This is the tenth in a special series of posts on the 50th anniversary of the Kerr Report, examining whether Australian administrative law is still fit for purpose. To see other posts in this series, click here.
BY PAUL DALY
Before situating the Kerr Report in what I consider to be its historical context, let me begin with a quibble. The Kerr Report considered comparative materials in some detail. This must have taken considerable effort in days where information from the United States, the United Kingdom, New Zealand and France was not available at the touch of a button, as it is today. Nonetheless, it is somewhat strange that Canada did not warrant a mention. As a Westminster-style federation with a written constitution, Australia has much more in common with the Great White North than with the other jurisdictions studied in the Kerr Report. Moreover, significant raw materials were available. The mammoth McRuer report into administrative justice in Ontario had been completed by 1971, with parts one and two published in 1968 and 1969. In Quebec, the Dussault report saw the light of day in 1971 – if the Kerr Committee could look at France, why could they not look at French Canada?
Furthermore, around this time, Canadians were debating the creation of a specialised court to oversee federal public administration, just as Australians were. Admittedly, here there was a difference. In Canada, there is no equivalent to the High Court of Australia’s original jurisdiction to grant relief against federal officers. Accordingly, when it became clear that each of the provincial superior courts could issue the prerogative writs against decisions of federal administrative decision-makers, there was a risk of divergent decisions, some invalidating, some affirming federal administrative action. Of course, the Supreme Court of Canada could ensure uniformity, but the road to Ottawa almost always passes through a provincial court of appeal and entry to 301 Wellington Street depends on convincing the Judges to grant leave because the issue is one of national importance. Hence the 1971 legislation creating Canada’s federal court system. Despite this difference, Canada’s journey towards centralised judicial control of federal public administration could have been instructive. There was also found, in the Federal Court Act 1971 some codification of the grounds of judicial review (although the convoluted formulation was hardly a model of clarity and was later significantly revised).
All that said, without exhuming Sir John to respond directly to my quibble – and if he were exhumed, I imagine the queue of quibblers would be quite long – I doubt I will get a satisfactory answer.
What, then, of the Kerr Report in historical context?
The early days of what we would now call ‘public administration’ were characterised – as much in Australia and Canada as in the British Isles – by the ad hoc creation of bodies to implement national policy. In Law and Government in Colonial Australia, Paul Finn identifies such creatures as the Commission of Railways and the Campbelltown Water Trust, created in the 19th century. Of course, there was no firm divide between public and private. Prior to settlement, imperial policy was set mostly by royal influence on private entities, such as (in Canada) the Hudson’s Bay Company and the Company of the Hundred Associates (though of course Indigenous peoples had their own governance structures, both intra- and inter-First Nation). Post-settlement, governance was often effected by individuals as holders of statutory offices. As professional civil services were created, some of the functions of these various boards, commissions and offices were subsumed into government departments. But ad hocery continued: bodies to ensure compensation for workplace injuries were created at the turn of the century, for example, both in Australia and Canada. Indeed, in the 20th century, the intensity of the ad hocery grew further. The expansion of the franchise created incentives for politicians to promise new programmes and the pressures of war and the Great Depression spurred even believers in limited government to expand the state.
This explosion of ad hocery created two primary problems, both of which were prominent in the Kerr Report: first, judicial control; second, a proliferation of administrative tribunals. The means of judicial control of the increasingly vast apparatus of government was the prerogative writs, developed centuries earlier, in a much simpler time, to permit the King’s courts in Westminster to control the activities of inferior tribunals dotted around England, from Cumbria to Cornwall. Retrofitting these writs to new forms of public administration – managerial, regulatory, welfare, prosecutorial, adjudicative and much more besides – became increasingly difficult. The Kerr Report describes the technical difficulties very well, at para 58:
It is generally accepted that this complex pattern of rules as to appropriate courts, principles and remedies is both unwieldy and unnecessary. The pattern is not fully understood by most lawyers; the layman tends to find the technicalities not merely incomprehensible but quite absurd. A case can be lost or won on the basis of choice of remedy and the non-lawyer can never appreciate why this should be so. The basic fault of the entire structure is, however, that review cannot as a general rule, in the absence of special statutory provisions, be obtained ‘on the merits’-and this is usually what the aggrieved citizen is seeking.
This was not just a technical problem. It was also a morally suboptimal position, inasmuch as those depending on government benefits found they had limited means of recourse in cases where so-called ‘privileges’ were denied or withdrawn, and vast swathes of public administration – in the areas of immigration and prisons, for instance – escaped judicial oversight almost entirely.
The second problem was the proliferation of tribunals. This was a recipe for confusion, as the Kerr Report observed at para 74:
There is no general prescription by Commonwealth legislation of the procedures which are to be followed in administrative tribunals established under Commonwealth law. But there is no marked uniformity in the procedures adopted by different tribunals. Furthermore, the rules of procedure are frequently not to be found in the statute and regulations relating to the tribunal; often the procedure is settled ad hoc in a particular case.
This particular problem had vexed many common lawyers, as demonstrated by the Kerr Report’s comparative analysis of the United States, where the Jackson Report led to the Administrative Procedure Act 1946, and the United Kingdom, where the Franks Report prompted the Tribunals and Inquiries Act 1958. McRuer picked up on the same theme and Ontario soon had the Statutory Powers Procedure Act 1971.
For these problems – the uncomfortable retrofitting of the prerogative writs and the proliferation of administrative tribunals – the Kerr Report offered two primary solutions.
First, without necessarily abolishing the prerogative writs, the Kerr Report recommended a ‘simplified’ uniform judicial review procedure (at para 87). This procedural reform, effected in Australia and elsewhere in the common law world, had radical implications. Simply put, it freed up courts, counsel and commentators to develop general principles of administrative law. Whereas in the 1960s there was a ‘law of certiorari’, a ‘law of prohibition’, a ‘law of mandamus’ and so on, by the end of the century (indeed, within a decade or two of these procedural reforms), administrative lawyers were talking in terms of general principles of legality, rationality and procedural fairness. The debates in courthouses and windowless university seminar rooms about the relationship between procedural fairness and legislative intent, legal unreasonableness as a means of controlling administrative power and the importance (or not) of materiality as a limiting principle in judicial review would not have happened without those procedural reforms. So too can contemporary discussions about automation and outsourcing be undertaken without worrying unduly about matters of procedural and remedy. Just as ‘tort’ and ‘contract’ rose from the ashes of the writs cremated by the judicature reformers of the late 19th century, so too did ‘administrative law’ emerge from procedural reform.
Second, the Kerr Report proposed a super tribunal – the Administrative Appeals Tribunal, as it became – to act as a unifying force in terms of oversight of the merits of government decisions, and a research council to work to ensure uniformity of procedure. This super tribunal route has been followed elsewhere: the United Kingdom has the structure created by the Tribunals, Courts and Enforcement Act, 2007; Canada has, in Ontario, ‘tribunal clusters’, Quebec’s Administrative Tribunal of Quebec and, in British Columbia, a Civil Resolution Tribunal (with an innovative online dispute-resolution platform for a variety of matters arising between private parties). In all of these instances, uniformity of treatment and uniformity of procedure has been a goal of reformers, just as it was of the Kerr Report. Furthermore, these bodies are generally peopled and staffed by non-lawyers: although distinguished jurists often preside and in-house practitioners offer decision-making support, many have recognised – as did the Kerr Report, at para 223 – the value of non-legal expertise in administrative decision-making. Indeed, in the foundational years of Canada’s generation of principles of administrative law, expertise became the lynchpin of judicial deference to administrative tribunals.
Beyond these two primary problems and solutions, the Kerr Report offered further stimulating reflections on accountability in Westminster-style systems. Long before Lord Mustill decried the ‘dead ground’ of ministerial responsibility, the Kerr Report had identified the deficiencies in the operation of the traditional doctrine. Simply put, ‘Parliament through its own procedures is unable to deal with all cases in which a citizen feels aggrieved’ (at para 363). The Kerr Report recommended, in particular, the creation of a ‘General Counsel for Grievances’. Around the common law world, Ombuds have been created to respond to difficulties created by ‘maladministration’, broadly defined.
Indeed, in some respects the Kerr Report presages the rise of the ‘New Administrative Law’ described by other contributors to this series. Ombuds and various other bodies, such as parliamentary budget officers and ethics commissioners form part of a new ‘integrity branch’ of government. Meanwhile, for all its imperfections, access to information legislation has ensured that citizens and civil society organisations have material at their disposal to hold government to account outside the traditional parliamentary channels. Debates about the separation of powers today seem somewhat quaint, as officials are enmeshed in vast accountability webs, answering not only in Parliament but in a variety of other forums.
As such, the Kerr Report is a remarkable document: it sits at the cusp of major changes in administrative law and administrative tribunals, and it led to important reforms which have had transformative effects on Australia’s system of government, effects felt elsewhere in the Westminster world. For these reasons, along with the breadth of learning it displays and the wealth of knowledge it contains, the Kerr Report bears re-reading 50 years on.
Paul Daly holds the University Research Chair in Administrative Law & Governance at the University of Ottawa.
Suggested citation: Paul Daly, ‘The Kerr Report, 50 Years On: An Overseas Overview’ on AUSPUBLAW (26 November 2021) <https://auspublaw.org/2021/11/the-kerr-report-50-years-on-an-overseas-overview/>