Democratic Governance: Improving the Institutions of Accountability

Hon Philip Ruddock MP

Minister for Immigration and Multicultural Affairs

Discussion Paper No. 68
September 1999

ISBN: 0 7315 3411 5
ISSN: 1 030 2190
Democratic Governance: Improving the Institutions of Accountability

This Discussion Paper was originally prepared as a public lecture which was delivered on 8 March 1999, as the opening lecture in a series on Democratic Governance: Improving the Institutions of Accountability organised by the ANU Graduate Program in Public Policy. The series involved public presentations on a number of Monday evenings from March to June 1999.
Other speakers included: Hon Bob McMullen, MP, on 'The responsibilities of opposition'; Harry Evans, Clerk of the Senate, on 'The Senate and Parliamentary Accountability'; Pat Barrett, Auditor-General, on 'Auditing in contemporary public administration'; John McMillan on 'The Courts and Government Decision-Making'; and Philippa Smith, former Commonwealth Ombudsman, on 'The Office of Ombudsman'.

The Program is grateful to the invited discussion openers who contributed so much to the effectiveness of the series through their comments and discussion: including Alan Ramsey of the Sydney Morning Herald ; Lauchlan MacIntosh of the Australian Automobile Association; Dr Marian Simms of the ANU; Sue Tongue of the Immigration Review Tribunal; and Verona Burgess of The Canberra Times.

John Uhr
Series Convenor

There is no doubt that the concept of accountability forms one of the cornerstones of any democratic society. Without appropriate checks and balances even the most well intentioned institutions in a democracy could fail to act in the best interests of the society of which they form a part.

The ideas that I wish to canvass with you this evening do not detract from this starting point.

Accountability is a central plank of many of the Coalition's policies. In my area of responsibility this has been made explicitly clear.

When the Government came to power in 1996 it took action to restore community confidence in the administration of the migration program by implementing initiatives to improve accountability and achieve procedural reform. Similarly, the Coalition's policy on post-immigration settlement also made it clear that accountability to the community through consultation was critical to the Government's ability to ensure that resources are distributed responsibly, for the purpose intended, and in accordance with objectively assessable criteria and mandatory accountability requirements.

Having said that what I wish to raise for your consideration tonight is that one of the greatest challenges facing the Government today is its obligation to the community to achieve an appropriate and workable balance between accountability which ensures justice and protection for individuals affected by Government decision making and actions on one hand and practical, efficient and lawful administration on the other.

A number of different accountability mechanisms operate in respect of contemporary Government. While these mechanisms are vitally necessary to safeguard individuals from arbitrary or unlawful administrative action, the Government considers it crucial that any overlap or duplication of services between accountability mechanisms be minimised to maintain community confidence, avoid unnecessary expense, ensure complementarity, and prevent misuse by individuals who engage accountability mechanisms for improper purposes - for example, in the immigration context solely to delay removal from Australia.

Before I discuss this issue in more detail, I would first like to say something about what accountability means and what accountability mechanisms operate in the Australian context.

I think we all have a feeling for what 'accountability' is. We think of the idea of being bound to give account or to explain our actions - of being responsible for those actions. There are a variety of different accountability mechanisms which operate in respect of government in Australia. Perhaps the prime mechanism, and one which we often forget is the responsibility that the Government of the day owes to the voters of Australia. There is no doubt that any Government is held to account when it faces the people at an election.

In addition to this in Australia the executive or the government are made to account or laid open to scrutiny by the following mechanisms, which I hasten to add are not listed in any particular order of significance or priority:

. the Parliamentary Committee system;

. the Commonwealth Ombudsman;

. the Human Rights and Equal Opportunity Commission;

. the Auditor-General and the Australian National Audit Office;

. the doctrine of Ministerial responsibility;

. independent merits review of governmental decisions; and

. judicial review

As you are no doubt aware, the Parliamentary Committee system comprises select committees, set up by special resolution for specific purposes, standing committees which are long term committees usually with more general watching briefs, and joint committees comprising Senators and members of the House of Representatives.

The most relevant to my portfolio are:

- the Senate Legal and Constitutional Affairs Committee which conducts hearings into the portfolio estimates and also inquires into and reports upon legislative proposals; and

- the Joint Standing Committee on Migration which inquires into and reports upon migration issues generally such as the current Sydney Olympic Games arrangements.

The Ombudsman's Office and the Human Rights and Equal Opportunity Commission, both independent statutory bodies, also function as external accountability checks on action by government in investigating complaints, making reports and recommendations. Action by these bodies can and does impact upon government in respect of the formulation, application and review of government policy, including legislative initiatives.

As a Minister of the Crown, by virtue of the doctrine of Ministerial responsibility, I am accountable to Parliament for my actions. While some might claim that the significance of this doctrine is apparently declining in more recent times, it has been given statutory recognition in each of my special public interest powers under the Migration Act . For example, I have a non-compellable discretion under each of sections 351 and 417 of the Migration Act to substitute a decision more favourable to an applicant than that of the Immigration Review Tribunal ('IRT') and Refugee Review Tribunal ('RRT') respectively. Where I choose to the exercise these powers I am required to lay before each House of Parliament a statement that sets out the relevant tribunal's decision, my substituted decision, the reasons for my decision and the reasons why my actions are in the public interest.
I now turn to the areas of migration and judicial review.

Administrative Law - Merits and Judicial Review

The administration of immigration laws has for many years, provided fertile grounds for the development of the administrative law requirements which apply across the whole range of government operations. The Government recognises the important contribution that a sound administrative law framework makes to our society. This was explicitly noted in the Coalition's Law and Justice Policy statement issued in February 1996. In this statement, the Coalition affirmed its commitment to the principle of administrative law, indicating:
administrative law exists to enhance administrative justice. It is a crucial means by which the government and the bureaucracy are directly accountable to individuals affected by their actions.
Since 1989 both the Labor and Liberal governments have put in place a world class system of independent merits review. Given the heightening of this accountability mechanism and the apparent abuse by applicants of the review processes, to buy time in Australia, a diminution in another important accountability mechanism - judicial review- has not only become appropriate but necessary.

It would be useful I think for us to spend a little time looking at the history of review of migration decisions and past governments' attempts - with disappointing results - to get the right checks and balances in migration decision making.

The pre-December 1989 Act

The pre-December 1989 Migration Act provided for very broad general discretions to grant and refuse visas and entry permits to applicants. These broad provisions were supplemented by departmental manuals that set out government policy and provided decision-makers with instructions on how to make decisions.
After substantial criticism by such bodies as the Administrative Review Council, Human Rights Commission (as it was then), the Committee to Advise on Australia's Immigration Policies (CAAIP) [1]
as well as the Courts, that these provisions were too vague and did not set out the basis on which a person would be granted a visa, the legislation was significantly changed.

In 1989 the Parliament amended the Migration Act to provide for a system entitling an applicant to the grant of a visa or entry permits where the applicant met the legislative requirements for grant. The policy manuals were replaced by the Migration Regulations , which for the first time set out codified criteria for the grant of a visa or entry permit, thus providing a fairer and more certain, open and accountable system for both applicants and decision-makers.

The 1989 amendments also provided, for the first time, a statutory merits review procedure for most migration decisions, by the Migration Internal Review Office ('MIRO') and the IRT.

It was envisaged that by removing the broad discretion of decision-makers, and replacing it with codified criteria for grant of visas, in conjunction with statutory merits review of certain decisions, that recourse to judicial review would be less necessary. Unfortunately this did not prove to be the case. In the early 1980s the Federal Court received only about 30 applications for review of migration decisions each year. By the end of that decade this had increased to about 100 applications each year, and by 1992 it was almost 200 per year.

The Migration Reform Act 1992

The Migration Reform Act made further significant amendments affecting both merits and judicial review. The most important features of this reform were the introduction of a detailed statutory code of procedures for most primary decisions, setting minimum standards for dealing with a visa application and the creation of a migration specific judicial review scheme.

The Administrative Decisions (Judicial Review) Act as well as s.39B of the Judiciary Act was replaced with Part 8 of the Migration Act , which removed certain grounds of review such as the grounds of natural justice, unreasonableness and relevant and irrelevant considerations because of a perception that the Federal Court was using these grounds as a means to engage in merits review. While Part 8 became the sole source of the Federal Court's jurisdiction to review migration decisions, the High Court retained its original jurisdiction.

In addition, independent merits review was extended to many decisions previously not covered - most significantly, the creation of the RRT to provide independent merits review of refugee determinations under Part 7 of the Migration Act . It was envisaged that the provision of comprehensive and independent merits review by the IRT and RRT would be both cheaper and faster than judicial review by the Courts.

The aim of these amendments was to provide a system that was for both decision-makers and applicants fairer and more certain. It was also intended to increase the accountability of decision-makers as well as providing clarity for all on how applications would be dealt with.

It is also useful to re-emphasise the previous Government's expressed intentions in introducing these amendments. In his second reading speech the then Minister for Immigration and Ethnic Affairs, Mr Gerry Hand, said this:
"Under the reforms, decision making procedures will be codified. This will provide a fair and certain process with which both applicant and decision-maker can be confident. Decision-makers will be able to focus on the merits of each case knowing precisely what procedural requirements are to be followed. These procedures will replace the somewhat open ended doctrines of natural justice and unreasonableness."
Provisions setting out the code of procedure, in conjunction with the disclosure provisions and merits review, would, the former Government believed, provide effective and comprehensive protection of the applicant's interests as well as providing decision makers with a standardised framework within which to operate. Again it was envisaged that with increased merits review, a more certain procedural framework, and reduced grounds of judicial review, there would be less need for applicants to seek judicial review, and less actual applications.

Has it Worked?

What has become of these expectations. In a recent submission to the Inquiry into the Migration Legislation Amendment (Judicial Review) Bill 1998 Mr Hand noted that these initiatives were developed in consultation with the community and initially enjoyed broad based community support. Mr Hand felt it 'ironic' that when negative decisions started to be made, the very same people who praised the creation of the independent RRT began to criticise it as not being truly independent and also began criticising the Government's initiatives to stop non-citizens from using the administrative and judicial review solely to delay their removal from Australia.

The hope that increased merits review, in conjunction with more certain procedures and reduced grounds for judicial review, would decrease the number of applications for judicial review has not been fulfilled. Applications for judicial review of migration matters may well exceed 1100 cases this financial year. This will come at a cost to the Australian taxpayer of some $11 million and that does not include the cost of running the courts.

Further, all has not turned out as expected with respect to the operation of Part 8. Despite the clear intention of Parliament to specifically exclude certain grounds of judicial review, the Federal Court has interpreted certain provisions of the Migration Act in a way which has allowed it to re-incorporate those grounds and rely on them to set aside decisions of the Tribunals.

The most significant of these are sections 353 and 420 of the Act. These provisions require that the IRT and RRT respectively are to act according to "substantial justice and the merits of the case" when conducting their functions. Those sections were intended to remove IRT, RRT and judicial attention from "processes", and ensure that the IRT and the RRT focused on the merits of the case. It was certainly not intended that they be used as a "back door" method of requiring that procedural fairness be observed by the RRT.

Until the decision of the Full Federal Court in Eshetu v MIMA [2]
, judicial authority on the matter was nearly evenly split, perhaps with a slight majority of Federal Court authority favouring the position that provision of substantial justice was not a "procedure" for the purposes of the Act. The Full Federal Court in Eshetu found that this is such a "procedure", and found that the RRT had denied substantial justice to the applicant. The High Court has now heard the Government's appeal in the Eshetu matter and its judgment is keenly anticipated. In the meantime, on the basis of what I consider to be mistaken reasoning in that case I am advised that as at January 1999, I have lost 28 cases before the Federal Court and been forced to withdraw from approximately 90 other matters.

The Government believes that in this matter and in some others the Federal Court has failed to maintain its proper role of undertaking judicial review. In some cases it appears that some form of merits review is going on under the disguise of judicial review. Fortunately, I am not the only one of that view. There are some indications that the High Court is concerned about judges engaging in merits review and it has admonished judges not to let the merits of cases intrude into their reasoning. For example in MIEA v Wu Shan Liang [3]
Brennan CJ, Toohey, McHugh & Gummow JJ stated:
'... the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court'.
In the same case, Kirby J stated:

'...The reviewing judge must be careful to avoid turning an examination of the reasons of a decision-maker into a review of the merits of the decision where the judge is limited to the usual grounds of judicial review...'
The High Court's continuing concern about the willingness of the Federal Court to engage in merits review can also be discerned from the remarks of two justices during the special leave application in MIMA v Eshetu [4]
. The following exchange took place with the applicant's barrister:

MR GAME (for ESHETU): In our submission, it just would not be appropriate to grant special leave for the purposes of asking whether or not, in the purported application of established principles, Justice Davies has in fact fallen into error, when those principles themselves are both acknowledged, recognised and regularly applied, and recently revisited by this Court in Wu.

GAUDRON J: That is really the worry, is it not, that notwithstanding that the principles have been stated by this Court, not only in Wu but in a number of other cases, whether in fact those principles are being applied [by the Federal Court].

GUMMOW J: Maybe one has to say it all again.
Just to recap for a moment, the Government's view of the current position is that there are continued instances of the Federal Court apparently engaging in merits review of migration decisions and through creative statutory interpretation, undermining the framework for judicial review of migration decisions specially enacted by the democratically elected Parliament. That legislative framework also provides for comprehensive and quality independent merits review of those decisions before judicial review.

Let us now look at what has occurred with applicants and whether they can be said to have acted responsibly.

There is evidence that delays associated with litigation are also growing, the average number of days between the date of application and judicial decision is:

. 337 for refugee cases as compared with 107 days in 1993-4; and

. 288 for non-refugee cases as compared with 259 days in 1993-4.

Further evidence of the use of the Courts as a tactic to delay departure can be gleaned from the fact that somewhere between 33-50% of all the applicants for judicial review withdraw prior to the Court hearing the matter. In addition, the Minister is successful in approximately 86% of those applications which do proceed to hearing.

I will illustrate this with one specific recent example of the use of the Court system to delay removal.

An applicant ('L') came to Australia in July 1988 on a business visa. He twice extended his stay on the basis he was investigating investments in the fishing import/export business between Australia and Korea. However, in February 1989 he overstayed the validity of his entry permit becoming an illegal entrant and he began working illegally. Later that year in December 1989 he sought permanent resident status on humanitarian and compassionate grounds. This application was refused in July 1990. He again overstayed becoming an illegal entrant and working illegally until he was detected by compliance officers in August 1994 and taken into detention.

He applied for a protection visa in December 1994. That application was refused by a Departmental delegate and Mr L applied to the RRT to review that decision in August 1995. The Tribunal affirmed the original decision and Mr L applied to the Federal Court for review of that decision in May 1996. Mr L was again unsuccessful before a single judge of that court and appealed to the Full Federal Court in May 1997. By ex tempore judgment handed down in October 1997 the Full federal Court dismissed Mr L's application. Undaunted Mr L then sort special leave to appeal to the High Court and again had his application rejected last month.

Full and determined use of both the merits review and judicial review mechanisms bought Mr L just over 4 years of additional time in Australia and at huge expense to the Australian taxpayer. Abuse costs taxpayers millions of dollars, undermines public confidence and disadvantages genuine applicants.

In terms of expense to the taxpayer, a single Protection Visa claimant whose application is refused, applies to the RRT, then appeals to the Federal Court, has one associated intervention request, and is then located, detained and removed from Australia, costs the taxpayer a minimum of $20,500 comprising:

It is almost frightening to consider what the cost would be where an applicant has, for no good reason, sought review by the Full Federal Court and the High Court.
Applications for judicial review have increased in number since the Migration Reform Act was passed, and continue to trend upwards as follows:
1994/95     nearly 400
1995/96     nearly 600
1996/97     740
1997/98     around 800
1998/99     1100*  (*Projected)
In summary, the legislative measures put in place in the past to ensure an appropriate balance between the accountability mechanisms of merits and judicial review have not been successful.
While I applaud the efforts that are being made by the Federal Court in Melbourne and Sydney to introduce new practices to expedite judicial review of migration decisions, I believe that the trend in rising applications will continue to the extent that the court will simply not be able to deal with them unless more robust action is taken.

With all of this in mind I asked my Department to explore options, in conjunction with the Attorney-General's Department, the Department of Prime Minister and Cabinet and eminent legal counsel, for best achieving the Government's policy objective of restricting access to judicial review. The advice I received from several eminent legal counsel was that the only workable option was a privative clause. I will discuss the privative clause bill in more detail later.

Lets now move on to merits review and the measures that the Government has put in place to ensure that this accountability mechanism operates efficiently and effectively.

Merits Review

Within 3 months of coming to office in 1996 I commenced a full review into the effectiveness and efficiency of migration decision making, particularly in relation to the review processes in the IRT and RRT.

This review confirmed the Government's concerns that the review processes were too slow and were being used by a significant number of applicants solely to delay their removal from Australia. It also highlighted that some tribunal members appeared to be labouring under a misapprehension that their independence from the Government meant they were under no obligation to be accountable for their productivity and the use of government resources.

In March 1997 I announced a package of reforms to the review processes to address these concerns. The reforms are now largely in place, with the final aspect to commence on 1 June 1999 with the creation of the Migration Review Tribunal (MRT).

Whilst tribunals are meant to be independent decision-making bodies and it is the role of the members of those tribunals to be impartial and free from bias in individual cases, it is not the role of the tribunals to determine migration policy. That is properly the role of the government of the day. Consequently, I would expect tribunals to be aware of and familiar with relevant government policy and the rationale underpinning it.

I also expect tribunals, in accordance with the decision of Justice Brennan (who later was to serve as Chief Justice of the High Court) in Re: Drake and the Minister for Immigration and Ethnic Affairs [5]
to follow government policy and give it due weight unless there is good reason not to. The proper application of Government policy helps foster consistency and equity in decision making. It is inappropriate for one applicant to succeed in a case while another in virtually identical circumstances fails merely because their applications were decided by different members of the same tribunal.

Further, where a tribunal chooses not to follow Government policy, I would anticipate there being sensible and sound reasons for so doing. The tribunal should also articulate those reasons. This way tribunals can make a positive contribution to improving the quality of decision making by highlighting areas of policy that might require adjustment or situations that require addressing.

Indeed, the failure of tribunals to give appropriate weight and regard to Government policy was a major impetus for Parliament to pass recent amendments to the Migration Act by the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 to provide me, as Minister, with the power to make directions to which decision makers must have regard and must act in accordance with. The amendment also removes any doubt that tribunals are required to take the directions into account and apply them.

The Migration Legislation Amendment Act (No.1) 1998 merges the current three portfolio review bodies into two review tribunals. As you may be aware, currently protection visa (refugee) applications are processed in a two-tier decision-making structure. The primary decision on an application is made by a delegate within my department. If unsuccessful, an applicant can seek review by the RRT.

In non-refugee cases, most other migration applications currently have a three-tier merits assessment process, with a primary decision by my Department, a Departmental review by the Migration Internal Review Office or "MIRO", and an independent review by the IRT.

The changes will bring all migration processing into line so that there is a two-tier merits assessment of applications in all review cases. This will be done by merging MIRO with the independent IRT from 1 June 1999. The RRT will remain a separate body dealing exclusively with review of Protection Visa applications.

I should emphasise that no existing rights of review will be lost as a result of these changes - a person who has a right of review before MIRO or the IRT at the time these bodies are merged will retain a right of review before the new MRT.

The changes will also give the Principal Member of the RRT and the new MRT the power to make directions with regard to efficient processing procedures. Such directions will be given for the purpose of speeding up the review process and ensuring that applicants are given a quick decision on their application. The Members of the Tribunals will be bound to comply with such directions. The Principal Member will not have the power to direct a particular outcome in any case, and, as I stated in Parliament, the Principal Member will not have any power to give policy directions.

The Principal Member of the Tribunal will also have the power to reconstitute the Tribunal in order to increase the efficiency of processing. While the reconstitution power is expected to be used rarely, the existence of this power is expected to increase the efficiency of reviews undertaken by the Tribunals.

Another change will be the introduction of a "Code of Procedure" for the Tribunals. The Code of Procedure replaces the somewhat uncertain requirements to accord procedural fairness with definite procedural steps which broadly equate to the common law requirements.

It must be remembered that the Code establishes a minimum requirement - there may be circumstances where it is considered appropriate to provide, for example, more information or additional time, than is strictly required by the code.

In the interest of taxpayers and genuine applicants, tribunal procedures need to be fair, just, economical, informal and quick. In this regard:

. The MRT is expected to be able to complete most reviews in at least half the time currently taken by MIRO and the IRT - down from an average of 16 months in 1997-98 to no more than 6 to 8 months.

. The RRT's productivity will also be improved, allowing it to reduce its backlog of cases and reduce still further its average review time - currently the RRT resolves 77% of its cases within 118 days compared with 66% in 1996-97.

The Privative Clause

It was against the background of these merits review reforms that the government decided to enact the Migration Legislation Amendment (Judicial Review) Bill 1998 ('the privative clause bill') to introduce a privative clause to complement the changes to the merits review systems that will make visa processing arrangements substantially more streamlined and cost-effective. It will also seek to achieve the right balance in accountability mechanisms in relation to migration decisions.

I consider that a privative clause is the best way of ensuring that genuine applicants receive protection quickly and to reduce the incentive for those seeking to abuse the system.

As you would know section 75 of the Commonwealth Constitution gives the High Court original jurisdiction to consider challenges to the actions and decisions of Commonwealth officers, access to the High Court cannot be legislatively restricted without a Constitutional amendment.

While both access to, and the scope of judicial review by, the Federal Court can be changed by legislation, to simply restrict access to the Federal Court in migration legislation matters would in practice deflect many cases to the High Court under section 75 of the Constitution. Legal counsels' advice was that a privative clause would have the effect of narrowing the scope of judicial review by the High Court, and of course the Federal Court. That advice was largely based on the High Court's own interpretation of such clauses in the Hickman case[6]
long ago in 1945 and more recently in the Richard Walter case [7] in 1995, and the Darling Casino Case [8] in April 1997.

The judgement of Justice Dixon in the Hickman case is authority for the proposition that privative clauses such as that to be inserted into the Migration Act will protect decisions from being set aside, so long as:

. It is a bona fide exercise of power by the decision-maker

. The decision relates to the subject matter of the enabling legislation

. It is within constitutional power.

In other words, the effect of a privative clause such as that used in Hickman's case is to expand the legal validity of the acts done and the decisions made by decision-makers. In practical terms it narrows the scope of judicial review to that of narrow jurisdictional error and mala fides . The options available to the Government were very much shaped by the Constitution. While I accept that the precise limits of privative clauses may need examination by the High Court, there was no other practical option open to the Government to achieve its policy objective.

It is useful to note and address some of the objections to the privative clause raised to date during the Senate Legal and Constitutional Legislation Committee hearings dealing with the proposed privative clause legislation.

It has been suggested that the privative clause is unconstitutional and possibly in breach of the separation of powers required by the Constitution. The Government obtained extensive and detailed advice from the Attorney-General's Department and eminent members of the private bar on this matter, and all the advice received from eminent legal practitioners made no suggestion that the privative clause was unconstitutional, or that it would offend the important principle of the separation of powers.

It has been suggested to the Senate Committee that a leave requirement would achieve the Government's aims of restricting judicial review to "exceptional circumstances" and remove unmeritorious cases at an early stage. However, while the Government has the power to place a leave requirement on the Federal Court, it does not have this power with respect to the High Court. The Registrar of the Federal Court in his evidence to the Committee indicated he expected Federal Court judges would want to hear applications for special leave. Accordingly, a leave provision could effectively double the number of hearings before the Federal Court, thus increasing costs and delay. On this basis, it was not viewed as a viable option.

The risk that a genuine refugee could be refouled without access to judicial review was also raised. However, the Government considers that any increased risk is minimal. It is considered that the RRT will act knowing that it is the last level of review and decide the applicant's case accordingly. I will also retain my special power to intervene and grant a visa where the public interest warrants this step.

My Department has also received legal advice to the effect that the privative clause is consistent with Australia's international obligations.

I emphasise once again that the privative clause is viewed as the only means by which the ever-increasing costs of and delays in litigation of migration matters can be decreased, and abuse prevented. The Government believes that in accountability terms, the privative clause will bring about a better and more appropriate balance between the dual accountability mechanisms of merits and judicial review.

Criticism of Federal Court Judgments

In a speech to the National Press Club titled 'Immigration Reform: The Unfinished Agenda' on 18 March 1998 I suggested that the courts have reinterpreted and re-written Australian law and ignored the sovereignty of Parliament and the will of the Australian people.

In a speech to Parliament in December last year I again raised this concern. This statement attracted much media attention but in context it arose out of a line of argument I was putting about the need to differentiate between merits and judicial review.
My comments caused some controversy and were interpreted as representing an attack on the rule of law, the separation of powers, and judicial independence.

I do not accept this characterisation. Judicial independence does not mean freedom from scrutiny and people are entitled to analyse a judgment of a court and express their opinion on it. I see this as in no way attacking or undermining the independence of the Judiciary - criticisms of the judiciary by a Minister are not out of place in a robust democracy which permits freedom of speech and encourages free exchange of views. It in no way undermines the ability of a court to scrutinise administrative action.

Where the cases raise significant issues, I have appealed these judgments to superior courts. Again, some people have felt it improper for the Government to question, through appropriate judicial processes, those earlier decisions.

In contrast, I note that the judiciary have on occasion offered personal observations as to the appropriateness of validly made legislative measures enacted by a democratically elected Parliament. By way of example, one judge in expressing views on Part 8 of the Migration Act 1958 ('the Act') has variously stated:

'So zealously does the Australian Parliament desire to implement its United Nations Treaty obligations to assist refugees, that it has enacted legislation specifically to ensure that it is acceptable for a decision on refugee status to be made by the tribunal which not merely denies natural justice to an applicant but also is so unreasonable that no reasonable decision-maker could ever make it.'


'Hence, I am constrained by the legislature to sit idly by while injustice is done.'

In my view Australia's vigorous democratic system entitles Ministers to question some judgments, and to seek their review by superior courts. Where appropriate, this can include salient comment upon, or valid criticism of, judicial decisions - especially since the judiciary can, and does, criticise both Parliament and the Executive.

It would be difficult for the Government to articulate the rationale behind, and the context of its policy commitment, without some comment on the problems the reforms are intended to overcome. In turn this would hinder the Government's ability to discharge its obligations to the people of Australia to be accountable for its actions and its policy initiatives.

Balancing Accountability Mechanisms

I began this speech by raising the point that one of the greatest challenges facing the Government today is its obligation to the community to achieve an appropriate and workable balance between accountability and practical, efficient and lawful administration. I placed a particular emphasis on the Government's reforms in the immigration and multicultural affairs portfolio.

Getting this balance right may mean that certain imperatives make one accountability mechanism viable while another is inappropriate or that access to one mechanism should be reduced to avoid duplication, unnecessary expense and abuse by individuals for improper purposes, such as delaying their removal from Australia.

What underlies these changes is the government's desire to get a fair and economical process that allows individuals the opportunity to have independent review while, particularly in the immigration context, preventing the manipulation of review mechanisms (at great expense to the taxpayer) purely and simply to delay removal.


[1] Administrative Review Council, Review of Migration Decisions, ARC report No. 25 AGPS, 1986; Human Rights Committee Human Rights and the Migration Act 1958, HRC report No. 13, AGPS, 1985; Committee to advice on Australia's Immigration Policies, Immigration A Commitment to Australia , AGPS, 1988.
[2] (1997) 145 ALR 621
[3] (1996) 136 ALR 481
[4] (13 March 1998)
[5] Re: Drake and the Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634
[6] R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598
[7] Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168
[8] Darling Casino Ltd v NSW Casino Control Authority (1997) 145 ALR 55

Public Policy Program Discussion Papers

The Public Policy Program publishes occasional Discussion Papers by staff, students, visitors and others associated with the Program.

In November 1997 the program began making electronic copies of most recent Discussion Papers available to be down loaded from the program's website at (*marked below with an asterisk).

Enquiries should be directed to: The Editor, Discussion Papers, Public Policy Program, Australian National University, Canberra ACT 0200.

Papers published thus far are:

No. 1 Larry Dwyer, Estimating the Lifesavings Benefits of Controls on Hazardous Wastes: Two Problems for the Policymaker. (July 1986)

No. 2 Jane Marceau, Unequal Returns: Aspects of Opportunity in Australia. (October 1986)

No. 3 Rolf Gerritsen, Making Policy Under "Uncertainty": The Labor Government's Reaction to the "Rural Crisis". (February 1987)

No. 4 Eleanor Moses, The Oil Price Fall of 1986. (July 1987)

No. 5 P J Forsyth, Productivity Measurments in the Public Sector. (August 1987)

No. 6 Rolf Gerritsen, What Do Budget Outcomes Tell Us About the Australian States? (September 1987)

No. 7 Rolf Gerritsen, Collective Action Problems in the Regulation of Australia's Common Property Renewable Resources. (October 1987)

No. 8 Neil Marshall, Bureaucratic Politics and the Demise of the Commonwealth Tertiary Education Commission. (March 1988)

No. 9 Charles Maskell, Does Medicare Matter? (May 1988)

No. 10 Ray Jureidini, Public Policy and Marketplace Discrimination: Life Insurance and Superannuation. (June 1988)

No. 11 Roger Wettenhall, Overlapping Public Sectors; Notes on Foreign Public Enterprise Activity in Australia. (July 1988)

No. 12 Deborah Mitchell, Assessing the Adequacy of Social Security Payments. A Study Using U.K. Data. (August 1988)

No. 13 Rolf Gerritsen, Informing Wilderness Policy: The Distributional Implications of Conservation. (January 1989)

No. 14 Christine Fletcher, Isolated Aborigines and Road Funding Policies in Western Australia. (March 1989)

No. 15 Rolf Gerritsen, A Comment on the Appropriate Assignment of Policy Powers in the Australian Federation. (November 1989)

No. 16 Deborah Mitchell, Comparative Measures of Welfare Effort . (January 1990)

No. 17 Ann Cronin, Trends and Tensions in Performance Evaluation in the Public Sector. (February 1990).

No. 18 Deborah Mitchell, Comparing Income Transfer Systems: Is Australia the Poor Relation? (May 1990)

No. 19 John Uhr, Ethics in Government: Public Service Issues. (June 1990).

No. 20 Peter Cochrane & Rolf Gerritsen, The Public Policy Implications of Eucalypt Plantation Establishment: An Introductory Survey. (September 1990).

No. 21 F G Castles & D Mitchell, Three Worlds of Welfare Capitalism or Four? (September 1990)

No. 22 Francis Castles & Michael Flood, Divorce, the Law and Social Context: Families of Nations and the Legal Dissolution of Marriage. (January 1991)

No. 23 Rolf Gerritsen, The Impossible 'Politics' of Microeconomic Reform. (February 1991).

No. 24 Duane Swank, Electoral and Partisan Influences on Australian Fiscal Policy From Menzies to Hawke. (May 1991)

No. 25 Francis Castles, On Sickness Days and Social Policy. (July 1991)

No. 26 Adrian Kenneth Noon, The Negligible Impact of Specific Purpose Payments and Australia's 'New Federalism'. (August 1991)

No. 27 Kerry Barwise & Francis G. Castles, The 'New Federalism', Fiscal Centralisation and Public Policy Outcomes. (September 1991)

No. 28 Francis G. Castles & Jenny Stewart, Towards Industrially Sustainable Development? Industry Policy Under the Hawke Government. (October 1991)

No. 29 Stephen Albin, Bureau-Shaping and Contracting Out: The Case of Australian Local Government. (January 1992)

No. 30 Adrian Kenneth Noon, Determining the Fiscal Policy Time-Frame: the Dominance of Exogenous Circumstances. (February 1992)

No. 31 Christopher John Eichbaum, Challenging the Intellectual Climate of the Times: Why the Reserve Bank of Australia is Too Independent? (January 1993)

No. 32 Joan Corbett, Child Care Provision and Women's Labour Market Participation in Australia. (February 1993)

No. 33 Francis G. Castles, Social Security in Southern Europe:
A Comparative Overview. (March 1993)

No.34 Francis G. Castles, On Religion and Public Policy: Does Catholicism Make a Difference? (April 1993)

No.35 Rolf Gerritsen, "Authority, Persuasion and Exchange" (Revisited): The Public Policy of Internationalising the Australian Economy. (August 1993)

No.36 Deborah Mitchell, Taxation and Income Redistribution: The "Tax Revolt" of the 1980s Revisited. (September 1993)

No.37 Kim Terrell, Desperately Seeking Savings, Performance and Accountability. Policing Options for the Australian Capital Territory. (September 1993)

No.38 Francis G. Castles, Is Expenditure Enough? On the Nature of the Dependent Variable in Comparative Public Policy Analysis. (February 1994)

No.39 Francis G. Castles, The Wage Earners' Welfare State Revisited: Refurbishing the Established Model of Australian Social Protection, 1983-1993. (March 1994)

No.40 Francis G. Castles, Testing the Limits of the Metaphore: Fordist and Post-Fordist Life Cycles in Australia and New Zealand. (May 1994)

No.41 Louise Watson, Making the Grade: Benchmarking Performance in Australian Schooling. (August 1994)

No. 42 Siwan Lovett, Evaluating Reform of the New Zealand Science, Research and Development System: New Deal or Dud Hand? (September 1994)

No. 43 Choon Fah Low, An Evaluation of the Impact of the ANU's Graduate Program in Public Policy on its Student's and Graduate's Careers. (October 1994)

No. 44 Einar Overbye, Different Countries on a Similar Path: Comparing Pensions Politics in Scandinavia and Australia . (August 1995)

No.45 Grant Jones, Games Public Servants Play: The Management of Parliamentary Scrutiny Before Commonwealth Estimates Committees. (August 1995)

No.46 Stephen Horn, Disagreeing About Poverty: A Case Study in Derivation Dependence . (August 1995)

No 47 Douglas Hynd. Concerned with Outcomes or Obsessed with Progress? Characteristics of Senate Committee Reports During the Period 1990-1994 . (September 1995)

No. 48 Pip Nicholson. Does the System of Appointing Australian High Court Judges Need Reform? (November 1995)

*No. 49 Fred Argy, The Balance Between Equity and Efficiency in Australian Public Policy (November 1996)

*No. 50 Deborah Mitchell, Family Policy in Australia: A review of recent
developments. (March 1997)

*No. 51 Richard Mulgan, Contracting Out and Accountability . (May 1997)

*No. 52 Cynthia J. Kim, Will they still pay up-front? An analysis of the
HECS changes in 1997 (May 1997)

*No. 53 Richard Mulgan, Restructuring -The New Zealand Experience froman Australian Perspective (June 1997)

*No. 54 P.N. Junankar, Was Working Nation Working? (July 1997)

*No. 55 Deborah Mitchell, Reshaping Australian ?Social Policy: alternatives to the breadwinner welfare state (December 1997)

*No. 56 Irene Krauss, Voluntary Redundancy from the Australian Public Service-its impact on people and families in the ACT (March 1998)

*No. 57 Peter Taft, Does who wins matter more or less? An analysis of major party candidate views on some aspects of economic policy, 1987-1996 (July 1998).

*No. 58 Elise Sullivan, A Case Study In The Politics Of Retrenchment: The 1997 Coalition Residential Aged Care Structural Reform Package (November 1998).

*No. 59 Richard Mulgan, Have New Zealand's Political Experiments Increased Public Accountability * (January 1999).

*No. 60 Michael Bergmann, The Snowy Mountains Hydro-Electric Scheme: How did it Manage Without an EIA? (Februaary 1999)

*No. 61 Clive Hamilton, Using Economics to Protect the Environment (March 1999)

*No. 62 Withers, Glenn Essays on Immigration Policy (March 1999)

*No. 63 Withers, Glenn A Younger Australia (March 1999)

*No. 64 McMullan, Bob; Shadow Minister for Industry and Technology, The Responsibilities Of Opposition (May 1999)

*No. 65 Evans, Harry, Clerk of the Senate, The Senate And Parliamentary Accountability (June 1999)

*No.66 Barrett, Pat, AM, Auditor General for Australia, Auditing in contemporary public administration , (June 1999)

*No.67 Enfield, Samantha, Public Sector Restructuring and Community Consultation in the Australian Capital Territory: Can Old and New Public Policy Trends Work Together? , (September 1999)

*No.68 Barrett, Hon Phillip, MP, Minister for Immigration and Multicultural Affairs, Democratic Governance: Improving the Inistitutions of Accountability, (September 1999)

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