The Hon. Justice Michael Kirby AC CMG






It is as if I have been away from my country for twenty years. I was there virtually at the birth of the new federal administrative law of Australia. I had been appointed the Chairman of the Australian Law Reform Commission in 1975. The Administrative Appeals Tribunal Act 1976 (Cth) provided 1 for an Administrative Review Council, of which the Chairman of the Law Reform Commission (as the office was then designated) was to be an ex-officio member. Mr F G Brennan QC, a part-time Member of the Law Reform Commission, became a Federal Judge and the first President of the new Administrative Appeals Tribunal (AAT). He assumed the office of Chairman of the Administrative Review Council. So we began a professional association which has lately been renewed.

It was an exciting time to be involved in administrative law reform. The Gorton, McMahon and Whitlam governments had begun the move towards securing the enactment of the mosaic of legislation which would truly revolutionise administrative law at the federal level in Australia. The advent of the Fraser government brought to the office of Federal Attorney-General a lawyer of great capacity, Mr Robert Ellicott QC. Methodically, he set about completing the grand mosaic. The AAT legislation was enacted. So was the legislation to create the office of the Commonwealth Ombudsman 2 . A remarkable measure to reform, simplify and express the law on judicial review in federal jurisdiction was enacted 3 . Freedom of information legislation followed 4 .

It is difficult to convey the excitement of that time as the ARC met, monthly, under the guidance of its able chairman, the stimulus of an ardent reforming minister, a co-operative Parliament and the energetic urgings of two notable officers of the Commonwealth who deserve renewed acknowledgment: Professor Lindsay Curtis (then First Assistant Secretary of the Attorney-General's Department) and Dr Graham Taylor, now of the Bar in Wellington, New Zealand, (who was the first Director of Research of the ARC).

They were lively meetings which pioneered these reforms and steered the AAT into its new, constantly enlarging, domain. The history of that time should be written, perhaps by Professor Curtis, because the adoption of such a radical and original enterprise of law reform is not an everyday feature of Australian legal history. On the contrary, outside the area of administrative law we remain a largely derivative legal culture. Most Australian lawyers are quite happy that it is so. Most continue to cite English authority as if it was still binding in this country. Most still refer to that distinguished tribunal on The Strand as " the Court of Appeal". In such a world, the adoption of the ambitious new federal administrative law was truly astonishing. Even today, twenty years on, I find it hard to believe that it happened. Perhaps today we need to guard ourselves against a tendency to parochialism, self-satisfaction and a feeling that we have nothing to learn from other jurisdictions and systems grappling with the same social problems.

The faces around the table of the ARC come vividly to mind. The late Professor Richard Spann, a distinguished scholar of public administration, with his quizzical, even quirky, but essentially practical Englishness, hardly believing the revolution that was occurring before his very eyes. The late Laurie Daniels, departmental head, who, often diffident, was, when it mattered, a strong supporter of moves to make federal administration more accountable to the citizens it served. The formidable Roger Gyles QC, never diffident in a fight with administrators when they sought undeserved exemption from the new regime. Sir Frederick Deer, who brought a wealth of business and commercial experience to bear on our deliberations. Sir Clarrie Harders, Secretary of the Attorney-General's Department, like so many South Australians, with a hint of Germanic reformist zeal never far from the surface. Mr Des Linehan, Commissioner of the Public Service Board, who gave wise counsel concerning the many potential problems of industrial relations and implementation which arose as the new reforms were introduced. Mr Geoffrey Kolts QC, soon to be First Parliamentary Counsel of the Commonwealth, who applied his razor sharp and mathematical mind to the many problems of legislative drafting that came up in those days.

In my own case, I had assistance in the analysis of the huge pile of papers which arrived on my desk shortly before each monthly ARC meeting. It was given to me by a young Canadian law lecturer, Mr Leslie Katz, now a distinguished Senior Counsel at the New South Wales Bar. His technical mastery of administrative law ensured that I received a brilliant briefing before each meeting, such that I could display a profound knowledge of technical points and problems and give an appearance of erudition that was, alas, almost wholly illusory. When Leslie Katz would brief me on these technicalities, I would always conclude our dialogue with a question which continues to puzzle me. It was "What is the policy behind this? What should the policy be?" His answer was always the same: "I give you the law. The policy is up to you". Ever so politely, over the past twenty years, this is what barristers and others have been saying to me. But if the AAT proves nothing else it shows clearly how closely law and policy are intertwined and how impossible it is to sort out the one without understanding the other. Before I lay down public office, I may have converted a few Australian lawyers to this basal understanding of the function of adjudicatory decision-making. But if it could ever be ignored in the courts, it could scarcely be overlooked in the AAT.

It is said now that the Australian Commonwealth's system of review tribunals is the most "comprehensive in the world, and is used by more than twenty thousand people a year. The reviewing tribunal can change or overturn the original decision." 5 Whether this claim of global primacy is strictly accurate or not, certainly this much can be said about the Australian AAT. It is new. It is part of a larger system of administrative reform, designed to render officials accountable to the people in different and often complementary ways. And it involves a national, independent tribunal, having jurisdiction throughout a continent. In most cases it may substitute its opinion of the "correct" or "preferable" decision 6 for that of the primary official, even if that be an elected Minister. 7 Most importantly, the new Tribunal, where essential to its decision, must conduct a review of broad policy directives emanating from the Minister or the highest officials of the public service.

These were remarkable innovations when they were enacted. They came into force against the background of an inherited approach to administrative law which was largely undeveloped because of an English conception that the officers of government, like the judiciary and the standing army, should be kept few in number, elite in capacity and modest in power. 8 It took a long time for the theory and the law to catch up with the reality of modern administration. In the field of administrative accountability, that reality included the rapid growth of the administrative state, particularly after the second world war; the decline in the acceptance of effective ministerial responsibility for casual acts of administrative wrong-doing; the growth of a large measure of political autonomy on the part of administrators 9 ; and the perception by reformers from within the service of the need to make the federal system of public administration more efficient by making it more accountable 10 .

It is instructive to contrast Professor H W R Wade's inaugural lecture at the University of Oxford in 1962 with his recent survey of the state of administrative law in England. In order to see where we are going, we must understand where we have come from. In 1962, Professor Wade said of the English scene, not then very different from that of Australia:

"the vast powers of modern government had no place in Dicey's scheme of things, and he felt little concern with the great problem as we now see it: how far is power to be controlled by law?" 11

In the latest preface to the current edition of his seminal book on administrative law, Sir William Wade (as he has now become) remarks that it:

"began life thirty three years ago as a slim volume of fewer than 300 pages. Its growth through seven editions reflects the development of what is almost a new subject, rich now in principle and detail resulting from the work of adventurous judges and of a less adventurous but, nevertheless, supportive Parliament. Together they have established high standards of administrative justice, to such an extent that the defects are mainly those of an elaborate legal system - procedural complexity, cost and delay of litigation and the strain on limited judicial resources ... on balance, the picture has become brighter with each successive edition." 12

Translated to Australia, this picture can be adjusted by acknowledging that it is the Parliament, and not adventurous judges, that has revolutionised the landscape. It is the Parliament that created the national AAT with its unique jurisdiction. It is the Parliament that, at least until recently, has regularly enlarged that jurisdiction by bringing within its fold old tribunals and by conferring on it new functions. It was the Parliament in the federal sphere that reformed the system of judicial review, building on innovations of the judges but adding to them an important facility to work the system which the judges had held back from providing. 13 I refer to the right to the reasons from administrative officials which the House of Lords in England has now edged towards upholding as a requirement of the common law 14 but which the High Court of Australia denied 15 . It was the Parliament that created a national Ombudsman. It was the Parliament that established national Freedom of Information legislation that still eludes national public administration in Britain. The new federal administrative law in Australia is overwhelmingly the creation of the Australian Parliament.

Justice Frankfurter of the United States Supreme Court described what he saw as "profound new forces call[ing] for ... fresh adaptations of old experience" 16 . It is a remarkable thing, and I believe a source of legitimate satisfaction in Australia, that the federal Parliament responded so strongly to the calls for reform in the field of administrative law. It recognised the large growth of governmental functions and powers 17 . It reflected the complexity of modern administration and the need to make it more transparent and accountable 18 . The importance of the achievement of such a radical package of reform, through the legislation of successive Parliaments, is that it renders such reforms more likely to endure because they enjoy the legitimacy of democratic enactment and require democratic enactment to withdraw them. After twenty years, it can be said, with confidence, that there will be no dismantling by Parliament of the component parts of the new federal administrative law in Australia. The early and potent opposition within the bureaucracy 19 and the later strident and vigorous criticism from within government 20 are, at least overtly, now echoes of the past. They will doubtless be repeated in different ways in the future. But the basic system remains. It seems set to continue, although the pieces of the jigsaw may be moved around. Most Australian administrators and lawyers have known no other system of federal administrative law. Few remain who knew the old days well enough to yearn for their return.

It is healthy to undertake periodical review of how the system is operating. I myself ventured one such reflection within a year of the establishment of the AAT 21 . Even then, I described what seemed to me to be the great utility of the AAT in clarifying legal obligations and entitlements which, in practical terms, had often been overlooked or ignored 22 . Five years later, I offered another assessment based upon the expanding experience of the AAT in the review of government policy, particularly in immigration cases 23 . Lawyers had crossed into the territory formerly marked "Policy - lawyers keep out". At that stage, it was uncertain whether the legal reformation would continue or whether a counter reformation would curtail the "brave experiment" of the AAT 24 .

No counter reformation having ensued, the AAT and the other component parts of administrative law reform continued to receive external and internal scrutiny from fascinated observers. Twelve years into the life of the AAT, Sir Anthony Mason, one of those who in 1968 had suggested the establishment of the Commonwealth Administrative Review Committee, and who became a member of that Committee when set up, provided a cautious but favourable report on the progress being made 25 . In 1994 26 and 1995 27 Sir Anthony Mason returned to the review. He offered, as I shall show, some cautious warnings which must be taken all the more seriously because they come from such a distinguished friend to the basic idea of the new federal administrative law.

The review of the system has been continuous and ongoing, primarily through the work of the ARC. The Australian Law Reform Commission, in conjunction with the ARC has lately critically examined the Freedom of Information Act 28 . More generally, the ARC has issued a discussion paper 29 and then a report 30 containing a review of federal tribunals engaged in decisions on the merits. If we want to see the broad outlines of the future of the AAT, and of administrative law in Australia, beyond mere hunch and idiosyncratic predictions, the safe course is to search, like Etruscan soothsayers, amongst the reports that identify the problems of the past and present and the reviews that point to possible changes in the future.


Many of the fundamental questions which were identified at the birth of the AAT remain for consideration today. True, there has been twenty years of experience and thousands of decisions. But some of the initial quandaries are still there. They continue to agitate the commentators. They should continue to have the attention of Members of the Tribunal and all those concerned about improved administrative decisions.

There seems little reason to doubt that the AAT has continued to exhibit its early expertise in identifying applicable law, applying it accurately and ensuring that the rule of law is effectively brought into administrative decisions. This is a most important legacy of the original approach, introduced in the AAT by its first President, Justice Brennan. It was not an unreasonable approach. No-one is above the law. If it were left to the courts, at the behest of individual citizens, to enforce the law in the nooks and crannies of public administration, many with complaints would be bound to be disappointed. Sir Anthony Mason has reminded us that, in part, the creation of the AAT was a response to the dissatisfaction of the community and the Parliament with the courts and their ability or lack of it (including by a reformed judicial review process) to bring the rule of law to the level of primary decision-makers. 31

One of the fundamental problems in judicial review has been the resistance of the courts to the re-examination of the factual finding of the primary decision-maker. Attempts to dress these up and present them as illustrating errors of law have received unsympathetic responses both in the High Court of Australia 32 and in other Australian appellate courts. 33 Sir Anthony Mason expressed the theory which has permeated the common law's approach in this regard:

"We sought to attain a balance between providing an effective means of redress in respect of deficient government decision-making processes and ensuring efficient administration. That balance would have been tilted too far against efficient administration if judges were to engage in review of fact finding generally or in review of the merits." 34

Because many injustices (and even mistaken or perverse applications of the law) reside in erroneous fact finding, a novel solution had to be found if such injustices were to be addressed in a practical way in the case of administrative decisions. There had to be a significant enlargement of judicial review or the expansion of merits review by a non-judicial body, independent but within the executive government. From the outset, one of the concerns about the involvement of judges in the AAT, a tribunal existing outside the judicial branch of government, was whether that involvement in the making of decision of a controversial and sometimes even political character, would damage the judicial office 35 . Lord Denning dismissed this concern. Commenting on the Franks' Committee report he observed, in his maiden speech to the House of Lords:

"it contains and reaffirms a constitutional principle of first importance - namely, that these tribunals are not part of the administrative machinery of government under the control of departments; they are part of the judicial system of the land under the rule of law." 36

Whereas that assertion might provide a satisfactory theory in the United Kingdom or, say, New Zealand, it ran into particular problems in federal Australia by reason of notions of the independent and separate judicial power derived from the language and structure of the Australian Constitution.

Now proposals are being made which, if accepted, could affect the constitution of the AAT and its collective legal skills. The ARC has recommended, in effect, a "widening" of the range of skills and experience which should be enjoyed by AAT Members. 37 This has provoked a sharp response from Mr Robert Todd, formerly a Deputy President of the AAT. 38 In commenting on the ARC's observation about "general concern that some Tribunal proceedings are too legalistic" and that the skills required are "not exclusively co-related with formal legal qualifications", 39 Mr Todd pulls no punches:

"The AAT did not get to where it did by having as presiding members people with no legal training. I marvel when I hear people in high places speak of the AAT as if its success has been in spite of, not because of, its legal members. Especially in the earlier years of the AAT, there was an almost total absence of judicial decisions over large areas ... the AAT had to work out carefully the construction of the relevant legislation and try to put it into a coherent framework ... Could this have been done by barefoot lawyers?" 40

By reference to a number of areas in which, he claims, lawyers have "transformed administration" - notably in decisions in social security, veterans' entitlements and freedom of information - Mr Todd asks the question whether the poor and disabled, the veterans and those who believe in open government "want the lawyers outed"? 41 He suggests that short term appointments to the AAT for periods of three to five years will effectively exclude lawyers with an aspiration to an independent career. Or worse still, he hints, it might diminish the independence of the AAT by creating a tension between the personal career of the AAT Member, worried about prospects of re-appointment (on the one hand), and the giving of decisions inimical to powerful interests in the administration (on the other). Alas, there are unhappy and recent examples in Australia illustrating what happens to members of tribunals (and even courts) who for various reasons fall out of favour with the political government of the day. 42

This, then, is an important issue to consider. The involvement of federal judges in an executive government tribunal, if it be constitutionally permissible, brings the advantages of independence of mind on the part of decision-makers, an example to non-judges, resolution and courage in the performance of the duties of office as well as illustrations of good lawyering. The involvement of law graduates brings people who have received some training in identifying issues in a dispute, marshalling the relevant legal and other material, improving their writing skills and appreciating the necessity of making decisions without delay. But the use of lawyers tends to have disadvantages which, by now, are very often expressed sometimes by reference to a stereotype of what lawyers are said to be like:

It tends to import the lawyer's alleged concern with form rather than substance. This concern has tended to plague modern administrative law. In the understandable anxiety to uphold procedural fairness, it has often resulted in a failure to consider the substance that lies behind the procedural defects; 43

It tends to emphasise and encourage the adversarial mode of resolving problems. Most administrators, the subject of independent review, have neither the powers nor the inclination to proceed by such formal adversarial techniques. Their collection of information, as the basis for their decisions, is typically much more informal. It is more akin to the inquisitorial procedures of the civil law tradition which not a few advocates in this country urge is more appropriate for the AAT. 44 So far, the suggested modifications of the current approach are relatively minor, such as the recommendation that the AAT should have the power to obtain information additional to that which the parties provide. This could be done by affording the power to require an agency to provide, and notify, untendered information for use by the Tribunal during a review. 45 The basic disharmony between differing modes of securing information resides in a dichotomy between the primary and the review decision. Taken to its full logic this could encourage a tendency to legalise and judicialise the primary decision itself. That tendency would not necessarily lead to an improvement in the quality of administrative decisions. It would certainly add to cost and delay;

The primary decision-maker continues to have available a much wider range of material, and undocumented experience than a tribunal, even one with the flexible procedures and sensible approach to the law of evidence of the AAT. The problem of the differences between the evidentiary foundation of the primary decision and that of the Tribunal was called to notice in the earliest days of the AAT. 46 It has not gone away; because it cannot. It is inherent in the difference between the decision of an administrator and the procedures of a tribunal. Perhaps there is no answer to this difference except to say that where a decision is disputed before the AAT, it typically presents, in microcosm, a matter for decision that is not routine. One which may be more serious or controversial than the ordinary and may warrant a more painstaking and elaborated process of decision-making. The elaborated process may come to influence, by example, precedent or sanction if ignored, the primary decisions which are later made. The value of precedents in clarifying the law where it requires but one "correct" decision cannot be denied, whether in administration or anywhere else. But adherence to precedents which are no more than factual determinations is not necessarily always a good development. Lawyers desire precedents because they afford a measure of predicability and certainty which clients, seeking advice, look for. But "precedent as an attitude of mind" may not necessarily always be a good thing in public administration. Sir Anthony Mason has commented that it "can lead to a pre-occupation with abiding by rules and a stultification of a more flexible approach to decision-making, within the law. 47 He went on:

"It is possible that the impact of judicial review and merits review by the AAT is an administrative version of what is called "defensive medicine". No doubt some critics of the existing system would say that is the position and that too much attention is directed to compliance with legal requirements to the detriment of substantive decision-making. The consequences of such an approach may be more disadvantageous to administrative decision-making than to curial decision-making. As with the claims made about defensive medicine, claims of this kind do not deny that the review system has advantages but assert that the detriments outweigh the advantages." 48 ;

Analyses of decisions of the AAT have demonstrated (as is probably true of every court and tribunal that ever existed) that personal attitudes and inclinations of the decision-maker can affect decisions in a generally predictable way. These considerations sometimes lead to differences in outcomes which cannot otherwise be explained by reference to any high principle of legal understanding or policy exposition, still less administrative efficiency or attainment of the "correct" or "preferable" decision. Personal attitudes of decision-makers find their reflection in a tribunal, as much as they do at the bureaucrat's desk. 49 But a significant difference is that a tribunal such as the AAT must expound its reasons at the time of its decision. Exposed differences and inconsistencies can then be the subject of comment. Where appropriate, they can be a stimulus to reform of the law governing relevant procedures and policy. Unless they can be effectively challenged, the considerations affecting the administrator might be quite unknown;

The cost of tribunal decision-making continues to represent a major concern resulting from the great expansion of the AAT's jurisdiction. Doubtless, it is this consideration which lies behind the regrowth of specialised tribunals and many of the recommendations in the ARC's recent review of federal tribunals. A number of the recommendations are addressed to improving agency decision-making in the hope, no doubt, of avoiding, in some cases at least, the necessity of AAT review. 50 The proposed expansion of the use of "circuit" panels and of telephone and video conferences 51 was designed to lessen the cost of what is inevitably an expensive, time consuming and labor-intensive means of resolving conflict. 52 Mr Peter Walsh, when a Senator and Minister in the Hawke Government, was most critical of the cost of the new administrative law which was said to be $32 million a year. 53 That was ten years ago. Even if account is taken for the efficiency gains, improved accountability, the advantages of political legitimacy and other positive features of the system, it is inescapably a costly one. At a time when the courts are themselves exploring ways of diverting some disputes to non curial resolution, and when governments are addressing reduction of the budget deficit and containing the costs of public expenditure, it seems likely that attention to reducing the costs of merits review of administrative decisions in federal tribunals will be increased in the years ahead. Calls for the containment of the AAT's jurisdiction, for the enhancement of alternative review models and improved efficiency in the AAT's performance seem likely to become more insistent.


Despite dire predictions by impatient officials and unhappy ministers, the jurisdiction of the AAT has not been wound back. It has continued to grow, indeed to thrive. New tribunals have, it is true, proliferated. But, from the first, some wished to keep AAT review to a narrower range of appropriate cases. The future seems likely to see more of the same.

Nevertheless, there are a number of developments which, in my view, need to be kept under close scrutiny. They may affect the future of the AAT:


The Australian Constitution continues to hover over the AAT. It is a cloud no bigger than a man's hand. But in the past, constitutional decisions concerning the judicial power of the Commonwealth have caused great consternation to equally powerful national tribunals. One even led to the dismantlement of long settled institution. I refer to the decision in the Boilermakers' Case 54 in 1956 which struck down the old Conciliation and Arbitration Court. I do not say that a similar fate awaits the AAT. Although the Australian Constitution vests the exercise of the judicial power of the Commonwealth exclusively in the courts established as Chapter III provides, many decisions which affect the rights and interests of individuals do not necessarily involve the exercise of the judicial power. They may therefore, validly, be reposed in non judicial tribunals. 55 But we have lately seen the High Court make clear the limits of the powers that may be conferred upon non judicial tribunals where Parliament has endeavoured to confer on a tribunal powers relating to sanctions and remedies found to be unavailable. 56 Now the High Court faces a challenge to the participation of a serving Federal Court judge as "reporter" to a Minister in an Executive inquiry. 57 Judicial hints have been given of disquiet concerning the service of federal judges as personae designatae outside the strictly judicial role envisaged by Chapter III of the Constitution. 58 For obvious reasons, I must not elaborate this point. By mentioning it I do not imply that I hold any fixed view on the issue. But the history of the Commonwealth teaches that the Constitution can sometimes present unpredicted, and unpredictable, outcomes, not least on the question of judicial power;

Privative Clauses

One consequence of the "resurgence" of efforts to contain external review of administrative action has been a growing use by governments and Parliaments of legislative privative clauses, designed to oust judicial intervention. 59 Sir Anthony Mason has suggested that a contributing factor to this tendency is "political and administrative scepticism" about judicial review. 60 He suggests that this may have come about because of a concern about what is sometimes perceived to be a judicial pre-occupation with "the exercise of power, rather than with the way in which power can be exercised for the public benefit". 61 Sir Owen Dixon once stated that s 75(v) was written into the Constitution to ensure that the High Court had an irremovable jurisdiction to restrain officers of the Commonwealth from exceeding their constitutional powers. 62 Yet this vehicle for judicial review has provided a short cut to the High Court which is especially attractive to parties where they are otherwise faced with statutory limitations on a right of appeal. 63 Whether the High Court has power to remit to the Industrial Relations Court of Australia proceedings commenced in the High Court pursuant to s 75(v) of the Constitution, in respect of a judge of the Industrial Relations Court, is a matter currently under the consideration of the High Court. 64 At least in respect of officers of the Commonwealth, whatever else can be done, the writs provided in the Constitution cannot, by legislation, be excluded. This fixes the legal milieu within which the AAT must operate, expand or contract;

Confining the "record "

Another step which has confined the availability of judicial review in the case of administrative decisions is the decision of the High Court in Craig v South Australia . 65 It was held that, by the common law in Australia, a distinction must be drawn between jurisdictional errors by inferior courts (which may be amenable to appeal) and jurisdictional errors of administrative tribunals (which will invalidate their orders or decisions). In the absence of a statutory provision indicating otherwise, the "record" of an inferior court for the purpose of relief in the nature of the prerogative writ of certiorari is, in Australia, narrowly defined. It does not ordinarily include the transcript, the exhibits or the reasons for decision of the tribunal in question. Introductory or incidental references to reasons already given, do not, without more, incorporate those reasons within the "record". This historical approach to the "record" for administrative law purposes has been respectfully criticised but followed by the New South Wales Court of Appeal. 66 Clearly, this view of the "record", although expressed in the context of a court (the District Court of South Australia) may have large implications for the record of a federal tribunal submitted to prerogative-type judicial review. This may, or may not, narrow judicial review of tribunals in Australia. Every time judicial review of administrative decisions is narrowed or expelled, there is an enlargement of the argument for an effective merits review. But the same considerations as encourage the enactment of privative clauses by the Parliament, and support narrow judicial decisions confining the "record", may make it difficult, in current times, to secure any substantial expansion of review on the merits in a tribunal such as the AAT. At least for the present it seems fair to predict that the growth of the AAT's jurisdiction will slow somewhat. It will usually be justified by reference to funding. Even if it has a more insidious explanation, supporters of the AAT must face the fact that all bodies funded out of consolidated revenue must adjust to available funds. Even courts of general jurisdiction have fee, cost and other rules to act as a limit on, or a discouragement to, small disputes where the public cost of providing justice is considered to outweigh the private cost of tolerating a felt injustice. Administrative tribunals are no exception to this example upon the economic problem;

Diminution of Tribunal Independence

A further consideration must also be weighed. I refer to the recent attacks on the independence of tribunals which convention, formerly observed, would have prevented or restrained. Thus, members of tribunals, even some enjoying the designation, rank and status of a judge, have lately been removed from office in Australia by the simple device of the abolition of their tribunal and the failure to appoint them to the successor body. 67 It is here that short term appointments to tribunals, reviewing the decisions of powerful persons and interests are highly relevant. While performance review is certainly appropriate, especially in tribunals constituted by lay members who have not had professional training for decision-making and presiding in oral hearings, it is vital that such review should not be turned into an assessment of the way in which the tribunal member exercises his or her independent office. Claims that this happens have been made in Australia. 68 The danger may be a reason to keep appointments to the AAT and like matters within a Department which has a culture that understands the conventions governing independent decision-makers and away from Departments which are driven more by political and like imperatives.

It is probably more likely that discouragement of independence could occur in a "stand alone" tribunal, appointed by the very minister subject to review, than in a general tribunal, such as the AAT, which includes the participation of federal judges and which can develop an ethos of its own independent authority. Human nature being what it is, it is unlikely that persons whose decisions are regularly reversed on review, will look kindly on the re-appointment of the decision-maker if they have a choice. It is unlikely that a decision-maker, with personal and family obligations and a career at stake, will be wholly unaffected, as the date of potential re-appointment approaches, by such factors. Even if robust individuals of complete integrity are involved, the appearances are distinctly unfavourable. They tend to re-inforce the misgivings of the cynical. 69 Obtaining appropriate performance standards, whilst at the same time securing and protecting true independence of mind on the part of decision-makers, will remain a major concern for the AAT, and other independent merits tribunals, particularly if short term appointments become the norm; and

Cutbacks and costs

In times of stringent economies, an intellectual environment is created in which more attention than otherwise would be the case may be paid to the critics of the merits review system. It is expensive to operate. Legitimate efforts to improve primary decision-making and to increase education and instruction to "get it right" in the first place may be turned into an endeavour to limit the jurisdiction of a body such as the AAT on the ground that it introduces "rigidities and inflexibilities as decisions assume the form of legally binding precedent". 70 Doubtless alternative dispute resolution will be appropriate in some cases in the AAT just as it has proved in the courts. Doubtless too, it is possible to shift the facilities for administrative review between the various participants in the system: the courts, merits review, the Ombudsman and improved primary decision-making. But the ultimate answer which must be given to those who call for a radical curtailment of the system of merits review, most clearly illustrated by the AAT, is not an economic one or one founded on efficiency as such. It is based on a political notion that, in contemporary society, government must be rendered truly accountable to the people so that "our governors" are made "our servants". 71 According to this view, the institutions of Australia need to change fundamentally to reflect the opinion expressed in the High Court that (viewed in the 1990s) the fundamental norm of the Constitution is the people of Australia to whom the powers of government belong and from whom all governmental power is ultimately now derived. 72

In what is put forward as a "truly republican" view of the Australian Constitution, Professor (now Justice) Paul Finn concludes:

"To the extent that the power of the people is devolved upon institutions and officials under our constitutional arrangements, those officials and institutions become the trustees - the fiduciaries - of that power for the people. The reason is obvious enough. In a fundamental sense the power given to officials elected and non-elected alike, is not their own. It is ours. They hold it in our service as our servants. In short, our officials exist for our benefit." 73

Measured against such a radical notion, Justice Finn concludes that many of our "constitutional assumptions" have nearly wholly failed. The Parliament is seriously weakened. The real independence of the public service has been cut away. There is no Bill of Rights to empower the courts. The political parties are controlled by a few. Improvisations, such as the Independent Commission Against Corruption or Royal Commissions are created. But the basic institutional problem remains. Even if this jaundiced view is only partly correct, and even if one rejects Justice Finn's hypothesis that the foundation of public administration is a trust obligation owed to the people, it demonstrates the importance of a body such as the AAT in the larger scheme of our nation's political arrangements. To the extent of its independence, and in so far as it affords individual citizens the correct or preferable decision in their cases on a merits view, the AAT stands as an antidote to the "corrosive cynicism" which Justice Finn discerns to be creeping into our institutions. 74 Those who feel apologetic about the costs of the AAT will do well to read Justice Finn's appeal for a return to basic principle and a sense of proper priorities in governmental functions in this country.


One lesson I learned in those far away days when I sat at the table of the ARC and in the Law Reform Commission was this. Judging the need for reform, and evaluating the options offered to secure reform, requires more than hunch and guesswork. All sound law and policy should be based, so far as possible, on sound data.

For twenty years the observers of the AAT, and of administrative law reforms generally in Australia, have largely been content with words. Praise where it was clearly due for improved conformity to the law. The "trickle down" impact of decisions of the AAT on the work of primary decision-makers 75 . Improved reasoned and individual justice to the citizen challenging the power of the State and its officials.

Words are not enough. Different voices are now raised. Critics suggest that the allegedly legalistic and adversarial mode of the AAT, as they describe it, and the delays and exorbitant costs involved are such that:

"... the only party who has any long term benefit is the respondent, namely the bureaucracy, who by virtue of their staff resources, money and limitless time can simply outlast and outwit any member of the community who goes there with a serious policy issue to raise. 76

Whether this is a fair comment on the current operations of the AAT as a whole can only accurately be judged by empirical research and by close consultation with the opinions of those, in and outside the bureaucracy, who have used the AAT, including representative consumer interest groups. The need for a thorough audit of this kind has been urged by several writers. 77 More recently it has been suggested, even by sympathetic defenders of the new administrative law. Sir Anthony Mason, in a series of speeches in 1994 and 1995 confessed to a doubt that a "significant change in the administrative culture" and "an improvement in the quality of administrative decision-making" had actually been achieved following the establishment of the AAT. 78 He was willing to accept greater understanding of legal issues, compliance with the law and provision of structured reasons. But he doubted

"... that we have succeeded in bringing into existence a new and enduring administrative culture. I suspect that, at bottom, the legal, political and administrative cultures remain largely separate and distinct. The general cynicism of the law and of lawyers suggest that this may be so. My suspicion may be unduly pessimistic and I hope that it is unfounded." 79

Lord Woolf of Barnes made a similar point in a recent address in Hong Kong:

"At the end of the first Anglo-French exchange between the administrators of the Conseil d'Etat and the English judiciary, Lord Scarman tried to explain the difference between our systems. He suggested that the success of the Conseil d'Etat was rooted in the fact that the French had a greater trust in their administrators than their judges. Whereas in England it was the judges and not the administrators who were trusted. This suggestion, as you would expect, went down well with an audience of English judges and French administrators. However, its validity was clouded in doubt when I tried it out on an audience of Italian academics. I was assured by them that in Italy the public trusted neither the judges nor the administrators. Surprisingly they thought that in Italy it was only academics who were trusted." 80

Wherever trust lies in Australia, it is clearly important, in the third decade of the AAT, that a more concerted and coherent attempt should be made to measure the effectiveness of the tribunal, and not only in terms of financial cost. The time has come for the assumptions to be questioned and the consumers, as well as the recipients, of decisions to be heard. The ultimate justification of the AAT is only, as Paul Finn has suggested, that it contributes to the good government of the people of Australia from whom all power in such matters ultimately flows. That includes the people affected by decisions. It also includes those involved in analogous disputes. It likewise includes taxpayers who foot the bill.

People like me who have confidence that this remarkable Australian experiment in administrative law reform can survive empirical analysis, and even critical scrutiny, will pay close attention to the cautionary advice of Sir Anthony Mason, one of the founders of the system now in place:

"Perhaps, when the system was established, we did not put in place adequate institutional bases for building bridgeheads between lawyers and administrators. Certainly the ARC was given a role and an important one which it has effectively discharged. But it may be that the magnitude and diversity of the problems were not fully recognised." 81

This observation will not properly be met by generalities but only by a thorough, scientific and empirical study of the way the AAT and other federal tribunals operate and how they have delivered the product of administrative justice on the merits. Conducting such a study should be a major challenge for the AAT and the ARC in the coming years. Critics have suggested that governmental agencies will not allow open public critical evaluation through impact studies of themselves and, by inference, by the AAT upon them. 82 But at a time in Australia's history when most institutions, high and low, are being re-evaluated, the AAT should be no exception.

The process of administrative law reform at the federal level in Australia has not finished. It has only just begun. And the expansion of its example to the States and Territories of Australia still has far to go.

It is still an exciting time to be engaged in administrative law in this country. Just think of what has been achieved in the past 20 years. The last reformer to achieve such a thorough, radical and coherent change was Napoleon - and his system is still basically in place, with all of its strengths 83 and also its weaknesses 84 . Administrative law has never, since 1976, been a haven for those who want a quiet life. The great struggle between power and discretion (on the one hand) and law and individual justice (on the other) goes on. Believe it or not, those who have the privilege to be involved are the lucky ones.



Administrative Appeals Tribunal Act 1975 (Cth), s 48
2 Commonwealth Ombudsman Act 1976 (Cth)
3 Administrative Decisions (Judicial Review) Act 1977 (Cth)
4 Freedom of Information Act 1982 (Cth)
5 Administrative Review Council, Review of Commonwealth Merits Review Tribunals , Discussion Paper - Summary of Main Issues, p 2
6 Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158 at 162; Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589; Denn v Midland Brick Co Pty Ltd (1985) 157 CLR 398 at 419
7 Drake v Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634, 644 (per Brennan J)
8 A Dicey, Introduction to the Study of Law of the Law of the Constitution , (1st ed 1885) (10th ed. 1959)
9 Law Reform Commission of Canada, Towards a Modern Federal Administrative Law , Consultation Paper, 1987, 6-8
10 P Wilenski, Chairman of the Public Service Board, cited Administrative Review Council, 8th Annual Report , 1983-4,5
11 H W R Wade, "Law, Opinion and Administration" (1962) 78 LQR 188, 189
12 H W R Wade cited in Lord Woolf of Barnes, "The Importance of the Principles of Judicial Review", unpublished address in Hong Kong, 1996, 4
13 Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 reversing Osmond v Public Service Board of New South Wales [1984] 3 NSWLR 477 (CA)
14 Reg v Secretary of State for the Home Department; ex parte Doody [1994] 1 AC 531; [1993] 3 WLR 154; [1993] 3 All ER 92 (HL)
15 Osmond (1986) 159 CLR 656
16 F Frankfurter "The Task of Administrative Law" 75 Uni Pa L Rev 615 (1927) at 617. See also M C Harris, "There's a New Tribunal Now" - Review of the Merits and the General Administrative Appeal Tribunal Model in M Harris and V Waye, Australian Studies in Law - Administrative Law , Federation, 1991, 188 at 193
17 A F Mason "The Increasing Importance of Judicial Review of Administrative Action", unpublished address to Administrative Law Section, Law Institute of Victoria, 9 June 1994 at 16 (hereafter Mason, "Increasing Importance"). See also G L Peiris, "The Administrative Appeals Tribunal of Australia: The First Decade" (1986) 6 Legal Studies , 303
18 A F Mason "Administrative Review - The Experience of the First Twelve Years" (1989) 18 Fed L Rev , 122 at 128 (hereafter Mason, "Twelve Years")
19 W Cole, "Responsible Government and the Public Service" in F Weller and D Jaensch (Eds), Responsible Government in Australia , 168, 175-6. See also Mason, "Increasing Importance", 4
20 Senator Peter Walsh cited R Tomasic, "Administrative Law Reform - Who Benefits?" (1987) 12 LSB 262, 263
21 M D Kirby, "Administrative Law Reform in Action" (1978) 2 UNSWLJ 203
22 Ibid, 242. See also F G Brennan, "The Future of Public Law - the Australian Administrative Appeals Tribunal" (1980) 4 Otago L Rev 286, 296
23 M D Kirby, "Administrative Review: Beyond the Frontier Marked Policy - Lawyers Keep Out'" (1981) 12 Fed L Rev 121
24 Ibid 157
25 Mason, Twelve Years, 122
26 Mason, Increasing Importance
27 A F Mason, "Administrative Law - Form Versus Substance", unpublished address to the 1995 Administrative Law Forum - Australian Institute of Administrative Law", 27 April 1995 (hereafter "Mason - Substance")
28 Australian Law Reform Commission and Administrative Review Council, Open Government: A Review of the Federal Freedom of Information Act 1982, ALRC 77, ARC 40, 1995
29 Administrative Review Council, Discussion Paper, above n 5
30 Administrative Review Council, Better Decisions: Review of Commonwealth Merits Review Tribunals , ARC 39, 1995
31 Mason, Increasing Importance, 1
32 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 70 ALJR 568
33 Eg Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 (CA)
34 Mason, Substance, 3
35 Kirby (1981) 12 Fed L Rev at 151
36 Lord Denning The Discipline of Law, London, 1979, 83 cited in Brennan (1980) 4 Otago L Rev at 288
37 ARC 39, Rec 32
38 R Todd "The Structure of the Commonwealth Merits Review Tribunal System" (1995) 7 AIAL Forum , 33
39 ARC 39, 72-73
40 Todd, above n 38, 35
41 Ibid , 36
42 M D Kirby, The Abolition of Courts and Non-Re-appointment of Judicial Officers in Australia" (1995) 12 Aust Bar Rev 181
43 Mason, Substance, 12
44 Harris, above n 16, 197, 203. Obviously, this technique requires different training and imposes additional obligations on a tribunal member
45 ARC 39, 169 (Rec 13)
46 Kirby (1981) 12 Fed L Rev at 147; Peiris, above n 17, 321; Mason, Increasing Importance, 12
47 Mason, Substance, 10. This progress may be affected by a tendency (likely to be accelerated by computerisation and intelligent systems applied to public administration) away from discretion towards detailed rules
48 Ibid , 11
49 Peiris, above n 17, 312-313
50 ARC 39, Recs, 71-74
51 Ibid , Recs 55, 60
52 Mason, Twelve Years, 131; Harris, above n 16, 197
53 P Walsh, Equities and Inequities in Administrative Law' in Administrative Law: Retrospect and Prospect" (1989) 66 Canberra Bulletin Public Admin at 29
54 Reg v Kirby; ex parte Australasian Society of Engineers (1956) 94 CLR 254 (HC); (1957) 95 CLR 529 (PC)
55 Mason, Increasing Importance, 16; cf Precision Data Holdings Limited v Wills (1991) 173 CLR 167; Re Ranger Uranium Mines Proprietary Limited; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656; Reg v Ludeke; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1985) 159 CLR 636
56 Brandy v Human Rights and Equal Opportunity Commission (1995) 69 ALJR 191 (HC)
57 Referring to a challenge to the Hindmarsh Bridge Inquiry (SA) conducted by Mathews J of the Federal Court of Australia: Wilson & Ors v The Minister for Aboriginal And Torres Strait Islander Affairs & Anor (High Court of Australia, heard 14 June 1996
58 See per McHugh J in Grollo v Palmer (1995) 69 ALJR 724 (HC) at 734; Cf comments of Gummow J in Marsden v Amalgamated Television Services Pty Limited , unreported, High Court, 6 May 1996, 5 with reference to A J Brown, "The Wig or the Sword? Separation of Powers and the Plight of the Australian Judge" (1992) 21 Fed L Rev 48, 62-5, 76-86
59 Mason, Increasing Importance, 13
60 Ibid , 6
61 Loc cit
62 Bank of New South Wales v The Commonwealth (1948) 76 CLR 1, 363
63 Wilcox CJ in Re Keely; Ex parte Kingham (1995) 1 IRCR 311, 341-2
64 Re Jarman; Ex parte Cooke [No 1], Reserved, High Court of Australia
65 (1995) 184 CLR 163
66 Kriticos v State of New South Wales Anor , Court of Appeal (NSW), unreported, 2 February 1996
67 M Kirby, above n 42. See also Australian Parliament, Joint Select Committee on Tenure of Appointees to Federal Tribunals , November 1989 in Todd, above n 38, 36 and E Campbell, "Termination of Appointments to Public Offices" (1996) 24 Fed L Rev at 1.
68 Todd, above n 38, 37
69 Todd, above n 38, 37.
70 W Cole quoted in Mason, Increasing Importance, 3
71 P Finn, "The Abuse of Public Power in Australia - Making our Governors our Servants" (1994) 5 Public Law Review 43
72 Nationwide News Pty Limited v Wills (1992) 177 CLR 1, 70-71; 66 ALJR 658, 680; 108 ALR 681, 723. See also Australian Capital Television Pty Limited v the Commonwealth [No. 2] (1992) 177 CLR 106, 137-138; 66 ALJR 695, 703; 108 ALR 577, 593
73 Finn, above n 71, 45
74 Loc cit
75 P Wilenski and D Volker, cited in Tomasic, above n 20, 263-264
76 H Selby, " Ombudsman Inc: A Bullish Stock with a Bare Performance ", ANU Conference, cited Tomasic, above n 20, 264
77 Loc cit
78 Mason, Substance, 17
79 Ibid , 18
80 Lord Woolf, above n 12, 6
81 Mason, Substance, 19. Professor Mark Aaronson, in a comment on this paper, has questioned whether the imperfect impact of the AAT on the federal administrative culture is a matter for regret given that decision-making in each culture is institutionally and functionally different. But if one views public administration as a unit, and cases taken on appeal to the AAT as no more than illustrations, the desirability of some degree of symbiosis seems arguable
82 Tomasic, above n 20, 262
83 See J C S Burchett, "Administrative Law. The French Experience" (1995) 69 ALJ 977; D Rowland, "Lessons and Insights from the Procedure of the Conseil d'Etat in France", unpublished paper for the AIAL Forum, Sydney, April 1996
84 See Phocas v France , decision of the European Court of Human Rights, unreported, 23 April 1996, noted in Release by the Court , 23-25 April 1996. Mr Phocas' dispute with the administration began with the adoption of a road development scheme in May 1960. He applied for a planning consent in March 1965. There followed an astonishing saga of disputes, appeals to the Montpellier Administrative Court (on 4 occasions) and eventually to the Conseil d'Etat o France. The application to the Conseil was made on 11 August 1986. It did not deliver its judgment (against Mr Phocas) until 25 May 1990. The European Court of Human Rights found no violation of Article 6 §1 (by five judges to four) apparently on the ground that Mr Phocas had not made any special effort to speed up the proceedings. This case shows the weakness, noted by Mr Rowland, above n 83, of the inquisitorial system. It tends to be institution-driven rather than client-driven