Administrative LAW MERITS REVIEW PDF

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ADMINISTRATIVE LAW; MERITS REVIEW; executive branch Does not look into the law, non judicial review on the facts, substantive Background  Prior to 1975, 50 yr history of merits review as adhoc, inconsistent and unaccountable, reliant on parliamentary & judicial scrutiny  For citizen, reliant on prerogative writs, JR  In terms of accountability focused on the role of parliament; answerability of ministers for administrative actions, oversight of parliamentary committees and complaints to individual members of parliament  Revolutionary step, departure from the UK model, context of political climate of Whitlam era, changes to govn services, welfare state.  Statutory independence from parliament and the executive  Whitlam era; 1970’s; govn accepted greater responsibility for providing social welfare, Medicare, + admin accountability, community grants and commercial incentives  Free tertiary education, international travel  1971 Kerr Committee Report and introduction of raft of legislative reform; The New Administrative Law; revolution; ADJR Act 1977, AAT (Admin Appeals tribunal), The Ombudsman, Freedom of Information (FOI), Admin Review Council (ARC)  ADJR Act 1977; Ombudsman Act 1976; Administrative Appeals Tribunal Act 1975  FOI Act 1982 Fact v Law  new institutions provided review of facts not law  ‘de novo’ (starting from the beginning) review of administrative decision  in merits review (non legal) the reviewer ‘stands in the shoes of’ original decision maker= reconsiders whole matter considering all relevant evidence and exercises their discretion; ‘correct and preferable’ cf to legal decision making they look at whether it was lawful, not whether it is fair.  based on acceptance of notion that decision makers more often get facts wrong than err at law eg, Centrelink officer pays wrong amount  fact finding exercise only, do not consider Qs of law therefore no judicial power exercised  legislature make the laws and the executive administers them, and if the decision never makes it to the judiciary then review needs to be done of the executive  central function of public administration= executive; power to put laws into action  statutory independence from parliament and the executive; no judicial power  Pozzloanic Test; although no universal application has been formulated Institutional overview Judicial Review= courts NON Judicial; Merits review= tribunals/review boards Investigation/review= ombudsmen/commissioners Internal review= complaint mechanisms, code of conduct, charters Parliamentary= political pressure (media) go to local MP, lobbying Access to information= FOI, Privacy, Archives, secrecy, whistleblowing 1st avenue; Internal Review; complaints, 80% are resolved at complaints 1

Can be established by statute or administrative action, eg. ATO complaints, Centrelink customer service centre, child support agency complaints service, department of defence fairness & resolution branch, dept of immigration global feedback unit.  Must go to the complaints office before AAT, time limits apply  Independent person looks at complaints, in most agencies  Considered in ARC Rep 44. Internal Review of Agency Decisions making 2000  Should be ‘de novo’ review by independent decision maker, but is this realistic?  Is best used where is obvious of new evidence 2nd Soft Law; Customer Service and Codes of Conduct; Public Service Act 1999 s15  Most require adherence to procedural fairness and also refer direct to either ombudsman or tribunal, but some cant until exhausted these avenues of review 1st  Representation not always permitted  Refer to case law; see text 

Changes in past 30 years  Issue of information and technology  Increased role of Cth Auditor-General (ANAO); audits of all aspects of the administrative law system, good for systemic issues  Proliferation of independent statutory review agencies; watch dogs  Australian Human Rights Commission 1986  Inspector-General of Intelligence & Security 1987 & the defence force  Privacy commissioner 1988 (now part of OIC)  Competitive Neutrality Complaints Office, Productivity Commission 1998  Inspector-General of Taxation 2003  Aged Care Commissioner 2007  National Security Legislation Monitor 2010  Office of the information Commissioner 2010 As soon as there is statutory review mechanism gives rise to ADJR, most statues have right of review direct to AAT or ombudsman. Most are based on political events, scandals Common features of review commissions/bodies  Established by statue as independent bodies not subject to government direction on how reviews should be conducted  Can investigate administrative actions of govn agencies incl on receipt of complaints from public and own motion  Investigation reports are often published either by body or through minister of parliament  They have extensive power to conduct investigations and there are associated protections for the investigation process, staff, witnesses and complainants  Not all bodies have a complaint investigation function eg. Inspector-Gen of Taxation  Some have a record-inspection program and audits  Commissioner for Law Enforcement Integrity & Inspector-Gen of Intelligence & Security report directly to parliamentary committee  Most state they adhere to procedural fairness and have review function to either ombudsman or tribunal Challenges for commissions  Follow up not necessarily monitored, recommendations not acted upon; enforced cf to tribunals,  Budgetary constraints, executive can starve review bodies of finance

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Overlapping jurisdictions, many have jurisdiction to investigate each other, which one has more power, confusing to the public Location in the executive, should they report to parliament Reality of independence, conflict of interest, bias, in the same pocket of another body

Rise of ADR for simple disputes  Focus across all admin review mechanisms, some agencies use mediation as preliminary step instead of internal review as stated in;  Legal Services Directions 2005 under Judiciary Act 1903 s55ZF  Operates in conjunction with standard of Cth as the ‘model litigant’, promotion of resolution, avoiding conflict and citizen focussed culture  Conciliation, neutral evaluation, expert assessment  Benefits of ADR; cheap, flexible, quick  Disadvantages; power imbalance, lack of reasons  Vexed question of the involvement of lawyers and when and where representation is appropriate  Is mediation consistent with normative role? Where to begin  Always start with checking statute for framework review  Always make use of internal review if possible; for goodwill  There may be a choice of forum for review, if so weigh up benefits of each forum depending on type of grievance and what client wants  Principles of PF, bias, conflict of interest Who is the decision maker What is the statute that governs the decision Is there a complaint mechanism via internal review What is the agency/commissions that governs reviews Do they have code of conduct

THE OMBUDSMAN The O Act 1976 (Cth) came about in the 1970s alongside the Privacy Act, FOI Act as the ‘new administrative law package’ in line with international practices for open government and transparency. The O office and function has developed over the years, with additional

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conferral of powers and functions; industry and public offices covering extensive areas. Industry O although regulate in different ways; ie established by statute. This is suggested due to parliament confidence; yet some argue there now needs greater scrutiny in place of the performance of the O, otherwise the risk of deciding whether as decision is legitimate without providing accountability will fail administrative justice. They play a key role in providing a mechanism for resolving low value disputes, overcoming power imbalances between consumers and government agencies, and identifying and addressing systemic issues, generally when there are as number of similar complaints. O as an independent and impartial institution, although do not provide advocacy, they actively pursue resolution of disputes rather than primary control to the parties, which generally occurs in the courts; thus removes the need for legal representation. Many complaints to the O are about matters of administrative style and behaviour that would not be directly reviewable by as court or tribunal They also resolve both legal and non legal issues; by considering good industry practice, what is fair and reasonable; and whether the matter within the agencies control. Statutory body with broad powers to investigate maladministration, systemic problems in administrative decision-making. Often dealings with Government are better resolved by other means than review by court or tribunal; due to the nature of the problem; eg lost records, delay, unclear explanation, or official rudeness; Other similar institutions such as the human rights and anti discrimination offices that also act on complaints and own motion investigations; The O and other institutions play as key role in administrative justice system alongside courts and tribunals;

Questions to ask; 1. Is government action more effectively controlled by external oversight or internal quality assurance or both? 2.

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Accessible review mechanism due to being informal and free, but has broad discretion whether to investigate Developed expertise in dealing with systemic issues in maladministration But have they become the governments fixer? Ombudsman Act 1976; includes public and industry offices; defence force, postal, immigration, law enforcement, oversees students, private health insurance Also receives whistle-blower complaints under the Public Interest Disclosure Act 2013

Major Roles 1. Investigate complaints from individuals, groups or organisations about the administrative actions of Australian Government officials and agencies s5(1)(a)

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2. Undertake investigations of administrative action on an ‘own motion’ basis; ie own initiative, though often prompted by individual complaints s5(1)(b) In either case; O can recommend remedial action taken by agency (specific to individual case) or generally by change to legislation or administrative policies/procedures 3. Inspect records of agencies such as AFP, ACC to ensure compliance with legislative requirements applying to selected law enforcement and regulatory activities. This role is specified in relevant legislation 4. Oversee the operation of the Cth public interest disclosure (PID) scheme (public sector whistle blower); Public Interest Disclosure Act 2013, includes receiving notifications by agencies, investigating disclosures, providing assistance and awareness programs and reporting annually on the operation of the PID scheme Who is the Ombudsman  S21(1) Appointed by GG  S22(1) 7 year term and may be reappointed  May be removed by GG by resolution of both houses on grounds of misbehaviour/mental incapacity etc; ss21; 28  Office funded and managed as within dept of PM and Cabinet (is this independence?) needs to trust executive but maintain distance from parliament  Mr Colin Neave (Cth) My Wayne Lines (SA)  Office receives over 30k complaints p/yr cf 4065 p/yr  SA; Feb 2017; shackling of prisoners, April 20i6; education dept  Housing SA 20% Correctional Services 30% Education 15%, 46 referral from ICAC Jurisdiction; Core Function; to investigate, either on receipt of complaint or ‘own motion action’(s5(1)(b) S5(1)(a) ‘action that relates to a matter of administration’ The concept of administrative action broadly defined; include as decision, act, recommendation, proposal to act, or refusal to act General Character of the office described in; Ainsworth v Ombudsman (1986) 17 NSWLR 276; 283-284;  Does not decide legal rights  Investigates and reports to parliament  Force comes from throwing light on administrative injustice where legal and other remedies might fail S5; Public sector; O receives close to 100,000 complaints per year; 70% are advised to raise the issue with the agency at first instance Ss3; private sector; non government bodies; eg job network services, manage immigration detention centres, private postal operators, oversees students Investigations Not limited to illegality; Anti-discrimination commissioner v Acting Ombudsman (2003) 11 Tas R 343; is not restricted to investigating only bad, or faulty, or inefficient, or improper, administrative actions or maladministration S10; unreasonable delay Since May 2015; no loner taxation

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Exclusions  S5(2)(a) cannot investigate action taken by Ministers  S5(2)(aa) person employed in the public service; Legislative functions  S5(2)(b)by court or tribunal; judicial functions; Nisselle v Brouwer (2007) 16 VR 296; statutory provision gave immunity to the officer as the same as as judge, thus removing O’s jurisdiction; as actions cannot be taken against as judge  Cannot investigate Policy, but only matters of administration; City of Salisbury v Biganovsky (1990) 54 SASR 117; 121-124; can examine the application of a policy in a particular case for this is a matter of administration Booth v Dillon (No2); narrow view given to the scope of O’s power to investigate against prisons; here the prison officer made false statement to the press, but as an independent person, not part of employment, thus not administrative  Cannot make findings of individual guilt; a matter for a court, but can offer an opinion on possible guilt; Chairperson, ATSIC v Cth Ombudsman (1995) 63 FCR 163, 175D-177A; held that the O had acted beyond its powers, by making as report of commissioners criminal guilt and breached natural justice by including within the final report matters critical of the commission that had not been stated in the draft report submitted to the commission for comment  Limited to AU; Brannigan v Cth (2000) 10 FCR 566, 569[10] dictum

Standing  Services are free of charge, complaints can be made by oral or in writing s7  Anyone may complain, but; media not affected may lack standing to JR an ombudsman decision; Boyce v Owen (2000) 9 NTLR 177, 189; relying on Right To Life Assn (NSW) A press article about a matter not a complaint within the meaning of the Act; McGurk v NSW Ombudsman [2007] NSWSC 1287 Discretion  S6; Broad discretion to refuse to investigate, if; More than 12 months old, frivolous or vexatious, complainant lacks sufficient interest in subject matter, not warranted on the circumstances  As large number of complaints are dealt with informally by providing advice over the phone  Discretion to discontinue an investigation; Watson v Cth and Taxation Ombudsman (2003) 75 ALD 573;  Cannot re-open an investigation once finished and a report produced; functus officio; R v PCA ex p Dyer [1994] 1 WLR 621; In Practice; powers and procedures Powers;  S7A; usually first informally by way of preliminary enquiries; although has same powers as royal commission to require;  S9; power to obtain information and documents  S13; power to examine witnesses on oath or affirmation  S14; power to enter premises

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 Must accord natural justice; R v Dixon ex p Oliver [1978] WAR 116; Chairperson, ATSIC v Cth Ombudsman (1995);commission draft report different from final; unable to make comment about accusations Investigations;  S8(2) guiding principle is that investigations is to be in private  S35A; and info is not to be released publicly unless O determines in public best interest  S8(4) complainant need not appear before the Ombudsman  S8(5) must give the party complained against a right to appear before making the report; ie statutory right to hearing  Sends a draft report to the agency for their comment before a final report is produced; Chairperson, ATSIC v Cth Ombudsman (1995  The complainant can issue proceedings against the O; Kavvadias v Cth O; challenged the denial of FOI document City of Port Adelaide Enfield v Bingham; council successfully challenged an unreasonable recommendation by the O that the council undertake environmental restoration work In SA; the O is exempt from JR and FOI; on the principle that is unwise to have disputes about disputes Immunities  S33; can not be sued Alice Springs Town Council v Watts {1982) 50 LGRA 149 Ainsworth v The Ombudsman (1986) 17 NSWLR 276  S37 Immunity from civil actions by complainants; as person who complains to the O in good faith is protected against civil proceedings  Information given to O cannot be disclosed by; Subpoena; Rana v State of SA [2003] FCA 1259; Discovery; Paice v A-G [1986] 2 NZLR 257  S35 confidentiality requirement to be observed by office; ie is not comoelled to provide info in other proceedings  S5(1)(b) O can also initiate own investigations on own motion Outcomes  S10 & 11; May refer matters to AAT for an advisory opinion or recommend department do so  S8A referral to state Ombudsman Reports; The O does not have determinative powers to alter as decision; but can conclude an investigation only by reporting to an agency and recommending that further action of some kind be taken; ss12,15. If the O is of opinion that the agency has not taken appropriate action with respect to recommendations; cab report to the PM and thereafter the parliament; ss16,17.  S15 reports to parliament & Department concerned and offers an opinion that the action was either; There appears to have been Contrary to law Unreasonable, unjust, oppressive, improperly discriminatory Based on mistake of fact or mistake of law Improper purpose or based on irrelevant considerations

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One for which reasons should have been given but were not Was otherwise wrong  If a discretionary power was based on irrelevant or improper considerations can recommend action to be taken  Must give reasons for opinions  No enforcement powers; City of Salisbury v Biganosky (1990) 54 SASR 117  S16; But if no action; O may report matter to PM Pros v Cons Free/informal/systemic approach/no standing rule BUT; Discretionary/no control by applicant/no binding decisions/high level of dissatisfaction/length of time Development O over the past decade has had a notable shift in functions; -that being expanding into specialist functions by statute, such as auditing of police records, preparation of reports on long term immigration detainees. -increased importance through publications & training to improve administrative decision making, conduct and complaint management -increased number in ‘own motion’ investigations into systemic or recurring problems in Govn administration (for eg the 2009-09 Annual Report showed 18 more investigations were published than previous year); this mainly due to topics such as agency complaint handling, the administration of executive schemes, client mental illness, compensation for administrative error, and penalties imposed on welfare recipients. The O also do unannounced visits to immigration detention centres, taxation and police officers on compliance operations, and regular visits to Christmas Island. The emphasis on promoting good administration by identifying weaknesses, with increased emphasis on systemic issues found to be more of as strategic resource that builds on better professional complaints handling; which in 1991, the Cth Parliament warned against the O placing too much emphasis on systemic reviews. Those in favour of systemic reviews; say they impact many more people than from as single individual complainant by improving the normative decision-making process; The system fixing role and individual complaint handling are interconnected; but the main difference is the individual complaint handling role is reactive; as the O must respond to the complainant; where as systemic role is proactive and discretionary; geared towards preventing future complaints The dual role; conflict resolution; conflict prevention The O had powers removed in 2015 to investigate matters relating to FOI and Privacy Act which now dealt with via OAIC; whom in one year initiated no own motion investigations and managed to resolve only as 3rd of complaints. SPECIAL ISSUES OF O FUNCTION

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1. Who is an O?; proposals were made ...