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Published online by Cambridge University Press: 24 January 2025
It is often claimed that, in addition to arriving at the “correct or preferable” decision in the individual case, a primary objective of an administrative review system is to have a “normative” influence on government decision-making. As the Federal government has made a commitment to the overhaul of the administrative review system, it is timely to question the significant normative achievements which have been claimed over the past two decades of codified administrative review rights in Australia.
The first part of this article outlines the theoretical and practical foundations of the normative goal and the changing influences upon it. It attempts to unpack the concept and consider some of its claims. Is it, for example, realistic in the context of the dynamics of government administration, to continue to claim the “normative effect” as a goal of administrative review? Is the administration responsive to review? Is there evidence of administrative law “values” in the culture and processes of the administration?
1 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589.
2 Substantially, although it is not yet clear how closely the overhaul will be in line with the recommendations of the Administrative Review Council. See Administrative Review Council, Better Decisions: Review of the Commonwealth Merits Review Tribunals (ARC 39, 1995).
3 Commonwealth Administrative Review Committee Report 1971 (Kerr Committee Report,Parliamentary Paper No 144 of 1971); Interim Report of the Committee on Administrative Discretions (Bland Committee Interim Report, Parliamentary Paper No 53 of 1973); Final Report of the Committee on Administrative Discretions (Bland Committee Report,Parliamentary Paper No 316 of 1973. See the compilation by R Creyke and J McMillan, The Making of Commonwealth Administrative Law; Kerr, Bland and Ellicott Committee Reports (1996).
4 There are few reported examples of ways in which the administration has responded to administrative review or of how it has resulted in changes to agency policy or procedure.
5 Skehill, S in “The Impact of the AAT on Commonwealth Administration”, paper presented to National AIAL Conference, The AAT-Twenty Years Forward (1-2 July 1996)Google Scholar. The collected papers of this conference are reproduced inMcMillan, J (ed), The AAT Twenty Years Forward: Passing a Milestone in Commonwealth Administrative Review (1997)Google Scholar
6 There have been some academic research projects which are attempting to address this issue but they are, at the time of writing, yet to report. See for example J Goldring et al, “Evaluating Administrative Tribunals” in S Argument (ed), Administrative Law and Public Administration: Happily Married or Living Apart under the Same Roof? (1993) AIAL Forum 160 and work underway by the Judicial Review Project by D Pearce, R Creyke and J McMillan as a result of two large Australian Research Council grants.
7 On 1 June 1999 the Migration Legislation Amendment Act (Nol) 1998 (Cth) came into effect and the Migration Review Tribunal assumed the jurisdiction formerly exercised by the Migration Internal Review Office and the Immigration Review Tribunal. The significance of the changes to the review system for migration decisions is not the focus of this paper but 'is canvassed by the writer in “Review of Migration Decision Making; Rival Goals and Values” (1999) 10 PLR 131.
8 In other tribunals, for example the Social Security Appeals Tribunal and the Administrative Appeals Tribunal.
9 Administrative Review Council, above n 2 at para 2.11.
10 The term “agency” refers to the primary decision making body whose decisions are subject to merits and judicial review.
11 The Hon Justice Brennan, “Comment: The Anatomy of an Administrative Decision” (1980) 9 Yd LR 1.
12 Unlike, of course, judicial review.
13 This is not to say that there may not be consensus on other issues such as broad administrative accountabilities and management practices. See, for example, Management Advisory Board, Accountability in the Commonwealth Public Sector (1993).
14 The concept of “values” is used generally here although it is important to question whether these commonly-used terms are more descriptive of process than analytical of underlying issues. See P Craig, Public Law and Democracy in the United Kingdom and the United States of America (1990).
15 Administrative Review Council, above n 2.
16 v West (1985) 159 CLR 550.
17 P Craig above n 14.
18 See comments of Sir Gerard Brennan in the “Opening Address-The AAT 20 years Forward” in J McMillan (ed), above n 5 at 17.
19 For example Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 267.
20 This role has been most stark in the decisions of the High Court in Mabo v Queensland [No 2} (1992) 175 CLR 1 and Wik Peoples v Queensland (1996) 187 CLR 1.
21 Without constitutional reform the compatibility of independent merits review by tribunals and their connection to government administration will generate tensions. These tensions are conceded for the purposes of this discussion so as to move forward to highlight more practical issues and solutions.
22 For a discussion of these issues see J Disney,“ The Way Ahead for Tribunals?” in R Creyke (ed), Administrative Tribunals: Taking Stock (1992) and Justice D O'Connor, “Effective Administrative Review: Analysis of Two-Tier Review” (1992) 1 AJAL 4. See also Administrative Review Council, above n 2.
23 Of the kind, for example, which would be within the jurisdiction of the Ombudsman.
24 Davis, KC, Discretionary Justice (1969)Google Scholar
25 Baldwin, R, Rules and Government (1995) at 160CrossRefGoogle Scholar
26 These reforms included the Administrative Appeals Tribunal Act 1975 (Cth), the Administrative Decisions (Judicial Review) Act 1977 (Cth), the Ombudsman Act 1976 (Cth) and later the Freedom of Information Act 1982 (Cth).
27 The Kerr Committee Report, above n 3 at para 374.
28 On the role of policy in administrative review see, for example, J M Sharpe, The Administrative Appeals Tribunal and Policy Review (1986); Justice MD Kirby,“Administrative Review: Beyond the Frontier Marked 'Policy-Lawyers Keep Out” (1981) F L Rev 121; J McMillan, “Review of Government Policy by Administrative Tribunals” in R Creyke and J McMillan, Commonwealth Tribunals: the Ambit of Review (Law and Policy Papers, Paper No9, Centre for International and Public Law, 1998); and P Bayne, “The Proposed Administrative Review Tribunal-A Silver Lining in the Dark Cloud?1” (2000) 7 AJAL 18.
29 Kerr Committee Report, above n 3 at para 297.
30 And the legislation governing other Federal administrative review tribunals.
31 By comparison the Administrative Decisions Tribunal Act 1998 (NSW) now provides, ins 64 that “In determining an application for a review of a reviewable decision, the Tribunal must give effect to any relevant Government policy except to the extent that the policy is contrary to law.”
32 (1979) 2 ALD 634 at 645.
33 See cases cited in J McMillan, above n 28 at 36-37.
34 In subsequent cases the courts have turned their attention to a consideration of the plethora of documents, including ministerial directives, departmental guidelines and manuals, memoranda and ad hoc directives, which may come within the definition of “policy”. See Ali v Minister for Immigration and Ethnic Affairs (1994) 124 ALR 597 concerning the status of ministerial directionsissued pursuant to Migration Act 1958 (Cth), s 499. It is often not simply a case of whether or not the policy has been applied. The policy may be applied, but with different weight put by the primary decision-maker and the Tribunal on certain aspects of the policy: Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158. Policy may be applied in part or the policy itself may be interpreted differently: Re Chan and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 55. Where the policy has been developed after consultation with relevant stakeholders and purports to provide a multi-party approach to a complex “polycentric problem”,the Tribunal may be less likely to depart from it: see discussion in M Allars, Introduction to Australian Administrative Law (1990) at 321 and C Harlow and R Rawlings, Law and Administration (2nd ed 1997) at 598- 602.
35 Administrative Review Council, above n 2 ch 6.
36 “Quality” in relation to decision making is obviously difficult to define. I refer here to minimum standards such as that decisions should cite the correct law, be expressed in clear and unambiguous language, refer to all the relevant evidence and set out the reasons for findings of fact and law upon which the decision is based.
37 Administrative Review Council, above n 2 at para 6.11.
38 Ibid at 53-54.
39 Ibid ch 8. The ART incorporates the Social Security Appeals Tribunal, the Immigration Review Tribunal, Refugee Review Tribunal and the Veterans Review Board.
40 Ibid at 142.
41 Ibid at 166.
42 An arrangement currently exists with the Immigration Review Tribunals, for example,which have operated in accordance with resource agreements negotiated with the Department and which has lasted for several years: Immigration Review Tribunal, Annual Report 1997-98. The Principal Member of the IRT/MRT, Suzanne Tongue, has publicly supported this arrangement as preferable to the linking of funding to the Department of Immigration and Multicultural Affairs.
43 The government's proposals, while still not fully evolved, appear to differ from the ARC model in several respects: R Leon, “Reform of Federal Merits Review Tribunals-The Government's Position” (paper presented to the AIAL Administrative Law Forum, 18 June 1998).
44 The Hon Daryl Williams, speech to the 1996 annual conference of the Administrative Review Council.
45 JL Mashaw, Greed, Chaos and Governance: Using Public Choice to Improve Public Law (1997) at 108. While Mashaw's analysis relates primarily to the United States context and draws from the United States legislative scheme and case examples, his theoretical discourse is also relevant to a consideration of administrative law in Australia. Note also that administrative law in the United States has been dominated by the use of generalised procedural statutes, eg, the Administrative Procedures Act rather than specific agency or policy specific statutes which have been the norm in Australia.
46 S Skehill, above n 5 at 1.
47 D H Osborne and H Gaebler, Reinventing Government: How the Entrepreneurial Spirit is Transforming the Public Sector (1992).
48 Commonwealth Parliament, Report of the Royal Commission into Australian Government Administration (chaired by Dr HC Coombs, 1976).
49 Commonwealth Parliament, Report of the Review of Commonwealth Administration (chaired by JB Reid, 1983).
50 A move which has since attracted much debate: see Annual Report of the Commonwealth Ombudsman 1997 and Administrative Review Council, Contracting Out of Government Services (ARC 42, 1998).
51 I McClean, “Review Article; Recent Work on Public Choice” British Journal of Political Science 16 at 377-394; J L Mashaw, above n 45; M Pusey, Economic Rationalism in Canberra: a Nation–Building State Changes its Mind (1991).
52 DH Osborne and H Gaebler, above n 47.
53 See discussion by M Allars in “Managerialism and Administrative Law” in J McMillan, H McKenna and J Nethercote (eds), Fair and Open Decision Making (1991) AIAL Forum 50 at 51.
54 G Tsokhas, “Managerialism, Politics and Legal Bureaucratic Rationality in Immigration Policy” (1996) 55 AJ Pub Admin 33 at 34.
55 It was, for example, not a primary concern expressed by the Kerr, Ellicott and Bland Committees, above n 3.
56 M Allars, above n 53 at 58-60.
57 See Migration Act 1958 (Cth), Part 5. Part 8 concerns judicial review of migration decisions which is not discussed at any length in this paper. The Migration Legislation Amendment Oudicial Review) Bill 1998 was before the final Federal Parliament of 1999 but was not passed. It aimed to restrict review further.
58 Migration Act 1958 (Cth), s 337(h).
59 Amendment to the Migration Act in 1989 created the IRT. Prior to this, review was conducted less formally by review panels with recommendatory powers only.
60 Minister for Immigration and Multicultural Affairs, Hon Phillip Ruddock.
61 Migration Regulations 1994, Schedule 2, subclass 105 Skilled-Australian Linked.
62 Migration Act 1958 (Cth), ss 92-96, Migration Regulations 1994, r 2.26 and Schedule 6.
63 Migration Act 1958 (Cth), s 337(h).
64 The points that can be attracted by a spouse for the criteria of employment and age may be awarded to the primary applicant if they are more beneficial: Migration Regulations 1994, r 2.27.
65 “Usual occupation” is defined in the Migration Regulations 1994, r 2.26.
66 “Relevant Australian Authority” is defined ibid.
67 The Procedures Advice Manuals the most recent of which is PAM 3.
68 It is important to note that the Federal Court has also been ambiguous in its consideration of questions of law in relation to review of cases concerning the points test. See, for example, the Court's decisions on the term “usual occupation” and the use of references such as the Australian Standard Classification of Occupations (ASCO) in the cases of Rahman v Minister for Immigration and Multicultural Affairs (Federal Court, Davies J, 6 February 1997, unreported); Minister for Immigration and Multicultural Affairs v Ye Hu (1997) 149 ALR 318; Yuk Shan Cheung v Minister for Immigration and Ethnic Affairs (1997) 49 ALD 609; Gounder v Minister for Immigration and Multicultural Affairs (Federal Court, Mansfield J,5 March 1998, unreported).
69 Note in particular Secretaries which range from no formal qualifications to a certificate to a degree: Re Dutt IRT Decision 13271; cf Re Robertson IRT Decision 13086; Re Anthony IRT Decision 10981.
70 For example, Re Norcic-Korostil IRT Decision 13415 where NOOSR was excluded on the ground that the occupation was not defined in ASCO; Re Liang IRT decision 12871 where no reason for exclusion of NOOSR as the relevant Australian authority was provided; Re Fernandes, IRT Decision 10716 where NOOSR was precluded in the assessment of secretaries in contrast to the decisions referred to inn 82 below.
71 Re Ren IRT Decision 12373.
72 Compare IRT decisions on Subclass 105 which refer matters to NOOSR as opposed to other external assessments or no assessments at all with decisions made by the Tribunal as to the “usual occupation” and minimum educational qualifications required.
73 Avraham Bellaiche v Department of Immigration and Ethnic Affairs (Federal Court, Sackville J, 7 May 1998, unreported).
74 Department of Immigration and Multicultural Affairs, Review of the Points Test (1998), Executive Summary and Recommendations. Media Release, Minister for Immigration and Multicultural Affairs (MPS 116/98) “Skilled Migration Changes To Boost Economy”. The Report makes no mention of the function of administrative review in this assessment of the general points test. The IRT sent leading decisions to the review and offered to appear. The . IRT has considered thousands of these cases over the years: see Immigration Review Tribunal, Annual Report 1997-98 at 22.
75 Department of Immigration and Multicultural Affairs, Review of the Points Test (1998), recommendation 29.
76 This discretion is currently found in the definition of “relevant Australian authority” in the Migration Regulations, r 2.27.
77 Department of Immigration and Multicultural Affairs, above n 74, recommendation 30.
78 The same applies to the MRT: Migration Act 1958 (Cth), Part 5.
79 Migration Act 1958 (Cth), s 337. In assessing an application for a visitor visa the Tribunal is also required to have regard to Ministerial Policy directions. The Administrative Appeals Tribunal has jurisdiction in relation to a refusal to grant or the cancellation of a visitor visa on broad “not of good character grounds”: Migration Act 1958 (Cth), ss 500, 501, 200 and 201.
80 Ministerial Policy Direction No 1 of 1996, Preamble
81 An additional “risk factor” is that the applicant has made an application to come to Australia as a permanent resident in the last five years.
82 Re Neamo IRT Decision 4091 August 1994; Re Dounane IRT Decision 5344 May 1995; Re Saulog IRT Decision 029 November 1990.
83 P O'Neil, the former Principal Member of the IRT, Seminar Paper “The Immigration Review Tribunal” presented to the Third National Immigration and Population Outlook Conference, Adelaide 1995 at 3-4.
84 K Cronin, “A Culture of Control: An Overview of Immigration Policy Making” in J Jupp and M Kabala (eds), The Politics of Australian Immigration (1993).
85 IRT Decision 5904 September 1995.
86 Schedule 4, cl 4011(2)(b).
87 IRT Decision No 6218 30 November 1995 (also referred to in some instances as Re Mehmood).
88 The Begum decision was followed in a number of other Tribunal decisions. See Re Qu Rong 20 March 1996, Re Kalaja 22 March 1996, Re Zhu April 1996 and Re Wang Sai Qin 1996. It has also been referred to cautiously in a number of cases: Re Estahbanati Zadeh and Re Aziz March 1996. Other tribunals have not referred to the Begum decision and continue to apply the risk factor criteria. See Re Pakfar 1996 and others.
89 Commonwealth Parliament, Joint Standing Committee on Migration, Australia's Visa System for Visitors (1996) at para 7.61.
90 Ibid at paras 7.56-7.81.
91 Ibid at paras 7.71 and 7.72. Note these comments were issued in the Ministerial Policy Direction No 1 of 1996.
92 Commonwealth Parliament, above n 89 at 182.
93 Ibid at 184.
94 It is significant that from 1 July 1997 the Migration Regulations were amended in two important ways. The Minister was required to specify in the Gazette the class of persons who had characteristics which placed them within the group identified as high risk and the statistics upon which these were based were specified to some degree. In addition, the Regulations now identified the factors as “any one or more” of nationality, age, marital status, sex, occupation or, in those cases affected because of a previous application, the “class of visa currently applied for”: Migration Regulations, Schedule 4, cl 4011(3).
95 IRT Decision No 56471995. The risk factor profiles had not been updated to apply to the newly independent republics which previously made up Yugoslavia and remained expressed to apply to “Yugoslavia”.
96 Department of Immigration and Multi-cultural Affairs, Review Policy and Analysis Section, Close Family Visitors, the Value of Profiling and the Immigration Review Tribunal-A Discussion Paper (May 1996).
97 Ibid at 7.
98 Department of Immigration and Multicultural Affairs, Report: Analysis of Visitor Visa Set Aside Decisions at the Immigration Review Tribunal (1 July 1996-30 June 1997), para 32.
99 J McMillan, above n 5. For an overview of some of the key issues since the introduction of the AAT, see AAT Annual Report 1997-98 at 105-118.
100 K Cole (ed), “Administrative Law; Form vs Substance” (1995) AIAL 9 at 9.
101 The AAT may be the notable exception in that it has initiated consultative groups within the largest of its jurisdictions. These consultative groups however tend to address pr ctical process problems in the conduct of AAT reviews rather than the more substantive issues of policy and decision making which emanate from AAT decisions. See AAT Annual Report 1997-1998.
102 M Allars “Administrative Law: Neutrality, the Judicial Paradigm and Tribunal Procedure” (1991) 13 Syd LR 327; C Harlow and R Rawlings, above n 34, ch 14.
103 S Skehill, above n 5 at 61.
104 AAT Annual Report 1997-98 at 25. Some jurisdictions, such as migration, do not lend themselves to such an approach because of the nature of the decision to be made. An applicant cannot, for example, negotiate a different class of visa or a waiver of compulsory public interest testing in areas such as health and character.
105 Administrative Review Council, above n 2 at 63.
106 The Australian Law Reform Commission is currently conducting a review of Federal civil procedure including the procedure of Federal merits review tribunals.
107 Administrative Review Council, above n 2 at para 6.41.
108 Tribunals might also report publicly in their Annual Reports on the impact of Federal Court decisions on Tribunal process. See also ibid.
109 Report of the Committee for the Review of the System of Review of Migration Decision Making (1992) at paras 7.7.1-7.7.5.
110 P Bayne,above n 28 at 30.
111 See for example the Department of Immigration and Multicultural Affairs, Annual Report 1997-98 and the section on MIRO and the IRT and RRT. See also reporting in the AAT and IRT Annual Reports.
112 Justice MD Kirby, “Administrative Review Twenty Years Forward” in J McMillan (ed), above n 5 at 377.
113 See commentary on this issue by P Johnston, “Recent Developments Concerning Tribunals in Australia” in (1996) 24 FL Rev 323.