50 years after the Kerr Report: Is Australian administrative law still fit for purpose? (Dr Janina Boughey)

I am happy to be cross-posting from the Australian Public Law blog a series of posts celebrating the 50th anniversary of the Kerr Report, a landmark report in Australian administrative law and one which forms part of a Commonwealth-wide wave of administrative law reform. The first post is by Dr Janina Boughey (University of New South Wales), who is leading this initiative.

This year marks the 50^th anniversary of the Report of the Commonwealth Administrative Review Committee, chaired by Sir John Kerr. The significance of that Report, and the reforms it led to, cannot be overstated. The Kerr Report detailed the limitations of the existing, ad hoc mechanisms through which administrative decision-makers were held to account, and recommended a suite of reforms which became known as the “New Administrative Law” package. That package included the Administrative Decisions (Judicial Review) Act 1977 (Cth), the establishment of the Administrative Appeals Tribunal (AAT), Commonwealth Ombudsman and Administrative Review Council (ARC), and a little later the Freedom of Information Act 1982 (Cth) (following several further reports).

The Kerr Committee was not the only law reform body in the Commonwealth to detail the problems with the common law principles of judicial review of administrative action, or the ad hoc and unsystematic approach to external merits review. For example, a Royal Commission in Ontario, Canada reached similar conclusions about the complexities and technicalities of judicial review at around the same time as the Kerr Report. The 1957 Franks  Report led to important developments in tribunal processes and oversight, and strengthened the role of tribunals in the UK. But the reforms which resulted from the Kerr Report are remarkable for a number of reasons:

• First is their scope and scale. The Kerr Report’s recommendations did not just strengthen one component of administrative law, but created a comprehensive system of ‘administrative responsibility’. The Kerr Report, and the Ellicott and Bland reports which followed it, led to the creation of two major new federal accountability bodies within the decade and laws which dramatically changed the expectations of governments to provide information about and justifications for their actions.
• Second is the support that the recommendations received from government. It is hard to think of other examples of recommendations made by law reform bodies being adopted so completely by parties across the political spectrum; particularly ones of this magnitude. Not to mention the fact that the reforms resulted in more government transparency and accountability!
• Third is their undoubted success, particularly in their early decades. The reforms made by the Commonwealth were replicated, and developed upon in the states and territories. Law reform bodies across the common law world have routinely cited them as examples of best practice, and drawn inspiration from Australia’s system of administrative law.

The reforms that resulted from the Kerr Report made Australia a leader in administrative law at the time.

But, to state the obvious, a lot has changed in the past 50 years. The way governments operate is different in many respects from the way they did in the 1970s:

• Governments now rely heavily on the private and community sectors to deliver services and provide policy advice. While some of our administrative law mechanisms have powers to hold government contractors to account, there are often major accountability and transparency gaps when government services are outsourced.
• Increasingly, government decision-making and service-delivery is being fully or partially automated. The recent experience of Robodebt highlights the many challenges that the design and use of automated systems by government can present for administrative law and its institutions.
• The laws administered by governments have increased in their volume and complexity.  As Lisa Burton Crawford has argued, one result of this is that the public is now heavily reliant on the information governments provide about laws in order to understand their rights and obligations. Yet our laws do not reflect this fact.
• The discretionary powers of governments have also expanded in response to global security and health threats; including  powers which allow the executive to deprive people of their liberty. These emergency powers have revealed gaps in the systems we rely on to hold governments to account.

Despite these significant changes to the way governments operate and the nature of their powers, the core elements of the New Administrative Law package remain fundamentally the same. There have been some reforms. Perhaps most significantly, the specialist migration and social security tribunals were amalgamated into the AAT in 2015. But the amalgamation has led to challenges and been described as a lost opportunity by Robin Creyke.

Other recommendations for reform have been ignored or, more concerningly, undermined. For instance, the FOI Act was strengthened in 2010, and an oversight body was established—but that body was shortly afterwards gutted of most of its funding. There has since been a discernible trend within the Federal Government to refuse to release documents  and information. The ARC has also been abolished, also by removing its funding rather than amending the law establishing it. These developments, in addition to perceptions of political stacking  of the AAT might reasonably lead to doubt about whether the political commitment to accountability and transparency that existed in the 1970s remains today.

Meanwhile, the courts have developed the common law principles of judicial review of administrative action in various ways, some of which have eclipsed the ADJR Act’s statutory reforms. The law in other Westminster, common law jurisdictions has also developed such that scholars have seriously queried whether Australian administrative law remains so cutting edge today as 50 years ago.

On the 50^th anniversary of the Kerr Report, it is thus worth asking the question of whether Australia’s system of administrative law is still fit for purpose. And if it is not, what reforms are needed to re-align our laws and administrative law institutions with the values that the Kerr Committee sought to protect?

Throughout 2021, we will be publishing a monthly blog series focussed on answering these questions. Our goal is to bring a wide range of perspectives to the topic. If you would like to contribute, please get in touch with Janina Boughey.

In addition to the blog series, the Gilbert + Tobin Centre of Public Law, through its Administrative Law and Justice Project, will be holding an online symposium in October (date TBC) to both celebrate the last 50 years of Australian administrative law and look forward to the future. Watch this space for details.

This content has been updated on March 23, 2021 at 20:48.