This is the final 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 GABRIELLE APPLEBY, LYNSEY BLAYDEN, CHANTAL BOSTOCK AND JANINA BOUGHEY

In the final post for the Kerr Report series, which examines whether Australian administrative law is still fit for purpose 50 years after the Kerr Committee Report, we reflect on a number of key reforms required to ensure the performance and integrity of Australia’s administrative review system. This post is drawn from a co-authored submission to the Senate Legal and Constitutional Affairs References Committee’s inquiry into this issue.

This submission is heavily indebted to the posts that were written for the Kerr Report Series. The series, and the Symposium run by the Gilbert + Tobin Centre of Public Law and AIAL NSW Chapter in October, have done important work in raising public awareness and discussion of the vital role played by Australia’s system of administrative justice and oversight in preserving the health of our democracy, and the ways in which this system is currently under pressure, in large part due to the actions (and inactions) of successive Australian Governments.

A principled approach to administrative law reform

Administrative law accountability mechanisms are fundamental for the integrity of the exercise of the broad sweep of public powers, many of which have significant impacts on the lives of individuals. They protect individuals against the unfair and arbitrary use of public power; ensure the legitimacy of, and public trust and confidence in, government; and enable informed participation by Australians in democratic processes.

Review and reform of these mechanisms, many of which were a result of the landmark 1971 Kerr Report, must be considered and informed by two fundamental principles. First, these mechanisms must be independent, and perceived to be independent, from those whose decisions and actions they review. If reviewing bodies are not perceived to be independent, then individuals will not be satisfied that public power has been exercised lawfully and fairly, or have confidence in government decision making. Secondly, and relatedly, they must also be adequately resourced to perform their review functions.

These two features should act as guiding principles in the design, and reform, of Australia’s system of administrative review.

Four key areas in need of urgent reform

In our submission, we highlight a number of areas of Australia’s federal system of administrative law that need reform. Our recommendations extend to non-Kerr Report institutions and laws, because of how they can interact with the Kerr Report to form a stronger government accountability web. Here, we will highlight four important reforms: the appointment of members to the Administrative Appeals Tribunal (AAT), funding for accountability mechanisms – including the Office of the Australian Information Commissioner (OAIC), the need for an independent process to determine public interest immunity claims in the Parliament, and the need for a federal integrity commission.

(a)       The AAT: Reforms to Appointment

The AAT is a cornerstone of Australia’s system of administrative justice. Its objective is to provide a mechanism of review that is ‘accessible’, ‘fair, just, economical, informal and quick’, ‘proportionate to the importance and complexity of the matter’ and ‘promotes public trust and confidence in the decision-making of the Tribunal’. The quality and credibility of a Tribunal’s decisions rest on its actual and perceived independence.

The perceived independence of the AAT is undermined when Tribunal members are viewed as having been appointed due to their political affiliations, rather than on merit. There is currently no legal or constitutional requirement for the government to appoint Tribunal members who are, or will be perceived to be, independent. This is in contrast to other integrity institutions. For instance, under the Auditor-General Act 1997 (Cth), the federal Auditor-General is appointed by the Governor-General, but the appointment must be approved by the parliamentary Joint Committee of Public Accounts and Audit. A statutory requirement for parliamentary support of AAT appointments would reduce the dangers of political appointments (or perceived political appointments), but it does not in itself guarantee a transparent, merits-based selection process.  It may also be impractical given the number of AAT appointments.

Some governments have voluntarily adopted tribunal appointment processes which restrain executive discretion and improve transparency. Without statutory guarantees of such arrangements, they are fragile and subject to the whim of the executive. For instance, the Rudd Government introduced a Merit and Transparency framework in 2008. The appointment process set out in the framework was not fully transparent, and retained absolute ministerial discretion; but it at least provided for expressions of interest to be sought and specified that assessment of relative merit was the primary consideration in tribunal appointments. However, this framework was abolished by Senator Brandis in 2013. Since then, there have been allegations that the Government has ‘purged’ experienced AAT members, and appointed new members based on political affiliation. The current Protocol sets out the existing appointment process, which includes seeking ‘expressions of interest by public advertisement’ which address AAT-specific selection criteria. While the President may supply the Attorney-General with recommendations regarding suitable candidates and reappointments, the Attorney-General ‘is not limited to candidates recommended by the President of the AAT and may choose to recommend to Cabinet a candidate for a position that has not been suggested by the President of AAT or is not on the register’. Thus there remains the possibility of appointments based on political affiliation. Whether or not appointees with political affiliations end up being competent tribunal members capable of making independent decisions does not alter the public perception of their partiality.

The appointment of so many new, inexperienced members has also created operational problems in the AAT. Former AAT President, the Hon Justice Duncan Kerr, predicted that the failure to reappoint experienced members and the appointment of so many new members ‘will inevitably lead to delays and backlogs’. These predictions have, unfortunately, eventuated, as detailed in the 2015 Callinan Report, which examined the very large backlog of cases in the Migration and Refugee Division of the AAT.

Based on these concerns, we make two key recommendations: first, that a transparent, merit-based appointment process, should be established in statute for appointing members to the AAT. Second, that this protocol should specify that members are to be reappointed where the President of the AAT supports that reappointment, there are no performance issues, and the member is seeking reappointment.

(b)       Funding accountability institutions

The defunding and demise of the Office of the Australian Information Commissioner has been well documented; and while there has been some re-funding, it remains insufficient for the office to fulfil its functions. In our submission, we argue that the OAIC’s funding be restored to a level which allows it to perform its statutory functions effectively and efficiently. But we also go further than this, making recommendations for securing funding for administrative accountability institutions more broadly.

The experience of the OIAC demonstrates the very real need for independent administrative law oversight institutions to receive adequate funding and resourcing to effectively fulfil their functions. This is not an issue that is unique to the federal level. Indeed, the New South Wales Auditor-General and the Legislative Council’s Public Accountability Committee have recently conducted extensive inquiries into the funding of integrity institutions, including the Independent Commission Against Corruption, the Law Enforcement Conduct Commission, the NSW Electoral Commission, the NSW Ombudsman, and the NSW Audit Office.

There are now a number of alternative procedures that attempt to provide greater transparency, and therefore certainty or at least accountability, for the funding of independent oversight bodies. These include the adoption of an agency-driven, transparent budgetary process. For instance, in 2013, the Australian Capital Territory amended its Financial Management Act 1996 (ACT) in an attempt to do this for ‘officers of the Assembly’, which includes the Auditor-General, members of the Electoral Commission, and the Ombudsman. It now provides that the Speaker of the Legislative Assembly, after consulting the relevant officer and the appropriate legislative committee, will ‘advise the Treasurer of the appropriation the Speaker considers should be made for the officer for the financial year’, together with a budget for the office, and present that recommended appropriation to the Assembly. If the Treasurer presents an appropriation that is ‘less than the recommended appropriation’, then the Treasurer must immediately ‘present to the Legislative Assembly a statement of reasons for departing from the recommended appropriation.’ Finally, any appropriation for officers of the Assembly must be contained in the same Appropriation Act as that of the Legislative Assembly.

An alternative mechanism is the creation of an independent review mechanism that includes annual reviews of agency resourcing. This option was advocated for by the Human Rights Law Centre, which argued in its 2016 report, Safeguarding Democracy, that the Australian Government ‘[e]stablish an independent review mechanism that examines and reports on the health of the nation’s watchdog agencies with a particular emphasis on agency mandates, resourcing and appointment processes.’ Such a mechanism could, for example, report on instances where the government has under-resourced agencies to such an extent that they cannot fulfil their functions (as was alleged with respect to the OAIC), or when the government has refused to appoint an individual to a statutory post for such an extended period as to undermine this capacity. To be effective, these reports must be made public – through, for instance, a reporting requirement to the Parliament.

We urge the government to consider that funding for all independent integrity officers, including the OAIC, the Ombudsman, the Auditor-General, the Australian Human Rights Commission, the Administrative Review Council and the AAT, be placed on a more transparent and certain basis, either by the adoption of an agency-driven, transparent budgetary process, or an independent review mechanism that includes annual reviews of agency resourcing.

(c)        Resolving executive claims of public interest immunity in the Parliament

The Parliament plays a critical role in ensuring democratic accountability of the executive, which is distinct from, but complements, the role of administrative accountability institutions and laws. A key way Parliament holds government to account is by providing greater transparency for executive actions: by asking questions in committee inquiries, including budget estimates hearings, and by ordering for the production of documents. The NSW Court of Appeal has indicated that, given the importance of the accountability function of the Upper House of Parliament, only a small number of claims of public interest immunity (limited to maintaining the confidentiality of Cabinet documents) would be immune from a request from the House to access document.

At the Commonwealth level, there is an increasing tendency for Ministers to refuse to answer questions or provide documents on much broader ‘public interest’ grounds. These have included refusals (across 2013-2014) to provide information in response to parliamentary requests on boat arrivals, on the basis it would assist people smugglers, and place military-led operations at risk. Following this incident, the Senate Legal and Constitutional Affairs References Committee recommended that the Senate consider adopting a system of independent arbitration to determine the legitimacy of government privilege claims, along the lines of the model operating in NSW. More recently during the COVID-19 pandemic, Ministers have refused to provide the health and economic data and information which formed the basis of the government’s response, despite public servants initially being willing to provide this information to the Senate. The Senate Select Committee on COVID-19 found that these public interest immunity claims were not adequately justified and said that the claims ‘reflect a pattern of conduct in which the government has wilfully obstructed access to information that is crucial for the committee’s inquiry.’

Traditionally, disputes between the government and the Senate (including its committees and joint committees) over whether documents are subject to ‘public interest immunity’ have been governed by the Senate’s power to deal with matters within its jurisdiction. They are generally referred to the Senate Privileges Committee for investigation and recommendation. Ultimately, if the Senate is satisfied that the government’s refusal to produce documents is not made out it might find the relevant government member in contempt, which extends to the ordering of imprisonment. Houses are often reluctant to use more extreme powers, and instead tend to use other methods to punish the government for failing to produce documents, such as extending question time and delaying government legislation.

Concerns have been raised that these traditional methods of resolving privilege, particularly the contempt power, are no longer appropriate as it is important to ensure that the dispute is dealt with by an independent decision-maker, and that the imposition of a penalty by the Senate has followed a fair process. A particular concern is that the process might be affected by partisan politics. Based on these, and other, experiences, we recommend that the Senate establish an independent arbitration process for the resolution of disputes over whether government documents are subject to ‘public interest immunity’, drawing on the experiences of the NSW Legislative Council.

(d)       Establish a federal integrity Commission

We also urge the federal Parliament to establish a carefully designed federal integrity commission as a matter of urgency. There is currently no independent, federal body with powers to investigate allegations of corrupt conduct across all sectors of the Commonwealth administration.  While some integrity issues may fall under the jurisdiction of other bodies, such as the Ombudsman, Australian Federal Police, the Auditor-General, and the Australian Commission for Law Enforcement Integrity (ACLEI), there are major gaps and limitations. None of those bodies has powers or resources to investigate allegations of corrupt conduct made against any Commonwealth Minister, ministerial staff or public servant. With the exception of the jurisdiction-limited ACLEI, none has dedicated anti-corruption jurisdiction or expertise.

We strongly support the establishment of an independent federal integrity commission. A dedicated agency with ultimate responsibility for preventing, detecting and investigating corruption across the whole Commonwealth public sector is needed to ensure public trust in government. Public trust and confidence in government will be increased only through the establishment of a carefully designed, effective and independent body.

We emphasise the following design points for any future federal integrity commission, which build from earlier submissions by members of the Gilbert + Tobin Centre on proposed legislation:

  1. There should be no distinction between the law enforcement and the public sector jurisdictions of a commission, particularly in terms of the ability to receive referrals from the public, commence own motion investigations, hold hearings in public and the threshold for commencing an investigation. A commission must have strong jurisdiction and powers across its jurisdiction to ensure that the public have confidence that all public officials are being held to the same standard of conduct.
  2. A federal integrity commission should not be limited to investigating serious criminal conduct. Abuse of power by public officials—even when it falls short of criminal conduct—can have significant consequences and may be very much in the public interest to know about.
  3. A federal integrity commission must extend to the conduct of contractors, subcontractors and consultants.
  4. A separate independent body should be established to receive and deal with complaints about the conduct of members of the federal judiciary, to avoid the risk of incursions into judicial independence and the separation of powers.
  5. A federal integrity commission should have power to hold public hearings in limited circumstances where it is in the public interest, and it should always have the power to issue public reports of its work.
  6. The nature of conduct that amounts to corruption is such that it is usually conducted under immense secrecy, and its existence is stumbled upon – perhaps by those working in government who go on to become whistleblowers, or those in the public who engage with the relevant department or agency. A federal integrity commission must be able to launch investigations based on a referral from any person to prevent entities covering up, or responding inadequately to, corruption. This includes whistleblowers, who should be able to disclose to the commission with protection from workplace reprisals, and members of the public.

The need for the re-establishment of the Administrative Review Council

In the final part of our submission, we urged the immediate re-establishment of the Administrative Review Council (ARC). As Narelle Bedford detailed in her post for this series, the ARC was a central element of the administrative law system in Australia as recommended by the Kerr Committee. Its role was to oversee the functioning of the entire system of administrative law.

Although the Kerr Committee could not have foreseen the contemporary challenges for administrative accountability posed by changes in government operation, such as outsourcing and automation, it nevertheless recognised that the nature of executive power would evolve over time as governments responded to the circumstances of the day. This meant that a body such as the ARC was needed to provide advice to the Attorney-General and Parliament as to steps that should be taken to ensure the system of administrative law remains capable of responding to changing executive practices.

Over the four decades of its existence, the ARC remained a small and highly expert body, staffed by some of Australia’s most distinguished public lawyers and administrators. It produced a series of guidelines for better administrative decision-making and merits review practices, as well as 50 reports into various aspects of administrative accountability.

The legislation establishing the ARC, providing for the appointment of its members, and setting out its functions remains in place. The functions of the ARC as listed in s 51 of the Administrative Appeals Tribunal Act 1975 (Cth) remain appropriate and relevant. We consider that the need for a body with these functions is greater now than it has ever been. The administrative practices of government have changed rapidly and significantly in recent years. It is necessary that there be an independent body capable of:

  • Periodically reviewing the various elements of the administrative law system to ensure they are functioning as intended;
  • Monitoring administrative practices in general to make recommendations as to whether they meet the standards of accountability that are required for good administration, administrative justice and the overall health of Australia’s democracy; and
  • Providing guidance to those exercising administrative discretions and making administrative decisions regarding administrative law and accountability standards.

By contributing to improved internal standards for administrative decision making and policy design, a reinstated ARC would complement the work of a federal anti-corruption body, and provide a permanent oversight body over the other components of the administrative law system, to ensure it remains ‘fit for purpose’.

Gabrielle Appleby is a Professor at UNSW Law & Justice.

Lynsey Bladen has lectured in Administrative and Federal Constitutional Law at UNSW, where she completed a PhD in 2020.

Chantal Bostock is a Senior Lecturer at UNSW Law & Justice, and a former member of the AAT.

Janina Boughey is a Senior Lecturer in the UNSW Faculty of Law & Justice, and the Director of the Administrative Law and Justice Project in the Gilbert + Tobin Centre of Public Law.

Suggested citation: Gabrielle Appleby et al, ‘A principled approach to key reforms of Australia’s administrative review system’ on AUSPUBLAW (17 December 2021) <URL>

Editors’ note: We would like to extend our great appreciation to Janina Boughey and Lynsey Blayden, who conceived of and curated the Kerr Report series, and to all the authors who took part in the series. It has been an impactful addition to our 2021 programming.