AUSTRALIAN ADMINISTRATIVE LAW: INSTITUTIONS, REFORMS AND IMPACT
| Date | 01 December 1985 |
| Author | JOHN GRIFFITHS |
| DOI | http://doi.org/10.1111/j.1467-9299.1985.tb00597.x |
| Published date | 01 December 1985 |
AUSTRALIAN ADMINISTRATIVE LAW:
INSTITUTIONS,
REFORMS
AND IMPACT
JOHN
GRIFFITHS
Over the last decade the Australian Government has enacted a package of legislative reforms
dealing with administrative law, some aspects of which are radical and innovative. The
reforms comprise the establishment of a general appeals tribunal to review certain adminis-
trative decisions on their merits, the appointment of a Commonwealth ombudsman, changes
to
the procedures and principles concerning judicial review of administrative action, the
enactment of freedom of information legislation and the creation
of
an advisory body
to monitor the new system of administrative law. The key features of these reforms are
described in this article and some general observations are also made on the impact that
the reforms have had on federal public administration.
The growth
of
government and the increasing extent to which the rights, interests
and obligations of private individuals are regulated and affected by powers vested
in public officials raise a host of important questions concerning the relationship
between government and the governed. Such questions include whether traditional
doctrines and remedies are adequate
to
ensure that public officials are truly
accountable for their actions and decisions, whether information in the possession
of govement should be made more accessible to the public, and whether provision
should be made for greater public participation
in
governmental and administrative
processes. Such questions currently confront all Western democracies and, as might
be expected, national responses have varied depending on a wide range of political,
constitutional and practical considerations. Australia’s response
to
these questions
has been to implement at the federal level over the last decade a package of reforms
which in many respects is bold and imaginative. The purpose of this article is to
describe those reforms in general terms and to offer some general and tentative
views on their impact.
It
is not suggested that the Australian reforms are necessarily
a blueprint for the United Kingdom as they have been tailored for Australian
conditions and requirements, but their features are likely to be of international
interest, not least in a country such as the United Kingdom with which Australia
shares
so
many ties and traditions.
Dr
Griffiths is the Director
of
Research
of
the Administrative Review Council. An earlier version
of this paper was presented at the Australian Studies Centre, University of London, on
1
October
1984. The views expressed are the author’s and not those
of
the Administrative Review Council.
Public Administration
Vol.
63 Winter 1985 (445-463)
0
1985 Royal Institute
of
Public Administration
ISSN
0033-3298
$3.00
446
JOHN
GRIFFITHS
In chronological order, the reforms comprise:
The enactment in 1975
of
the
Administrative Appeals Tribunal Act
which
establishes (a) the Administrative Appeals Tribunal
(AAT)
as a general appeals
tribunal to review certain administrative decisions on their merits and obliges
decision makers to provide upon request a written statement of reasons for a
reviewable decision; and (b) the Administrative Review Council
(ARC)
as a
permanent and independent advisory body responsible for monitoring a wide
range of matters relating to review of administrative decisions and giving advice
to the government on those matters. The
AAT
commenced operations on
1
July
1976 and the Council held its first meeting in December 1976.
The enactment in 1976 of the
Ombudsman Act
which sets up the office of
the Commonwealth ombudsman to investigate complaints of defective adminis-
tration by federal departments and authorities. The first and current ombudsman
is Professor Jack Richardson (formerly Robert Garran Professor of Constitutional
Law at the Australian National University), who took office on
1
July 1977.
The enactment in 1977 of the
Administrative Decisions (Judicial Review) Act
which establishes a relatively simple form of procedure in the Federal Court
of
Australia
for
obtaining judicial review of administrative decisions. The Act
codifies the grounds of review and also obliges administrators to provide upon
request a statement of reasons for a reviewable decision. Restrictions both on
this specific duty as well as on the Act’s ambit as a whole will be discussed
later. The Act was passed in 1977 but it did not commence operation until
1
October 1980 for reasons which will also later be explained.
The enactment in 1982 of the
Freedom of Information
Act
which creates a
legal right of access to documents in the possession of federal departments and
authorities. Certain categories of documents are exempt from disclosure. The
Act also requires federal agencies to publish information about their operations
and powers and to make publicly available any manuals
or
internal guidelines
used in decision making. The Act came into operation on
1
December 1982.
Each of these measures has its own special features but together they represent
a package of reforms which is designed to regulate the relationship between
government and individuals and to reconcile the potential conflict
of
interests
between providing efficient and effective public administration and safeguarding
rights of individual justice. Certain policy objectives also underlie the reforms. They
are designed, both in the public interest and in the interests of individual justice,
to make administrative officials accountable to independent and impartial agencies
for their actions and decisions; in the interests of open government, to eliminate
unnecessary secrecy in administration; and in the interests of good public adminis-
tration, to improve the quality
of
primary decision making. The extent to which
these policy objectives have in fact been achieved, and whether the costs incurred
have borne a reasonable relation to the benefits which have emerged, are matters
of great topical interest in Australia and are discussed later in this paper. It might
also be said that, while it may not have been uppermost in the minds of the
legislators who enacted the reforms, their implementation has strengthened the
legitimacy of public administration by obliging decision makers to explain and
rationalize their decisions and by providing aggrieved individuals with effective
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