Performance and integrity of Australia’s administrative review system
The administrative law system is intended to provide a web of accountability which:
- protects individuals against unfair and arbitrary use of public power;
- is needed to legitimise and ensure public confidence in government; and
- enables informed participation in democratic processes.
The main pillars of the suite of reforms which took place in the late 1970s to early 1980s as a result of the Report of the Commonwealth Administrative Review Committee1 chaired by Sir John Kerr, are the establishment of the Administrative Appeals Tribunal (AAT), the Commonwealth Ombudsman and the Administrative Review Council (ARC), and the enactment of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The Freedom of Information Act 1982 (Cth) (FOI Act) followed later, underpinned by the same goals of government transparency and accountability.
These transformative reforms were only possible because they enjoyed high levels of bipartisan political support and commitment. In the Law Council’s view, political commitment to maintaining the performance and integrity of the administrative law system has declined significantly since that time.
However, the need for a well-functioning administrative law system is just as crucial today as it was in the late 1970s and early 1980s. Modern legislation is longer and more complex; government relies extensively on non-legally binding policy and guidance material, automated administrative decision making is increasingly prevalent, and government has increasingly used the private and community sectors to exercise administrative functions and deliver services. Taken together, the potential for accountability deficits is clear.
A large focus of this submission relates to the performance of the AAT, in particular, the appointment and qualifications of members, and the need for adequate resourcing to address current backlogs. As detailed throughout this submission, the Law Council has some concern that the current administrative law system is not functioning optimally, and this is primarily due to the lack of political commitment to the integrity of the system.
For example, the recent failings in respect of the Government’s Online Compliance Intervention scheme, popularly known as the ‘Robodebt’ scheme, occurred despite the existence of the Automated Decision-Making Better Practice Guide prepared by the Office of the Australian Information Commissioner (OAIC), the Attorney-General’s Department, and the Office of the Commonwealth Ombudsman. This example also illustrates, among other things, the lack of impact relevant AAT decisions had on rectifying the issues identified in the administrative decision-making process,2 and the clear need for the reinstatement of an effective mechanism for oversight and continuous improvement of the administrative law system, that is, the ARC.
1 Commonwealth Administrative Review Committee, Report (Parliamentary Paper No 144/1971, August 1971).
2 T Carney, ‘Robo-debt illegality: The seven veils of failed guarantees of the rule of law?’ (2019) 44(1) Alternative Law Journal, 4-10 at 6-7.