. 51.

  11. Administrative Review Council, What Decisions Should Be Subject To Merits Review?, Canberra 1999.

  12. Senate Standing Orders 23 and 24.

  13. See, for example, Administrative Review Council, The Contracting Out of Government Services; Marks A, 'Outsourcing and Administrative Law in the Commonwealth Public Sector', (1996) 79 Canberra Bulletin of Public Administration 104; Mullins J, 'Handling Complaints Related to Government Services Delivered by Contract', (1996) 79 Canberra Bulletin of Public Administration 109; Schoombee H, 'Privatisation and Contracting Out - Where are we going?', (1998) 87 Canberra Bulletin of Public Administration 89.

  14. Schoombee, p. 92.

  15. Administrative Review Council, The Contracting Out of Government Services, p. 26.

  16. ibid., p. vii.

  17. ibid., p. 80

  18. See also the Airports (Building Control) Regulations 1996 and the Airports (Control of On-Airport Activities) Regulations 1997.

  19. Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589.

  20. Administrative Review Council, Better Decisions: review of Commonwealth Merits Review Tribunals, Report No. 39, AGPS, Canberra, 1995, p. 10.

  21. See, for example, Skehill S, 'The Impact of the AAT on Commonwealth Administration: A View from the Administration' and Blunn A, 'The Impact of the AAT on Social Security Administration' in McMillan J (ed.), The AAT - Twenty Years Forward, Australian Institute of Administrative Law, Canberra, 1998, pp. 56-63 and 99-107.

  22. Skehill, p. 62.

  23. See, for example, s. 499 of the Migration Act 1958.

  24. Administrative Review Council, Better Decisions: review of Commonwealth Merits Review Tribunals, pp. 19-20.

  25. ibid., p. 70.

  26. Administrative Review Council, Review of Commonwealth Merits Review Tribunals - Discussion Paper, AGPS, Canberra, 1994, p. 73.

  27. See s. 6(1) of the Administrative Appeals Tribunal Act 1975, ss. 396(1) and 459(1) of the Migration Act 1958, cl. 3 of Schedule 3 to the Social Security (Administration) Act 1999 and s. 158(1) of the Veterans' Entitlements Act 1986.

  28. Wade J, Tribunals in the Department of Justice: A Principled Approach, Department of Justice, Melbourne, 1996.

  29. ibid., p. 12.

  30. ibid., p. 14.

  31. See ss. 6 and 8(3) of the Administrative Appeals Tribunal Act 1975, ss. 398 and 461(1) of the Migration Act 1958, cl. 4 of Schedule 3 to the Social Security (Administration) Act 1999 and s. 159 of the Veterans' Entitlements Act 1986.

  32. Administrative Review Council, Better Decisions: review of Commonwealth Merits Review Tribunals, p. 82.

  33. Dawson P, 'Tenure and Tribunal Membership', (1997) 4 Australian Journal of Administrative Law 140, p. 146.

  34. ibid., p. 147.

  35. Administrative Review Council, Better Decisions: review of Commonwealth Merits Review Tribunals, p. 83.

  36. Wade, pp. 14-15. Interestingly, the Victorian proposal also envisaged automatic reappointment for members if the Council recommended this to the Attorney-General.

  37. The performance of members may be measured against time standards, against the requirements set out in a code of conduct for members, against the terms of a performance agreement or against selection criteria. The process may involve the provision of statistical information about performance, self-appraisal, an assessment by a more senior member of the tribunal and/or a formal interview.

  38. Administrative Review Council, Review of Commonwealth Merits Review Tribunals: Discussion Paper, p. 82.

  39. id.

  40. Administrative Review Council, Better Decisions: review of Commonwealth Merits Review Tribunals, p. 130.

  41. id.