COMMONWEALTH ADMINISTRATIVE LAW: THE BASICS
[A paper delivered by Mark A Robinson, Barrister, to the State Legal Conference ’96, at Sydney, 27 March 1996]
BODIES AND THEIR POWERS
- Administrative Appeals Tribunal (“AAT”) – Administrative Appeal Tribunal Act 1975 (Cth)
- Federal Court of Australia – Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”)
- Freedom of Information Officers – Freedom of Information Act 1982 (Cth)
- The Commonwealth Ombudsman – The Ombudsman Act 1976 (Cth)
- The Commonwealth Privacy Commissioner – Privacy Act 1988 (Cth)
ADMINISTRATIVE APPEALS TRIBUNAL (“AAT”) – ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 (Cth)
The AAT is a body created by the Administrative Appeals Tribunal Act 1975 (Cth) to provide for a review of decisions by Ministers and Commonwealth officials given under statutory powers.
The Administrative Appeals Tribunal has jurisdiction to conduct merits review (also known as de novo review or administrative review) of many specified Commonwealth government decisions. Reviewable decisions in the AAT are specified in relevant enabling Acts setting out the decision-maker’s power and stating that the particular decision is reviewable in the AAT. The nature of the jurisdiction is that of the exercise of administrative or executive power, not judicial power. NB: There is also a Victorian Administrative Appeals Tribunal which has similar (State) jurisdiction.
Composition and Structure (Approximate)
- President – A Judge of the Federal Court: Justice Jane Matthews
- Presidential Members – 17 Judges of the Federal Court of Australia and the Family Court of Australia
- 7 full time Deputy Presidents of the AAT
- Senior Members – 21 senior members
- Members – 57 part time members
Divisions of the AAT
- General Administrative Division
- Taxation Appeals Division
- Veterans’ Appeals Division
- Security Appeals Division (since 1995)
- Medical Appeals Division (not in operation)
- Valuation and Compensation Division (not in operation)
- Others as prescribed (none as yet)
Who May Apply to the AAT?
Any person or person “whose interest are affected by the decision” (ss.27(1) and 30 of the AAT Act).
Time Limits: AAT
An application for review of a decision must be made within 28 days from receiving notification of a reviewable decision.
The AAT has power to extend the time in appropriate cases.
A person can expect a final hearing date from within 6 to 12 months from filing an application.
What is a “Decision” Under the AAT Act?
Section 3(3) of the AAT Act defines “decision” to include a reference to:
“(a) making, suspending, revoking or refusing to make an order or determination;
(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d) imposing a condition or restriction;
(e) making a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article; or
(g) doing or refusing to do any other act or thing.”
Notwithstanding this wide definition, is has been held that the “decision” should be a decision which has the character of a final, operative or determinative decision which, in effect, disposes of the issues between the parties – Director-General of Social Services v Chaney (1980) 47 FLR 80; 31 ALR 571.
AAT Act Statement of Reasons
Under s.28 of the AAT Act a person who is entitled to apply to the AAT for a review of a decision may request the decision maker to provide a:
- in writing
- setting out findings on material questions of fact
- referring to the evidence or other material on which those findings were based, and
- giving the reasons for the decisions.
A request for a statement of reasons must be made within 28 days of the receipt of the decision in writing.
The decision maker has 28 days to provide the statement of reasons.
The applicant has a further 28 days from the sending of a request for a statement of reasons in which to lodge an AAT application for review of the decision.
What can be Achieved in the AAT?
The AAT’s duty is to come to the correct and preferable decision based on the material before it.
The AAT is empowered to:
- stay the operation or implementation of a decision until the AAT hearing
- affirm the decision
- vary the decision
- set aside the decision
- substitute the AAT’s own decision, or
- remit the matter to the original decision maker with directions or recommendations.
The AAT may step in the shoes of the decision maker and exercise all of the decision maker’s powers and discretions under the relevant law.
The AAT is not given a general power to award costs. Generally, each party must pay its own costs. Costs are allowed in the AAT’s “workers compensation” jurisdiction relating to Commonwealth employees through Comcare.
There are Practice Directions issued by the Tribunal including directions relating to:
- General practice direction, effective 1 August 1993
- Working with interpreters
- Medical evidence procedures
- Costs in the compensation jurisdiction
- Production of the section 37 documents [the T documents]
A significant development that occurred in 1994 was the insertion of section 27A of the AAT Act which provided that in circumstances where a person makes a decision reviewable by the AAT, that person must take steps to notify in writing or otherwise “any person whose interests are affected by the decision” of the making of the decision and the right of that person to have the decision reviewed by the AAT. This provision, together with a Code of Practice provided for in section 27B and published in the Commonwealth Gazette S174 of 11 June 1993, comprised substantive rights for individuals and corporations in this area. The Code, cited as the Code of Practice for Notification of Reviewable Decisions and Rights of Review, sets out clearly who should be notified of their appeal rights, in what manner and in what circumstances.
FEDERAL COURT OF AUSTRALIA – ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW ACT 1977 [Cth]) (“ADJR ACT”)
Enacted in 1977 to empower the Federal Court to review the legal validity of administrative decisions made under the Commonwealth enactments. It did not commence operation until 1 October 1980.
The preamble to the ADJR Act provides it is:
“An Act relating to the Review on Questions of Law of certain Administrative Decisions.”
The Federal Court is not empowered to review executive decisions on their merits.
What Decisions are Reviewable Under ADJR Act?
- decisions already made (s.5)
- decisions in the process of being made (s.6)
- failure to make a decision (s.7)
The ADJR Act applies to persons “aggrieved” in respect of:
- of an “administrative character”
- made “under an enactment”
- not Schedule 1 or Governor General
Grounds of Review Under ADJR Act
The doctrine of ultra vires can be described in a number of ways. There are two broad areas:
- the first is variously called narrow or simple ultra vires and involves a complete lack of substantive or incidental power to do an act.
- the second area is broad, or extended ultra vires which covers procedural defects and deficiencies (sometimes called “procedural ultra vires”) and abuse of power, a category which contains the remainder of the administrative law rules that could render decisions void or illegal.
To add to the confusion, the grounds of judicial review are sometimes grouped into three broad categories:
- Excess of power;
- Procedural fairness; and
- Bad faith/Abuse of power.
The grounds as specified in the ADJR Act for having a decision reviewed by the courts are:
- that a breach of the rules of natural justice has occurred;
- that procedures that were required by law to be observed were not observed;
- that the person who purported to make the decision did not have jurisdiction;
- that the decision was not authorised by the relevant statute;
- that making the decision was an improper exercise of the decision-maker’s power;
- that the decision involved an error of law;
- that the decision was induced or affected by fraud;
- where there is nothing to justify the making of the decision;
- that the decision-maker took into account irrelevant considerations or failed to take into account relevant considerations;
- that the relevant power was exercised for the wrong purpose;
- that the decision was made in bad faith; or
- the decision was made contrary to law.
ADJR Act Statement of Reasons
Under s.13 of the ADJR Act certain persons are entitled to apply to the decision maker for a statement of reasons similar to a s.28 statement under the AAT Act.
A request for a statement of reasons must be made within 28 days of the receipt of the decision.
The decision maker has 28 days from receiving the request to provide a statement of reasons.
The applicant has a further 28 days from the making of the request for a statement of reasons to commence Federal Court proceedings under the ADJR Act.
A person cannot apply for a statement of reasons when:
- the person could have applied for a statement of reasons under the AAT Act;
- the decision complained of contained or was accompanied by a statement of reasons; or
- the decision is included in the classes of decisions in Schedule 2 of the ADJR Act.
Exclusions in Schedule 2 of the ADJR Act include decisions:
- relating to the administration of criminal justice, including:
- the investigation or prosecution of persons for any offence against a law of the Commonwealth;
- requiring the production of documents, the giving of information or the summoning of persons as witnesses;
- decisions in connection with the institution or conduct of proceedings in a civil court, including decisions that relate to or may result in the bringing of such proceedings for the recovery of pecuniary penalties arising from contraventions of Commonwealth law.
Who May Apply to the Federal Court for Judicial Review?
- a person
- who is aggrieved
- by a decision to which the ADJR Act applies.
The question of standing to commence proceedings or standing to request statement of reasons is crucial. It must be examined at the outset. The courts have determined that the test for the standing of a person “aggrieved” is both wide and flexible. The court will apply a “special interest” test.
A summary of the principles relating to the special interest test is as follows:
- special interest means that although the applicant’s right has not been infringed, his interest in the subject matter of the action is greater than other members of the public
- an applicant must show he has been specially affected in comparison with the public at large and that he has been affected to a substantially greater degree or in a significant different manner. It is not necessary to show that the applicant is uniquely affected
- a person is not interested within the meaning of the special interest test unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs if his action fails
- a special interest does not relate to the preservation of a particular environment or a mere intellectual or emotional concern.
Time Limits: ADJR Act
An aggrieved person has 28 days from receipt of the decision to commence Federal Court proceedings under the ADJR Act.
The Federal Court may extend this time limit in appropriate cases [see, Harris v Moore, Full Court of the Federal Court, 25 November 1993, for appropriate grounds going to the Court’s discretion].
What can be Achieved in the Federal Court under the ADJR Act?
The Federal Court has discretionary powers to:
- stay the operation or implementation of a decision or any proceedings under the decision (s.15)
- quash or set aside the decision from:
- the day of the order, or
- any earlier date;
- refer the decision to the decision maker for further consideration with directions;
- declare the rights of the parties;
- direct the parties to:
- do, or
- refrain from doing
any act or thing necessary to do justice between the parties;
- revoke, vary or suspend the operation of any order made by the court; and/or
- order costs as between the parties to the proceedings. (s.16)
The Federal Court generally cannot:
- substitute its own decision for that of the original decision maker.
The Federal Court’s Discretion
The ADJR Act, s.10(2), grants the court a wide discretion (which reflects the common law discretion) to refuse any relief if:
- an alternative remedy is available;
- the applicant has already sought a review, rehearing or reconsideration by the Federal Court or another court; or,
- adequate provision is made by any other law for a review, rehearing or reconsideration of the decision by the Federal Court, another court, the AAT, another tribunal or authority or person.
In any event, all of the powers set out in s.16 of the Act are discretionary, the Court “may, in its discretion, make any or all of the following orders”.
Summary: ADJR Act
- a decision is made
- an applicant has standing
- reasons have been requested and provided
- grounds of review are identified
- proceedings are commenced
- all interlocutory applications are made and dealt with
- the applicant has successfully established any or all of its grounds of review
- the applicant should get a remedy.
However, as we have seen, the Federal Court may choose as an exercise of its discretion not to make the orders or declarations sought. The court will generally not make orders if:
- it would be futile
- the applicant took advantage of an error for which it was partly responsible
- there is an alternative remedy, such as merits review of some sort of “appeal”
- there was unreasonable delay by the applicant in applying for judicial review
- the applicant had an improper motive in commencing proceedings
- the application was concerned with a decision in committal proceedings, or a decision to prosecute.
Judiciary Act 1903 (Cth): Section 39B
In 1983, s.39B was inserted into the Commonwealth Judiciary Act granting the Federal Court:
- original jurisdiction
- with respect to any matter
- in which
- a writ of mandamus (a writ to compel an officer to perform his duty)
- a writ of prohibition (writ to order an officer not to commence some action)
- an injunction
is sought against an officer or officers of the Commonwealth.
The benefits of a section 39B application are well known [and summarised by Alan Robertson in a paper titled “Judicial Review and the Protection of Individual Rights”, p 37 in Administrative Law, Does the Public Benefit, John McMillan, ed, Canberra 1992, published by the Australian Institute of Administrative Law].
The advantages are:
- there are no express time limits;
- it is unnecessary to find a decision;
- it is unnecessary to find an administrative decision;
- it is unnecessary to find an enactment;
- decisions of the Governor-General are not necessarily immune;
- the classes of decisions to which the ADJR Act does not apply (found in Schedule 1) does not limit the kinds of cases that can be reviewed; and
- the Court can consider facts which were not before the decision maker.
Other advantages of moving in the Federal Court is the ability to take advantage of a number of other possible sources of power, for example; section 21 of the Federal Court Act 1976 which provides:
“Declarations of Right
21. (1) The Court may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed.
(2) A suit is not open to objection on the ground that a declaratory order only is sought.” (see, Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1993) 113 ALR 257)
and, section 32, which provides:
“Jurisdiction in associated matters
32. (1) To the extent that the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Court is invoked.
(2) The jurisdiction conferred by subsection (1) extends to jurisdiction to hear and determine an appeal from a judgment of a court so far as it relates to a matter that is associated with a matter in respect of which an appeal from that judgment, or another judgment of that court, is brought.”
FREEDOM OF INFORMATION ACT (“FOI”) FREEDOM OF INFORMATION ACT 1982 (Cth)
The FOI Act came into operation in Australia in December 1982. It creates a legal right of access to information in the possession of most Commonwealth Departments and agencies. Certain agencies and categories of documents are exempt from disclosure.
The purpose of the FOI legislation is summed up in s.3 of the FOI Act:
“3(1) The object of the Act is to extend as far as possible the right of the Australian community to have access to information in the possession of the Government of the Commonwealth by –
(a) making available to the public information about the operations of departments and public authorities and, in particular, ensuring that rules and practices affecting members of the public in their dealings with departments and public authorities are readily available to persons affected by those rules and practices; and
(b) creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities,”
Access to Documents
To gain access to government or “agency” documents as well as internal guidelines and certain policy papers, your application must be:
- in writing
- accompanied by the appropriate application fee
- providing enough information to enable the document to be identified.
The application fee is $30 and there are other hourly and copying charges set out in the regulations.
The agency has 30 days from the date of receipt of the request to respond.
- a request may be made by an agent or legal representative (the identity of the “principal” or true applicant can be kept confidential) and
- the definition of “document” is very wide.
Some documents are exempt from being produced under an FOI request because of their relation to government competitive commercial activities, their character, or the nature of the information they contain. Exempt documents include:
- documents affecting national security, defence, international relations and relations with States (s.33);
- documents affecting relations with States (s.33A);
- Cabinet documents (s.34);
- Executive Council documents (s.35);
- internal working documents (s.36);
- documents affecting enforcement of the law and protection of public safety (s.37);
- documents to which secrecy provisions of an enactment apply (s.38);
- documents affecting financial or property interests or the Commonwealth (s.39);
- documents concerning certain operations of agencies (s.40);
- documents affecting personal privacy (s.41);
- documents subject to legal professional privilege (s.42);
- documents relating to business affairs (s.43);
- documents affecting the national economy (s.44);
- documents containing material obtained in confidence (s.45); and
- documents the disclosure of which would be contempt or Parliament or contempt of court (s.46).
Statement of Reasons
If an agency refuses to grant access to documents it must give the applicant notice in writing which states:
- the findings on material questions of facts
- evidence on which those findings were based
- the reasons for the decision, and
- information concerning the applicant’s rights for review of the decision.
Where an application is made that seeks documents concerning a person’s business or professional affairs, or business, commercial or financial affairs of a company, a procedure known generally as “reverse FOI” is activated under s 27 or in respect of a person’s personal information under s 27A. Before any decision can be made to release documents caught by the request, the FOI officer must notify the person or company the subject of the document and afford them the (somewhat limited) opportunity to make submissions).
Review of FOI Decisions
Where refusal to grant access to a document has been made the applicant may seek internal review of that decision by the agency.
If the applicant remains unsatisfied after the internal review, an application may then be made to the AAT or the Commonwealth Ombudsman for a review or examination of the agency’s decision.
Advantages of FOI
- relatively quick
- relative inexpensive (depending on whether FOI request is framed narrowly enough)
- application fee
- agency charges on an hourly basis
- agency charges on a per copy basis
- may reveal documents that would be discoverable had legal proceedings been commenced
- can be confidential in that the identity of the “principal” or true applicant does not have to be disclosed
- may reveal documents that can form the basis for
- AAT review
- Federal Court proceedings under ADJR Act of s.39B of Judiciary Act
- complaint to the Commonwealth Ombudsman
- complaint to the Commonwealth Privacy Commissioner
- other legal proceedings against the government or another party for, say, breach of contract, negligence, breach of statutory duties.
- may reveal documents or records that contain incorrect or outdated information and which should simply be amended.
THE COMMONWEALTH OMBUDSMAN – OMBUDSMAN ACT 1976 (Cth)
A public official appointed under the Ombudsman Act who investigates complaints about the administrative conduct of Commonwealth Departments and “prescribed authorities” (s.3).
To provide a means of checking deficiencies in administration (maladministration) and providing, in effect, a back-up system of review of administrative processes and decisions.
Composition and Structure
- Commonwealth Ombudsman – From early 1994, Ms Philippa Smith [previously, it was Mr Alan Cameron (ASC Chairman), and prior to April 1991, Professor Dennis Pearce].
- 2 Deputy Ombudsmen
- 3 Senior Assistant Ombudsmen
The Ombudsman has offices in each State and Territory and a delegate in Tasmania. There are Assistant Ombudsmen in most States.
Who can Complain to the Ombudsman?
Any person, organisation or body may complain.
How do you Complain?
A complaint may be oral or in writing by the complainant personally or an agent or legal representative.
What are the Functions of the Ombudsman?
The Ombudsman is given the power to:
- action that relates to
- a matter of administration (broadly interpreted)
- taken by a Department or a prescribed authority.
The Ombudsman may commence an investigation of his or her own motion.
He or she is not authorised to investigate, inter alia:
- actions of a Minister, or
- actions of a judge or magistrate.
What Happens when a Complaint is Made?
The Ombudsman has a discretion not to investigate:
- if the complaint is more than 12 months old
- if the complaint is
- vexatious, or
- not in good faith.
- if the complainant does not have a sufficient interest
- if the investigation is not warranted having regard to all the circumstances
- where a person has not first complained to the authority concerned
- the complaint is lodged with the Ombudsman before the authority has been given a reasonable time to give redress
- where the action complained of is being reviewed by a tribunal or a court (unless there are “special reasons”, s.6(3))
- where the action complained of could reasonably be reviewed by a court or a tribunal, and if it is reasonable for a person in the complainant’s circumstances to exercise that right
- where adequate provision is made “under an administrative practice”, s.6(4), for review of action of the kind complained of
- where the complainant could or should be dealt with by the Privacy commissioner, and if so, the Ombudsman “shall” transfer the complaint.
The Ombudsman may make preliminary enquires to assist him or her in the exercise of his or her discretion whether or not to investigate the complaint, s.7A.
If the Ombudsman Decides to Investigate
- notifies the department of authority
- liaises with the principal officer
- conducts a private investigation
- generally observes the laws of natural justice (but see Reg v Parliamentary Commissioner for Administration; Ex parte Dyer  1 WLR 621 – on draft copies of the report to the complainant – not obliged to send because the agency is the subject of the investigation, not the complainant); and then
- makes a report.
The Ombudsman’s Powers
These powers include:
- power to require persons to answer questions and produce documents except where:
- it would be against the public interest as certified by the Attorney-General,
- it would otherwise be against the public interest,
- it would contravene any other Act,
- it might tend to incriminate the person or make him liable to a penalty, or
- it would disclose legal advice to government
- power to enter the department’s or prescribed authority’s premises to conduct an investigation and inspect documents
- power to refer advisory questions to the AAT
- power to apply to the Federal Court for an order requiring the production of documents or the answering of questions and applications concerning questions of the exercise and performance of the Ombudsman’s powers.
The Ombudsman has powers of recommendation only.
After an investigation of the complaint, the Ombudsman must make a report to the Department or prescribed authority, s.15. The complainant may receive a copy of the report or recommendation at the Ombudsman’s discretion, s12(5).
If appropriate action is not taken pursuant to the report, the Ombudsman may report to the Prime Minister and both Houses of Parliament.
Advantages of Using the Ombudsman
- no cost to the complainant
- the matter may get investigated
- a report or recommendation may get implemented
- recurrent bad practices of the authority may be reviewed and ultimately remedied
- able to exert political power
THE COMMONWEALTH PRIVACY COMMISSIONER – PRIVACY ACT 1988 (Cth)
The Privacy Act was enacted in 1988 with the Commonwealth relying on the external affairs power and Australia’s obligations under the International Covenant on Civil and Political Rights and its status as a member of the Organisation for Economic Co-operation and Development (“OECD”).
Under the Covenant, Australia undertook to legislate to give effect to:
“the right of persons not to be subject to arbitrary or unlawful interference with their privacy, family, home or correspondence.”
As a member of OECD Australia agreed to implement certain recommendations of OECD concerning the protection of privacy and individual liberties.
The Act establishes the office of the Privacy Commissioner within the existing structure of the Commonwealth Human Rights and Equal Opportunity Commission.
The Privacy Commissioner is an independent privacy guardian and is given powers to protect the privacy of individuals. He does this by investigating complaints with Commonwealth Departments and agencies and making reports, recommendations and, in some cases, enforceable orders against the government.
Commonwealth Privacy Commissioner : Mr Kevin O’Connor
Head Office is located in Sydney.
The Privacy Commissioner is an ex officio Commissioner of the Human Rights Commission and has human rights duties as well.
Functions of Privacy Commissioner
- the Commissioner has wide-ranging functions concerning the promotion of and research into information privacy matters, s.27(1). A Privacy Advisory Committee is also established under s.82 with similar functions
- the Commissioner is to promote, implement and keep under review certain Information Privacy Principles set forth in s.14
- information Privacy Principles are rules of conduct established by the Act for the collection, retention, access to, correction, use and disclosure of personal information about individuals by Government Departments and agencies
- The Commissioner investigates acts or practices of a Department or agency that may breach any of the Information Privacy Principles
- functions relating to tax file numbers
- the Act extends and clarifies the duty of confidence owed by the Government and third parties to individuals under the law of confidentiality.
The Privacy Commissioner’s functions under the federal credit reporting system commenced on 24 September 1991 when the Privacy Amendment Act 1990 (Cth) commenced.
The Privacy Commissioner has functions under the Data-matching legislation, assented to in February 1991. The Data-Matching Program (Assistant and Tax) Act 1990 (Cth) and the Data-matching (Assistance and Tax) Act 1990 (Cth) regulate the cross-matching of data between Commonwealth Departments for the purposes of the federal first-home owners’ scheme.
The Privacy Commissioner may investigate a complain of an individual or a representative complain of a number of persons concerning interference with privacy if the act or practice:
- breaches an Information Privacy Principle
- breaches certain guidelines in relation to tax file numbers
- involves an unauthorised required or request for disclosure of a tax file number
- The Privacy Commissioner has wide-ranging powers to:
- examine witnesses
- obtain information and documents
- call compulsory conferences
- make “determinations” similar to court orders, declaring conduct to be an interference with privacy and ordering that compensation be paid (s.52)
- reporting to the agency, minister, complainant and, if necessary, both Houses of Parliament
- certain costs may be ordered by the Commissioner (s.57).
The Federal Court is empowered under the Act, s.98, to grant an injunction restraining a person from engaging in conduct that would or did contravene the Privacy Act. Any person, including the Commissioner may apply to the Court for this injunction.
NEW DEVELOPMENTS IN ADMINISTRATIVE LAW
Some recent developments relating to or having an impact on Commonwealth administrative law include the following:
- The demise of a very short-lived public law tort based on the constitutional principle of the rule of law and the long-standing Beaudesert Principle in the High Court of Australia decision in Northern Territory of Australia v Mengel, delivered 19 April 1995, (1995) 129 ALR 1; 69 ALJR 527. The decision holds far-reaching applications for the future development of government liability in Australia both in the areas of public law and private law remedies. It will repay careful study by government and administrative law lawyers for years to come. The most dramatic, widely published and unanimous finding of the High Court was that the long-standing principle in Beaudesert Shire Council v Smith (1966) 120 CLR 145 is now overruled. The principal was that independently of the law of trespass, negligence and nuisance, and by an action on the case, a person who suffers harm or loss as the inevitable consequence of the unlawful, intentional and positive acts of another is entitled to recover damages. The High Court took the opportunity to, inter alia:
- reformulate the tort of misfeasance in public office;
- reaffirm the action for breach of statutory duty;
- subsume the vast majority of potential government tort liability to the general law of negligence as it exists between private parties;
- arguably done away with the last remnants of the action on the case;
- paved the way for new emerging economic torts; and;
- “flagged” a potential new category of a government duty of care by proclaiming that there may be very many circumstances where there is a duty of care on governments to avoid foreseeable harm by taking steps to ensure their officers and employees know and observe the limits of their power. Additionally, the High Court spoke of a duty on the part of an officer or employee to ascertain the limits of his or her power.
[See generally, my papers “Northern Territory of Australia v Mengel” and “Private Law Vs Public Law in Government Liability – Where is the Line Between Them?” in a BLEC Conference titled Government Liability in Public Law, May 1995.]
- A comprehensive review of the Commonwealth tribunal system in respect of merits review is completed. In December 1993, the Commonwealth Minister for Justice referred to the Administrative Review Council (“ARC”) this extremely wide reference. The ARC reported in September 1995. The objectives of the reference were broadly to assess overall performance of the Commonwealth tribunals; identify the strengths of the system; and, make recommendations for development and adjustment of the system to enhance its performance. About 105 recommendations were made. A new Commonwealth Tribunal was recommended, to be styled the Administrative Review Tribunal (ART) – see flowchart attached. There is proposed a two-tiered structure and the second level administrative review would be strictly limited. We await the new federal government’s response.
- On 1 September 1994 the major changes to the Migration Act 1958 took effect. These changes are fundamental and radical and a new judicial review scheme replaced the ADJR Act. In summary, the major changes include: The concept of standing (“person aggrieved”) no longer applies. There is no provision for a request for a statement of reasons. Also not applicable is the ADJR requirement that the decision be in writing furnished to the applicant. Under the new s478(1)(b) of the Migration Act, the application to the Federal Court must be lodged within “28 days of the applicant being notified of the decision”. There is simply no power to extend the time. Some of the traditional grounds of judicial review have been removed, eg procedural fairness and relevant/irrelevant considerations and unreasonableness.
- On 8 July 1994, the Commonwealth Attorney-General referred jointly to the Administrative Review Council (“ARC”) and the Australian Law Reform Commission (“ALRC”) an extremely wide joint reference on the scope and operation of the FOI Act. There was a joint issues paper published in September 1994 and the final joint report was published early this year titled Open Government: A Review of the Federal Freedom of Information Act 1982, [ALRC Report no 77; ARC Report no 40]
- The Commonwealth’s Access to Justice Advising Committee Report (the Sackville Committee) 1994 had some interesting recommendations concerning judicial and administrative review.
- There are Commonwealth Bills to keep an eye out for including: the Legislative Instruments Bill 1994 which at the time of writing had finished being considered in Senate Committee, the Financial Management and Accountability Bill 1994 (to replace the Audit Act 1901) and the Commonwealth Authorities and Companies Bill 1994 (to regulate the activities of Government Business and Trading Entities).
- There is a new Security Appeals Division of the AAT. The Security Appeals Tribunal is abolished (it was established under the ASIO legislation).
- Following on from the Hilmer Report published August 1993, (Report By The Independent Committee Of Inquiry Into National Completion Policy) which recommended inter alia that government business or trading entities should not have the benefit of the shield of the Crown or of any special government status the various States and Territories executed with the Commonwealth the Competition Principles Agreement dated 25 February 1994 which provides for inter alia, a competitive neutral policy for the elimination of resource allocation distortions arising out of the public ownership of entities in significant business activities. The principal tenet, in clause 3 of the Agreement, is that “Government businesses should not enjoy any net competitive advantage simply as a result of their public sector ownership.” Respective governments are to adopt an appropriate corporatisation model and impose on the GBEs;
- full government taxes or an equivalent;
- debt guarantee fees directed towards offsetting the competitive advantages provided by government guarantees; and,
- those regulations to which private sector businesses are normally subject, such as those relating to the protection of the environment, and planning and approval processes, an equivalent basis to private sector competitors.
On the same date the above Agreement was entered into, the same parties also entered into the Conduct Code Agreement (also made on 11 April 1995) which has as its object that complementary competition laws and policies apply throughout the country to all businesses irrespective of ownership. The agreement and subsequent legislation requires the said businesses to be subject to the new Competition Code (which is now found at a Schedule to the Trade Practices Act 1974 (Cth)). As far as I am aware, the provisions applying national competition law to State and Territory businesses commences on 20 July 1996 – see generally, Russell Miller’s book, Annotated Trade Practices Act, 17th ed, 1996, where the above agreements and many of the legislative changes are reproduced and explained. As I understand it, the Competition Policy Reform Act 1995 (Cth) was assented to on 20 July 1995; the Competition Policy Reform (New South Wales) Act 1995 (NSW) is to become largely operational on 20 July 1996; and the Competition Policy Reform (Victoria) Act 1995 (Vic) operates on and from the same date.
The implications for public law issues are enormous. However, just how the various States and Territories will implemented the agreements remains to be seen. Exemptions will be found and the details will become intricate. Not all entities will fit within the scheme (see, for example, the Sydney Water Corporation Limited which is corporatised but remains subject to the New South Wales’ Ombudsman Act, freedom of information legislation, ICAC and the scrutiny of the Public Accounts Committee. The part that public law will play in all of this competition reform remains to be seen.
- The Australian Law Reform Commission is presently working of a reference titled “Review of the Adversarial System of Litigation”, which it received in November 1995. It will report by September 1998. The Commission will look at civil litigation and administrative law procedures in civil code jurisdictions.