The Kerr Report's vision for the Administrative Review Council and the (sad) modern reality

This is the third 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.

Narelle Bedford

21.05.21

The Administrative Review Council (ARC) was a vital part of the Kerr Committee’s recommendations for increased oversight of executive decisions that impact individuals. The Kerr Committee recorded that ‘fundamental to our system for the introduction of a proper system of administrative review, both on the law and on the merits, is a continuously operating Council…’. Notice the words ‘continuously operating’: the permanence of the Council was a deliberate design feature of the ARC as initially conceived. Sadly, this vision has not been followed, although the original justifications for the ARC remain compelling and the statutory obligations linger unperformed.

The Kerr Committee’s vision of the ARC

The Kerr Report envisioned the ARC as an integral part of the 'new administrative law system', so much so that it referred to the ARC at least 20 different times throughout the report. Indeed, ‘setting up the ARC’ was conceptualised as the ‘first step’ in the ‘evolution of an Australian system of administrative law’, and the Kerr Report directed that it should be created ‘immediately’.

The Kerr Committee’s vision for Australian administrative law identified ‘a need for a high level administrative authority to supervise the system’. As Lynsey Blayden explained, the Kerr Committee’s sweeping recommendations are a classic example of a green light theory approach to the administrative state. Arguably the creation of the ARC, with its oversight role extending beyond courts and judicial review, is one of the strongest green light signals in the Kerr Report. This is because of the proactive role of the ARC in overseeing the entire administrative law system and its institutions. Some of these institutions may not be able to influence government policy development and advocate their unique interests given their statutory, rather than constitutional, basis, and so those institutions lack the traditional protections and privileges held by courts. A contemporary example of the benefit of a proactive, authoritative expert oversight body is the capacity to identify potential issues before government implementation and develop systematic measures which address and ameliorate those issues (think of Robo-debt).

The ARC was considered essential by the Kerr Committee because the government’s discretionary powers were ‘continuously expanding’. The ARC’s role was to be ‘permanent’ and provide oversight of tribunals, judicial review, privative clauses, administrative discretions, and the adequacy of existing review mechanisms: as new administrative discretions were created, the Council could make recommendations as to the form of oversight they should be subjected to. The ambit of the ARC's powers was broad and, in effect, unimpeded, as other functions were able to be conferred on it at the recommendation of the ARC itself, if accepted by the government.

Membership of the ARC was devised as not being limited to lawyers, because the Kerr Committee highly valued government decision-making expertise. Importantly, a main attraction of the ARC was the deliberate incorporation of one of the major administrative law institutions into its design, with the Ombudsman (initially titled the ‘General Counsel for Grievances’ by the Kerr Committee) automatically a member and executive officer. In addition, the initial design envisaged two senior administrative officers (or retired public service officers) as the Council’s other members. The ARC would also be assisted by a ‘small research staff’.

According to the Kerr Report, the ARC would ideally have effective ‘own motion’ powers, meaning that it could select areas of administrative law in need of in-depth research, resources, and recommendations. This power to initiate and identify current trends or topics was to be potent, and to exist alongside the role of the ARC to conduct inquiries referred to it by the Attorney‑General.

Thus, as initially envisaged, the ARC was to have a peak and pre-eminent place in the Australian administrative law system. The ARC was situated with over-arching responsibilities which embraced research, expert advising and supervision, and importantly included the capacity to be proactive. The Kerr Report’s conception of the new administrative law system was as a holistic, integrated ecosystem, with each institution proposed serving as a special and necessary part in the proper overall functioning of the administrative review system.

Creation of the ARC

The proposal to establish the ARC attracted bipartisan support. During the Parliamentary Debates on the Bill that would create it, the Member for Bennelong, John Howard (who would go on to become Australia's second-longest serving Prime Minister) advocated support for the ARC and its ability to engage in ‘ongoing review’ and ‘take a much longer view’ of key administrative law institutions.

Part V of the Administrative Appeals Tribunal Act 1975 (Cth) ('AAT Act') is entirely devoted to the ARC. Section 51 specifically confers on it a range of functions and connected powers and mandates that the ARC keep the Commonwealth administrative law system under review, monitor developments and recommend to the Attorney-General improvements that might be made to the system. This notion of continuous review and improvement reflects administrative law's normative goals to generally enhance government decision-making.

The section details another eight distinct functions for the ARC. Importantly, it is required to ascertain and keep under review the classes of administrative decisions which are not subject to review by a court, tribunal, or other body. This aspect of its functions is crucial as the ARC's oversight role encompasses the identification of gaps in Australia's government accountability framework. Likewise, under its legislation, the ARC has a rolling responsibility to facilitate the training of administrative decision-makers.

Constant oversight of the review processes for government decisions by both courts and tribunals also features prominently in the ARC’s functions, with a particular focus on improving the law and practice relating to judicial review. In respect of tribunals, the ARC is tasked with advising government on the composition and jurisdiction of the Administrative Appeals Tribunal ('AAT').

Other matters covered in Part V include obligations to table any reports in both Houses of Parliament within 15 days, produce an Annual Report every financial year, and promote knowledge about the Commonwealth administrative law system. The Attorney-General is given power to make directions and referrals of topics for inquiry and report by the ARC. Therefore, the purview of the ARC under the AAT Act is broad, proactive, and multi-faceted.

Part V of the AAT Act has not been repealed or amended by Parliament. Therefore, it is arguable that its functions remain ongoing statutory obligations – albeit currently unperformed.

Operation and successes of the ARC

The ARC's first meeting (held on 15 December 1976) was opened by the then Attorney‑General, Bob Ellicott who said:

[This] is a historic occasion. The group is small, but the event is considerably significant. This is a body which … has brought together a number of people with diverse experience and with considerable expertise.

At the meeting, he articulated that the ARC should ‘ensure that our system of administrative review is as effective and significant in its protection of the citizen as it can be’. On 4 July 1977, the then Prime Minister, Malcolm Fraser, said:

The Administrative Review Council has been appointed. It has already provided advice to the Attorney-General on a number of aspects of administrative law and procedures and will be of considerable value as a ‘watch-dog’ to ensure that administrative procedures provide proper protection for the rights of individuals.

The ARC commenced its prescribed statutory operations in 1978 and issued an Annual Report every year until 2011-2012. In its first Annual Report the inaugural President, Brennan J, stated:

The size of its charter is large, and it is hard to overstate the importance of the issues which are encompassed by it. They concern the balance between the interests of the citizen and the government, a balance which is critical to a free society.

During its functional existence, the ARC issued exactly 50 formal reports. Those reports ranged across all important topics and institutions in Australian administrative law, including coercive powers, tribunals, automated assistance in decision-making, contracting out of government services and the Ombudsman. Significantly, the last major report issued was on federal judicial review. This report was substantial and covered both the statutory judicial review scheme (under the Administrative Decisions (Judicial Review) Act 1977 (Cth)) and the original jurisdiction for federal judicial review in the High Court and Federal Court (found in s 75(v) of the Constitution and s 39B of the Judiciary Act 1903 (Cth) respectively). There has been no official response to that report by successive governments representing both major political parties.

The ARC also issued best practice guides for government decision-makers and other targeted, helpful publications such as the Practical Guidelines for Preparing Statements of Reasons with an accompanying Commentary and a Guide to Standards of Conduct for Tribunal members. These publications are exemplars of the type of leadership and practical mentoring able to be produced by an expert body with a permanent focus on improving government decision-making at the day-to-day level.

In June 1997, the Senate Legal and Constitutional Legislation Committee, chaired by Senator Eric Abetz, issued a Report on the Role and Functions of the ARC. It concluded ‘there is a continuing need for the Commonwealth Government to receive advice and recommendations on administrative review and decision-making and promote a comprehensive, affordable, and cost-effective administrative law system’. The first recommendation was that the ARC remain as a ‘separate and permanent body’.

In 1999, Alan Robertson SC, an experienced administrative law practitioner and later a Justice of the Federal Court, explained that the ARC held advantages, as it was:

uniquely placed to identify, evaluate, and monitor the means by which this balance should be achieved from time to time. It brings together representatives of the public, private and community sectors in an impartial forum which facilitates the free exchange of views and experiences which in turn results in principled and pragmatic advice to government.

Rejecting the alternative possibility, that the functions of the ARC could be performed by either the Australian Law Reform Commission or the Attorney‑General's Department, Robertson stated:

The administrative law system must be perceived by both government and non‑government users to be fair, open, and effective… Because the Council is separate from any department and because it is a permanent body, all users of the system can see it as an impartial and independent guardian of the system.

The defunding decision

On the occasion of the 25th anniversary of the ARC in 2002, Dennis Pearce recorded with great foresight that there already were:

signs that the Council is becoming less relevant in the eyes of the government – the failure to respond to reports, the drop in the number of advices being sought, the absence of representatives of major agencies from Council membership, the failure to fill membership vacancies. These are signs that the executive is using time-honoured methods to undermine the Council – reducing resources, limiting its independence, ignoring its proposals.

There was no such sense of impending doom during the 30th anniversary celebrations in 2007. The Attorney-General at the time, Philip Ruddock, issued a ‘congratulatory note’ and Sir Anthony Mason provided a judicial perspective on the ARC's operations and successes.

Despite those celebrations and affirmations of support, Pearce's observation of the government's diminishing commitment to the ARC was borne out to its fullest extent in March 2014, when the National Commission of Audit recommended that the ARC be consolidated within the Attorney‑General’s Department. It estimated that this would generate savings of $54.2 million over five years.

In the 2015-16 Budget, the government formally announced that the ARC would be abolished, with its residual functions managed by the Attorney-General's Department. Despite this public record of its intent, the part of the AAT Act covering the ARC has never been formally repealed. Instead, the government has removed the ARC’s funding and not made appointments as existing Members’ terms expired. It remains a statutory shell.

During the 2016 Senate Estimates cycle, the then Attorney‑General Senator George Brandis explained:

You have to go back to the 2014 budget when all ministers were asked to find economies. My department recommended to me that one of the economies we could find was the abolition of the Administrative Review Council because there was a view taken that its law reform function could be dealt with by other elements of the government, but we merely did not constitute it so as to save that money from the budget. You may think that that was a relatively small saving. You may be right, but that is what happened.

In response to robust questioning about a logical duty to fund the ARC so that it could perform its statutory responsibilities, Senator Brandis replied:

I wish I had more money in the portfolio so I could have more money for judges, more money for legal aid, enough money for a fully constituted Administrative Review Council.

The aftermath

In a 2015 book chapter titled 'The Administrative Review Council and Transformative Reform', Justice Susan Kenny described the ARC as the apex of the Australian administrative law system and commended the ARC as it had:

provided a relatively inexpensive way for knowledgeable people with diverse experience to work together to provide independent oversight and assistance. Without an effective ARC, one may anticipate greater fragmentation and more failures in the administrative law system, with the accompanying costs, delays, and other inefficiencies that these entail.

Following the amalgamation of several specialist tribunals into the AAT in 2015, former High Court judge the Hon Ian Callinan was appointed to conduct a review into the AAT amalgamation to fulfil a legislative obligation created by the Tribunals Amalgamation Act 2015 (Cth). Callinan formally issued his report to the government in December 2018, although it was only made available to the public on 23 July 2019. The terms of reference for the review did not specifically mention the ARC. Notwithstanding this fact, Callinan had regard to all the ARC reports relevant to the review. Encapsulating the written submissions, Callinan stated:

It was the view of many of those consulted that the decision in 2015 of the Commonwealth effectively to terminate the operation of the former ARC and instead transfer its functions to the Attorney-General's Department was an imprudent one.

Hence, measure 26 of his report recommended that '[t]he ARC should be reinstated and constituted in accordance with Part V of the AAT Act'. Once again, the government has yet to publicly respond to this review.

Significantly, the Law Council of Australia, in its written submission to the Callinan Review, supported the resurrection of the ARC:

Not only would that be consistent with the rule of law given the terms of the AAT Act require it to exist and operate, but it would serve a great deal of good for Australia's administrative law system.

The importance of this public expression of support from Australia's peak national representative body for the legal profession cannot be over-emphasised. Unsurprisingly, support for the ARC has also been publicly recorded by past Presidents of the AAT such as Justice Kerr.

This support for the ARC at the highest levels in the legal profession extends to practitioners. A partner and a solicitor in the top‑tier law firm Herbert Smith Freehills wrote a legal briefing published on the firm's website which stated:

Unfortunately, the Abbott Government, while unsuccessful in its attempt to amend the legislation and abolish the ARC, did the same thing in a de facto manner by starving it of funds and having it swallowed up by the Attorney-General's Department. Callinan recommends that it be restored to its former glory.

The practice of starving accountability institutions of the funding necessary to operate effectively is not an occurrence isolated to the ARC. Indeed, the recent history of the Office of the Australian Information Commissioner has followed a similar trajectory. In both examples the statutory framework evidencing Parliament’s intent to confer powers and obligations remains, and yet through executive inaction and funding restrictions the structures that Parliament created are thwarted.

Unsuitable alternatives

The Australian Law Reform Commission (ALRC) has from time to time conducted inquiries that have an administrative law perspective (such as the current inquiry into judicial impartiality, which notably also refers to tribunals in its terms of reference). However, administrative law is not the sole and constant focus of the ALRC, and it does not have a statutory mandate to perform the broader pro-active and mentoring functions that the ARC does. The uniqueness of administrative law and its reach into all areas of government decision-making are the basis for its special arrangements and structures. Administrative law is pervasive, and it requires a system of oversight that is distinct from other specialist areas of law. Additionally, administrative law’s impact extends beyond matters of law and into the proper exercise of governmental power. This means that the ongoing mentoring, training and practical guidance provided to government decision makers is crucial and only the ARC is equipped to fulfil that role.

Likewise, despite the professionalism and commitment of dedicated public servants and government lawyers in the Attorney-General’s Department, they do not speak with the same authority as a broad-based ARC with a membership comprising experts in the practice and theory of administrative law, accountability, human rights, law reform and the President of the AAT. Furthermore, the independence of the ARC was safeguarded by this diversity and its distance from the daily mechanics of government. This independence created the capacity to make recommendations to government that may fall beyond the scope of the Government’s current policy agenda and enabled the ARC to take a systemic approach to improving government decision‑making and producing the best resources to support government decision-makers.

Conclusion

The ARC was a core part of the Kerr Committee’s vision and it remains a necessary part of the administrative law landscape. The loss of its overarching role has created a vast gap that neither the Attorney-General's Department nor the ALRC can possibly fill. The comparatively small amount of funding saved by the government continues to be disproportionate to the loss of specific administrative law expertise and advocacy. As government becomes more complex and the nature of decision-making evolves into new areas raising novel issues (such as COVID-19 restrictions and the expansion of automated decision-making), the need for an overarching, expert body increases rather than diminishes.

The arguments in this post, which have been advanced for the restitution of funding and the appointment of suitably expert, qualified members to the ARC, should not be taken as justification for a cynical move to appoint ex‑politicians or those with other political connections. Broad-based expert membership is a necessity. The restoration of the ARC to the original role envisioned by the Kerr Committee will require many voices to continue to make strong statements of support on its behalf. The proud record of prominent supporters has been featured in this post (but also includes many others such as former High Court Justice Michael Kirby and George Williams).

It would be a comparatively simple executive process to restore the ARC, given that the legislative framework endures intact. The Kerr Report remains pertinent fifty years after its release. The effective operation of all of its major pillars, including the ARC, are vital to the maintenance of functioning, comprehensive accountability mechanisms. The pivotal role of the ARC in promoting the values which underpin the Kerr Report is more necessary then ever as the nature and functions of government evolve.

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Narelle Bedford is an Assistant Professor teaching Administrative Law (and Canadian Administrative Law) at Bond University in Queensland. She previously served as a staff member in the role of Senior Legal Officer for the Administrative Review Council Secretariat. All information relied upon in this article is publicly available, and not derived from that experience.

Suggested citation: Narelle Bedford, ‘The Kerr Report's vision for the Administrative Review Council and the (sad) modern reality’ on AUSPUBLAW (21 May 2021)