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In this issue ...
Focus Articles 1
Report No 42, The Contracting Out of Government Services 1
Backgrounder to the Report 1
Opening Speech at the Launch of the Report 3
The Contracting Out of Government Services - Final Report: A Salutation 6
Report No 43, Administrative Review of Patents Decisions 13
Backgrounder to the Report 13
Limitations on section 43 of the Administrative Appeals Tribunal Act 1975 15
The Decision-maker's Obligation to Provide a Statement of Reasons, Fact 19
and Evidence. The Law
Admin Law Watch 33
Administrative Law Developments in the Migration Area: The Trend Towards 33
'Needs to Know' - Own Motion Investigation into the Administration of the 36
Freedom of Information Act 1982 in Commonwealth Agencies by the Commonwealth Ombudsman
Superannuation Complaints Tribunal 37
Federal Magistrates Service 38
ALRC Discussion Paper on the Federal Civil Justice System 40
UK Standing Conference on the Resolution of Citizens' Grievances 40
Tribunal Watch 41
AAT New Jurisdictions 41
New Body for Merits Review of Migration Decisions 44
Amendments to Human Rights Legislation 45
ART Proposal Delayed 46
Important Decisions 47
Abebe v The Commonwealth 47
Attorney-General v Oates 48
Barratt v Howard and Moore-Wilton 49
Browne v Minister for Immigration and Multicultural Affairs 50
Minister for Immigration and Multicultural Affairs v Eshetu 50
R v Secretary of State for the Home Department; Ex parte Behuli 51
Secretary, Department of Social Security v Jordan; Secretary, 52
Department of Social Security v Jiang
Singh v Minister for Immigration and Multicultural Affairs 53
Sook Rye Son v Minister for Immigration and Multicultural Affairs 54
Tien and Others v Minister for Immigration and Multicultural Affairs 54
ARC Update 56
Submissions and Letters of Advice 56
Current Work Program 56
Government Response to Senate Committee Report on the Role and 57
Functions of the Council
Members' News 58
Recent Publications 61
Books and Reports 65
Report No 42, The Contracting Out of Government Services
The next three articles deal with the Council's Report No 42, The Contracting Out of Government Services. The first article provides some background to the Report. The subsequent articles are edited texts of speeches presented at the launch of the Report, on 27 November 1998. Copies of the Report can be obtained by contacting the Council's Secretariat on tel (02) 6250 5800, or by visiting the Council's website at law.gov.au/arc.
Backgrounder to the Report
Recent years have seen substantial developments in the way in which the Commonwealth Government carries out its business. In particular, the Government has expanded the role of contractors in the delivery of services that were previously the domain of government. This has generally been achieved by way of establishing a contractual relationship between the Government and a service provider.
However, by moving the delivery of services from the public to the private sector, the ability of the existing administrative law system to achieve administrative justice has been challenged.
For this reason, the Council undertook a comprehensive review of the administrative law implications of the contracting out of government services. The recommendations adopted by the subsequent report, Report No 42, The Contracting out of Government Services, were informed by two central principles:
The Council also considered that the Government, rather than individual contractors, should normally be responsible for ensuring the accomplishment of these principles.
The Report found that the current administrative law system is incapable of dealing with the provision of services by a non-government entity.
Further, it was found that alternative avenues of redress, in lieu of traditional administrative law remedies (such as contract and tort law, consumer law, and industry complaints schemes), do not adequately fill the gap. The Report found that, as a consequence, there has been a substantial reduction in individual rights and government accountability associated with contracting out.
The Report then went on to make a number of recommendations on how the contracting-out phenomenon can be managed, to incorporate appropriate administrative law precepts. These included:
At the launch of the report on 27 November 1998, Professor Marcia Neave AO, then President of the Administrative Review Council, and Ms Robin Creyke, a Reader in Law at the Australian National University, spoke to the new Report. Copies of these speeches are extracted below.
Opening Speech at the Launch of the Report
Professor Marcia Neave AO*
Distinguished guests, ladies and gentlemen, I am delighted to welcome you to this launch of the Administrative Review Council's Report on The Contracting Out of Government Services.
There have been dramatic changes in government administration over the past ten years. Both Australian and overseas governments are moving away from direct service provision, towards funding the provision of services by corporatised entities or by private contractors. At Commonwealth and State levels, the services provided by contractors to members of the public and paid for by government range from debt collection to the provision of utilities such as gas and electricity to the provision of human services - for example, job placement and rehabilitation services.
In Australia, the relationship between the Commonwealth Government and individual members of the community, is regulated by administrative law. Our package of reforms, which was introduced during the 1970s, is regarded as a model by many overseas commentators. Commonwealth administrative law has influenced law at the State level as well. Many elements of the Commonwealth administrative law system - for example, an independent Ombudsman to investigate claims of maladministration by government, and freedom of information legislation which gives the public broad rights of access to government documents - have been adopted by most State governments.
The administrative law system has three important objectives. First, it gives individuals redress if they are affected by incorrect decisions or wrongful government action. Secondly, by providing a means of correcting decisions it helps to improve the quality and effectiveness of government administration. Finally, it is an important means of ensuring the accountability of government to its citizens.
Although the 1970s reforms show that Australia takes administrative justice and government accountability seriously, they were not designed to deal with the new forms of administration which have begun to emerge today. Contracting out blurs the distinction between the public and the private sector, creating new relationships between government, citizen and private sector contractor. The existing administrative law package was not designed to deal with these relationships and cannot provide adequate remedies for citizens in this context. Similarly the private law remedies that have traditionally applied in the market place are inadequate to ensure the accountability of government and private sector providers in the contracting out situation, when the government pays for contractors to deliver services to the public.
Let me illustrate the problem. Suppose that, as a result of an administrative mistake, an individual is denied access to a service or a benefit to which he or she is entitled under the law. Generally, that person can have the decision reviewed by an independent tribunal. Similarly, if a person has a complaint about maladministration of a government program, they can obtain access to information held by the government department and can also complain to the Ombudsman. These remedies allow individuals to correct administrative mistakes and test the lawfulness and merits of decisions affecting them. They also enable the identification of systemic problems, thus improving the quality of administration.
By contrast, if the decision is made, or the service provided by a contractor under a purchaser/provider arrangement, none of these administrative law remedies may be available. An individual with a complaint about the quality of the service may have no private law remedies either, because normally there will be no contractual relationship between the individual and the service provider. The individual may not be able to take the matter to a small claims tribunal or an industry body, because the contractor's primary relationship is with the agency purchasing its services. In some cases the government department or agency may be prepared to help the individual solve the problem, but there is the possibility that both the contractor and the agency may deny responsibility for it and 'pass the buck' Thus, contracting out can result in service recipients falling into a gap between administrative law and private law, so that there may be no effective remedies available to them.
It is this problem that the report on The Contracting Out of Government Services attempts to address.
So far as I know, there has been no other report systematically examining these issues in any other common law country. For this reason, our project has generated great interest, both in Australia and from overseas.
The Report is based on two fundamental principles:
I will not speak in detail about how we give effect to these principles, but let me mention three important areas.
First, the Report looks at the agencies' obligation in relation to drafting, management and monitoring contracts. Getting the contract right is an important means of ensuring government accountability and giving remedies to individuals.
Secondly, the Report deals with the kinds of complaint handling procedures that need to be established and recommends that the Ombudsman should be able to investigate complaints about contractors.
Thirdly, the Report makes recommendations for changes to laws dealing with access to information. These are designed to ensure that information is not removed from the public domain simply because of contracting out.
Australians are renowned for our inventiveness. This extends beyond the invention of things, such as the stump-jump plough, to legal reforms like the Torrens system of land and the administrative law system. Contracting out provides new challenges for government and law. In this Report we seek to respond to that challenge, by providing a fair, efficient and cost-effective system for maintaining government accountability and providing justice to individuals.
The Contracting Out of Government Services - Final Report: A Salutation
I was delighted to be asked to speak on the occasion of the launch of the Administrative Review Council's Report The Contracting Out of Government Servicesi- not least because I had had a small - and I emphasise small - part to play in its gestation.ii
That experience was sufficient to give me a healthy respect for the task that lay ahead of the Council. The Council was established to monitor the development of Australian administrative law.iii The contracting out reference entailed work in areas not usually covered in Council reports or opinions. Not only did the Council have to assess the strengths and weaknesses of major areas of private law,iv but it also had to take account, in a more direct sense than usual, of the current economic and policy objectives of government and, in particular, the devolution of government services.v
In congratulating the Council on its final Report let me say that I believe that the Council has managed to synthesise the disparate and unfamiliar sources into a workable document. The Report should ensure that private sector contractors adhere to those principles that the public has come to expect from government. In other words, as the President of the Council, Professor Marcia Neave, has said, the recommendations, if accepted, will mean that those high standards which we expect of the public sector - both as citizens and as taxpayers - will continue to be exhibited by the new private sector agents of government.
It has been common to hear administrative lawyers say that contracting out marks the end of the administrative law industry. Such doomsaying is premature and this Report indicates why. This Report will, I believe, make a significant mark on the debate - and it deserves to do so because it is a strategic document - in the best sense of those words.
When faced with the question - how is administrative law to respond to the program for contracting out government services, that is, how are these new, private sector providers of government services to be made accountable, the Council had at least three options:
The first of the Council's strategic decisions was to choose the third option. In doing so, the Council has acknowledged four things:
That is not to say that others of the options are not useful in particular contexts. For example, governments generally have accepted that the welfare arm of government must remain a primary government responsibility. Hence, the second option - to impose the panoply of administrative law measures on private contractors as full agents of government - has already been adopted for the contracting out of decisions in income support matters by deeming those decisions to be made by public sector officers.vi That is, therefore, not a major issue in this paper. The Report, for the most part, deals with services other than those in the employment and welfare sectors.
The second strategic decision was to emphasise the use of machinery from the 'lower end of town'. In other words, the Report recommends that citizens complaining about actions or decisions by private sector agents performing government functions should have access to the cheaper, quicker and most accessible of the remedies available in both the public and private sectors. Courts are to be used only as a last resort. That represents a considerable change from traditional public sector thinking about accountability measures. It is no accident that Chapter 6, which deals with review of decisions by courts and tribunals, occurs three-quarters of the way through the Report.
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