BILL MITCHELL
AUSTRALIAN INSTITUTE OF ADMINISTRATIVE LAW
2006 NATIONAL ADMINISTRATIVE LAW FORUM
Administrative
Law: Protection of Individual
and Community Interests
Surfers Paradise Marriott Resort
22-23 June 2006
Bill Mitchell
LLB, Grad. Dip. Legal Practice, Grad. Cert. Practice Management, LLM
Solicitor of the Supreme Court of Australia, Legal Practitioner of the High Court of Australia, Registered Migration Agent 0215663,
Principal Solicitor, Townsville Community Legal Service Inc.
Co convenor, Queensland Association of Independent Legal Services Inc.
This paper represents the views of the author and not necessarily the views of QAILS and/or QCOSS.
ABSTRACT
This paper considers whether the terms of reference of the Queensland Parliament’s recent inquiry into ‘access to administrative justice’ should have been broadened to include merits review of administrative decisions (administrative review). Additionally, the paper considers recent announcements by the Queensland Attorney-General that the Queensland Government is considering reform of the administrative review system. Finally, the paper looks at some key issues that arise in respect of any proposal to reform the administrative review system in Queensland.
Introduction & Background
The impetus for this paper came from a joint submission made by Queensland Association of Independent Legal Services (QAILS)[1] and Queensland Council of Social Service (QCOSS)[2] earlier this year. The submission responded to the Queensland Parliament’s Legal, Constitutional and Administrative Review Committee’s (LCARC) inquiry into ‘Accessibility of Administrative Justice’.[3] The submission highlighted a number of significant gaps in the administrative justice system in Queensland.
The inquiry (along with LCARC’s FOI Inquiry)[4] represented one of the few opportunities for public discourse on the accessibility of administrative justice since the Electoral and Administrative Review Commission (EARC) published its series of reports in post-Fitzgerald Queensland.[5] EARC was established after the Fitzgerald Inquiry to investigate and report on ways of transforming Queensland into an open democracy with accountable and transparent government.[6]
The Judicial Review Act 1991 (Qld) (as enacted) closely followed EARC’s model for judicial review.[7] EARC’s model in turn closely followed the Administrative Decisions (Judicial Review) Act 1977 (Cth). Whilst federal judicial review laws have been scrutinised, the Queensland laws have not been considered post enactment. [8]
QAILS and QCOSS turned to the terms of reference of the LCARC Inquiry to see whether they promoted broad public input in the accessibility of administrative justice.
The Scope of the LCARC Inquiry
The scope of the LCARC inquiry was set out in terms of reference:
The focus of this inquiry is the continuing effectiveness of statutory mechanisms under the Freedom of Information Act 1992 (Qld) (FOI Act) and the Judicial Review Act 1991 (Qld) (Judicial Review Act) which provide administrative justice in Queensland and, in particular, their accessibility. ‘Administrative justice’ is discussed in section 3.
The issues on which the committee invites discussion and submissions relate to:
• the costs of access – see section 7;
• the availability of information – see section 8;
• access for a diversity of people – see section 9; and
• efficiency of access – see section 10.[9]
LCARC also set out some general definitions in the paper. ‘Administrative justice’ was defined as ‘rights conferred by Queensland’s legislative scheme of administrative law.’[10] The terms of reference presupposed that accessibility of administrative justice should be limited to existing rights under Queensland legislation.
QAILS and QCOSS suggested the terms of reference should be redrawn:
This paper refers to administrative justice in Queensland. This means rights to judicial and merits review conferred by Queensland’s legislative scheme of administrative law.[11] (additions underlined)
It was their view that administrative justice meant much more than access to judicial review. LCARC noted that in Australian jurisdictions, administrative law included ‘review by an independent tribunal of the merits of many administrative decisions made under statute.’[12]
The discussion paper also stated:
To date, legislation to reform existing ad hoc statutory arrangements for the review of the merits of decisions made under statute has not been enacted in Queensland. For this reason, this aspect of administrative law is beyond the scope of the committee’s inquiry5.[13]
The reference noted:
The Attorney-General and Minister for Justice recently announced that options for reforming the current ad hoc arrangements regarding merits review are being examined: Malcolm Cole, ‘One-stop shop bid to end legal maze’, Courier Mail, 26 September 2005, p 8.[14]
QAILS and QCOSS considered that because ‘to date, legislation to reform existing ad hoc statutory arrangements for the review of the merits of decisions made under statute has not been enacted in Queensland’ was an overriding reason to include administrative review in any inquiry into the accessibility of administrative justice in Queensland.
Further, given the progress of structural reform in other states in the form of civil and administrative review systems, it seemed somewhat disingenuous to ignore administrative review in the context of access to administrative justice.
The concept of ‘administrative justice’ also seems a relatively new one. It certainly sounds sexier than administrative review rights. Of course, justice is a nebulous concept – It means different things to different persons. Access to justice obviously means more than systemic access to a legal system.
Certainly, the notion that Government was looking at the accessibility of administrative justice created some expectation that significant or structural reform is now on the agenda.
Administrative law Reform in queensland
To the outsider, it might appear that the Queensland Parliament is intent on reforming or amending[15] existing administrative law mechanisms only, for example:
· The introduction of the Ombudsman Act 2001 took the office from that of a Parliamentary Commissioner to an Ombudsman “proper”;[16]
· Strategic management reviews were recently undertaken of the Office of the Queensland Ombudsman[17] and the Office of the Information Commissioner;[18]
· Changes to the Office of the Information Commissioner;[19]
· Review of the Freedom of Information Act 1992 and amending legislation;[20]
· A number of changes to judicial review through related legal system reforms such as procedural reform.[21]
The area of administrative review has not been subject of open/public debate since EARC’s reports more than decade ago. It seemed to have not been on the agenda. Whilst there are administrative review mechanisms in place in Queensland, it is generally accepted that they have developed in a pattern of ad hoc proliferation over a relatively long period of time.[22]
It seems no secret that Queensland might benefit from what Fitzgerald called ‘a general mechanism for a determinative review of administrative decisions on their merits’.[23]
QAILS/QCOSS Recommendations TO LCARC
QAILS and QCOSS are peak bodies concerned with issues of access to justice and the legal system — an area where reports are legion.[24] The Senate’s recent report canvassed administrative law quite widely in the context of legal aid and access to justice.[25] Increasingly, commentators have come to realise that administrative law takes in many facets of people’s day-to-day lives such as social security, taxation etcetera. It also involves issues of public and political debate such as migration law.
Despite increased interest in administrative law, QAILS and QCOSS noted EARC’s report on administrative review[26] seemed to have slipped below the consciousness of the legal and political community in Queensland. QAILS[27] and individual community legal centres[28] made submissions to EARC in 1991 in response to the issues paper on appeals from administrative decisions.[29] QAILS and QCOSS felt that the hiatus between EARC’s work and LCARC’s current inquiry meant that Government should be reminded about this significant institutional gap.
In revisiting EARC’s report, QAILS and QCOSS agreed with EARC’s point of view that:
…the rationale for providing a comprehensive system of merits review of decisions includes that merits review:
· Is the most efficient, effective and fair way in which people may be personally involved in the review of an administrative decision;
· Must improve the quality of drafting of administrative powers in legislation, the quality of administrative decision-making, the quality of making and publicising of policy and the quality of merits review generally;
· Adds to and provides openness and accountability of the bureaucracy and reduces the opportunity for public sector abuses or corruption;
· By providing a speedy resolution, not only for citizens but also for companies, will significantly assist in the interaction between business, both large and small, and government;
· May indirectly lead to a strengthening of Parliament vis-à-vis the executive and of accountability generally, which means a strengthening of democratic government in Queensland; and
· Heightens the independence of any review and reduces the number of review bodies and personnel currently associated with review in Queensland.[30]
QAILS’ and QCOSS’ recommendations reflected EARC’s general views from the merits review report. The recommendations included:
· A general merits review body should be established (Rec.4.1);
· Merits review was generally affordable (Rec.4.2);
· Merits review included costs savings for Government (Rec.4.3);
· Merits review timeframes were shorter than judicial timeframes (Rec.4.4);
· Merits review bodies were of great utility (Rec.4.5);
· Merits review bodies were more accessible than Courts (Rec.4.6);
· A general merits review body lead to consistent decision making (Rec.4.7).[31]
None of these recommendations were controversial and all represented generally accepted characteristics of administrative review.
Is Merits Review Back on the Agenda?
The current and penultimate Attorneys-General of Queensland expressed a desire to put administrative review back on the Government’s program. This was reinforced by LCARC’s comments in the discussion paper.
The Legal, Constitutional and Administrative Review Committee
In addition to the reference in the LCARC discussion paper, LCARC’s consultations included the following:
Possible issues for discussion:
· Availability of merits review/internal review of decisions, including consideration of new information.[32]
LCARC’s discussion point included this reference:
11 Since the publication of the discussion paper, the committee has been advised by the Attorney-General that, as stated in the Courier-Mail in 2005 and quoted in the discussion paper, options for reform of administrative review arrangements in Queensland are being considered.[33]
LCARC’s consultations produced “conference outcomes”[34] which did not address the issue of administrative review beyond making some recommendations for reform under Topic B, Tables 1 & 2 and Topic C.[35] None of the recommendations addressed the issue of structural reform of the administrative review system.
Recent Comments by the Attorney General
The Attorney General for Queensland, the Honourable Linda Lavarch, MP spoke on the issue at the 3rd Annual General Meeting of the Queensland State Chapter of the Council of Australasian Tribunals (COAT).
The Attorney summarised the state of play as follows:
The Attorney also noted that a discussion paper circulated amongst agencies in 2001 lead to findings that: [39]
Other Commentators
Whilst there have been many calls for establishment of a administrative review body, in more recent times, commentators such as Kingham have called for procedural reform.[45]
In Queensland, suggested reforms have included a wide range of proposals such as consolidation of existing tribunals and administrative review bodies into a “super-tribunal”.[46] Other suggested reforms could include clustering of similar review bodies and/or procedural reform. Suggestions have also been made to give jurisdiction to courts at all levels from the Magistrates Court to the Supreme Court.
LESSONS FROM THE PAST
A significant amount of work has been done on amalgamation of tribunals at federal level.[47] Whilst the political history of federal tribunals is a matter for another paper, some clear lessons can be derived from the federal experience. At federal level, amalgamation proposals have met with responses varying from acceptance to outright opposition. The proposal to establish the Administrative Review Tribunal via the Administrative Review Tribunal Bill 2000 and the Administrative Review Tribunal (Consequential and Transitional Provisions) Bill 2000 attracted considerable debate and the Bill was blocked in the Senate on 26 February 2001.[48] The Bill’s Digest reported that:
However, the majority of commentators, including senior members of the judiciary and both present and past AAT Presidents, are not opposed to amalgamation itself, but are concerned that the details of the proposal represent a downgrading of the existing system of administrative review.[49]
After passage of the Bill was blocked, the Government sought to enact some of the ART through amendments to the Administrative Appeals Tribunal Act 1975 in the Administrative Appeals Tribunal Amendment 2005.[50]
The lesson for the Queensland Government is that any attempt to amalgamate or consolidate tribunals in Queensland into a single body will be subjected to serious scrutiny (as was the ART) in respect of:
· Whether a new Tribunal would have greater authority than the existing specialist tribunals;
· The risk that some of the major benefits of tribunals, such as accessibility, specialised expertise, diversity and innovation would be lost;
· Whether the changes may not bring the expected benefits of efficiency and economy, or there may be other ways to achieve these goals;
· The need for separate and distinctive approaches in different fields, and a separate identity from a client perspective; and
· Whether the changes represent a downgrading of independence and quality of merits review.[51]
Again, that these issues are raised is far from novel. They represent the sorts of features that are seen as key features (or perhaps not) of administrative review bodies.
MODELS OF CIVIL & ADMINISTRATIVE REVIEW
In her speech to COAT, the Attorney General posed the question: where to from here?[52] She suggested that the next step would be considering various models:
During my term as Attorney-General, I will be considering how the civil and administrative review system in Queensland can be further rationalised. There is a range of options for reform. The broad options are:
1. consolidation of all administrative review within a specialist division of the court;
2. consolidation within a tribunal structure; or
3. a hybrid system with further smaller scale amalgamations amongst existing tribunals.[53]
Whilst some might be concerned by the use of the word ‘rationalised’ the three (3) options are worth reviewing. For the purposes of this paper only brief consideration is given to each option.
Consolidation of all administrative review within a specialist division of the court (Option 1)
This option seemed unpopular with the Attorney and her concerns seem related to some of the key differences between Courts and Tribunals:
The courts play a key role in delivering administrative justice in Queensland. They have a presence in regional and rural areas and people generally feel confident that the judicial system will be fair and independent. While regional access can be provided by the existing court infrastructure, there are concerns that using the courts will decrease access because of formality and potential costs to users. I would also be concerned about the loss of specialist lay expertise.[54]
The Magistrates Court is often cited as a way of providing access to the legal system for the community. The Attorney noted:
…Queensland faces unique challenges in relation to access because of its regionalised population. This has been a major impetus in using the court, particularly the Magistrates Court, as an administrative review body. Any move to consolidate administrative appeals into the tribunal system would need to be cognizant of this factor. There are, of course, opportunities to use technology to overcome the tyranny of distance and the use of technology would be a key consideration for any reformed system.[55]
After all, there are more than eighty (80) Magistrates Courts in Queensland. The opportunities for broad community access to such a widespread and established network are worth considering. Other commentators have echoed the concerns of the Attorney where the Courts have been seen as a possible framework for offering administrative review.
Consolidation within a tribunal structure (Option 2)
A primary issue is whether all existing tribunals (administrative review or otherwise) should be amalgamated or whether a cluster of like-jurisdictions should occur. There does not appear to be a consolidated list of tribunals in Queensland, though research reveals more than thirty (30) tribunals currently operate.
The Attorney noted that:
This option would require a significant investment of resources over a period of time. Decisions would have to be made about the current review jurisdiction of the courts, Ministers and public officials and the existing civil and occupational disciplinary jurisdictions of tribunals and boards. One of the most complex issues for this option is determining which bodies will be excluded from amalgamation. For example, would a generalist tribunal include the current jurisdictions of:
- the Land and Resources Tribunal, the Planning and Environment Court and the Land Court?
- the Commercial and Consumer Tribunal?
- the Information Commissioner?
- the Mental Health Review Tribunal?
- the Guardianship and Administration Tribunal?
- the Anti-Discrimination Tribunal?
- the Small Claims Tribunal?
- Community Corrections Boards?
- Industrial Court and Industrial Magistrate?
- the Legal Practice Tribunal and other professional and occupational disciplinary bodies?[56]
Whilst, the Attorney raised legitimate concerns, they are perhaps no greater difficulties than those faced in New South Wales, Victoria and Western Australia. An equally important question would be how would administrative review would be provided in areas where no review rights currently exist. The process therefore would need to be a process of consolidation and creation of external review rights.
Concerns about whether administrative review matters only would be subject of consolidation raise questions about the extent of jurisdiction of any new body.
Also, questions about excluding jurisdictions from consolidation arose in the federal arena when the ART proposal excluded the veterans review board from the amalgamation. In that case the Veterans Review Board was to be retained as an independent tribunal because of the special needs of veterans for a dedicated review body. In that case, the Attorney General stated:
The Government has decided to retain the Veterans Review Board in its current from as a separate tribunal with full appeal rights to the ART. This recognises and respects the special needs of veterans in seeking review of Government decisions. The VRB is a very specialised, low cost, non-legalistic tribunal that has achieved significant improvements.[57]
Ultimately, one might expect that politics would play some role in determining which bodies would be subject of any consolidation effort.
There have also been concerns expressed that a move to a generalist model may result in lost specialist expertise, particularly in areas such as ‘guardianship, child protection, mental health and land, environment and planning…’[58] Clearly this issue warrants close consideration.
A hybrid structure with small scale amalgamation amongst existing tribunals (option 3)
The third option is small-scale amalgamation:
The third option is amalgamation of civil and administrative review tribunals and boards and occupational disciplinary bodies of like jurisdiction or subject matter into a smaller number of larger tribunals. This option would build on the process that has been occurring in Queensland over the past few years.[59]
The Attorney noted the advantages as being:
- a greater capacity to ensure practice and procedure remains responsive to the needs of users;
- the risk of loss of specialist knowledge would not be as great as with a general tribunal;
- it would minimise the risks associated with amalgamating bodies with different jurisdictions, subject matter and culture;
- it can be achieved gradually over a period of time; and
- there is potential for some cost savings as demonstrated by the amalgamation process that resulted in the establishment of the CCT.[60]
After an internal review process, in 2003 the Queensland Parliament consolidated four tribunals into the Commercial and Consumer Tribunal under the Commercial and Consumer Tribunal Act 2003 (Qld).[61] The Attorney General noted the benefits of small-scale amalgamation inherent within the CCT model:
Since commencement, the CCT has accrued new jurisdictions in relation to architects, engineers, plumbers and drainers, building certifiers and residential services accreditation. The CCT has shown the benefits of smaller scale amalgamations of bodies with similar jurisdictions. According to its latest annual report, the CCT has achieved cost savings for government without additional costs to applicants. The CCT has been able to accrue additional jurisdiction over time at a lower cost than establishing new bodies and with minimal impact on users.[62]
There has also been a proposal to amalgamate the Land and Resources Tribunal, the Planning and Environment Court and the Land Court in Queensland which remains delayed while constitutional issues are considered.[63]
The Attorney also considered the potential disadvantages of clustering:
The potential disadvantages of this option are:
- it would not provide a single gateway for users;
- the potential for ongoing proliferation of small specialist tribunals remains; and
- rationalised bodies may remain attached to the portfolio whose decisions are reviewed by the body.[64]
It also goes without saying that a major disadvantage of this model is that it offers no expansion of administrative review beyond what already exists or what might be ‘clustered’. Clustering can also potentially lead to poorly matched jurisdictions if not carefully thought through.
Co‑location of tribunals
Co-location has also had benefits according to the Attorney General:
The intention of the relocation is to improve the working environment and promote collaboration, particularly in the area of case management, while maintaining the flexibility and expertise of specialist tribunals.
It is also intended that the relocation provide job rotation and career opportunities for Tribunal staff which will result in more efficient and effective work practices. Training across the Tribunals will result in an improved skill base and enhance the delivery of services to clients.
The co-location has created efficiencies in the use of resources through the sharing of registry space, hearing rooms and other physical and human resources.[65]
Many would no doubt argue that co-location fails to address concerns about access to administrative justice.
Other Issues
The Attorney has made plain that the key elements of her approach will be:
- improving access for users and maintaining responsiveness;
- ensuring the independence of tribunals;
- maintaining specialist expertise where this is vital for high quality decision making; and
- establishing mechanisms within government to ensure that determinations of administrative review bodies have a systemic impact on primary decision making, to improve the quality of government decision making.[66]
There are a number of other issues that need to be considered when choosing a model:
The Government’s approach will need to also grapple with some of these bigger picture questions that will arise.
Extent of Jurisdiction
Questions abound as to the extent of the jurisdiction of any new review body. To some extent the jurisdiction depends on a number of obvious factors:
· Are you simply consolidating or clustering existing jurisdictions;
· Are you seeking to create review mechanisms where none exist;
· Are you offering administrative review, appellate review and/or judicial oversight.
Some tribunals are strictly external administrative review. By this, I mean that the tribunal’s raison d’etre is to provide independent review of administrative decisions made by specific agencies. The federal system contains many examples of this type of review body.[67] Whilst these tribunals may be described as “bulk processing” tribunals, their area of review is discrete and often complex.[68]
Other tribunals have mixed functions:
Additionally, tribunals may have a range of jurisdictions:
For example the West Australian State Administrative Tribunal (WA SAT) has original, disciplinary and review jurisdiction arising from 130 enabling acts. Administrative review is one part of what the WA SAT does. Likewise the Victorian Civil and Administrative Tribunal (VCAT) has a large range of referred jurisdictions and is not limited to administrative review.
Procedural Reform
In looking at Tribunal reform, Kingham noted that one must keep in mind the rationale of tribunals:
… compared with courts Tribunals are less formal; more accessible; more user-friendly; less concerned with legal forms and technicality; more focused on the merits; cheaper; and faster.[69]
Kingham suggested that procedural reform of existing structures is needed to address the needs of increasing numbers of self-represented litigants.[70] Tribunals, she argued, should be configured to objectives that address the needs of the these litigants such as:
· To provide opportunities for effective involvement regardless of whether a party is legally represented;
· To create an early and enduring focus on issues rather than legal form or technicalities;
· To efficiently access technical expertise to assist resolution or determination of disputes;
· To promote and assist resolution by the parties not determination by the Tribunal; and
· To promote early determination by the Tribunal if a dispute cannot be resolved by other means.[71]
This idea is to recreate the arena in the image of the litigant rather than continuing to labour under an assumption of legal representation for all and struggling to work out how the Tribunal will address the needs of unrepresented/self represented litigants.[72]
The Attorney-General has also recognised the importance of tribunal procedures:
Tribunal processes need to be flexible, clear and simple. Information about tribunal procedures and requirements should be given to users as early as possible. Ready assistance for the parties to identify the issues in dispute as early as possible in proceedings is also necessary for users to present their cases adequately. Unnecessary formalism needs to be avoided. Any amalgamation would need to ensure that the very reason tribunals are established – flexibility and responsiveness to users – is not lost.[73]
Procedural reform will be part and parcel of any serious review of existing administrative review arrangements in Queensland.
QICAR & Review of Administrative Decisions Bill
Of course one obvious potential model is the Queensland Independent Commission for Administrative Review (QICAR). EARC produced four volumes about review of appeals from administrative decisions. These volumes contained an analysis of merits review options, a synthesis of models and a recommended model. The reports annexed a Draft Review of Administrative Decisions Bill, which amongst other things established QICAR.[74] The Attorney General has acknowledged the work of EARC on merits review.[75]
EARC undertook an analysis of decisions that might become reviewable by QICAR. This would clearly be out of date and a new analysis would need to be done by the Department of Justice and Attorney General. It would however be a good place to start. It may be that the whole QICAR model requires some renovations, particularly given:
The Council of Australian Tribunals (COAT) Queensland Register lists nine (9) state based members.[76] Clearly there are a number not included on this list. COAT and its members and other tribunal members would clearly have views on administrative review models.
Other States & Territories
At State and Territory level, a number of merits review models have been implemented post EARC:
· The New South Wales Administrative Decisions Tribunal (NSW ADT);
· The Victorian Civil and Administrative Tribunal (VCAT);
· The West Australian State Administrative Tribunal (SAT).
The most recent legislative model is the WA SAT, which was established after the Western Australian Civil and Administrative Review Tribunal Taskforce Report on the Establishment of the State Administrative Tribunal.[77]
The SAT model was summarised thus:
The Taskforce believes that the SAT it has recommended will avoid the proliferation of tribunals and boards and various court and ministerial administrative appeal avenues, reverse the apparent lack of uniformity and confusing variety of both procedures and administrative appeal avenues that currently exist, ensure effective and timely decision making, and provide the people of Western Australia with an administrative review and original decision making system which is independent and impartial and in which the people of the State may have the fullest confidence.[78]
Similar sentiments are echoed by commentators wherever and whenever models of merits review are considered.[79] The Taskforce also seemly acutely aware of the need to balance the tensions often inherent in administrative review.[80]
CONCLUSIONS
The notion of accessibility of administrative justice should include consideration of administrative review in Queensland, including currently available mechanisms and areas where review is not currently available.
Any consideration of administrative review in Queensland must also pay due respect to past reports including those by EARC as well as more recent internal Departmental reviews. Serious time must also be given to comparing existing models in other jurisdictions. Of course, there is a tension between avoiding ‘reinventing the wheel’ and ensuring that any model is a good fit for Queensland.
There also needs to be a reckoning around whether any structural reform (large scale or small scale consolidation) would be limited to administrative review or whether it will embrace the notion of a super tribunal with other functions and a wider jurisdiction. Clearly there are questions to be asked about how existing Queensland bodies would fit (or not) into any consolidation (small scale or large scale).
Additionally, there are some clear lessons from the past that need to be learned about how to go about consolidation if that is a serious option. Assumptions about the benefits of consolidation need to be explored. Questions need to be asked about who would benefit from such structural reform, but also who might be disadvantaged.
Perhaps Kingham is right in saying that a good first step would be to ask what model we need in our current legal system to offer access to administrative justice, particularly given that that legal representation is the exception rather than the rule. To be fair, any model must ensure that those who have or need representation are accommodated as well. Procedural modeling might give us a clearer idea of how to proceed. Looking at the needs of users might ensure that we don’t put the cart before the horse.
William J. Mitchell
Thursday, June 15, 2006
[1] QAILS is the state based peak body representing the 33 funded and unfunded community legal centres operating throughout Queensland. Community legal centres are independent, community organisations providing equitable and accessible legal services.
[2] QCOSS is the peak body for over 700 welfare and community sector organisations in Queensland. For over 50 years the Queensland Council of Social Service has worked to promote social justice through the elimination of inequity and disadvantage. QCOSS exists to provide a voice for Queenslanders affected by poverty and inequality and acts as a State-wide Council that leads on issues of significance to the social, community and health sectors. QCOSS works for a Fair Queensland and to develop and advocate socially, economically and environmentally responsible public policy and action by community, government and business.
[3] Queensland Parliament, Legal, Constitutional and Administrative Review Committee, The Accessibility of Administrative Justice Discussion Paper, December 2005.
[4] Queensland Parliament, Legal, Constitutional and Administrative Review Committee, Freedom of Information in Queensland, Report no. 32, Goprint, Brisbane, December 2001.
[5] Including (but not limited to) the following reports: EARC 90/R5, Judicial Review of Administrative Decisions and Actions, December 1990; EARC, 90/R6, Freedom of Information, December 1990; EARC 90/R6, Protection of Whistleblowers, October 1991; EARC 92/R1, Review of Codes of Conduct for Public Officials, May 1992; EARC 92/R3, Review of Archives Legislation, June 1992; EARC 93/R3, Review of Appeals from Administrative Decisions, August 1993.
[6] Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct (G.E. Fitzgerald, Chairman), Report of a Commission of Inquiry Pursuant to Orders in Council, Government Printer, Brisbane, 1989.
[7] EARC, Report on Judicial Review of Administrative Decision and Actions, 1993, vol 1.
[8] See for example, Administrative Review Council, The Scope of Judicial Review Discussion Paper, 2003, Administrative Review Council, The Scope of Judicial Review Report to Attorney General, Report No 47, April 2006.
[9] Above note 4, 1.
[10] Ibid.
[11] QAILS/QCOSS, Submission to Queensland Parliament, Legal, Constitutional and Administrative Review Committee, The Accessibility of Administrative Justice Discussion Paper, December 2005.
[12] Above note 4, 2.
[13] Ibid, 3.
[14] Ibid.
[15] According to the Office of Queensland Parliamentary Counsel the Judicial Review Act 1991 (Qld) has been reprinted twenty-three (23) times, the Ombudsman Act 2001 (Qld) has been reprinted four (4) times, whilst the Freedom of Information Act 1992 (Qld) has been reprinted forty-four (44) times.
[16] See the change from a Parliamentary Commissioner under the Parliamentary Commissioner Act 1974 to an Ombudsman under the Ombudsman Act 2001.
[17] Queensland Government, Report of the Strategic Management Review of the Office of the Queensland Ombudsman, April 2006.
[18] Queensland Government, Report of the Strategic Management Review of the Office of the Information Commissioner, April 2006.
[19] Parliamentary Committees Act 1995 (Qld) and Parliamentary Commissioner and Freedom of Information Amendment Act 1999 (Qld).
[20] Parliamentary Commissioner and Freedom of Information Amendment Act 1999 (Qld), Freedom of Information Amendment Act 2001 (Qld), Freedom of Information Amendment Regulation 2001 (Qld), Freedom of Information and Other Legislation Amendment Act 2005 (Qld).
[21] See for example, the introduction of the Uniform Civil Procedure Rules 1999 (Qld).
[22] The Honourable Linda Lavarch MP, Attorney General and Minister for Justice, Speech to Annual General Meeting of the Queensland State Chapter of the Council of Australasian Tribunals, 20 September 2005, 3.
[23] Above note 7, 128.
[24] For example, see: Access to Justice: An Action Plan, Report of the Access to Justice Advisory Committee, Commonwealth of Australia, 1994; Justice Statement; Attorney-General’s Department, May 1995; Senate Legal and Constitutional References Committee, Inquiry into the Australian Legal Aid System, Second Report, June 1997; Senate Legal and Constitutional References Committee, Inquiry into the Australian Legal Aid System, Third Report, June 1998; Australian Law Reform Commission, Managing Justice A Review of the Federal Justice System, Report No 89, 2000; National Association of Community Legal Centres, Doing Justice: Acting together to make a difference, August 2003; Law Council of Australia, Erosion of Legal Representation in the Australian Legal System, February 2004; Senate Legal and Constitutional References Committee, Legal Aid and Access to Justice, June 2004.
[25] Senate Legal and Constitutional References Committee, Legal Aid and Access to Justice, June 2004, For example, see recommendations 2.92, 4.123, 7.31, 7.50, 7.51, 10.43.
[26] EARC 93/R3, Review of Appeals from Administrative Decisions, August 1993.
[27] See submission No.25 dated 21 August 1991 and submission No. 42 dated 30 September 1991.
[28] See submissions by Youth Advocacy Centre (Submission No. 36 dated 17 September 1991), Prisoners Legal Service (Submission No. 45 dated 23 March 1992) and Submission No. 65 dated 8 November 1991).
[29] EARC, Appeals from Administrative Decisions, Issues Paper No. 14, June 2001.
[30] Above note 27, xxii.
[31] Above note 12, 20-24.
[32] LCARC, Topic B: Litigation between government and individual – can inequality be minimised?, 1.
[33] Ibid.
[34] LCARC, The Accessibility of Administrative Justice Conference, Parliament House 27 April 2006, Outcomes document.
[35] Ibid, 3-7.
[36] Above note 23, 3-4.
[37] Ibid, 4.
[38] Ibid.
[39] Department of Premier and Cabinet, Appeals from Administrative Decisions, Queensland Government, 2001.
[40] Ibid, 5.
[41] Ibid.
[42] Ibid.
[43] Ibid.
[44] Ibid.
[45] F. Kingham DP, Reforming Queensland’s Tribunals: Procedural reform to Realise the Rhetoric, Land and Resources Tribunal, Articles and Papers, http://www.lrt.qld.gov.au/lrt/publications/pub_main.asp
[46] “Super Tribunal” is a term that has been applied to the Victorian Civil and Administrative Tribunal, the proposed federal Administrative Review Tribunal, the Queensland Commercial and Consumer Tribunal and has even found its way into ‘Tribunal Speak’: see Report of President O’Connor of the New South Wales Administrative Decisions Tribunal, Annual Report 2000/2001.
[47] See for example, Administrative Review Council, Review of Commonwealth Merits Review Tribunals - Discussion Paper, Australian Government Publishing Service, Canberra, 1994; Administrative Review Council, Better Decisions: Review of Commonwealth Merits Review Tribunals, 1995.
[48] Commonwealth of Australia Parliamentary Debates Senate Official Hansard, No.2, 2001, 26 February 2001.
[49] Bill’s Digest No 40 2000/2001, Administrative Review Tribunal Bill 2000, Conclusions.
[50] Note that an exposure draft of the Administrative Appeals Tribunal Amendment Bill 2004 was released first.
[51] These comments were noted in the Bill’s Digest in respect of the Administrative Review Bill 2000 and represented comments from a range of sources.
[52] Above note 23, 8.
[53] Ibid, 8.
[54] Ibid.
[55] Ibid, 12.
[56] Ibid, 10-11.
[57] Darryl Williams QC, Attorney General for Australia, Media Release: Reform of Merits Review Tribunals, 3 February 1998.
[58] Above note 23, 14.
[59] Ibid, 11.
[60] Ibid.
[61] In 2001 a three-stage review was undertaken of tribunals within the responsibility of the then Department of Tourism, Racing and Fair Trading.
[62] Above note 23, 5-6.
[63] Ibid, 7.
[64] Ibid, 11.
[65] Ibid 7.
[66] Ibid, 12.
[67] See for example, the Social Security Appeals Tribunal, the Migration Review Tribunal, and the Refugee Review Tribunal.
[68] For example the Social Security Appeals Tribunal and the Migration Review Tribunal have a discrete but very complex statutory review jurisdiction.
[69] Above note 46, 2.
[70] Ibid, 3.
[71] Ibid, 4.
[72] Ibid, 3-4.
[73] Above note 23, 13.
[74] EARC 93/R3, Review of Appeals from Administrative Decisions, August 1993, Volume Two, Appendix 1.
[75] Above note 23, 4.
[76] Including the Children’s Services Tribunal, the Commercial and Consumer Tribunal, the Guardianship and Administration Tribunal, the Information Commissioner of Queensland, the Land and Resources Tribunal, the Mental Health Review Tribunal, the Misconduct tribunal, the Office of the Commissioner for Body Corporate and Community Management, Queensland Gas Appeals Tribunal.
[77] Western Australian Civil and Administrative Review Tribunal Taskforce, Western Australian Civil and Administrative Review Tribunal Taskforce Report on the Establishment of the State Administrative Tribunal, May 2002.
[78] Ibid, vi-vii.
[79] See for example, Administrative Review Council Review of Commonwealth Merits Review Tribunals - Discussion Paper, Australian Government Publishing Service, Canberra, 1994; Administrative Review Council, Better Decisions: Review of Commonwealth Merits Review Tribunals, 1995.
[80] The tensions are neatly described by the objectives of Social Security Appeals Tribunal, which aims to provide a mechanism of review that is ‘fair, just, economical, informal and quick’.