Issues in Australian Administrative Law

It has been said of the Australian administrative law system that ‘it suffers from an over complexity, which makes the system confusing to any ordinary observer … There are too many entities involved in the system, and we would be better off with less of them.’

Do you agree? Which of the administrative law remedies or institutions do you consider to be essential and why?

Administrative law in Australia is complex and might be confusing to the ordinary observer, but so are the government and the laws they seek to regulate. It has been said (by an unknown author) that there are too many entities involved in the system and we would be better off with less of them. This paper will argue that most of the entities in the system have been created in response to changes in the government and public expectation of the individual to be protected from government decisions and in doing so have formed an administrative law revolution. The essential administrative law remedies that this paper considers essential are; the judicial, the tribunal, the ombudsman, and the CDDA. The reasoning as to why these institutions and remedies are essential will be discussed using John McMillan’s paper Ten challenges for Administrative law, Cryke and Groves and Weeks. In doing this it will be discovered that there are deficiencies in all administrative law institutions and remedies but that when considered they are mostly effective in dealing with the government and the individual.  

John Mc Millan identifies ten challenges to administrative law. His first challenges addresses challenge addresses the complexity of administrative law remedies and institutions that individuals have to manage when dealing with the government. McMillian lists independent agencies[1] created by statute to oversee decisions and actions of executive agencies. He argues that most of these agencies have been created in response to changes in the government and in public expectations. He notes that it is conventional to classify these agencies as executive agencies[2] and that these executive agencies are non-traditional in the implementation of policies and programs of the government. Within this McMillian argues that these executive agencies are a fourth branch of government- “the oversight, review and integrity branch” and that acknowledgment of this would “enhance” administrative justice. [3] It would enhance administrative justice to readjust our constitutional theories to take account of this new and effective system for control of government action.[4]

McMillian states that administrative law review works best when a clear decision maker makes a “discrete and challengeable decision” , but that many decisions that are needed to be made are not of this kind because of the community and the way the individual is effected by the government has changed from the birth of administrative law and will continue to change in  a “qualitative and qualifiable” way.  He addresses some of the changes effecting administrative law include the freedom of information act, privacy legislation, creation of a new migration scheme and oversight agencies. But that ombudsmen, tribunals, review by courts and oversight mechanisms are they key stones of administrative law and are still important

Creyke and Groves see the that the creation of agencies have been in response to changes in the government and in public expectations has created an administrative law revolution. While McMillian has argued that these agencies should be a forth branch of government Creyke and Groves focuses is on the states and territories adoption of accountability packages based on the commonwealth for administrative law. This package includes and ombudsman or parliamentary commissioner, anti- discrimination laws. Cryeke and Groves argue that Australia has a “vibrant administrative law’ system that should be valued as the system offers “redress” when an individual has an issue with the government. In summary Australia nationally and in the states and territories has a robust system of administrative law. That system offers redress when citizens complain that their rights and interests have been thwarted by government. But vindication of individual rights is not the only interest being protected.

“Administrative justice requires that the courts, tribunals, investigative bodies and ombudsman offices, while administering the values of fairness, rationality, transparency, impartiality and accountability that underpin good administration, also allow for government to operate in an efficient and effective manner.”

Tribunal and Judiciary and alternative dispute resolution

The judiciary, tribunal and dispute resolution are essential to administrative law intuitions as they provide a mechanisms or recourse for an individual dealing with the government. Each have their benefits and their limitations, but they do provide recourse for an individual to seek justice against the government.  

Tribunal

It is well recognised that for essential effective administration is the ability to have access to the reason for an adverse decision. Cryke and Groves argue that this right is not protected as there is no common law protection but there is legislative protection in the Administrative Decisions (Judicial Review) Act or the Administrative Appeals Tribunal Act. (AAT). The AAT is outside the main court system and it operates in a court like fashion” but does not exercise judicial power. Cryke and Groves predict that there would be an ” increased convergence of the adjudicative arms of government”  with reforms considering  and encouraging  efficiency and cost to favour “mechanisms for review outside the mainstream court system.” However, the High Court has warned against “transposing the doctrine of public immunity to the AAT. It should also be noted that there is a distinction between state and judicial power. This is significant for tribunals because it will “continue to define what functions may and may not be invested in tribunals.”  In the words of  Gleeson CJ “the development of a strong system of tribunals has complemented the judicial review roles of the courts because it:

… relieves the judicial branch of pressure to expand judicial review beyond its proper constitutional and legal limits. Federal courts can mark out and respect the boundaries of judicial review more easily where there is a satisfactory system of merits review. This has beneficial consequences for the relations between the three branches of government, and relations between the judicial branch and the public”

Judiciary

The judiciary provides  legislative protection and the high court has jurisdiction to grant remedies, and the statutory judicial review scheme (this mostly mirrors the grounds for review and remedies available under the general law of the Constitution. [5]). But there is a limitation to judicial review as its remedy is only procedural in nature. The problem with this is decisions are not decided on their merits but on procedural rules. This becomes important if an individual is seeking judicial recourse against soft law. It becomes unenforceable  under judicial review.  Weeks cites the High Court narrow approach in Tang as an example of soft law not being enforceable by using the rule of improper fettering of discretion: [6] That soft law is intra vires, subject to the prohibition of fettering. And that in this there is a balance that needs to be struck between the merits of the case but no giving the impression of “arbitrariness by allowing different results in cases that are substantially similar.” Weeks then uses Aaronson and Groves to suggest that the rule of fettering be modified to allow for the development of consistent discretionary powers. He concludes this argument by acknowledging while its persuasive it challenges the “judicial review mantra.” But that the prohibition of fettering stops the soft law from being treated the way as hard law in court proceedings and that it us at odds with “like cases” treating “subjects consistently”. Weeks then uses MLC Investments v Commissioner of Taxation to make the argument that failing to adhere to soft law dispensed by a public authority to which a decision maker works to looks arbitrary. And that all is needed to overcome the inability to use soft law is that the decision maker has regards for the merits of an individual case, rather than to apply statutory discretion mechanically. Though he finishes his argument with “ It is unclear exactly how a court would bring about this end.”  Weeks fear of administration law looking arbitrary is at odds with Cryke and Groves prediction that there will be more proportionate dispute resolution.  The effect of this will be to find an appropriate cost-effective solution to resolve a dispute. This could be an investigation, tribunal review, internal, or a negotiated outcome. Section 10(2)(b)(ii) of the Administrative Decisions (Judicial Review) Act already allows for the Federal or magistrates court to not hear a matter if there is a suitable alternative, though it is rarely used. The Access to justice (civil litigation reforms) act 2009 (cth) introduced amendments to clarify that the overreaching purpose of the Federal Court of Australia act 1976 (cth) is to efficiently, quickly, and inexpensively achieve a just resolution of disputes according to law.

Alternative dispute resolution

Cryke and Groves predict that proportionate dispute resolution will see a rise in alternative dispute resolution. In the major jurisdictions model litigant principles require alternative methods of solving disputes be used when possible. This is to solve matters at the earliest possible stage. This can be seen in the AAT offering conferencing, mediation, conciliation, case appraisal and neutral evaluation.  There are some “detractors” that include denial of exposure of error, the making of unlawful decisions, detracts from the normal role of courts and tribunal.

McMillian is on the same page as Cryke and Groves and argues that the if traditional stereotypes of accountability and justice in administrative law are followed in today’s society then administrative justice will be “hampered” . He believes a solution to and a way of “stimulating cultural change” in administrative law is to rethink the constitutional understanding of the role of oversight agencies.

Ombudsman

It is not just the AAT  or alternative dispute resolution that that provides an alternative to judicial review. The ombudsman provides an avenue of recourse for the individual against the government.

The ombudsman is a ‘non-judicial accountability’ body that can be described as an ‘element of the integrity branch of government. It is Swedish in origin but has a strong connection by analogy to the Chinese Civil Service ‘supervising’ branch. The ombudsman preforms integrity functions, as well as dealing with individual complaints.  [7]

McMillian when he outlines five changes that should underpin a new approach to administrative law with a focus on external measures includes the ombudsman recommendations in this new approach  as well as complaint handling, financial remedy and compensation. McMillian seers Complaint handling through ombudsmen and similar oversight agencies  as an efficient, low cost and flexible way to handle problems that involve more than one agency .[8]

McMillian sees the ombudsman as a way of moving forward for administrative law  as there is already a high rate of acceptance of ombudsman recommendations. He sees the advantages of using an ombudsman as providing an avenue of complaint for the individual, as the ombudsman can provide recommendations that are not available through the courts. He sees these recommendations or remedies as providing a better solution to the individual as they can: communicate an explanation to the public effectively, can expedite an application, revise application forms, re write administrative procedures, establish cross handling agency issues. These things provide a practical remedy to the individual and can improve administrative standards to reduce future or the risk of future error.

McMillian The ombudsman unlike the courts who can on deal with issues raised before them can ensure that the agency is taking an appropriate response to a recommendation. Traditional administrative law remedies (a decision is substituted, there is a declaration of the rights of the parties and the law, a direction of an agency to reconsider a matter, an injunction restraining unlawful action/mandatory order for agency to act lawfully. McMillian argues that these remedies can not and are not adequate in dealing with contemporary issues and problems that arise from interactions between the individual and the government. He furthers his argument by acknowledging that sometimes the individual will just need an apology or to expedite an action, all these he sees are encased in the trend of an ombudsman complaint handling.

McMillian  in doing so discusses the role of the ombudsman and the fact that it is the only administrative law agency that can review decisions made under executive schemes. He argues that this is a concern because of the inability to distinguish the importance and effect of decisions made under executive and statutory scheme. He adds substance to his argument of the complexity of administrative decisions made under the executive by stating that executive decisions may not be well drafted, not subject to parliamentary scrutiny, not available for publication.[9] Finally McMillian sees a real problem in the executive interpreting and applying the rules as this can bring conflict in objectivity of the decision maker. All these factors can make it difficult for the individual and the government to discern the rules derived form the executive, especially if these rules are constantly evolving.

Weeks argues that the practical limitations of the ombudsman does not mean that the office does not investigate thousands of complaints and that for each of these complaints the ombudsman tries to find a remedy. While an ombudsman cannot impose binding declarations on public authorities due to the Constitutional separation of powers this seems to be not an issue. Weeks argues that not being able to provide traditional remedies is no an issues as they are regarded as “ill adapted” to help an individual who needs support from an administrative law point of view. This is because the ombudsman is not restricted to statements of legal right and has more adaptability to help an individual affected by the application of soft law.  While the ombudsman has no coercive powers it is highly persuasive “to obtain remedies, which may include ‘an apology, financial compensation, proper explanation, reconsideration of agency action, and expediting agency action”

CTTA Payments

Weeks argues that the ombudsman can recommend that a public authority financially compensate an individual who has had a loss as a result of “defective administration action” These are legal limits on the ability of the government to remedy injustice but the CDDA Scheme can override this. The CDDA is a ‘is a valuable and important means of securing administrative justice in a complex system’, and is important where an individual has relied on soft law but cannot enforce it.

Weeks argues two alternate remedies to judicial review for soft law The ombudsman and payment of ex gratia compensation by the government.

McMillian compensation available through the Scheme for Compensation for Detriment caused by Defective Administration (CDDA scheme) executive scheme. These decisions are not appealable to the AAT or reviewable under the ADJR Act. The premise of this scheme is government agencies can pay compensation on a discretionary basis to individuals or groups who have suffered loss as a result of poor administration.

McMillian Financial remedies occur when an agency imposes a penalty or raises a debt. The ombudsman has the ability under the Financial Management and Accountability Act 1997 ss 34 and 47 to waive powers conferred by legislation upon agency. This power not only fives the ombudsman the tight to waive a debt but it can allow the ombudsman administer an objective in administrative law to “simulate better decision making beyond the matter under review” . The importance of the ombudsman to simulate decision making is important because an error made in one case is likely to be repeated in other cases. The ombudsman having this power provides a formal mechanism for evaluation and accountability of appropriate changes occurring. A court or tribunal on the other hand can set a precedent but it can only reach that individual in court at the time. The ombudsman can reach all the people effected by a decision that needs reversing.

 McMillian argues that the if traditional stereotypes of accountability and justice in administrative law are followed in todays society then administrative justice will be “hampered” . He believes a solution to and a way of “stimulating cultural change” in administrative law is to rethink the constitutional understanding of the role of oversight agencies.

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[1] auditors-general, ombudsmen, privacy commissioners, human rights and anti-discrimination commissioners, public sector standards commissioners, inspectors-general and corruption commissions

[2] with their function being to oversee and investigate complaints against executive agencies

[3] http://classic.austlii.edu.au/au/journals/AIAdminLawF/2010/5.pdf 2010

[4] http://www.hcourt.gov.au/assets/publications/speeches/current-justices/gagelerj/9781107692190extract.pdf

[5] the constitutional writs of mandamus and prohibition and the equitable remedy of injunction, a flexible remedy able to prohibit administrative action where the applicant’s interests are at stake. Also the High Court has jurisdiction ancillary to that granted by s 75(v) of the Constitution to grant the writ of certiorari in order to ensure the effectiveness of the constitutional writs. It also has an inherent power to grant declaratory relief. The availability of one or more of these remedies is generally proved by proving breach of at least one of the set grounds of judicial review.

[6] Traditionally a decision-maker who inflexibly applies rules or policies and does not listen to submissions that an exception be made is committing a jurisdictional error. This is usually justified on the preferability of statutory discretions granted to public decision makers, even by their own decisions, not to be fettered when reaching a decision for the benefit of the public.  Usually the no fettering principle is invoked where the decision maker imposes restraints on themselves by adhering to the terms of a soft law instrument to which narrows the scope of discretion to the point that they don’t take into consideration the merits of an individual case. Fettering works both ways in as much as a decision maker will not commit a jurisdictional error by not honouring an individuals expectation that the terms of the soft law will be adhered to. Jurisdictional error occurs when a rule is applied consistently but without regards to the merits of an individual case.

[7] Weeks

[8] The Australian Standard and better practice guides published by Ombudsman and other offices set the principles.

[9] under the Legislative Instruments Act 2003 (Cth).