ADMINISTRATIVE REVIEW COUNCIL

25TH ANNIVERSARY DINNER

12 DECEMBER 2001, CANBERRA

THE ADMINISTRATIVE REVIEW COUNCIL - EARLY DAYS REMEMBERED

The Hon Justice Michael Kirby AC CMG*

It is a great pity that Yes Minister had not been devised when we first met as the Administrative Review Council in 1977. That programme was to prove an invaluable weekly civics lesson for the nation and the world. It was widely reported that Prime Minister Bob Hawke and the head of his department, Sir Geoffrey Yeend, watched it together on Monday nights. They both laughed. But in different places.

The early days of the Administrative Review Council reflected the excitement of those times. The restoration to the legislative package of a supervisory council was, as we have been reminded by the present Prime Minister, on his insistence, then in opposition. It was a wise insistence. It gave the remarkable advances in administrative law an overseeing board and a coherence that it might otherwise have lacked. It was, by common consent, a board made up of varied and singular talent.

I want to say, in the presence of the contemporary Australian inheritors of the mantle of Sir Humphrey Appleby, that there are few more honourable vocations than that of a public servant. A senior officer of the Commonwealth or indeed of the States, who is a true servant of the public, in the right position at the right time, can have a mighty influence upon the design and implementation of enlightened laws and policies. In fact, viewed as a whole, there is no doubt that an experienced officer of the Executive can, over a lifetime, have a greater impact on the law than almost any politician or judge.

These facts were brought home to me in those early meetings of the Administrative Review Council. The Administrative Appeals Tribunal Act 1975, which gave birth to the Council, was already in place. But the other reforms, designed to carry forward the extraordinary package of legislative change, were still awaited. The Ombudsman Act 1976. The Administrative Decisions (Judicial Review) Act 1977. The Freedom of Information Act 1982. The Human Rights and Equal Opportunity Commission Act 1986. The Privacy Act 1988. All of these lay in the future.

This is not the occasion to talk of the legislation but of the people. The members of the foundation Administrative Review Council were, without exception, as memorable as they were admirable.

First and foremost, our chairman, Mr Justice Brennan, was a splendid leader. Under his waistcoat, which he wore as an external veneer of reassuring conservatism, he hid most skilfully a determined inclination towards protecting and advancing the rights of his fellow citizens. He worked long and hard to understand the competing viewpoints and to accommodate them in the draft legislation and other proposals that came under our scrutiny. He was a brilliant conciliator. The Administrative Appeals Tribunal was fortunate indeed in its first President and so were we who shared him in the Council. It was not by chance that he progressed to his most distinguished service on the High Court and as Chief Justice of Australia.

Mr (later Sir) Clarrie Harders was a man of great experience. From South Australia originally, he brought to Canberra like other distinguished officers of the Department from that State, a Germanic efficiency and a free-settler's open-mindedness. As Secretary of the Attorney-General's Department, he had ridden the whirlwind of Lionel Murphy's short reign as Federal Attorney-General. After years as a relative backwater of federal administration his Department, during Lionel Murphy's time, became the engine-house of legal reform. Clarrie Harders rose to the new challenge. Ultimately, he embraced it with enthusiasm. He therefore responded with high pitched energy to the determination of the new Attorney-General in the Fraser Government, Bob Ellicott. Although he might deny it, Bob Ellicott had many of the same values as Lionel Murphy. As Solicitor-General he had been involved with Nigel Bowen and John Kerr in the early inquiries that chartered the future shape of federal administrative law reform. He was just as determined as Murphy had been to push forward the legislative reforms. He also did so with rare energy and from the standpoint of a great legal reputation. Supported in this way by his Minister, Clarrie Harders was tough and unyielding in responding to the countless departmental and agency submissions seeking exemptions from the Judicial Review Act and other laws. In manner, he sometimes appeared hesitant and even apparently indecisive. But this was a mask, hiding a tough Germanic backbone. Not for nothing was his middle name Waldemar.

Sir Clarrie Harders was wise enough often to bring to our meetings, with the consent of the Council, the officer of the Department most closely involved in administrative law reform. I refer to Lindsay Curtis, then First Assistant Secretary of the Attorney-General's Department. It is a matter of great sadness that neither Sir Clarrie Harders nor Lindsay Curtis nor some others of the foundation members, are here to receive the plaudits that they deserve for their contributions.

Mind you, Lindsay Curtis was a difficult man. He had an immense knowledge of administrative law. He seemed to know every Australian and English case on the subject, almost before the decisions were delivered. He moulded and shaped the successive drafts of the Judicial Review Act and other laws to the developing understanding of administrative law. He was impatient in exposition. He could barely disguise his contempt for comments or questions that revealed ignorance of the law. Often I received his sharp look, probably deservedly. He had high reserves of nervous energy. Some of this rubbed off onto us. He was restless for change. Perhaps his long service in the federal administration had convinced him of the necessity to seize the flood that would carry forward reform. He seemed to fear that, if we faltered, we might not secure another chance. And we did not falter.

Australians are not very generous in acknowledging the work of people like Lindsay Curtis. I was glad that in his lifetime he was appointed to professorial rank by the University of Wollongong. After his passing, it was signified that he had been awarded the Honorary Doctorate of the University. As a country, we should be more generous in their lifetimes to those who are our intellectual leaders. If one were to add up the sum of human happiness achieved by the guarantees of fairness that were put in place by the administrative reforms piloted to success by Lindsay Curtis, it would be huge. Perhaps that is his true reward. But worldly recognition is also appropriate and it is often slow in coming.

The most intensive debates of those early times was related to the demands by public authorities for exemption from the Judicial Review Act. It was here that an extraordinary combination of talent looked the applicants in the eye and out-stared them at High Noon in Canberra.

In this fearsome enterprise, Lindsay Curtis was joined by Roger Gyles QC, then of the New South Wales Bar. He is now a distinguished judge of the Federal Court of Australia. At that time, Roger Gyles had the cold grey eyes of an advocate. Not the friendly twinkling eyes that now welcome everyone into his courtroom. When the trading corporations of the Commonwealth, happy to take federal gold but anxious to be immune from the disciplines of its administrative law, begged for exception, those cold eyes were turned upon them. Searching questions usually sent them away crest-fallen and with their tails between their legs. Watching Roger Gyles and Lindsay Curtis at work on the suppliants before the Administrative Review Council in those early years was a lesson in military strategy. Out of our loving kindness, Mr Justice Brennan and I would gently coax the petitioners to express their requests. And then the Council's ratpack would set upon them. Sir Gerard Brennan later explained to me (for I was still very nave in these matters) that this was but a bureaucratic version of the old police technique of the "soft and hard". He and I had played the "soft" interrogators. Curtis and Gyles had played the "hard". The result was the same. Application refused.

Also at the table were other fine officials of the Commonwealth service. Des Linehan was a past Commissioner of the Public Service Board. His background had been in the Commonwealth employment unions. Although he held some of the highest posts in the federal service, he was always sympathetic to rules and practices that made the administration more accountable.

Laurie Daniels was one of the most senior officials in Canberra. He had been head of the Department of Social Security during the Whitlam years and had been involved in some of the chief litigation of those times. He bore the scars, I felt, of decades of pressure to deliver incomparable benefits from coffers threadbare after an inadequate budget. He kept our feet on the ground. He constantly reminded the Council of some of the practical difficulties which officials would have in introducing such a comprehensive package of reforms. He sometimes seemed anxious about the scope and pace of our changes. But he was, on the whole, a stalwart supporter for the directions in which the Council was travelling.

Jack Richardson, to be the first Commonwealth Ombudsman, came to our table with a robust mixture of scholarship and plain talking. When he was appointed Commonwealth Ombudsman, it proved an inspired choice. Not only did he have a brilliant grasp of administrative law. He was also suitably querulous and unyieldingly insistent. He brooked no nonsense, either from Ministers or the towering figures of Commonwealth administration or from the lowest clerk. Indeed, he was equally blunt in some of his comments about his colleagues on the Council. Citizens were most fortunate to have him as the Ombudsman. He had a deep feeling for the common law as fairness in action. He brought this feeling into play when he became the vigilant guardian of good administration.

One member of the Council, Ernest Tucker, brought the perspective of an experienced businessman. He had known Mr Justice Brennan when they had both served (as I later also did) in the National Union of Australian University Students. He was wise and cautious in his interventions. He later succeeded Justice Brennan when he retired as President of the Tribunal and first Chairman of the Council. Another businessman of decency and long experience was Mr (later Sir) Frederick Deer. He and I had sat together on the Senate of the University of Sydney. He had a kind nature and was our voice of integrity and of the high expectations that citizens have of their federal officials.

In those early years we therefore had a mixture of robust commonsense and federal administrative experience together with some participants who were downright eccentric but still highly useful. In this last class, I would certainly place Professor Dick Spann. He had been Professor of Government and Public Administration at the University of Sydney for decades. He lived at St Andrew's College at the University and had a delightful way of introducing humour into the debates. It was as if he had walked straight off the set of Yes Minister into our meetings a decade before that programme was conceived. At tense moments in the debates, he had the capacity to break us up with his whimsical stories of bureaucratic folly and almost hysterical laughter. Yet behind the humour was a fine scholarly knowledge of the theories of public administration - a suitable counterpoint to the law's vision of these things. The law at the time was often clouded (and sometimes still is) by arcane remedies. Too often it approached the problem at the end of the saga when it was difficult to put the pieces together again. Spann was always constructive.

The greatest fortune to the Council arose when it appointed its first Director of Research. Dr Graham Taylor was a New Zealand lawyer. At that time, Australia was becoming used to looking east for high legal talent. Geoffrey Palmer, a Wellington academic, had served with the Woodhouse Inquiry into National Compensation in 1974. His experience with Australia's bureaucracy stood him in good stead for he later went on to become Prime Minister of New Zealand and was knighted. Graham Taylor was not equally rewarded. But his service with the Council left behind many enduring monuments.

Graham Taylor vied with Lindsay Curtis in unexcelled knowledge of administrative law. He was therefore able to afford the Council highly informed insights into draft legislation and the early policy statements which mapped out the future strategy of administrative reform. Graham Taylor was also ferocious in his energy. He prepared position papers of the highest quality in the shortest possible time. He became a true colleague to the members of the Council. He was respected by all of them. Australia owes a great debt of gratitude to him. He can look back on his service to Australia with pride.

Graham Taylor collected a small, excellent and dedicated staff. They worked closely with him and the members of the Council. Nessy Birchley, who was Mr Justice Brennan's Associate, was a tower of strength to the President. Little did we realise that some of the young staff members, like Wayne Martin, would go on to become leaders of the legal profession of Australia. The Council's premises in Civic, in Canberra, were modest in the extreme, in keeping with Gerard Brennan's tendency towards an almost protestant austerity. In fact, the luncheons were even more humble than those served by me at the Law Reform Commission at the time. And that is saying something. But unlike the Law Reform Commission, the Administrative Review Council had the ready ear of the bureaucracy. Some of the giants of the bureaucracy were its members. This made the passage of its proposals for the most part both speedy and inevitable. The Law Reform Commission, on the other hand, had to fight valiantly for all of its runs on the board.

Outside the Council, some of us had our own supporters in the work that the Council imposed on us in those early days. Every month a collection of papers, thicker than a man's hand, would arrive to be read, absorbed and critically annotated. In my own case I found a solution to this outrageous burden. A young Canadian academic, newly arrived at the University of Sydney, Leslie Katz, had a knowledge of administrative law that, remarkably enough, was the equal of Lindsay Curtis's and Graham Taylor's. Leslie Katz was willing, under a vow of confidentiality, to scrutinise my papers and to call to attention any errors of legal principle or wrong turnings. He was a marvellous supporter. His reward was that, like me, he was present at the Creation.

From time to time, I would ask Leslie Katz a question concerning the policy of this or that proposed reform. "Policy is for you", he would say. "My job is the law". Leslie Katz went on to a most distinguished academic life, followed by equal distinction at the Bar where he rose to be Acting Solicitor-General of New South Wales. He was then appointed a judge of the Federal Court of Australia. Sadly, he has not been well in recent times. I suppose, looking at me in my present post, he has often repeated to himself his early dictum: "The policy is for you. I am the law". I place on record my debt to Leslie Katz. Through my voice, his encyclopaedic knowledge was expressed to the Council and had its influence in building the foundations of his adopted country's federal statutory law.

On the Administrative Review Council we often had differences of view. We sometimes saw the problems from different angles. But we shared a great sense of excitement and achievement. We also had a high sense of responsibility. The Council was launched and the reforms of federal administrative law that followed were wide-ranging and beneficial for the citizens of our country. They remain, in many ways, an example to others and an envy to not a few.

The work of the Council continues. The distinction of the members of the Council has been maintained by successive governments. It should not be thought that the work of the Council is over, or that the best lies in the past. The work of the Administrative Review Council continues. The challenges of the present are different. Privatisation, out-sourcing, international obligations, globalisation of administration and the influence of the principles of universal human rights present new and important challenges for administrative law reform in the twenty-first century. The biggest challenges for the Council therefore lie ahead. The past is another country. But at such a time as this we do well to revisit it in our minds and to rekindle our memories of precious times and people.



* Justice of the High Court of Australia. Member of the Administrative Review Council 1976-1984.