Effectiveness of tribunals as substitutes to courts/ Access to administrative information

 (b) Accessibility and procedural efficiency

Tribunals aim to provide a mechanism of review that is fair, just, economical, informal and quick. As one author put it “Tribunals can make an important contribution to keeping the wheels of justice and administration turning as swiftly and as smoothly as possible.”

They allow for a large number of people to be able to challenge administrative decisions by personally participating in the ultimate decision-making processes relating to their cases, thus upholding democratic principles and guarding against arbitrariness . Unlike courts, tribunals do not chose only to hear the select few cases of applicants whom can afford (an be bothered with!) engaging in the lengthy, formal review process. They promote equality, accessibility and strive to provide real solutions at the time when they are practicably needed most. The existence of such a system instils in society a confidence in the government and their commitment to a workable democracy.

(c)Public confidence in those making the decisions, the system, and the government

As stated in a report by the Administrative Reviews Tribunal;

“It is crucial that members of the community feel confident that tribunal members are of the highest standard of competence and integrity, and that they perform their duties free from undue government or other influence.”

There are many rules and regulations relating to the appointment of tribunal members to ensure its impartiality and ability however this paper does not have room to discuss them as such. It is simply important to note that the president of the AAT, and Presidential Members must all be Federal Court Judges, whilst deputy presidents must be seasoned practitioners. The guarantee imposed here is that those judges naturally highly-trained and competent at their roles and possess habits of independence to ensure reviews are processed with due process and without bias. Judges also meet publicly known standards , thus in Australia we have an expert administrative review system which allows individuals to appeal against unfavourable bureaucratic decisions, and ultimately have confidence in the democratic governance in which they subsist.

        This paper has demonstrated that so far as the review of administrative action is concerned, the judicial review mechanism of courts have seemingly been superseded by tribunals such as the AAT. Tribunals overcome the pitfalls of the judicial review system, providing a fair, just, economical, informal and quick solution to the growing demand for the review of administrative decisions. It has been strongly argued that tribunals are definitely a much needed substitute to the courts, and in the arena of administrative review, they could more than likely serve as a substitute for them.

Q.4 “How easy is it, and should it be easier to obtain information about admin. action?”

Accessing information about the processes of government is crucial to the notion of a democratic society. Knowledge empowers the lay person with information which allows for learned participation in society, and curbs the propagation and dissemination of information held by the government. It affords a common quality in the accessing of information between the government and those affected by the laws, the depravation of which would create an autocracy. Accountability creates responsibility when you’re part of an elected parliament, thus relatively easy access to information on administrative action is principally imperative to the functioning of a true democracy. In determining how easy it is, and indeed should be, to attain such information, this paper will firstly examine the practical side of obtaining information about administrative action. It will do so by outlining relevant common law and statutory provisions surrounding this area such as the Freedom of Information (FOI) legislation. As statue underpins this area of law, the positive attributes and flaws of the FOI legislation will then be considered, followed be an overall assessment of how hard it is to obtain information in truth. This paper will then discuss why is important to be able to readily obtain information, and why the red tape should be removed and it should be made easier to attain information in actuality.

I. ACCESSING INFORMATION; HOW HARD IS IT IN PRACTICE?

        (a) Common law duties to give reasons

There is no general rule in common law, or principal of natural justice, that requires reasons to be given for administrative decisions in order to ensure procedural fairness. Whilst Deane J shrewdly remarks in Public Service Board of New South Wales v Osmand  that the exercise of a decision making power in a way that unfavourably affects others is likely to seem less subjective and uninformed if reasons are provided for the decision, he also maintains the ordinary common law position that there is no duty to disclose reasons.  Whilst legislative developments may make courts more disposed to find an implied duty to give reasons in the absence of any clear intention to the contrary, “as a matter of ordinary construction, the relevant statutory provisions do not impose an obligation to give reasons.”  Indeed, even the obligation to give reasons when procedural fairness issues develop only arise in exceptional circumstances,  and to varying degrees according to the particular circumstances.

Whilst it could be argued that the lack of the common laws recognition of the duty to give reasons is superfluous as statutory provisions are paramount, its importance is actually to the contrary. It is important because decision making in not simply governed by statutes, but by a culmination of statutes, statutory schemes and common law principles. Indeed, Pettitt v Dunkley  provides that where there is no express provision for reasons to be given, those seeking reasons must fall back to the common law. Consequently, contradictory standings in precedent and legislation do not send a clear message about the importance of the need to disclose government information, nor do they aid in the easy retrieval of such information.  

        (b) Statutory duties to give reasons        

The three main objectives of FOI legislation are openness, accountability and responsibility. The philosophical rationale for the legislation is noble, and overall it appears that FOI legislation has brought many beneficial changes to government administration, and has improved the accountability of government. However there remains major deficiencies with the legislation in practice.

        Bob Carr, the leader of the opposition at the time the draft legislation was introduced in 1988, warned that the proposed FOI laws would simply;

"give a false impression of openness which will be dispelled through the bitter experience of applicants seeking to utilise the legislation ...The bill is littered with clauses and schedules that even the most inept bureaucrat will be able to use to secrete embarrassing material from public gaze".        

In 2008 his words seem somewhat prophetic. As explained by a long serving ex-managerial staff member of the legal services branch of the Defence Department, common practice of keeping the minister’s offices informed of potentially sensitive FOI applications;

“could lead to 'requests' and 'suggestions' about processing which technically were not part of the system but in practice could influence the outcome."

Such sidestepping techniques are confirmed by Dr Griffith’s findings whom concludes what regular users of FOI legislation already know;

"What is clear from the case law is that attempts to gain access to more sensitive or contentious information held by government agencies are vigorously contested."

        Perhaps the main flaw with the FOI legislation is that it is subject to numerous broad exemptions which exclude the disclosure of information which is obtained in confidence, concerns management practises, or documents which create too large a workload for the agency required to provide the document for example.  These exemptions are then also subject to the ‘public interest’ test in which the agency holding the document need only prove that, on balance, it would be contrary to the interest to release them. The subjectivity evident in this process must be addressed if Australia really is committed to the core philosophy of FOI legislation, and the unhampered accessing of information by the general public. As will be discussed below, “making the NSW Freedom of Information Act work is about as easy as dancing in a swamp.”

4. Overall assessment of how hard it is to obtain information

Whilst it is positive that FOI legislation exists, it appears that in practise it is somewhat impracticable to the lay person to gain access to information. This is for a number of reasons, but largely due to the culture of many political staff members who are not committed to the principles of FOI legislation, and whom are the “most hostile to the release of documents.” For example, the Australian Government has failed to review the secrecy provisions in a variety of different laws which have conveniently exempt whole chunks of government activity from the FOI provisions for the past two decades. What is needed is a strong and true commitment from upper management and the higher levels of parliament to a culture of openess and accountability, the reasons for which will follow.

II. ACCESSING INFORMATION; HOW HARD SHOULD IT BE?

1. Why it is important to obtain information and why it should be easier in practise

Kirby J in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme  explains most succinctly why it is so important that reasons be disclosed and made available. That is, to guard against unpredictability and fanciful decisions, whilst providing a decision based on precedent which can act as a guide for future decisions. To add, Mc Hugh J in Soulemezis v Dudley (Holdings) Pty Ltd  explains that a statement of reasons is required which “enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of their decision”, and as a result be aware of wether a policy has been applied appropriately or an error of law has been made. Nevertheless, the government is well aware of the reasons for, and benefits to the accessing of administrative information as evidenced by the rationale of FOI legislation. The problem is ensuring this happens.

        This paper has demonstrated that whilst the existence of FOI legislation has created a somewhat more open government, lack of commitment by the upper echelons of management and government seemingly hampers its functionality. Resultantly, attempting to gain information on administrative action is quite difficult. Access to information should be made much easier to ensure that individuals are shielded from arbitrary decisions or laws which affect them, and thus ensure the healthy working of a true democratic society.  

Bibliography

Books/ Journals/ Articles

Bacon, Rachael, Amalgamating Tribunals: A recipe for optimal reform (Thesis submitted in fulfilment of the requirements for the degree of Doctor of Philosophy, Faculty of Law, University of Sydney, April 2004), 4, http://ses.library.usyd.edu.au/bitstream/2123/621/2/adt-NU20050104.11271601front.pdf.

Bradley, A. W., “Administrative justice and judicial review: taking tribunals seriously” (1992) Public Law, 191.

Buck, Trevor, Administrative justice and alternative dispute resolution: the Australian experience, University of Leicester, http://www.dca.gov.uk/research/2005/8_2005.htm.

Douglas, Roger, Douglas and Jones’s Administrative Law (5th ed., 2006)

Head, Michael, Administrative Law Context and Crituque (2nd ed., 2008).

Sayers, Michael and Webb, Adrian, “Franks revisited: a model of the ideal tribunal” (1990) 8 Civil Justice Quarterly, 50.

Swain, Phillip, Challenging the dominant paradigm: the contribution of the welfare member to administrative review tribunals in Australia (1998) 11, quoting Bell, Kathleen, “Social security tribunals — a general perspective” (1982) 32(2) Northern Ireland Law Quarterly, 146.

Case Law

Cypressvale Pty Ltd v Retail Shop Leases Tribunal  [1996] 2         Qd R 462.

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR

Pettitt v Dunkley [1971] 1 NSWLR 376.

Public Service Board of New South Wales v Osmand (1986) 159 VLR 656

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; 140.

Legislation

Freedom of Information Act (1982).

Other Sources

Administrative Appeals Tribunal Annual Report 2007-2008,  .

Administrative Review Council, Better Decisions: review of Commonwealth Merits Review Tribunals, Report No 39 (Canberra, 1995), 70, .

Independent Review Panel, Enhancing Open and Accountable Government; Review of the Freedom of Information Act 1992 (29 January 2008), http://www.foireview.qld.gov.au/FOIDiscussionpaper240108.pdf.

Moore, Mattew, But Plotting a path through the bureaucratic swamp (June 14, 2007 12:02 AM),

.

Moore, Matthew, Department always on defensive (June 9, 2008 11:56 AM), .

The Hon. Justice Deirdre O'Connor, “Lessons from the Past/Challenges for the Future : Merits Review in the New Millennium” (Paper presented at the 2000 National Administrative Law Forum - Sunrise or Sunset? Administrative Law in the New Millennium, June 2000),

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