Administrative justice - towards integrity in government.

• Jurisdiction: Australia
• Author: Creyke, Robin
• Date: 01 December 2007

[The concept of administrative justice--justice within the administrative law system is a relatively new one and has received less sustained attention in Australia than elsewhere. This article notes the history of the concept in Australia, how it is used, and examines which bodies should be subject to administrative justice. The most vexed issue, however, is how to assess whether administrative justice has been achieved. By what standard is administrative justice to be measured? The author has chosen a methodology based on that adopted by Australian researchers who mapped national integrity systems. Since administrative law bodies were among the government agencies selected for that research, the hypothesis is that a methodology which applies to the whole can apply equally to the parts. That methodology, was used to map the strengths and weaknesses of the administrative law system, and how coherently the system operates. The results showed that the coherence of parts of the system is questionable and that there are weaknesses in the system, but at the margins, not its core. Overall, the system was providing the outcomes for which it was established. The upshot is that although the definition of administrative justice remains elusive, a start has been made. The tools to undertake the task have been identified and it is now for administrative law institutions' and others in the administrative law community to build on these steps so that this concept--integral to the administrative law system can be better understood.]

CONTENTS I Introduction II The Modern System of Australian Administrative Law III The Concept of 'Administrative Justice' in Australia A 'Administrative Justice' in the Literature 1 Early Writings--The Kerr Committee Report 2 Later Developments B Administrative Law Institutions in Which Administrative Justice Applies 1 Early Writings 2 Later Articles, Chapters and Reports 3 Textbook Writers 4 Courts C Measuring Administrative Justice D A Culture of Administrative Justice IV Administrative Justice: Key Component of Integrity in Government A The NISA Study B NISA Methodology 1 Identification of Administrative Justice Institutions 2 Analysis of the Strengths and Weaknesses of the Institutions C Coherence of System V Conclusion I INTRODUCTION

The concept of 'administrative justice' is a relatively new one. Although the early practitioners in Australia's administrative law system used the expression, it went into abeyance in the late 1980s and did not re-emerge until the turn of this century. With its re-emergence, however, it is timely to explore its meaning. Despite its relative novelty in the lexicon, the importance of the concept has been widely appreciated. As Sir Anthony Mason put it, '[a]dministrative justice is now as important to the citizen as traditional justice at the hands of the orthodox court system'. (1) However, there appears to be no agreement in Australian discourse as to its meaning. The observation by Sir Anthony underlines another justification for exploring the concept. A heightened consciousness of human rights in Australia has fuelled an interest in identifying the extent to which individual elements of administrative law might be developing into some form of human right. (2) At the same time, there is recognition of a competing goal, namely, 'to maximise the common good' as expressed through statutory schemes affecting citizens. (3) The conflict between these views deserves an airing.

For the purposes of this article, it is accepted that the place of administrative justice is within that branch of the law known as administrative law. That is because it is through administrative law institutions and principles that administrative justice is provided. Independent and impartial review, and access to information held by government, epitomise elements of administrative law that contribute to just outcomes. (4) It is, therefore, within the precincts of administrative law that the exploration of this topic occurs.

How then is this expression understood in Australia? This article provides an historical examination of how the phrase 'administrative justice' has been used in Australian writing, including by judges and tribunal members. Next, certain questions are explored to see whether the answers assist with an understanding of the phrase's meaning. To which bodies should administrative justice apply? How should we assess whether administrative justice has been achieved? And, finally, how embedded in administrative culture is the administrative justice concept?

As an alternative approach to exploring the meaning of the concept of 'administrative justice', Part IV adapts methodology developed by Australian researchers for assessing national integrity systems. Administrative law bodies were constituent parts of the model referred to in the integrity system research, and the hypothesis is that a methodology which applies to the whole applies equally to its parts.

II THE MODERN SYSTEM OF AUSTRALIAN ADMINISTRATIVE LAW

Since this article is essentially about the administrative law system, a brief description of that system is provided as background. The 1970s and 1980s saw a remarkable transformation of administrative law in Australia. Under the enlightened guidance of a report by the Commonwealth Administrative Review Committee ('Kerr Committee'), (5) supplemented by reports of two other committees, (6) a comprehensive new approach to administrative law was adopted.

At the federal level, a codified form of judicial review was introduced in the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('ADJR Act'); the Federal Court was set up as a second tier judicial body below the High Court to nationally administer the newly defined judicial review jurisdiction; and a multipurpose merits review body, the Administrative Appeals Tribunal ('AAT'), was established. (7) There was to be a statutory right to reasons, (8) an Ombudsman, (9) and later a Freedom of Information Act 1982 (Cth) ('FOI Act') and a Privacy Act 1988 (Cth). The package included tribunals in a variety of specialist areas, generally where the demand for review was high, and the new structure was to be monitored by an Administrative Review Council ('ARC'). These new services and bodies were set up alongside existing common law rights of judicial review offered by courts, including the entrenched jurisdiction of the High Court to grant mandamus, prohibition and injunction. (10) In brief, this period in the 1970s and 1980s revolutionised the opportunities for the citizen to discover, be involved in, and challenge decisions made by government.

Subsequently, it became common practice for agencies to offer internal review as a precursor to external review. Moreover, other administrative law standards have been imposed through codes of conduct and service charters, and consultation with stakeholders has been introduced, especially in developing statutory rules. Collectively these changes have resulted in the formulation of standards for good administration which are now widely accepted and applied. (11) The question of the extent to which this system provides administrative justice lies at the heart of this discussion.

III THE CONCEPT OF 'ADMINISTRATIVE JUSTICE' IN AUSTRALIA

A 'Administrative Justice' in the Literature

Early Writings--The Kerr Committee Report

Although the expression 'administrative justice' does not appear in the reports that led to modern Australian administrative law, an embryonic form of that concept probably underpinned the proposals. Certainly, what has been accepted as a feature distinguishing 'justice' as provided by the courts, from 'administrative justice'--that justice to the individual has to be tempered by the needs of public administration--was a key principle underpinning the proposals. (12) As the Kerr Committee Report pointed out, the recommendations were designed to 'ensure the establishment and encouragement of modern administrative institutions able to reconcile the requirements of efficiency of administration and justice to the citizen'. (13)

However, despite the prominence of these underlying objectives, the Kerr Committee Report did not attempt to define 'administrative justice'. Nor did it address issues such as how to balance 'efficiency' with 'justice to the individual', whether these notions should apply across the spectrum of administrative law bodies and rights, by what criteria or standards should the balance between justice and efficiency be measured, and how to assess whether administrative justice was being achieved. These elements of administrative justice were left to later commentators.

2 Later Developments

The first attempt at a systematic analysis of administrative justice in Australia occurred in 1999 at the annual conference of the Australian Institute of Administrative Law, the theme of which was 'Administrative Justice--The Core and the Fringe'. Many facets of administrative justice were discussed, but as the editors of the resulting publication pointed out, the notion is an elusive one and '[t]hose seeking a definition of "administrative justice" will ... need to recognise that the essence of the concept is tempered by conflicting (and legitimate) interests.' (14) The closest thing to a definition is found in the introductory paper to the published proceedings, which concluded that 'administrative justice is a philosophy that in administrative decision-making the rights and interests of individuals should be properly safeguarded'. (15)

The juxtaposition of 'administrative' and 'justice' makes this uncertainty inevitable, since it involves balancing the distributive justice focus of public administration against individual interests. This is the central conundrum in assessing what is 'administrative justice'. That conundrum was discussed by Professor John McMillan in the context of the place of tribunals in the system of administrative review, albeit in...