Creyke, Robin --- "Administrative Justice - Towards Integrity in Government" [2007] MelbULawRw 30; (2007) 31(3) Melbourne University Law Review 705
[∗] LLB (UWA), LLM (ANU); Professor of Law, Alumni Chair of Administrative Law, ANU College of Law, The Australian National University; Member of the Administrative Review Council; Integrity Adviser to the Australian Tax Office.
[1] Sir Anthony Mason, ‘Administrative Review: The Experience of the First Twelve Years’ (1989) 18 Federal Law Review 122, 130.
[2] A W Bradley, ‘Administrative Justice: A Developing Human Right?’ (1995) 1 European Public Law 347; John McMillan, ‘The Role of the Ombudsman in Protecting Human Rights’ (Paper presented at the Conference on Legislatures and the Protection of Human Rights, The University of Melbourne, Faculty of Law, 21 July 2006); Robin Creyke, ‘Administrative Justice: Beyond the Courtroom Door’ [2006] Acta Juridica 257.
[3] D J Galligan, Due Process and Fair Procedures: A Study of Administrative Procedures (1996) 237.
[4] Commonwealth of Australia, Royal Commission on Australian Government Administration, Report (1976) 135, 350.
[5] The committee was set up to examine whether there should be a further avenue of judicial review by a Commonwealth superior court, and whether Australia should introduce legislation akin to the Tribunals and Inquiries Act 1958, 6 & 7 Eliz 2, c 66: Commonwealth Administrative Review Committee, Commonwealth Government, Commonwealth Administrative Review Committee Report (1971) [1] (‘Kerr Committee Report’).
[6] The Bland Committee, which produced Commonwealth, Interim Report of the Committee on Administrative Discretions, Parl Paper No 53 (1973) and Commonwealth, Final Report of the Committee on Administrative Discretions, Parl Paper No 316 (1973), and the Ellicott Committee, which produced Commonwealth, Prerogative Writ Procedures: Report of Committee of Review, Parl Paper 56 (1973).
[7] Administrative Appeals Tribunal Act 1975 (Cth).
[8] ADJR Act s 13; Administrative Appeals Tribunal Act 1975 (Cth) s 28.
[10] Australian Constitution s 75(v).
[11] Robin Creyke and John McMillan, ‘Executive Perceptions of Administrative Law — An Empirical Study’ (2002) 9 Australian Journal of Administrative Law 163.
[12] Kerr Committee Report, above n 5, [12].
[13] Ibid [389].
[14] Robin Creyke and John McMillan, ‘Administrative Justice — The Concept Emerges’ in Robin Creyke and John McMillan (eds), Administrative Justice — The Core and the Fringe (2000) 1, 3.
[15] Ibid 3–4.
[16] John McMillan, ‘Administrative Tribunals’ (2000) 76 Reform 67, 71–2.
[17] See, eg, Stephen Free, ‘Across the Public/Private Divide: Accountability and Administrative Justice in the Telecommunications Industry’ [1999] AIAdminLawF 5; (1999) 21 Australian Institute of Administrative Law Forum 1, 2.
[18] Robin Creyke and John McMillan, Control of Government Action: Text, Cases and Commentary (2005) 13ff.
[19] Matthew Groves, ‘Ombudsmen’s Jurisdiction in Prisons’ [2002] MonashULawRw 9; (2002) 28 Monash University Law Review 181.
[20] A J Brown, ‘Administrative Justice for Aboriginal People — Can It Be Done?’ [1993] AboriginalLawB 14; (1993) 3(61) Aboriginal Law Bulletin 21, 21.
[21] See, eg, Re Buhagiar and Director‑General of Social Services (1981) 4 ALD 113, 113, 121 (Hall SM, Oxby and McLelland MM). See also Re Emery and Director‑General of Social Security (1983) 5 ALN No 102; Re Farah and Director‑General of Social Security (1984) S137/83; Re Kaiser and Director‑General of Social Security (1983) 5 ALN No 176; Re Roe and Director‑General of Social Security (1983) S82/108; Re Keuker and Director‑General of Social Security (1984) 5 ALD 626.
[22] Re Logan and Chief Executive Officer of Customs [2005] AATA 536; (2005) 40 AAR 377; Theo v Secretary, Department of Family and Community Services [2005] AATA 699 (Unreported, Fisher M, 25 July 2005); Jatan v Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 229 (Unreported, Fisher M, 13 March 2006); Francis v Secretary, Department of Education Science and Training [2006] AATA 336 (Unreported, Fisher M, 10 April 2006).
[23] The cases up to 2007 contain over 30 references to the expression, three quarters of which appear in the decisions made up to the mid‑1980s.
[24] See, eg, Re Buhagiar and Director‑General of Social Services (1981) 4 ALD 113, 121 (Hall SM, Oxby and McLelland MM) (emphasis added). See also Re Drake and Minister for Immigration and Ethnic Affairs [No 2] (1979) 2 ALD 634, 639 (Brennan J); Nevistic v Minister for Immigration and Ethnic Affairs [1981] FCA 41; (1981) 34 ALR 639, 647 (Deane J).
[25] [2002] FCAFC 228; (2002) 123 FCR 298, 447 (French J).
[26] (1990) 170 CLR 1, 37 (Brennan J). See also James Blackwell, ‘A Discussion of the Duty and Jurisdiction of the Courts to Review Administrative Decisions’ [2003] QUTLawJJl 11; (2003) 3 Queensland University of Technology Law and Justice Journal 182.
[27] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59, 98 (citations omitted). Note that Kirby J dissented in that case. Kirby J was commenting on Brennan J’s remark in Quin (1990) 170 CLR 1, 35–6.
[28] Margaret Allars, ‘Book Review: D J Galligan, Due Process and Fair Procedures: A Study of Administrative Procedures (1996) and J M Evans et al, Administrative Law: Cases, Text, and Materials (4th ed, 1995)’ [1997] SydLawRw 23; (1997) 19 Sydney Law Review 411.
[29] Lindsay Curtis, ‘Crossing the Frontier between Law and Administration’ (1989) 58 Canberra Bulletin of Public Administration 55, 65, 67–8.
[30] Kerr Committee Report, above n 5, [1].
[31] Ibid ch 21.
[32] The broader view is found explicitly or by implication in: Ron McLeod, ‘Administrative Justice — An Ombudsman’s Perspective on Dealing with the Exceptional’ in Robin Creyke and John McMillan (eds), Administrative Justice — The Core and the Fringe (2000) 58, 60–1; Judge Kevin O’Connor, ‘Defining Administrative Justice — Perspectives from a New Tribunal’ in Robin Creyke and John McMillan (eds), Administrative Justice — The Core and the Fringe (2000) 68, 68–9; Linda Kirk, ‘The Constitutionalisation of Administrative Justice’ in Robin Creyke and John McMillan (eds), Administrative Justice — The Core and the Fringe (2000) 106; Marcia Neave, ‘In the Eye of the Beholder — Measuring Administrative Justice’ in Robin Creyke and John McMillan (eds), Administrative Justice — The Core and the Fringe (2000) 124, 132–7; Sandra Koller, ‘Back from the Fringe — What Consumers Expect from Administrative Justice’ in Robin Creyke and John McMillan (eds), Administrative Justice — The Core and the Fringe (2000) 150; Kathryn Cronin, ‘The Role of Legal Education in Achieving Administrative Justice’ in Robin Creyke and John McMillan (eds), Administrative Justice — The Core and the Fringe (2000) 163, 164, 167; Alan Cameron, ‘Administrative Justice at the Fringe of Government — Corporate Regulation’ in Robin Creyke and John McMillan (eds), Administrative Justice — The Core and the Fringe (2000) 174; Annabelle Bennett, ‘Administrative Justice at the Fringe of Government — Aspects of Private Sector Regulation’ in Robin Creyke and John McMillan (eds), Administrative Justice — The Core and the Fringe (2000) 192; Andrea Malone, ‘Digital Television Regulation — Administrative Justice and the Public Interest’ in Robin Creyke and John McMillan (eds), Administrative Justice — The Core and the Fringe (2000) 209.
[33] John McMillan, ‘The Academic Contribution to Australian Administrative Law’ (2001) 8 Australian Journal of Administrative Law 214, 217. See also Mason, above n 1, 130; Susan Harris, ‘Another Salvo across the Bow: Migration Legislation Amendment Bill (No 2) 2000 (Cth)’ [2000] UNSWLawJl 60; (2000) 23 University of New South Wales Law Journal 208, 222.
[34] As French J noted, ‘[a]nd at the end of the line of official review, is judicial review’: Justice R S French, ‘Judicial Review Rights’ (2001) 28 Australian Institute of Administrative Law Forum 30, 32. See also Michael Barker and Ralph Simmonds, ‘Delivering Administrative Justice in WA’ (2004) 84 Reform 23; Groves, above n 19, 183.
[35] French, ‘Judicial Review Rights’, above n 34. See also Justice R S French, ‘The Equitable Geist in the Machinery of Administrative Justice’ [2003] AIAdminLawF 18; (2003) 39 Australian Institute of Administrative Law Forum 1.
[36] Legal, Constitutional and Administrative Review Committee, Queensland Parliament, The Accessibility of Administrative Justice: Discussion Paper (2005) [3.1].
[37] Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report No 89 (2000) [2.222].
[38] In the Australian context: see Margaret Allars, Introduction to Australian Administrative Law (1990); Margaret Allars, Australian Administrative Law: Cases and Materials (1997); Roger Douglas, Administrative Law: Commentary and Materials (3rd ed, 1999); E I Sykes et al, General Principles of Administrative Law (4th ed, 1997); Roman Tomasic and Don Fleming, Australian Administrative Law (1991); Creyke and McMillan, above n 18, 13–14. In the UK: see Sir William Wade and Christopher Forsyth, Administrative Law (9th ed, 2004), which does have such an entry; S A De Smith, H Woolf and J L Jowell, Judicial Review of Administrative Action (5th ed, 1995); P P Craig, Administrative Law (5th ed, 2003).
[39] Quin (1990) 170 CLR 1, 36 (Brennan J).
[40] Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action (3rd ed, 2004) 14 (emphasis added). It is interesting to note that the index heading was not present in previous editions.
[41] Quin (1990) 170 CLR 1, 35–6 (Brennan J).
[42] NAIS v Minister for Immigration and Multicultural Affairs (2005) 223 ALR 171. See especially: at 200–1 (Kirby J).
[43] (1990) 170 CLR 1, 35–6.
[44] See, eg, NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470, 507 (Kirby J), although the majority also found that delay constituted a breach of natural justice; Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99, 137 (Kirby J); Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 [2003] HCA 30; 198 ALR 59, 98 (Kirby J).
[45] NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470, 502 (Kirby J); Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, 26 (Brennan J).
[47] See the continuing series of seminars on administrative justice sponsored by the Economic and Social Research Council (the paper on which this article is based was given at the first of these in Edinburgh in 2006), which are being undertaken by Michael Adler and Richard Whitecross.
[48] See, eg, Mary Crock and Mark Gibian, ‘Before the High Court: Minister for Immigration and Ethnic Affairs v Eshetu’ [1998] SydLawRw 19; (1998) 20 Sydney Law Review 457, 463; Mary Crock, ‘Judging Refugees: The Clash of Power and Institutions in the Development of Australian Refugee Law’ [2004] SydLawRw 4; (2004) 26 Sydney Law Review 51; Michael Chaaya, ‘Proposed Changes to the Review of Migration Decisions: Sensible Reform Agenda or Political Expediency?’ [1997] SydLawRw 28; (1997) 19 Sydney Law Review 547; Transcript of Proceedings, Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (High Court of Australia, I R L Freckelton, 10 October 2000).
[49] See, eg, Crock, ‘Judging Refugees’, above n 48; Chris Finn, ‘The Justiciability of Administrative Decisions: A Redundant Concept?’ (2002) 30 Federal Law Review 239.
[50] Galligan, above n 3, 237.
[51] See, eg, Legislative Standards Act 1992 (Qld) s 4, which requires that drafters of legislation strive not to breach common law principles enshrining rights such as the right not to be self‑incriminated, the principle that legislation not be retrospective, and that natural justice be accorded.
[52] French, ‘Judicial Review Rights’, above n 34. In 2003, his Honour truncated the list to ‘lawfulness, fairness and rationality in the exercise of public power’: see French, ‘The Equitable Geist in the Machinery of Administrative Justice’, above n 35, 1.
[53] French, ‘Judicial Review Rights’, above n 34.
[54] Access to Justice Advisory Committee, Commonwealth Parliament, Access to Justice — An Action Plan (1994) [13.9].
[55] Bruce Barbour, ‘What Are the Essential Features of an Ombudsman?’ in Robin Creyke and John McMillan (eds), Administrative Law: The Essentials (2002) 53, 58–9, paraphrasing ‘The Ombudsman’ (1994) 39/40 Admin Review 59, 60–1.
[56] Barbour, above n 55, 58–9.
[57] ARC, Better Decisions: Review of Commonwealth Merits Review Tribunals, Report No 39 (1995) [2.10].
[58] Ibid [5.88].
[59] Lawrence McDonald, ‘Measuring Administrative Justice — Lessons from the Report on Government Services’ in Robin Creyke and John McMillan (eds), Administrative Justice — The Core and the Fringe (2000) 138, 142.
[60] Ibid 142.
[61] Creyke and McMillan, ‘Administrative Justice — The Concept Emerges’, above n 14, 6–7.
[62] Neave, above n 32, 132–5.
[63] For example, key Australian tribunals are charged with the object of making decisions which are ‘fair, just, economical, informal, and quick’:
• AAT: see Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 23(12);
• Social Security Appeals Tribunal: see Social Security (Administration) Act 1999 (Cth) s 141; A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) s 110;
• Migration Review Tribunal and Refugee Review Tribunal: see Migration Act 1958 (Cth) ss 353, 420; and
• Conscientious Objection Tribunal: see Defence Act 1903 (Cth) s 61CP.
[64] Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 324 (Unreported, Lindgren J, 6 May 1997) [1.1.3], approved by the High Court in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, 643 (Gummow J), 628 (Gleeson CJ and McHugh J), 668 (Callinan J).
[65] For example, such statistics were provided for courts and tribunals in the 1990s: Australian Law Reform Commission, Review of the Adversarial System of Litigation: Federal Tribunal Proceedings, Issues Paper No 24 (1998) [11.4]; Australian Law Reform Commission, Managing Justice, above n 37. However, there is less information on comparable figures for primary decision‑makers. In addition, the Productivity Commission provides in its annual Report on Government Services a snapshot of court administration for courts throughout Australia. Figures in the report, however, relate only to numbers of cases, finalisation and clearance rates, and costs: see Productivity Commission, Report on Government Services (2006) [6.7].
[66] Neave, above n 32, 125–6, 130–2.
[67] Ibid 127.
[68] McDonald, above n 60, 142–3; Neave, above n 32, 127, 140.
[69] McDonald, above n 60, 139–40; Neave, above n 32, 126.
[70] Neave, above n 32, 128–9.
[71] McDonald, above n 60, 140; Neave, above n 32, 127.
[73] McDonald, above n 60, 147; Neave, above n 32, 128, 137.
[74] Productivity Commission, above n 65, [6.44]–[6.52].
[75] McDonald, above n 60, 146.
[76] Productivity Commission, above n 65.
[77] Commission on Trial Court Performance Standards, National Center for State Courts, United States, Draft Trial Court Performance Standards (1994).
[78] Law Reform Commission, Review of the Adversarial System of Litigation, above n 65, [11.5].
[79] See Richard Mohr, Brendan Condie and Helen Gamble, Principle 1: Access to Justice (February 2001) Client Services in Local Courts: Principles, Standards and Benchmarks <http://www.uow.edu.au/law/crt/clientsservices/access/index.html> .
[80] See, eg, Koller, above n 32; Malone, above n 32.
[81] Senate Standing Committee on Finance and Public Administration, Commonwealth Parliament, Review of the Office of the Commonwealth Ombudsman (1991) 57.
[82] Australian Law Reform Commission, Review of the Adversarial System of Litigation, above n 65, [11.41].
[83] It is for this reason that codes of conduct and service charters such as the Australian Public Service Code of Conduct and Australian Public Service Values are imposing new standards of professionalism on officials: see, eg, Public Service Act 1999 (Cth) ss 10, 13. See also Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438, 465–7 (Kirby J).
[84] The embedding of culture is a product of administrative law rules, but is reinforced by notions of officials upholding values of professionalism, which includes adherence to law in their work. Assistance to achieve this outcome has been aided by the Australian Public Service Code of Conduct and Australian Public Service Values provided by: Public Service Act 1999 (Cth)
ss 14–16; Public Service Regulations 1999 (Cth) pt 2.
[85] Justice R S French, ‘Administrative Justice in Australian Administrative Law’ in Robin Creyke and John McMillan (eds), Administrative Justice — The Core and the Fringe (2000) 9, 20–1.
[86] Australian Law Reform Commission, Managing Justice, above n 37, [1.27]–[1.46].
[87] Creyke and McMillan, ‘Executive Perceptions of Administrative Law’, above n 11; Robin Creyke and John McMillan, ‘Judicial Review Outcomes — An Empirical Study’ (2004) 11 Australian Journal of Administrative Law 82. See also Robin Creyke and John McMillan, ‘The Operation of Judicial Review in Australia’ in Marc Hertogh and Simon Halliday (eds), Judicial Review and Bureaucratic Impact: International and Interdisciplinary Perspectives (2004) 161, in which the Creyke and McMillan study of judicial review was the most extensive empirical analysis.
[88] Creyke and McMillan, ‘Executive Perceptions of Administrative Law’, above n 11, 167.
[89] Ibid.
[90] Ibid.
[91] Ibid 169.
[92] Ibid 168–71.
[93] Creyke and McMillan, ‘Judicial Review Outcomes’, above n 87, 86–7.
[94] Ibid 98.
[95] A J Brown and John Uhr, ‘Integrity Systems: Conceiving, Describing, Assessing’ (Paper presented at the Australasian Political Studies Association Conference, University of Adelaide, 29 September – 1 October 2004) 8.
[97] Ibid.
[98] Key Centre for Ethics, Law, Justice and Governance, Griffith University and Transparency International Australia, Chaos or Coherence? Strengths, Opportunities and Challenges for Australia’s Integrity Systems: National Integrity Systems Assessment (NISA) Final Report (2005) (‘NISA Final Report’).
[99] Bruce Ackerman, ‘The New Separation of Powers’ (2000) 113 Harvard Law Review 633, 694–6. At the same time, it is notable that Bruce Topperwien, the Registrar of the Australian Veterans’ Review Board, used the expression in an article: see Bruce Topperwien, ‘Separation of Powers and the Status of Administrative Review’ [1999] AIAdminLawF 4; (1999) 20 Australian Institute of Administrative Law Forum 32.
[100] Chief Justice James Spigelman, ‘Jurisdiction and Integrity’ (Speech delivered at the National Lecture Series of the Australian Institute of Administrative Law, Adelaide, 5 August 2004). See also Chief Justice James Spigelman, ‘Judicial Review and the Integrity Branch of Government’ (Speech delivered at the World Jurist Association Congress, Shanghai, 8 September 2005).
[101] John McMillan, ‘The Ombudsman and the Rule of Law’ [2005] AIAdminLawF 1; (2005) 44 Australian Institute of Administrative Law Forum 1, 11–13.
[102] Chief Justice James Spigelman, ‘The Integrity Branch of Government’ (Speech delivered at the National Lecture Series for the Australian Institute of Administrative Law, Sydney, 29 April 2004).
[103] Ibid 2–3.
[104] Ibid 2.
[105] Ibid 3.
[106] NISA Final Report, above n 98.
[107] Ibid i.
[108] Ibid 110.
[109] Ibid 17.
[110] Ibid.
[111] Ibid 15.
[112] Ibid 18.
[113] Ibid.
[114] Australian Law Reform Commission, Managing Justice, above n 37, [2.224]–[2.225].
[115] For example, Standards Australia has developed standards applicable in the private sector on complaints‑handling, whistleblowing, codes of conduct and control of fraud corruption: see Standards Australia, AS ISO 10002‑2006: Customer Satisfaction — Guidelines for Complaints Handling in Organizations (2006); Standards Australia, AS 8002‑2003: Corporate Governance — Organizational Codes of Conduct (2003); Standards Australia, AS 8004‑2003: Corporate Governance — Whistleblower Protection Programs for Entities (2003); Standards Australia, AS 8001‑2003: Corporate Governance — Fraud and Corruption Control (2003).
[116] NISA Final Report, above n 98, 119–121.
[117] Ibid 12.
[118] Ibid pt II chs 3–5.
[119] See, eg, Justin Gleeson, ‘Administrative Law Meets the Regulatory Agencies: Tournament of the Incompatible?’ [2005] AIAdminLawF 14; (2005) 46 Australian Institute of Administrative Law Forum 28; John Tamblyn, ‘Administrative Law Meets the Regulatory Agencies: Tournament of the Incompatible?’ [2005] AIAdminLawF 15; (2005) 46 Australian Institute of Administrative Law Forum 39.
[120] McMillan, ‘The Ombudsman and the Rule of Law’, above n 101.
[121] The provision of rights of these kinds is supported by recommendations in the NISA Final Report, above n 98: see, eg, recommendation 5 (at 94–5) in relation to access to administrative justice and recommendation 14 (at 99) in relation to FOI.
[122] John Griffiths, ‘The Price of Administrative Justice’ (1989) 58 Canberra Bulletin of Public Administration 34, 36; Anthony Blunn, ‘Administrative Decision‑Making — An Insider Tells’ [2003] AIAdminLawF 9; (2003) 37 Australian Institute of Administrative Law Forum 35.
[123] Curtis, above n 29; Blunn, above n 122; Michael D’Ascenzo, ‘Effectiveness of Administrative Law in the Australian Public Service’ (Paper presented at the Australian Institute of Administrative Law National Administrative Law Forum, Canberra, 14–15 June 2007).
[125] Groves, above n 19, 204.
[126] Paul Craig, ‘Three Perspectives on the Relationship between Administrative Justice and Administrative Law’ in Robin Creyke and John McMillan, Administrative Justice — The Core and the Fringe (2000) 28.
[127] Mick Palmer, Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau: Report (2005).
[128] Commonwealth Ombudsman, Inquiry into the Circumstances of the Vivian Alvarez Matter, Report No 03 (2005).
[129] Palmer, above n 127, [1.5].
[130] Commonwealth Ombudsman, above n 128, [1.5].
[131] The benchmarks are familiar to administrative lawyers, being accessibility, independence, fairness, accountability, efficiency and effectiveness.
[132] See Complaint Line <http://www.complaintline.com.au> .
[133] AAT, Annual Report 2005–2006 (2006) 28.
[134] Griffiths, above n 122, 37; Robin Creyke, ‘Sunset for the Administrative Law Industry? Reflections on Developments under a Coalition Government’ in John McMillan (ed), Administrative Law under the Coalition Government (1997) 20, 45–9.
[135] Kerr Committee Report, above n 5, [299].
[136] Lindsay Curtis, ‘The Vision Splendid: A Time for Re‑Appraisal’ in Robin Creyke and John McMillan (eds), The Kerr Vision of Australian Administrative Law — At the Twenty‑Five Year Mark (1998) 36, 47. This view was supported by the results of the empirical study referred to in Creyke and McMillan, ‘Executive Perceptions of Administrative Law’, above n 11, 173.
[137] Griffiths, above n 122. The current focus of governments on resource constraints is illustrated by an examination of Department of Finance and Administration, Australian Government, Commonwealth Procurement Guidelines — January 2005 (2004) 6.
[138] Griffiths, above n 122, 35.
[139] Re Rowlands and Commissioner for Superannuation (1988) 16 ALD 589. See also Narelle Bedford and Robin Creyke, Inquisitorial Process in Australian Tribunals (2006).
[140] See Creyke and McMillan, ‘Executive Perceptions of Administrative Law’, above n 11, 163, 167–71.
[141] For example, in combination, the annual reports of the Federal Magistrates Court and the Federal Court stated that there were some 176 administrative law actions in 2005–06: see Federal Magistrates Court of Australia, Annual Report 2005–2006 (2006) 16; Federal Court of Australia, Annual Report 2005–2006 (2006) 34. Since the Federal Magistrates Court was designed as a high volume adjudication body, the overall numbers are relatively modest — indeed, administrative law actions made up just 0.5 per cent of general federal law applications filed in the Federal Magistrates Court in 2005–06: at 16. These figures do not include Migration Act 1958 (Cth) applications.
[142] For the purposes of the ADJR Act, there is a need to establish the existence of a person who has been ‘aggrieved’ by a ‘decision’ (at s 5) or ‘conduct’ (at s 6) of an ‘administrative character’, that the action or conduct has been ‘made under an enactment’ and that the decision has not been made by the Governor‑General nor that it falls within the exemptions in sch 1: at s 3(1). For the common law remedies, it must be established that the action involves a ‘matter’ or a ‘law[] made by the Parliament’ and also ‘a Commonwealth authority’ or an ‘officer of the Commonwealth’: see Australian Constitution s 75(iii), (v); Judiciary Act 1903 (Cth) s 39B.
[143] Rachel Lebihan, ‘Hiding behind the Privacy Act’, The Australian Financial Review (Melbourne), 12 April 2005, 32; Luke McIlveen, ‘Privacy Law Barred Wave Rescue Effort’, Herald Sun (Melbourne), 16 March 2005, 34.
[144] See, eg, Law Reform Commission and ARC, Open Government: A Review of the Federal Freedom of Information Act 1982 (1995); Commonwealth Ombudsman, Scrutinising Government: Administration of the Freedom of Information Act 1982 in Australian Government Agencies, Report No 2 (2006) 30.
[145] Kerr Committee Report, above n 5, recommendation 12.
[146] Creyke, ‘Administrative Justice: Beyond the Courtroom Door’, above n 2, 258–9.
[147] ‘The basic fault of the entire [1970s] structure is … that review cannot as a general rule … be obtained “on the merits” — and this is usually what the aggrieved citizen is seeking’: see Kerr Committee Report, above n 5, [58].
[148] NISA Final Report, above n 98, 25 table 6.
[149] Ibid 55 table 9.
[150] Justice Stuart Morris, ‘The Emergence of Administrative Tribunals in Victoria’ (2004) 41 Australian Institute of Administrative Law Forum 21 (emphasis in original).
[151] French, ‘Judicial Review Rights’, above n 34, 21.
[152] D M Williams, ‘Justice and Accountability: The Establishment of the Administrative Review Tribunal and the Model Litigant Obligation’ (Speech delivered to the Government Law Group, Canberra, 12 September 2000).
[153] Creyke and McMillan, Administrative Justice, above n 14, 3–4.