Seeing the New Administrative Law in a ‘green light’
This is the second 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.
Lynsey Blayden
16.04.21
As Janina Boughey has recently observed, the reforms that followed from the report of the Administrative Review Committee, more commonly known as the Kerr Committee, were sweeping and, at the time, revolutionary. It is now nearly 50 years since the Kerr Committee handed its report to the McMahon Government in August 1971. Given this significant anniversary, it is a good time to reflect upon the reforms established following the report not only of the Kerr Committee, but also of subsequent committees such as the Committee on Administrative Discretions, otherwise known as the Bland Committee.
The reforms established in the late 1970s and early 1980s were known collectively as the ‘New Administrative Law’. The elements of this included the establishment of the Administrative Appeals Tribunal in 1975, the Commonwealth Ombudsman in 1976, as well as the passage of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘ADJR Act’) and the Freedom of Information Act 1982 (Cth). These reforms were designed to function together to better facilitate the capacity of individuals to challenge decisions of government which concerned their rights and interests. As Robin Creyke has observed, ‘[a]though the expression "administrative justice" does not appear in the reports that led to modern Australian administrative law, an embryonic form of that concept probably underpinned the proposals’.
The term ‘administrative justice’ is capable of being imbued with multiple meanings and values. Creyke and others have made significant contributions towards giving it definition and considering the extent to which it has been achieved by the system of administrative law established in Australia following the Kerr Report. In this post, I engage with a different, but still values-related, question: in what way(s) was the form of administrative justice envisaged by the Kerr Committee shaped by the Committee’s recognition of not only the functional role of the administrative state, but also its legitimacy in modern government? The recommendations of the Kerr Committee and the reforms that they ultimately led to might be seen, at least in some respects, as having a hue that is recognisably ‘green’, when viewed in the setting of the ‘red and green light’ spectrum. The green light character of the reforms was informed by their particular Australian context, and was part of what helped to make them so ground-breaking.
1.Red and green light theories
The notion that there are ‘red light’ and ‘green light’ theories of administrative law was initially set out by Carol Harlow and Richard Rawlings in the first edition of their book, Law and Administration, published in 1984. In their formulation, ‘red light theory’ encapsulates a view of the state that regards its modern ‘interventionist’ or ‘collectivist’ tendencies with what might be recognised as a classic, Diceyan, suspicion. At the core of red light theory is the notion that individuals must be free from the interference of the state. As Harlow and Rawlings explained it in the 2009 third edition of their book, adherents to what they term the ‘red light’ view considered that ‘the primary function of administrative law should be to control excesses of state power and, more precisely, subject it to the rule of the courts’.
‘Green light theory’, on the other hand, ‘sees in administrative law a vehicle for political progress and welcomes the “administrative state”’. Green light theory attempts to take account of the fact that collective measures can deliver social benefits. This does not mean that adherents to a green light view ‘favour unrestricted or arbitrary action by the state’, but that they are prepared to consider that courts might not always be the best mechanism for controlling its power. This stands in contrast with the red light approach, in which, according to Harlow and Rawlings, the notion of the rule of law is closely linked with the view that ‘courts are the primary weapon for the protection of the citizen and control of the executive’.
Harlow and Rawlings noted that in seeking to understand these different ends of the spectrum, regard must be had for the historical context of these modes of thought. They further observed the correlation between the opposite ends of the spectrum and the political divide, stating that many adherents of a green light approach were supporters of the New Deal or the British Labour Party while, historically, red lighters had tended to be conservative in their politics and less supportive of an interventionist state. As the political context changed in the latter part of the twentieth century, red and green lighters in some cases seemingly switched sides as the capacity of courts to advance rather than obstruct progressive aims began to be perceived.
2. Red and green light theories in the Australian context
In their introduction to the sixth edition of Judicial Review of Administrative Action and Government Liability, Mark Aronson, Matthew Groves and Greg Weeks noted that ‘[c]olour coding has always been difficult in the Australian context’, adding, for example, that both sides of politics supported the suite of reforms that led to the establishment of the new administrative law. One reason why ‘colour coding’ is difficult in Australia is the way in which Australian political culture provides a different historical context to that which gave rise to red and green light theories.
The history of Australia is one in which the state has long played an interventionist role, often in ways motivated by pragmatism rather than ideology. As John Wanna and Patrick Weller have observed:
Beliefs about the Australian state and the nature of governance are not captured in a neat set of ideological or party-based traditions each clearly distinguishable from one another or espoused by party competitors.
As they contended, the traditions of Australian governance are not dependent upon ‘political party ideologies’ but ‘on competing conceptions of the significant problems and the way they should be addressed’. They noted that in the formative period of Federation, ‘Australian administrators were utilitarian and pragmatic—and pragmatism triumphed as a creed and ideological position’. In attempting to formulate a statement of the Australian conception of the state, Sol Encel identified similar themes, observing that ‘Australians have an irrepressible tendency to demand state action on a bewildering variety of matters’ and that ‘[s]tate intervention had advanced almost uninterruptedly, irrespective of the party in power’.
It is possible to question whether, since the economic reforms of the 1980s, much of this still holds true, at least in terms of how the main political parties themselves perceive the state and its capacities. Nevertheless, these long-term patterns in Australian political culture can be regarded as having influenced the way in which the institutions of government and their respective roles have been perceived. I suggest that this long-standing acceptance, even expectation, that the state will play an interventionist role might help to explain certain characteristics of Australian public law.
Although the key institutions of Australian government are modelled upon those of England, it is difficult to locate the same distrust of administrative power within the Australian conception of government as that which is found within Dicey’s theory of the constitution. An interventionist state necessitates not only the kind of ‘collectivist’ legislation that he perceived as potentially threatening to individual liberty, but also administrative discretion, something he considered was not readily made susceptible to the rule of law.
This is not to suggest the prevalence of a belief in Australia that the executive should have untrammelled or unconfined power. The point is rather that these traditions of government might provide some useful insights for understanding the way in which not only the nature of administrative power, but also the most effective means of its control, have been perceived in Australia. In particular, it might help to contextualise the preparedness of the Kerr Committee to suggest a comprehensive system of administrative controls that went beyond those considered to be most appropriate in ‘red light’ theory, namely Parliament and the courts.
3. The recommendations of the Kerr Committee
The Committee was established by the Gorton Government in October 1968. The members of the Committee were Sir John Kerr, then a Judge of the Commonwealth Industrial Court, Sir Anthony Mason, at that stage the Commonwealth Solicitor-General, his successor as Solicitor-General, Robert Ellicott, and Professor Harry Whitmore. The Committee was tasked with the following relatively narrow terms of reference:
To consider the jurisdiction to be given to the proposed Commonwealth superior Court to review administrative decisions.To consider the procedures whereby review is to be obtained.To consider the substantive grounds for review.To consider the desirability of introducing legislation along the lines of the United Kingdom Tribunals and Inquiries Act 1958. To report to the Government the conclusions of the Committee.
Later, in December 1970, the first term of reference was amended so as to state:
What jurisdiction (if any) to review administrative decisions made under Commonwealth law should be exercised by the proposed Commonwealth Superior Court, by some other Federal Court or by some other Court exercising federal jurisdiction.
Anyone familiar with the contours of Australian public law will immediately recognise the influence of the Boilermakers’ principles in the alteration of these terms of reference. In chapter 4 of its report, the Committee referred to the way in which Ch III of the Constitution placed ‘significant qualifications on the exercise of the judicial power of the Commonwealth’. This meant that ‘courts may be entrusted only with those functions in the field of administrative review which are strictly judicial’ and ‘[c]onversely, administrative bodies cannot be entrusted with judicial functions’.
Other considerations were also at work here. The Committee’s recognition that some forms of administrative review might not be best undertaken by courts went beyond its acknowledgment of the influence of constitutional principle. It extended to a pragmatic acceptance that, while courts obviously played an important role in the supervision of the administrative state, the very nature of administrative power meant that they were not always the institution best capable of doing so.
At the outset of its Report, the Committee noted ‘it has been universally accepted that judicial review by the courts standing alone, by the prerogative writs, declaration or injunction under the existing law, cannot provide for an adequate review of administrative decisions’, adding that:
We have found it neither correct nor practicable to examine in isolation judicial review in the traditional sense; it must be seen and examined in the total context of review of administrative decisions. The adequacy of any system of judicial review can be assessed and judged only in the light of other such provision for administrative review as does, or should, exist at the same time. Further, it must be kept in mind that a question of importance which can arise in relation to some functions is whether they are better suited to judicial or non-judicial review.
The Report went on to state that ‘[a] person aggrieved by a decision of a Commonwealth official or tribunal will generally feel that the decision was wrong on the facts or merits of the matter’. Even if the processes of judicial review were simplified and made more accessible to more people, in the Committee’s view this still would not address the primary problem of an absence of a right of appeal on the merits.
In the Committee’s view, while it might be possible, even within the framework of the constitutional separation of powers, to legislatively confer some merits review jurisdiction on a court or courts, it was preferable not to do this. It noted that ‘[w]e would be of this opinion even if there were no constitutional reasons requiring this approach’. This was partly because, following a survey of the arrangements in place for administrative review in other nations including the United Kingdom, New Zealand and the United States, the Committee determined that it was desirable for an administrative review body to be comprised not solely of judges. Such a body should also ‘be able to call upon administrative experience within its membership’. The Committee also appeared to take the view that tribunals were more functionally adept at conducting the kinds of review it perceived were necessary, noting, for instance that the body it proposed ‘would be mainly concerned with review as to fact-finding and improper or unjust exercise of discretionary power’. Further, a non-judicial tribunal would be able to have direct regard to ‘matters of government policy’, which could be explained to it ‘by written or oral evidence’.
The Committee sought to calibrate its recommendations in such a way as to ‘achieve balance between justice to the individual and efficient administration’. It proposed not only the establishment of an ‘Administrative Tribunal’, but also a ‘Commonwealth Administrative Review Court’ with simplified and more accessible judicial review functions, an Ombudsman-like entity the Kerr Report described as a ‘General Counsel for Grievances’, and crucially, in the Committee’s view, an Administrative Review Council. These were each necessary elements in what the Committee viewed as a properly comprehensive system of administrative review.
4. Green light features of this system
Attempts to apply the descriptor of ‘red’ or ‘green light’ can quickly run into definitional trouble. To some extent these terms, like many labels, are given content by subjective perceptions as well as contextual matters. However, taking as a base level the notion that one aspect of green light theory was that courts are not the only or even the most effective means of controlling the administrative state, even the brief sketch of the Committee’s recommendations provided here demonstrates their recognisably green light contours.
It is possible to regard aspects of the recommended reforms in the opposite way. Boughey has observed that, insofar as its recommendations for reform of statutory judicial review went, the Kerr Committee took a perceptibly ‘red light’ stance. However, she also noted that the Committee’s ‘approach to other aspects of reform to administrative law was more deferential towards the executive’. Anthony Cassimatis has also suggested that the Kerr Report, by comparison with the 1968 Ontario Royal Commission Inquiry into Civil Rights (otherwise known as the McRuer Report), ‘appears more concerned to accommodate the legitimate interests of the executive branch and to ensure “efficiency in administration” and “democratic procedures”’.
The Kerr Committee’s own concluding words are useful for thinking about where its recommendations, taken in their entirety, sit on this spectrum:
We have not adopted an attitude similar to those who, like Lord Hewart, resented the growth of administrative power and sought to reverse the process involved in its growth by attempting to remit effective power to Parliament, to the Courts, or to both. We accept that the administration must, in the modern community, bear the burden of power and duty thrust upon it by circumstances and the legislature. There must, however, as we see it, be a concomitant acceptance of responsibility to correct administrative error and the improper exercise of administrative power.
The ‘correction’ of administrative error went beyond the capacities of the courts and Parliament alone, and needed its own ‘corrective machinery’. Taking the base level definition referred to above, this can be viewed as a ‘green light’ stance. The acknowledgment that, even leaving the constitutional separation of powers to one side, it was preferable to establish bodies that were not courts to achieve comprehensive review of administrative power encompasses several concepts. One is the functional limitations of courts. Another is the notion that bad administrative decisions do not always amount to breaches of the law, but should nevertheless be corrected in the interests of safeguarding good government. A further matter is the recognition that the executive arm of government has its own legitimate role and expertise, and that standard-setting for good administrative decision-making should, at least in part, be informed by administrative perspectives. The traditional, pragmatic acceptance of the wide role of the state in Australia would seem to be reflected in these conclusions.
None of this, however, understated the key role of courts in maintaining the rule of law. In recommending the Administrative Review Court, the Committee said that ‘[i]n cases where no provision is made for appeal on the merits the Court’s legal supervisory jurisdiction would be very important’. The Court that was ultimately established by the Commonwealth Parliament and given jurisdiction by the ADJR Act was the Federal Court. This statement of the Committee has proven prescient in terms of the crucial role this Court has played in circumstances where the capacity for tribunal oversight has been reduced or removed by Parliament. Beyond this, the constitutional jurisdiction of the High Court to review the actions of ‘officers of the Commonwealth’ for jurisdictional error has also proven to be a vital means of ensuring that executive power cannot be exercised free from all legal restraint.
5. Conclusion - why does the colour code of the New Administrative Law matter?
Seeing the new administrative law through the lens of green light theory can aid an appreciation of how sophisticated these reforms were. Green light theory’s shift of focus away from the function of courts in controlling administrative power helps to underscore the Committee’s careful design of each element of the system of administrative law it proposed, and its conclusion that in the modern state proper oversight was only possible if each element of the reforms it devised worked together in concert. It is possible to question whether, at the fifty year mark, this system is still operating as intended in several respects. For example, the truncated processes and privative clauses that have been put in place in certain key areas, such as migration, mean that the capacity of the system to provide comprehensive and accessible administrative review has been diminished over time. A central element of the system, the Administrative Review Council, had its funding removed in the 2015-2016 budget. Finally, administrative oversight requires transparency of process and access to information, and there are many reasons to doubt the current commitment to the provision of these things.
With thanks to Janina Boughey for her very helpful comments on this post
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Lynsey Blayden has lectured in Administrative and Federal Constitutional Law at UNSW, where she completed a PhD in 2020.
Suggested citation: Lynsey Blayden, ‘Seeing the New Administrative Law in a "green light"’ on AUSPUBLAW (16 April 2021)