Background and history of administrative review to put the future in the context of the past
Whitlam Institute, Melbourne
This paper was delivered for the Whitlam Institute at the conference “Whitlam’s Legal Transformations: Spotlight On Administrative Law — A New System Of Federal Administrative Review”. The paper provides an account of the history of administrative merits review in Australia from pre-Federation to current day. This historical background provides the context for current developments in administrative review in Australia including the introduction by the Federal Government of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2023 and the Administrative Review Tribunal Bill 2023).
It is always difficult to assess where one is going without understanding where one has come from. As we stand at the dawn of the era of the Commonwealth Administrative Review Tribunal — the CART — it is an opportune time to look at the horse that came before the cart.
A historical review of administrative law in Australia often commences with an account of the tabling of the Kerr Report in 1971 and the subsequent development of administrative review as a result of that report — the so called ‘new’ administrative law. However, while the Kerr Report was an important milestone in Australian administrative review of executive decisions, it was not the beginning of administrative review in this country.
Prior to Federation, in colonial Australia executive boards were relied upon to deliver public services due largely to the absence of an established system of local government.[1] Examples included the Road Trusts, Market Commissions, the National Education Board, Commissioners of Railways and the Postmaster General.[2] Executive Boards were also established to regulate professions such as the Medical Board.[3]
The nature and composition of these colonial executive bodies was highly diverse — some were elected, others were appointed, some existed entirely outside official departments, while some sat within the public service.[4] Bodies like the Board of Land and Works became “virtually [a] sub-committee of the Cabinet”.[5] Other entities like the Victoria Railways Commissioner were specifically erected to immunise an important function of government from the “corrosive effects of political influence”.[6]
In NSW, the use of administrative boards rose to popularity in the 1820s.[7] Between 1856-1900 over 50 Acts of the NSW Parliament provided for or constituted statutory bodies.[8] But whilst there were a lot of executive bodies making a lot of decisions there was little in the way of avenues for executive review of those decisions.
The NSW Executive Council evolved to constrain the powers of the Governor.[9] One of the functions occasionally performed by the Council was an appellate or review function.[10] Statutory rights of appeal to the Council existed against specified official decisions. Examples are found in the Leasing Tolls Act,[11] Public Schools Act[12] and Metropolitan Water and Sewerage Act.[13] In Victoria, the gold-rush had led to a more independent identity and more instances of such appellate review to the Executive Council subsisted.[14]
Outside of the appellate function performed by the Governor in Council, there are limited examples of these boards and tribunals in colonial Australia exercising anything in the nature of review functions. In NSW, Local Land boards were entrusted with management of the conditional purchase scheme under the Crown Lands Act 1884.[15] The minister responsible constituted an appellate body from these boards.[16]
In the early years following Federation, limited executive review of public administrative decision-making came to be undertaken by tribunals in defined spheres. These areas included: taxation, employment of public servants, war pensions and associated benefits of ex-servicemen, censorship of books and films, medical services and pharmaceutical benefits.
One of the earliest examples of merits review of Commonwealth executive decisions was in the taxation context. There were two relevant taxation review bodies — first, the Taxation Boards of Review and second, the Valuation Boards.
As to the Taxation Boards of Review. If a taxpayer was dissatisfied with a decision of the Commonwealth Commissioner of Taxation (Commissioner) in relation to certain matters including income tax, payroll tax and estate or gift duty he or she was able to seek to have the decision reviewed by a Board of Review established under the Income Tax Assessment Act.[17] The forerunner to the taxation Boards of Review, the Boards of Appeal, were constituted in 1922.[18] Parliamentary debates at the time indicated that the Boards of Appeal were intended to be a simple, cheap and efficient alternative to the courts. It was said that:
Parliament consented to the appointment of these Boards in order to give elasticity to the Act and a sense of finality to the taxpayer.[19]
These objects were best seen to be achieved by appointing to the Boards men with commercial training secured outside of a Commonwealth Department.[20]
It was the object of finality which essentially brought the Board of Appeal undone. In 1925, in British Imperial Oil Co Ltd v Federal Commissioner of Taxation (1925) 35 CLR 422, the High Court had ruled that the Board of Appeal was an invalid body under the Constitution as its members were purporting to exercise the judicial power of the Commonwealth.[21]
As a result of this decision, amendments were made to the Income Tax Assessment Act to substitute the Board of Appeal with the Board of Review.The intention behind the amendments was to convert the Board from an appellate body exercising judicial power to an administrative panel duplicating the functions of the Commissioner.[22] Aside from changing the name of the body, the amendments also gave the Board the same powers as the Commissioner and provided that the decisions of the Board had effect as decisions of the Commissioner.[23]
In Federal Commissioner of Taxation v Munro (1926) 38 CLR 153, a taxpayer claimed that these changes had not had the desired effect and that the Board of Review was still unconstitutional. After noting that the Board had no power to enforce its decisions, no jurisdiction over criminal or civil controversies, and no jurisdiction except to deal with the decisions of the Commissioner under the specific income tax acts, Justice Higgins concluded that:
the Board, whether it be called a Board of Appeal or Board of Review, cannot properly be treated as a Federal Court of the kind contemplated by s. 71 of the Constitution, and s. 72 of the Constitution does not apply to it. The Board ought to be treated as a mere piece of administrative machinery.[24]
Parliamentary debate on the Income Tax Assessment Act 1936 (Cth) indicated that the Board of Review had been established in furtherance of the object of securing for taxpayers an avenue of appeal from decisions of the Commissioner with a minimum of expense and delay. It was considered that because of its non-judicial character:
it has proved to be the most satisfactory tribunal to which small taxpayers in particular can appeal. With its trained personnel it is generally regarded as being vastly superior to an ordinary Court for the determination of cases depending on ordinary business facts.[25]
Each Board of Review consisted of a Chairman (usually an executive from the Taxation Department) and an additional two members, one drawn from the legal profession and the other from the accounting profession.[26] Each term of office was limited to seven years but members were eligible for reappointment.[27] Until 1947 the only Board of Review in operation was based in Sydney. Shortly thereafter respectively that Boards in Melbourne and Brisbane were established.[28]
In the 1950s, the boundaries of the Board of Review’s powers were again put to the test. In Sutton v Commissioner of Taxation (1959) 100 CLR 518, the High Court found that the Board had no power to order the Commissioner to supply particulars or give discovery but could request that the Commissioner provide additional information where it would assist the Board. The taxpayer there had sought from the Commissioner particulars as to how the assessments the subject of the objection were made, including “the manner in which the amounts of income had been arrived at, the sources of income imputed to the taxpayer, and, more specifically, whether it was alleged that the income so imputed arose from betting or, if not from betting, from the sale of liquor”.[29] In confining the powers of the Board, the Court noted that:
[t]he very existence however of the board of review depends upon its possessing the character of an administrative tribunal. It is an administrative tribunal reviewing at the instance of taxpayers the work of the commissioner in dealing with objections. The board reviews the decisions of the commissioner referred to it, and for that purpose has his powers and functions in making assessments, determinations and decisions: ss. 192 and 193. Of course the board deals with the cases before it in a judicial spirit, and decides them by ascertaining the facts and applying the law as it sees it. That is a duty belonging to quasi judicial as well as judicial bodies…But it is not exercising judicial power. The importance of this is that the basis does not exist for implying a power over the commissioner as a litigant party to impose on him a legal obligation to formulate his case by pleadings or particulars or to give discovery by answering interrogatories or otherwise or to fulfil some other procedural requirement borrowed from the courts of justice.[30]
The Commissioner could be subject to a duty to assist the Tribunal but no more.
The second relevant administrative review body in the taxation context was the Valuation Boards. The Taxation Administration Act established Valuation Boards to review determinations of the Commissioner with respect to the valuation of property under the Commonwealth Estate Duty Assessment Act and the Gift Duty Assessment Act.[31] The Valuation Boards were comprised of a Chairman (typically a senior officer from the Taxation Department), a qualified accountant and a qualified valuer.[32]
By 1962, there were 12 Valuation Boards operating throughout Australia.[33] In 1979, amendments were made to the Taxation Administration Act (and relevant subordinate legislation) to abolish the Valuation Boards. The abolition of Commonwealth estate duty and gift duty on 1 July 1979 had “remove[d] the primary need for the Valuation Boards”,[34] if only they could have foreseen the introduction of capital gains tax and the valuation issues it has since thrown up.
Outside of the taxation context, review of administrative decision-making was also occurring over matters relating to public servants and servants of statutory corporations who could be subject to adverse decisions in relation to promotions or disciplinary action.[35] Provision was made from 1902[36] onwards through various iterations of the Public Service Act for the establishment of Appeal Boards and Boards of Inquiry to review disciplinary actions taken and by the Promotions Appeal Committees to hear appeals brought by officers in relation to promotions within the public service.[37]
Review of administrative decision-making was also occurring to protect the rights of ex-servicemen to war pensions and associated benefits.[38] Claims for benefits were ordinarily determined by Repatriation Boards established in each State, with a right to appeal to the Repatriation Commission.[39] In addition to a right to appeal to the Repatriation Commission, there was a further right to appeal to a War Pensions Entitlement Appeal Tribunal concerning the question of eligibility for a war pension and to the War Pensions Assessment Tribunal regarding the extent of the incapacity and therefore the amount of pension payable.[40]
Administrative review bodies also existed in the context of regulation of the arts, medical services and copyright and trade practices.
Under the relevant Customs Legislation and regulations from 1917, various bodies such as the Literature Censorship Board (and Appeal Board) and Film Censorship Board (and Appeal Board) were required to make (and where relevant, review) decisions pertaining to the censorship of books and films.[41] The National Health Act provided for a Medical Services Federal Committee of Inquiry and a Pharmaceutical Services Federal Committee of Inquiry.[42]
There were also a number of other tribunals established under Federal legislation, including the Copyright Tribunal and Trade Practices Tribunal.[43] The Copyright Tribunal was created under the Copyright Act 1968 (Cth), and was introduced as a result of a recommendation of the Spicer Report.[44] The Trade Practices Tribunal was established under the Trade Practices Act 1965 (Cth) and became operative on 1 September 1967, when the Act came into force.[45] In 1969, Tasmanian Breweries unsuccessfully challenged the validity of the Tribunal’s establishment on the basis that the Tribunal was purportedly exercising judicial power.[46] In 1996 this body was renamed the Australian Competition Tribunal.[47]
By the 1960s there was a plethora of different review bodies. The ad hoc nature of these various tribunals and boards made it difficult to assess their efficiency in securing public confidence in executive decision-making. Speaking in 1967 during Parliamentary debates, the then Hon Gough Whitlam observed that there were:
forty-six Acts; eighty-two sections or groups of sections of those Acts under which appeals could be made; and forty-six different categories of boards, tribunals, committees and courts hearing such appeals. A tally of the separate bodies within the various categories, States and Territories would run to hundreds. These bodies seldom sit in public or publish reasons. There is too great a diversity in the existing bodies and too great a mystery in the existing methods.[48]
The Kerr Report, formally titled “Commonwealth Administrative Review Committee Report” was issued in 1971. It provided the opportunity to take stock of administrative review to date, consolidate relevant bodies and move forward in a coherent and consistent way. The report recognised that it had been universally accepted that judicial review by courts standing alone could not provide for an adequate review of administrative decisions.[49] There was then, and undoubtedly continues to be, a need for review on the merits of administrative decisions.
The Kerr Report also recognised that Courts were not the most appropriate bodies to review administrative decisions on their merits and that a comprehensive system of administrative law required a general Administrative Review Tribunal.[50] Recommendation 18 of the report was relevantly:
…there should also be established an Administrative Review Tribunal to review administrative decisions in those cases thought suitable to be reviewed by such a general review tribunal rather than by a specialist review tribunal..[51]
However, the report also recommended (recommendation 20) that the existing specialist tribunals should remain in existence.[52]
The Kerr Report led to the establishment of two centrally important bodies in Australian administrative law — the Administrative Review Council (ARC) and the Administrative Appeals Tribunal (AAT). Both of these bodies were established under the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).
The ARC was established as an independent policy advisory body. Its intended function was to issue reports and best practice guides on administrative law issues.[53] The ARC came into existence through amendments proposed by the then-opposition. The ARC was constituted on 11 November 1976[54] and at its first meeting on 15 December 1976 the Attorney-General, Bob Ellicott, stated that the role of the ARC was:
to ensure that our system of administrative review is as effective and significant in its protection of the citizen as it can be.[55]
The ARC consisted of the President, Commonwealth Ombudsman, President of the Australian Human Rights Commission, President of the Australian Law Reform Commission, the Australian Information Commissioner and at least three, and not more than 11, members.[56] From 1976 to 1979, the President of the AAT was also the Chairman / President of the ARC.[57] However, in 1979 legislative amendments provided for a separate Chairman to be appointed. Dennis Pearce noted the significance of this change as:
a significant but essential change in distancing the Council from the operation of the AAT as the interests of the Council and the AAT do not necessarily always coincide.[58]
During its tenure, the ARC issued 50 formal reports on a range of matters from automation in government decision-making to the role of the Ombudsman.[59] In March 2014, the National Commission of Audit recommended that the ARC be consolidated with the Attorney’s General’s Department.[60] In 2015, this recommendation was carried into effect and the ARC was abolished and any residual functions were subsumed into the work of the Attorney-General’s Department.[61]
The AAT was established on 1 July 1976 by the AAT Act.[62] The AAT was given the power to “exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision” and following its review could affirm, vary or set aside the original decision.[63] The President of the AAT was required to also be appointed as a judge of the Federal Court.[64] Appointments of members ran for a maximum of 7 years.[65]
Although the Kerr Report had recommended that the specialist tribunals remain in existence, the work of a number of those Boards and Tribunals came to be integrated into the work of the AAT. In 1986, the work of the Taxation Board of Review was transferred to the AAT under the Taxation Boards of Review (Transfer of Jurisdiction) Act 1986 (Cth).[66]
In 1995, following an inquiry into the tribunal system, the ARC issued its report ‘Better Decisions: Review of Commonwealth Merits Review Tribunals’. The view of the Council was that all review tribunals should have the statutory objective of providing review that is fair, just economical, informal and quick with the overall objective to ensure that administrative decisions are correct and preferable.[67] The report recommended a restructure of the tribunal system. It noted the growth in separate tribunals at the Federal level meant that it the system of review could no longer accurately be described as a coherent system.[68] Major differences existed between and within different tribunals, including as to style of proceedings and costs.[69] The report recommended these tribunals, along with the AAT, be united into a body called the Administrative Review Tribunal.[70]
Although many of the recommendations of that report remained to be implemented, the Social Security Appeals Tribunal, the Migration Review Tribunal (MRT) and the Refugee Review Tribunal (RRT)[71] were amalgamated with the AAT in 2015.[72]
In 2019, former High Court Justice, the Hon Ian Callinan, was appointed to conduct a review into the amalgamation of these specialist tribunals into the AAT. The Callinan Report identified that, in particular, the absorption of the MRT and RRT into the AAT had produced a number of issues, including an increased workload and difficulties with harmonising very different legislative regimes and practices. [73]
On 7 December 2023, the Federal Government introduced the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2023 and the Administrative Review Tribunal Bill 2023 (ARTBill) to establish a new Tribunal (to be named the Administrative Review Tribunal (ART)) and re-establish the Administrative Review Council.
In so far as the newly established Administrative Review Council is concerned, the explanatory memorandum to the Bill notes:
[i]ts functions would include monitoring the integrity of the Commonwealth administrative review system, inquiring into and reporting on systemic challenges in administrative law, and supporting education and training for Commonwealth officials in relation to administrative decision-making and the administrative law system.[74]
Whatever the future holds, access to administrative review of executive decisions has not only remained important but has increased in its importance as executive decision‑making continues to ever more impact on the lives and livelihoods of the citizen. For administrative review to be meaningful to the citizen it needs to be accessible, simple, transparent and efficient. It cannot be shrouded in mystery, decisions subject to intrigue rather than scrutiny. The ultimate purpose is to improve executive decision‑making. As the Commonwealth administrative review body, the new ART will perform a critical role in balancing the rights of the citizen against the might of the State and in promoting public confidence in executive decision-making.
[*]Justice of the Federal Court of Australia. This speech was originally presented by the author at the Whitlam Institute as part of the conference “Whitlam’s Legal Transformations: Spotlight On Administrative Law — A New System Of Federal Administrative Review”. The author acknowledges the assistance of her associate Amber Withers.
[1] Finn P, Law and Government in Colonial Australia (Oxford University Press, Melbourne, 1987) pp 56.
[2] Finn, n 1 at 36–7.
[3] Finn, n 1 at 36.
[4] Finn, n 1 at 59.
[5] Finn, n 1 at 97.
[6] Finn, n 1 at 97.
[7] Finn, n 1 at 36.
[8] Finn, n 1 at 58.
[9] Finn, n 1 at 45–6.
[10] Finn, n 1 at 45–6.
[11]An Act to Authorize the Leasing of Tolls and Dues Demandable at Turnpike Gates and Ferries and on Parish Roads for Extended Terms 1850 (NSW).
[12]Public Schools Act of 1866 (NSW).
[13]Metropolitan Water and Sewerage Act of 1880 (NSW).
[14] Finn, n 1 at 79.
[15] Finn, n 1 at 50.
[16] Finn, n 1 at 50.
[17] Commonwealth, ‘Report of the Commonwealth Administrative Review Committee’ (Parl Paper No 114/1971) (Kerr Report) 6.
[18] Administrative Review Council, ‘Report to the Attorney-General: Review of Taxation Decisions by Boards of Review’ (Report No 17, 1983) (ARC Report No 17) 13.
[19] Commonwealth, Parliamentary Debates, House of Representatives, 10 October 1922, 3507 (Mr Watt M.P).
[20] Commonwealth, Parliamentary Debates, House of Representatives, 10 October 1922, 3507 (Mr Watt M.P).
[21] Ratnapala S, “Harry Brandy's Case and its Implications for Taxation Administration in Australia” (1995) 18(2) University of Queensland Law Journal 233, 234.
[22] Ratnapala, n 21 at 234.
[23] Ratnapala, n 21 at 235.
[24]Federal Commissioner of Taxation v Munro (1926) 38 CLR 153, 200–201 (Higgins J).
[25] Commonwealth, Parliamentary Debates, Senate, 20 May 1936, 1875 (Senator E.B. Johnston).
[26] Kerr Report 6.
[27] Commissioner of Taxation, ‘Fortieth Report of the Commissioner of Taxation’ (1 June 1961) 22.
[28] ARC Report No 17, 8.
[29]Sutton v Commissioner of Taxation (1959) 100 CLR 518, 522.
[30]Sutton v Commissioner of Taxation (1959) 100 CLR 518, 523.
[31] Kerr Report 6.
[32] Kerr Report 6.
[33] Commissioner of Taxation, ‘Fortieth Report of the Commissioner of Taxation’ (1 June 1961) 24.
[34] Explanatory Memorandum, Income Tax Assessment Amendment Bill (No. 3) 1979 (Cth) 1.
[35] Kerr Report 6.
[36]Commonwealth Public Service Act 1902.
[37] Kerr Report 6.
[38] Kerr Report 6.
[39] Kerr Report 6.
[40] Kerr Report 6–7; Administrative Review Council, ‘Report to the Attorney General: Review of Pension Decisions under Repatriation Legislation’ (Report No 20, 1983) 23.
[41] Kerr Report 7; Parliament of Australia, History of Censorship and Classification in Australia, Chapter 2 (Parliament of Australia), https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Completed%20inquiries/2010-13/classificationboard/report/c02#c02f8; Customs (Cinematograph Films) Regulations 1928 (Cth); Customs (Literature Censorship) Regulations.
[42] Kerr Report 7.
[43] Kerr Report 7.
[44] Copyright Law Review Committee, ‘Report of the Committee Appointed by the Attorney General of the Commonwealth to Consider what Alterations are Desirable in The Copyright Law of the Commonwealth’ (1959) (Spicer Report) 67–72.
[45] Commissioner of Trade Practices, ‘First Annual Report for Year 1967-68) (Parliamentary Paper No 133, 1968) 1.
[46]R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361
[47]Competition Policy Reform Act 1995 (Cth).
[48] Commonwealth, Parliamentary Debates, House of Representatives (18 May 1967) 2339 (Mr G Whitlam).
[49] Kerr Report 1.
[50] Kerr Report 86 at [289], [291].
[51] Kerr Report 115.
[52] Kerr Report 115.
[53] Attorney-General’s Department, Administrative Law (Attorney General, web page), https://www.ag.gov.au/legal-system/administrative-law#:~:text=The%20Administrative%20Review%20Council%20(ARC,guides%20on%20administrative%20law%20issues..
[54] Pearce D, “Administrative Review Council” (2002) (35) AIAL Forum 53, 53.
[55] Moira Coombs, Abolition of the Administrative Review Council (Administrative Review Council, web page), https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/BudgetReview201516/ARC#_ftn10.
[56] Moira Coombs, Abolition of the Administrative Review Council (Administrative Review Council, web page), https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/BudgetReview201516/ARC#_ftn10.
[57] Pearce, n 54 at 57.
[58] Pearce, n 54 at 57.
[59] Narelle Bedford, The Kerr Report's Vision for the Administrative Review Council and the (Sad) Modern Reality (Australian Public Law Blog), https://www.auspublaw.org/blog/2021/05/the-kerr-reports-vision-for-the-administrative-review-council.
[60] Narelle Bedford, The Kerr Report's Vision for the Administrative Review Council and the (Sad) Modern Reality (Australian Public Law Blog), https://www.auspublaw.org/blog/2021/05/the-kerr-reports-vision-for-the-administrative-review-council.
[61] Narelle Bedford, The Kerr Report's Vision for the Administrative Review Council and the (Sad) Modern Reality (Australian Public Law Blog), https://www.auspublaw.org/blog/2021/05/the-kerr-reports-vision-for-the-administrative-review-council.
[62] Administrative Appeals Tribunal, About the AAT (Administrative Appeals Tribunal, web page), https://www.aat.gov.au/about-the-aat#:~:text=The%20AAT%20was%20established%20by,portfolio%20of%20the%20Attorney%2DGeneral..
[63]Administrative Appeals Tribunal Act 1975 (Cth) s 43.
[64]Administrative Appeals Tribunal Act 1975 (Cth) s 7.
[65]Administrative Appeals Tribunal Act 1975 (Cth) s 8.
[66] Justice Duncan Kerr, “Reviewing the Reviewer: The Administrative Appeals Tribunal, Administrative Review Council and the Road Ahead” [2015] Federal Judicial Scholarship 16, 16.
[67] Administrative Review Council, ‘Report to the Minister for Justice, Better Decisions: Review of Commonwealth Merits Review Tribunals’ (Report No 39, 1995) viii.
[68] Administrative Review Council, ‘Report to the Minister for Justice, Better Decisions: Review of Commonwealth Merits Review Tribunals’ (Report No 39, 1995) 8.
[69] Administrative Review Council, ‘Report to the Minister for Justice, Better Decisions: Review of Commonwealth Merits Review Tribunals’ (Report No 39, 1995) 8.
[70] Administrative Review Council, ‘Report to the Minister for Justice, Better Decisions: Review of Commonwealth Merits Review Tribunals’ (Report No 39, 1995) xi.
[71] Matthew Groves and Greg Weeks, “Tribunal Justice and Politics in Australia: The Rise and Fall of the Administrative Appeals Tribunal” (2023) 97 Australian Law Journal 278, 279.
[72]Tribunals Amalgamation Act 2015 (Cth).
[73] Ian Callinan AC, ‘Report on the Statutory Review of the Tribunals Amalgamation Act 2015’ (Report, 23 July 2019) [1.3] 5.
[74] Explanatory Memorandum, Administrative Review Tribunal Bill 2023 (Cth) [33].
