Administrative law deals with fundamental principles that govern the relationship between individuals, organisations and the Australian government. It is relevant to any legislative scheme under which you operate and any government decision which impacts you.
For all that, it is quite hard to market. All administrative law issues are bespoke – there are no simple off the rack answers, and developments tend to be incremental, of interest only to those who, like Moulis Legal’s Regulatory team, find this stuff compelling (i.e. big ol’ nerds). That is not to deny its significant and necessary importance to Australia’s legal system, nor the grave consequences that can arise from a misapplication of its principles, but we do need to acknowledge that, outside of certain conferences, it is unlikely to make for scintillating cocktail chatter.
That noted, 2024 brings with it several structural changes to the support pillars of Australia’s administrative law system that are worthy of your attention. These include the establishment of a new administrative review body, the progression of reforms to Australia’s freedom of information (“FOI”) and privacy laws, the conclusion of the Royal Commission into Defence and Veteran Suicide, and an impending High Court judgment concerning procedural fairness.
In this article, Head of Regulatory Alistair Bridges and lawyer Emily Schilling provide an overview of the developments they consider indicate that 2024 may truly be the year of “out with the old, in with the new”.
Establishment of a new and improved Commonwealth merits review tribunal
The Administrative Appeals Tribunal (“AAT”) sits at the heart of Australia’s federal merits review process. First established in 1976, it enables Australians to seek reviews of government decisions, where they believe that the decision reached was not correct or preferable. Its jurisdiction is massive: the AAT can review decisions made under 400 acts and legislative instruments, on matters as varied as child support, taxation and national security laws. It is an important forum for assessing the legality, quality and appropriateness of government decisions.
However, in recent years the AAT has been criticised for its lengthy case finalisation delays, lack of transparency and increasing politicisation, with the current government labelling the AAT as “irreversibly damaged”. As a consequence, in late 2023, a bill was introduced into Parliament that would see the AAT replaced with a new and improved tribunal, the Administrative Review Tribunal (“the Tribunal”).
The legislation behind the establishment of the new Tribunal, the Administrative Review Tribunal Bill 2023 (Cth) (“the Bill”) and the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill (Cth) 2023, is currently being scrutinised by the House of Representatives Standing Committee on Social Policy and Legal Affairs. The opportunity to provide written submission to the Committee on closed on 18 January.
In its present form, the Bill contains a number of elements that are intended to make the Tribunal more user-focused, accessible, quicker, fairer and transparent than the AAT. The Bill outlines a merit-based selection process for appointing tribunal members, re-establishes the Administrative Review Council to monitor the integrity of the administrative law system, and establishes a new "guidance and appeals panel” within the Tribunal to consider matters raising significant administrative law issues and review decisions that may contain legal errors.
Under the new administrative review framework, the Tribunal will also be required to publish decisions (and the reasons for the decisions) involving significant conclusions of law or having significant implications for Commonwealth policy or administration. Whilst the AAT currently publishes various decisions, this is not a legislative requirement and there is no stipulation that decisions relating to significant conclusions of law or having significant policy or administration implications must be published.
The government will also appoint additional tribunal members to address the backlog of cases currently languishing in the AAT, as these cases will be transferred to the Tribunal once it is established.
The Bill is intended to be transformative. But, as disregarded new year’s resolutions can attest, transformation is not easy to pull off. Although the legislation that underpins an institution is of significant importance (of course we’d say that, we’re lawyers), it is only one aspect that drives its performance. Still, even if the reforms fall short of being “transformative”, if the new Tribunal can deliver a relatively fairer, more just and more transparent merits review system, it could be well worth the effort.
Pressure builds to overhaul the FOI system
The FOI Act is one of the marvels of administrative law. It is based on the simple proposition that everyone has a right to obtain access to documents held by a government agency or a Minister. However, government actions are, at times, lacking in fidelity to that principle. More pointedly, in December 2023 the Senate Legal and Constitutional Affairs References Committee (“the Committee”) labelled Australia’s federal FOI regime as “dysfunctional and broken”.[1]
This was the Committee’s assessment in its report regarding the operation of commonwealth FOI regime. The Committee made 15 recommendations aimed at promoting disclosure and removing barriers to accessing information under the commonwealth regime.
Significant recommendations from the report include:
- removing duplicative and unnecessary layers in the FOI appeals regime (including internal reviews and the need for Information Commissioner reviews to be sought before appealing to the AAT, or its replacement);
- introducing statutory timeframes within the Freedom of Information Act 1982 (“FOI Act”) for FOI reviews;
- separating the FOI function (including FOI Commissioner, FOI review and regulatory functions) out of the Office of the Australian Information Commissioner (“OAIC”) to the Commonwealth Ombudsman;
- including express wording in the FOI Act to clarify that documents of a former minister can be obtained under FOI; and
- introducing a whole-of-government campaign to encourage agencies to consider releasing information on request, outside the FOI process.
The government is due to release its response to the report in March 2024, so until then we will not know which recommendations, if any, are likely to get off the ground. The problems cited by the Committee are all too real – an agency that has a “flexible” approach to disclosure can easily justify non-disclosure with fig-leaf reasoning; appeals to the Information Commissioner of the OAIC can remedy this, however they can take months if not years to resolve, even in relatively simply circumstances. FOI applications are marathons rather than sprints.
The need for the government to tackle these issues are evident. In May 2023 the FOI Commissioner – the first fully dedicated non-“acting” Commissioner in over seven years – resigned his position approx. 12 months into a five-year term. At the risk of paraphrasing, one of the key reasons appears to be that the office of the Freedom of Information Commissioner lacked the power to make the reforms necessary ensure the timeliness of Information Commissioner reviews in a manner best promoted the object of the Act. Given that there is general support for “reform to ensure the effective operation of the FOI system”,[2] there is likely to be material developments in 2024.
Privacy regulations for the digital age
Personal information is big business. The Privacy Act 1988 (Cth) (“Privacy Act”), which deals with how personal information can be collected, used and stored, has been subject to extensive review by the Commonwealth Attorney-General’s Department (“the Department”) since 2019. Although changes to increase regulatory penalties and amend enforcement powers were made in December 2022, the federal government only announced last year that it was committed to introducing more substantive legislative reforms to the Privacy Act in 2024.
Anticipated reforms include those recommended in the Department’s Privacy Act Review Report. In September 2023, the Australian Government released its response to the Privacy Act Review Report where it “agreed” and “agreed in-principle” to over 100 recommendations, including:
- updating the definition of “personal information” from information "about” an individual to information that “relates to” an individual (which could foreseeably capture inferred and technical information about an individual, such as locational data);
- expanding the definition of “sensitive information” to include genomic information;
- narrowing the employee record exemption;
- introducing a children’s privacy code;
- creating a tort for the serious invasion of privacy;
- reducing the timeframe for which Notifiable Data Breaches must be reported within; and
- requiring the collection, use and disclosure of personal information to be objectively “fair and reasonable” in the circumstances.
The Australian Government has also “agreed in-principle” to remove the small business exemption for businesses with an annual turnover of AUD3,000,000 or less. If introduced, this means that many more businesses not presently covered, will be required to comply with the Privacy Act.
Given the likely expansion in scope of the Privacy Act, and its applicability to a range of businesses, including those based overseas and deemed to have an ‘Australian link’ (see our recent article on the ABCs of Privacy Act compliance for overseas organisations), now is the time to get across the requirements.
Conclusion of the Royal Commission into Defence and Veteran Suicide
Royal commissions are the highest form of public inquiry in Australia. Although established by the Commonwealth Government to address matters of government importance, royal commissions are run independently according to specific terms of reference. The terms of reference outline key areas of investigation for the commission. Royal commissions can conduct public and private hearings, issue notices to give information or produce documents, and engage in consultations to investigate relevant matters. Once the investigation is complete, the royal commission will issue a final report that sets out its findings and recommendations for change.
On 9 September 2024, the Final Report of the Royal Commission into Defence and Veteran Suicide is finally due to be released. The Royal Commission was established to conduct inquiries into the prevalence of defence members and veterans dying by suicide, including the identification of common themes and risk factors such as members’ mental health, culture within the Australian Defence Force and veteran rehabilitation. It therefore goes without saying that the Royal Commission has received much interest, particularly from those with lived experiences within the Australian Defence Force.
Since its commencement in July 2021, the Royal Commission has received over 5000 submissions from serving members and veterans, their families and friends, academics, organisations and other interested parties. It has conducted 11 public hearing sessions, and over 600 private sessions for people with lived experience. It will conduct one final public hearing in Sydney during March this year, as well as completing some 300 remaining private sessions.
Evidently, the content of the Final Report will be of significant interest, especially to those that have contributed to the Royal Commission. The recommendations made in the Final Report have the potential to noticeably change defence member and veterans’ access to compensation, rehabilitation and mental health services among other things.
Thankfully, we already have the benefit of the 2022 Interim Report to know the flavour of some findings and recommendations that are likely to be made. For example, the Royal Commission has already noted that the Australian Defence Force is marked by a culture of physical, psychological and sexual abuse, bullying and punishment. So, we expect that some recommendations will address the Australian Defence Force’s culture. As much evidence and consultation occurred since the Interim Report’s publication, close attention will still need to be given to the final recommendations that are made, and further attention given to the implementation of these recommendations.
Procedural fairness is once more before the High Court
Procedural fairness is a highly regarded matter in administrative law. So highly regarded that the obligation to provide procedural fairness to a party whose rights may be affected by an exercise of power will usually be implied into the legislation that governs that power. So highly regarded that, in many cases, a denial of procedural fairness will be considered sufficient material in and of itself to render the resulting exercise of power unlawful.
It is no wonder many judicial review applications are founded on alleged failure to afford procedural fairness. Because it is implied into legislation, the exact content of the obligation will depend on the context and the overarching statutory scheme. Much judicial review focuses on this point – yes, you were owed procedural fairness, but what does that mean in this instance?
A case before the High Court of Australia illustrates this nicely: AB (a pseudonym) & Anor v the Independent Broad-based Anti-corruption Commission. This relates to an investigation under the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) (“the IBAC Act”). The IBAC Act actually includes some provisions that deal with procedural fairness – including a requirement that where IBAC intends to include in a report an opinion which is adverse to any person, that IBAC will provide the person a reasonable opportunity to respond to the adverse material. Such a requirement is often implied into legislation in the manner discussed above. So, the question before the High Court relates to the definition “adverse material” in this instance – does it have a specific and narrow interpretation in the IBAC Act, or does it have a broader interpretation that the appellants argue has been recognised and implied in different legislation in the past. In other words, has the Victorian Government, by explicitly making provision for procedural fairness, limited the scope of that obligation?
Okay, admittedly this is probably more in the nerdy-minutia. But it is important. The existence and content of the obligation to afford procedural fairness materially governs the relationship between a person/entity who will be effected by a government decision and a decision-maker. Going into a regulatory process with an awareness of what that obligation is and an insistence that it be followed can lead to better outcomes, or where things go awry, a ground for judicial review.
Watch this space!
Have we piqued your interest? 2024 looks to be an exciting year for administrative law.
Moulis Legal will continue to monitor and report on any developments. If you have any questions about administrative law, please contact our Public and Administrative Law team.
This memo presents an overview and commentary of the subject matter. It is not provided in the context of a solicitor-client relationship and no duty of care is assumed or accepted. It does not constitute legal advice.
© Moulis Legal 2024
[1] Senate Legal and Constitutional Affairs Reference Committee, Parliament of Australia, The Operation of Commonwealth Freedom of Information (FOI) Laws (Report, December 2023) 87.
[2] Senate Legal and Constitutional Affairs Reference Committee, Parliament of Australia, The Operation of Commonwealth Freedom of Information (FOI) Laws (Report, December 2023) 108.
