COMMONWEALTH OF AUSTRALIA
SPEECH BY
The Rt Hon. W. McMAHON, M. P.
Prime Ministers
ON
Report of the Commonwealth Administrative
Review Committee
Ministerial Statement
i[ From the ' Parliamentary Debates', 14 October 1971]
Mr McMAHON ( Lowe-Prime Minister)
( 1 1.30)--For the information of honourable
members I present the report of
the Commonwealth Administrative Review
Committee. The Committee was composed
of a group of eminent Australian lawyers.
It was charged with recommending to the
Government the procedures by which
administrative decisions could be reviewed
either in law or on their merits. The members
of the Committee were: Mr Justice
Kerr, a member of the Commonwealth
Industrial Court, as Chairman; Mr Justice
Mason, who was farst appointed to the
Committee in his capacity at the time as
the Solicitor-General of the Commonwealth
and who continued lo be a member of
the Committee following his appointment
in 1969 as a Judge of Appeal of the
Supreme Court of New South Wales; Mr
R. J. Ellicott, who joined the Committee
on his appointment as Solicitor-
General of the Commonwealth on 15th May
1969; and Professor J. Whitmore, presently
Dean of the Faculty of Law in -the Australian
National University and an acknowledged
authority on administrative law.
The report is a valuable contribution to
Australian study of the subject of
administrative review. It reflects the considerable
expertise and industry which the members of the Committee brought to their
task. A glance at the chapter headings of the
report will serve to indicate the breadth
of the Committee's consideration of the
matters referred to it. The report canvasses
the problems associated with the review
of administrative decisions. Against the
background of experience in some overseas
countries, it discusses the efficacy of
traditional means of redress of grievances,
including by representations by members
of the Parliament. It notes the steps taken
by -the Parliament itself in particular
statutes -to provide for review of the decisions
of administrative tribunals. It examines
the adequacy of the traditional review
procedures through the courts by the prerogative
writs of mandamus, prohibition
and certiorari. The Committee has concluded
that a Commonwealth administrative
court should be established to provide a
means for judicial review of the decisions
of Commonwealth Ministers, officials and
administrative bodies. The jurisdiction of
the court would be limited to judicial
review on legal grounds. Alongside the
court would be established an administrative
review tribunal. The tribunal wou~ d,
in appropriate cases, review on the merits
the exercise of administrative discretions
under Commonwealth statutes and reguladons.
In addition, the report outlines a proposal
for an administrative review council. The
council would be charged with supervising
the procedures of administrative tribuals,
and with making recommendations as to the
administrative discretions to be reviewed on
their merits by the tribunal. The tribunal
would be assisted by a general counsel for
grievances and a small research staff. The
general counsel for grievances would be a
member of the council and have a right of
audience before both the Commonwealth
administrative court and the administrative
review tribunal. It can be seen that the
Committee has produced a report wh.*' zh
sets out in an informed and elegant fashion
a comprehensive structure for administrative
review. Even from this summary honourable
members will appreciate that the report will
require considerable study. We have decided
to make it available at this stage in order
to promote informed and considered discussion
in the Parliament and in public,
academic and professional circles.
The Government has not had an
opportunity to consider the report in detail.
But we have decided that immediate action
on 2 fronts is appropriate. A group of 3
people will be appointed to examine existing
administrative discretions under Commonwealth
statutes and regulations and to advise
the Government as to those in respect of
which it considers a review on the merits
should be provided. This study of needs will
proceed immediately, and ahead of any
decisions about further aspects of the
report. We intend that the group to study
and make recommendations on the review
of administrative discretions under statute
and regulations will be constituted at a high
level. It will include perhaps one member
of the Committee whose report is now
being tabled, a very senior and experienced
public servant or ex-public servant and
perhaps one other with wide experience in
the legal, political or administrative fields.
In the light of the recommendations from
the group and of responses from those
interested in the report now tabled, the
Government will be able to determine in
detail what additional arrangements for
administrative review may be necessary.
In addition, the Government has decided
to ask the Attorney-General ( Senator
Greenwood) to institute a review of the
prerogative writ procedures available in the courts. We accept the comment of the
Committee that the legal grounds on which
remedies can at present be obtained are
limited and often complicated. The
Attorney-General's review of remedies available
in the courts will take place concurrently
with the study I have mentioned
of the existing range of administrative
discretions under statute or regulation. This
review should also lead to recommendations
which the Government will consider. The
Government believes that these two
immediate decisions relating to the report
of the Commonwealth Administrativie
review committee will be taken as a
tangible demonstration of the significance it
attaches to the protection of the rights of
individuals at a time when governments
exercise extensive powers on their behalf.
I think it appropriate to add at this stage
2 comments. The first is that this report
should be of particular concern to members
of the Parliament. They themselves have a
significant role in the review and criticism
of the administrative processes. It is important
that their own role be regarded as
central and that any steps taken in response
to the report should have this in mind. My
second comment relates to the possibility
of these reforms causing delays in the
administrative process. The Government,
and the Commonwealth Service, are often
criticised for delays that occur in administration.
In large part, these are due to the
need for co-ordination and for clearance to
ensure that all aspects of any particular
matter are fully considered. It must be
recognised that any substantial extension of
institutions and procedures for the formal
review of administrative action will in the
nature of things add materially both to the
time taken in the administrative process
and to the costs it entails. I need not
remind honourable members that speed and
efficiency in the conduct of Government
business are important both for the
Government itself and for those who rely
on decisions of the Government. I believe
honourable members will welcome the
report and the action the Government
proposes to take. I commend the report to
the House for consideration. I present the
following paper:
Report of the Commonwealth Administrative
Review Commi ttee-Ministerial Statement,-14ti
October 1971.
21441/ 712 t44G17. IMWu. n Ruy, Government Printer, Canberra