Report of the Executive Committee to the Annual General Meeting of the Australian
Institute of Administrative Law – November 2006 to November 2007
1. Introduction
“The principal objects of the Institute are to
promote knowledge of and interest in Australian Commonwealth, State and Territory
administrative law and to provide a forum for exchange of information and opinions on all
aspects of administrative law and administrative practices.”
AIAL Website – November
2007
In striving to achieve these admirable objects, the Institute has continued during
2007 to maintain its position and reputation as the pre-eminent promoter of knowledge of,
and interest in, administrative law across all Australian jurisdictions. It has also, during
the last year, clearly met its object of providing a forum, in fact several forums
nationally, for the exchange of information and opinions on administrative law.
In
her report to the AGM last year, the then President Professor Robin Creyke listed what she
referred to as “sectoral administrative law bodies” with which the Institute now competes.
Without taking anything away from the role of such sectoral bodies, it is important to note,
and to celebrate, as I did in my opening address at this year’s National Administrative Law
Forum, the unique combination of breadth and depth of the Institute’s scholarship and
administrative law outreach activities.
As the cover of AIAL Forum modestly
boasts, we cover tribunals, courts, privacy, parliament, human rights, reasons, natural
justice, government review, accountability, ombudsman, constitution, and freedom of
information, and much more.
It is a tribute to the quality, enthusiasm, and hard
work of our members and their State Chapters and National Executive (all of whom are
volunteers who give considerably of their time and effort to the Institute) that the
Institute can keep and improve its status and reputation across such a breadth of interests.
There is arguably enough specialisation in the law already and the important role the
Institute plays in moderating and cross-fertilising the emerging sub-specialties in
administrative law, as well as between administrative law and other areas of law, not all of
them necessarily public, must be acknowledged as a strength in itself, and maintained and
nurtured.
Finally, by way of introduction and before I move on to some of the
highlights of the last year for the Institute, and because I was not able to be present at
last year’s AGM I would like to take this opportunity of thanking Professor Robin
Creyke for her work as the immediate past President of the Institute and for handing over to
me an Institute and Executive in such good shape. It is one of the strengths of the AIAL
that past Presidents have remained on the Executive as Robin has, and as I hope she
continues to do.
2. Main Activities in 2006-2007
2007 Administrative Law Forum
The
highlight of the year, intellectually, administratively, and financially, was the 2007
Administrative Law Forum, held in Canberra at the Australian Institute of Sport on 14 and 15
June. This year’s topic was “The Impact of Administrative Law”. As has become traditional,
the keynote address for the Forum, if not the opening, was given by the Attorney-General who
acknowledged the important role of the Institute in promoting debate on administrative law,
and, most pleasingly, applauded the Institute’s “continued contribution to the development
of an area of law so important to maintaining and improving Australia’s
democracy.”
Some of the plenary and concurrent sessions from this year’s Forum
included:
• The impact of external review: Courts, tribunals and
ombudsmen;
• Natural justice and national security;
• Procedural fairness:
the first among equals?
• Natural Justice: Is there too much, too little, or just
the right amount?
• Human Rights: Challenges and conflicts;
• Administrative
Law: Improving Awareness and Increasing Impact; and
• Future Directions: How can we
make administrative law more relevant?
Stephen Argument, in his usual hardworking and
very effective role as conference director, was ably assisted by a sub-committee of the
Executive, made up of, Robin Creyke, John McMillan, Jonathan Aleck, Robert Orr, and myself.
Jenny Kelly and Jessica Keyes from IPAA provided their usual stellar administrative
support, which made the conference run as smoothly and efficiently as it always does with
their expert assistance. This year, as a trial for the first time the conference papers were
collated and published on CD, saving considerably on printing, collating, and handling costs
of large quantities of paper. The trial appears to have been successful.
Jonathan
Aleck has kindly agreed to review all of the papers from this year’s Forum and report back
to the sub-committee with recommendations for publication of a selection of the papers in
AIAL Forum during the remainder of 2007 and 2008.
Importantly, this year’s Forum
provided an opportunity for the Executive to restate and reinforce a policy of encouraging
newer contributions through the concurrent sessions and reserving most of the plenary
sessions for more experienced and senior contributors. This policy has enabled the Institute
to ensure a sustained quality of presentations and papers, while still allowing new talent a
forum for their involvement in the administrative law conversation. I would commend this
policy to future Executives.
The 2008 Administrative Law Forum, the 18th to be run
by the Institute, will be held in Melbourne, and the planning for it is already well
advanced under the very capable supervision of Stephen Moloney and a National Executive
sub-committee made up of me, Jonathan Aleck and Claressa Surtees, with our Secretary,
Stephen Argument, providing Stephen Moloney and his Victorian colleagues with the real
source of incomparable advice and experience he has gained from his involvement in all of
the last 17 conferences.
Two special features associated with the 2007 Forum warrant
some further comment.
Sponsorship of Indigenous Law Students
One of
the Institute’s Vice-Presidents, Peter Sutherland once again took it upon himself to promote
and administer, with the Executive’s full support, the sponsorship of four indigenous law
students at the 2007 Forum. The cost of the students’ travel (from Queensland, New South
Wales, and South Australia), accommodation in Canberra, and attendance at the Forum was met
by the Institute and I see this now as a firmly established and very worthwhile AIAL
tradition. As was the case last year, I understand that the students thoroughly enjoyed the
Forum and we hope that their interest in administrative law will continue throughout their
studies and into their future careers.
2007 AIAL Essay Prize in Administrative
Law
The Forum dinner this year was also the venue for the presentation of the
2007 AIAL Essay Prize in Administrative Law, which is a competition conducted every other
year as part of advancing the Institute’s objects, particularly among law students. Alan
Bradbury, the other Vice-President of the Institute, oversaw the judging panel this year,
which was made up of other Executive members David Fintan (Treasurer), Stephen Goggs, and
Michael Peedom.
Having been part of judging the last competition I know how
difficult a task it is, but the panel did a great job of reading, comparing, short listing,
and deciding on a winner which was the paper written by Rachel Harris entitled “Avoiding the
Worst of All Worlds: Government Accountability for Outsourced Employment Service”. The paper
appears in AIAL Forum No. 54, along with a selection of other entries in this year’s
competition. Thank you to Alan and the other members of the judging panel for their work in
keeping the essay prize alive during 2006/2007.
I also report on other notable
events from 2007 under the headings that follow.
3. Executive Committee
The Executive Committee elected at last year’s AGM
was made up of the following members:
Mr Michael Will, President
Mr Stephen
Argument, Secretary
Mr David Fintan,
Treasurer
Vice-Presidents
Mr Alan Bradbury
Mr Peter
Sutherland
Officers
Dr Jonathan Aleck
Ms Kathryn
Cole
Professor Robin Creyke
Mr Stephen Goggs
Professor John
McMillan
Mr Robert Orr QC
Mr Michael Peedom, and
Ms Claressa
Surtees
The Executive met, in the period November 2006 to November 2007, on 11
occasions. Stephen Argument, and on occasion Stephen Goggs, minuted all
meetings.
4. National Council
National Council is made up of the Executive
Committee and two representatives of each Chapter of the Institute, and deliberates on the
policy of the Institute. It last met before the 2007 Forum, on 14 June 2007 in Canberra, and
what follows is a summary of reports from the Chapters at that meeting.
New South
Wales
Linda Pearson reported that the NSW chapter had recently seen a major
community project come to fruition, with the recent (and very successful) launch of the
Discrimination Toolkit (see Internet link to the Toolkit). She
noted that the Toolkit had been a project sponsored jointly by the NSW chapter of the
Institute, the NSW Legal Aid Commission, the Elizabeth Evatt Community Legal Centre and the
Kingsford Legal Centre. She noted that the NSW chapter had contributed $5 000 to the
project, by way of seed funding, representing approximately 10% of the chapter’s
funds.
Ms Pearson advised that the chapter’s seminar program was progressing well,
with good support from Minter Ellison, who assisted with premises and other support. She
noted that the chapter was having success in co-hosting seminars with the NSW division of
the Council of Australasian Tribunals (COAT) and also the Administrative Law Section of the
NSW Bar Association. Forthcoming seminars included a seminar on State administrative law, on
21 June 2007, to be addressed by Mr M Robinson and Justice P McLellan and a seminar on
recent Supreme Court decisions that were problematic for the NSW Administrative Decisions
Tribunal, on 26 July 2007, to be addressed by the Hon D Kerr SC MP and Ms N Perram
SC.
Ms Pearson advised that the collaborations with COAT and the Bar Association were
working well, particularly given the cluttered nature of the seminar market in Sydney, as
they allowed for greater co-ordination in relation to competing events in a tight seminar
market.
Western Australia
Mr Hooker reported that the preceding 12
months had seen the WA chapter continue its steady progress in promoting to the appreciation
of administrative law to practitioners of all persuasions in WA. He noted, in particular,
that the chapter had taken initial steps towards forging some important co-operative links
with entities that shared common interests in matters of public law and public
administration. He noted that the executive committee of the chapter was most optimistic
that the ongoing development of these relationships would assist the chapter to continue to
prosper in furtherance of its objects and functions.
Mr Hooker reported that the WA
chapter has hosted 3 seminars during the preceding 12 month period. In August 2006,
immediately following the chapter’s Annual General Meeting, he had presented a seminar based
on the paper he had previously delivered to the 2006 National Administrative Law Forum.
Focussing on approaches of statutory interpretation in the resolution of the tensions
inherent in the granting of protection visas under the Migration Act 1958 (Cth), the seminar
promoted discussion both on this fundamental issue underpinning much of administrative law,
and the practical importance of a renewed approach to statutory construction. On 22 November
2006, Dr H Schoombee, barrister and member of the Human Rights Committee of the Law Society
of WA, had presented a seminar on aspects of the potential introduction of a Human Rights
Act for WA. Mr Hooker reported that the topic prompted lively debate on this issue of
primary legal and political importance.
Mr Hooker reported that, in May 2007, the WA
chapter, in partnership with the UWA Law School, had hosted the first in what was hoped to
be a series of events of a similar character in forthcoming years. He reported that the
course controller of administrative law at UWA, Dr S Young, had delivered a stimulating
presentation on recent developments in natural justice, with a particular focus on the
reconciliation of the seemingly conflicting decisions in Ex Parte Lam and Applicant NAFF of
2002. He noted that the seminar was well attended, by members of the profession and the
student and academic body alike, and was a most encouraging commencement to this new
collaboration.
Mr Hooker reported that the seminars have been funded by external
entities. In the first and second-named seminars, Minter Ellison, with whom the WA chapter
had enjoyed a long and beneficial association, kindly provided the venue and associated
refreshments. At the most recent seminar, the Dean of the UWA Law School generously agreed
to reimburse refreshment costs. Mr Hooker advised that forthcoming seminars were planned to
be hosted at Phillips Fox and Clayton Utz, each of which have indicated a willingness to
work with the chapter from time to time in assisting the hosting of events and furtherance
of the Institute’s goals. Mr Hooker noted that, as a result of these collaborations, there
had been minimal financial activity for the WA chapter.
Mr Hooker advised that the
Chapter intended to further its association with the UWA Law School, particularly giving
consideration to the creation of a website that, in addition to providing basic information
about the existence and functions of the chapter, might source useful materials for the
learning and discussion of administrative law. He also reported that, the seminars scheduled
for the remainder of 2007 included likely presentations by, Ms D Wookey, the Information
Commissioner for Western Australia, Dr B Lane, the Clayton Utz Professor of Public Law at
the Queensland University of Technology, and a variety of potential presentations from
senior public servants and other practitioners of public administration.
Mr Hooker
advised that an exciting new development that had only just emerged was the potential for
collaboration with the WA Division of the Institute of Public Administration of Australia
(IPAA). He advised that details of the nature and extent of this foreshadowed partnership
were still to be discussed and developed but noted that, on early indications, it presented
as a refreshing and exciting opportunity for the 2 organisations to provide mutual
assistance in their respective functions and furtherance of administrative law and public
administration.
Northern Territory
The only activity was the
presentation by John Macmillan in conjunction with IPAA. It was in September and the
attendance was around 70.
Ms Pedersen reported that the NT chapter had been inactive
of late. She reported that the chapter really only had 3 active members, largely because
ongoing reviews of various government agencies were distracting the attention of people who
might otherwise be interested in the activities of the Institute. She reported that a
further issue was that the NT was a relatively small seminar market, with little focus on
administrative law and with a limited range of speakers available to speak on administrative
law topics. She noted that the Law Society tended to dominate the seminar market. She noted
that the chapter had unsuccessfully approached the Law School at the Northern Territory
University about entering into a co-operative arrangement re seminars. Ms Pedersen advised
that the executive committee of the chapter had given some thought to winding-up its
activities. I strongly urged Ms Pedersen to make all efforts to keep the Chapter going, and
offered National Executive support to do so.
Victoria
Mr Moloney
advised that the Victorian chapter had recently held the following successful seminars:
• 19 July 2006 - judicial review of ACCC/Competition Tribunal decisions - Mr B
Cooper, ACCC - approximately 60 people attended;
• 13 September 2006 - National
Lecture Series - Mr D Bennett QC, Commonwealth Solicitor-General - approximately 130 people
attended;
• 13 September 2006 - dinner address following National Lecture Series -
Justice R Tracey - approximately 80 people attended;
• 18 October 2006 - intersection
of criminal and administrative law on the question of the review of the exercise of
discretion in the sentencing process and the administrative decision-making process -
President C Maxwell, Victorian Court of Appeal, with commentary by Mr P Holdenson QC -
approximately 100 people attended;
• November 2006 - chapter’s Annual General Meeting
- address on Victoria’s Charter of Human Rights and Responsibilities - Ms P Tate SC,
Victorian Solicitor-General;
• 27 March 2007 - the question of standing in cases of
public and political concern - Associate Professor R Douglas, Latrobe University -
approximately 70 people attended;
• 30 May 2007 - human rights, the Victorian Charter
and what is left unsaid - Dr K Stern, Melbourne Bar - approximately 100 people
attended.
Mr Moloney advised that a seminar was planned for On 27 June 2007, at which
Mr J Lloyd would speak about the Investigative and Prosecution Processes of the Australian
Building and Construction Commission.
Mr Moloney noted that, as with previous
seminars, the seminar would be held at the premises of a law firm (this time Freehills, with
Minter Ellison and Phillips Fox involved in hosting previous seminars).
South
Australia
Ms Fisher reported that the SA chapter SA currently had 43 members and
its finances were healthy, with approximately $13 000 in the bank. She reported that, in the
last 12 months, the chapter had held the following functions:
• 4 August 2006 -
address on “Administrative Law with the Australian Government Solicitor” by Mr M Kennedy,
AGS;
• 1 September 2006 - Annual General Meeting - address on “The Second Round of
Terrorism Legislation” by Mr M Goode, Managing Solicitor, Policy and Legislation Division of
the SA Attorney-General’s Department;
• 1 March 2007 - address on “Promoting
Compliance with the Privacy Act 1988” by Professor L McCrimmon, Commissioner, ALRC;
•
12 April 2007 - address on “Freedom of Information after McKinnon’s Case: Is There Anything
Left?” by Mr C Finn, Adelaide Law School;
• 6 June 2007 - address on “Administrative
Decision-making: The Recurring Errors” by Ms F McKenzie, Victorian Bar.
Ms Fisher reported that the following events were planned:
• 27 July 2007 -
address on the administrative law jurisdiction of the Federal Court by Justice P Finn;
• October 2007 - address on privative clauses in SA legislation by Mr C Finn and Mr
M Wait;
• August or September 2007 - debate on a possible Bill of Rights, planned as
an evening event, with Ms W Lacey, of Adelaide Law School, confirmed as a speaker and Mr D
Bennett QC, Professor H Charlesworth and Mr J Gava interested in speaking, depending on
availability;
• September 2007 - Annual General Meeting - speaker and topic to be
decided.
National Executive
I reported that the (National) Executive
Committee had conducted the following seminars since the previous National Council
meeting:
• 1 August 2006 - public law issues arising from the counter-terrorism
legislation - the Hon S Sheller AO, QC, Chair of Security Legislation Review
Committee;
• 22 September 2006 - the Review of ACT Tribunal Structures - Ms R Leon,
Chief Executive, ACT Dept of Justice and Community Safety and Judge Kevin O'Connor;
•
10 October2006 - FOI after McKinnon v Treasury - dead or just re-balanced? - Professor John
McMillan, Commonwealth Ombudsman and Matthew Moore, FOI Editor, Sydney Morning
Herald;
• 24 October 2006 - Outsourcing Legal Services? Boon or bane? – Mr I Govey,
Deputy Secretary, Attorney-General's Department, Ms R de Gruchy, CEO, Australian Government
Solicitor and Denis O'Brien, Partner, Minter Ellison;
• 20 March 2007 - Efficient and
effective complaint handling: the powers of the Privacy Commissioner and avenues for dispute
resolution - Professor L McCrimmon, ALRC Commissioner and Mr M Crompton, Managing Director
of Information Integrity Solutions Pty Ltd.
I advised that a seminar was planned for
22 June 2007 on the proposed “access card” for health and welfare benefits, with Professor C
Puplick and Professor G Greenleaf to speak.
I also noted that, in addition to
organising seminars in the ACT, the (National) Executive Committee continued to publish AIAL
Forum (for which Ms A Mantel, a former Executive Committee member, had retained
responsibility) and had also recently published the proceedings of the Third National
Lecture Series
5. Membership
AIAL Membership Statistics
by State
| Australia | |
| ACT | 105 |
| NSW | 123 |
| NT | 13 |
| QLD | 67 |
| SA | 57 |
| TAS | 13 |
| VIC | 157 |
| WA | 69 |
| Total Australia | 604 |
| Abroad | |
| NEW ZEALAND | 1 |
| SOUTH AFRICA | 2 |
| UK | 1 |
| UNITED KINGDOM | 1 |
| Total Abroad | 5 |
| Total | 609 |
In the 2006/07 financial year there were a total of 88 new individual members - made up
as follows:
| ACT | 9 |
| NSW | 12 |
| Qld | 11 |
| SA | 6 |
| Tas | 1 |
| Vic | 40 |
| WA | 9 |
There were also 4 new library members - 2 from the ACT, 1 from SA and 1 from
WA.
There were 9 new corporate members - NSW 2, WA 2, SA 1, Vic 2, and ACT 2.
The AGM
last year approved a modest increase in membership fees, as recommended by the Treasurer and
the Executive. It is pleasing to note the number of new memberships notwithstanding the fee
increase.
6. State and Territory ChaptersIn addition to the reports and
activities referred to above from the National Council meeting in June 2007 I am pleased to
pass on to Members the following reports from State and Territory Chapters.
QueenslandSeminars held:
November 2006 - Freedom of Information:
McKinnon v Secretary, Department of Treasury [2006] HCA 45 -Michael McKinnon and Professor
Bill Lane
July 2007 - Natural Justice and Public Sector Misconduct Investigations - Max
Spry (I note it has been published in AIAL Forum 54)
Grant applied
for/obtained:The Chapter was successful in obtaining a grant of $6500 from the
Legal Practitioner Interest on Trust Accounts Fund (LPITAF) for the 2007-2008 financial
year. Our project is named “Unhappy with a government decision? What you can do!”. This
pilot project is designed to introduce High School Legal Studies students/the community to
the concept of administrative law and to facilitate attendance at a hearing of either the
Migration Review Tribunal or Administrative Appeals Tribunal.
VictoriaThe Victorian Chapter also put on a seminar on 27 June 07 on
the topic: - Investigation and Prosecution Processes – the Australian Building and
Construction Industry - John Lloyd, Aust. Building and Construction Commissioner.
Western AustraliaThe following seminars were held in Western
Australia:
o 30 August 2006 2:00 pm Contemporary Statutory Interpretation Made
Interesting by Mr Richard Hooker
o 22 November 2006 5:00 pm A Human Rights Act
and Judicial Review: Precedents and Prospects for WA by Dr Hannes Schoombee
o 9
May 2007 5:30 pm 'Actual Unfairness' in the Natural Justice Doctrine: Evolution or
Over-reaction by Dr Simon Young
o 5 September 2007 1:00 pm 2007 AIAL National
Forum: some of the notable presentations from the Forum by Ms Lisa Ward
o 27
September 2007 1:00 pm Early perspectives from Chris Field on his role as the State
Ombudsman for WA by Mr Chris Field
The WA Chapter Committee members for 2007/2008,
elected at the AGM on 27 September 2007, are:
Chair - Mr Richard Hooker
Secretary – Dr Sally Raine
Treasurer – Mr Scott Moloney
Members – Mr Michael
Cashman
Dr Hannes Schoombee
Mr Rob O’Connor
Mrs Jane Burn
Mr John Hockley
Ms Jean Shaw
7. National Executive SeminarsIn addition to the seminars
reported on during the National Council meeting in June 2007, the National Executive ran the
following series of seminars in Canberra between June and October 2007 (and I thank Robin
Creyke, Peter Sutherland, Michael Peedom, Robert Orr, and Stephen Argument respectively for
arranging and chairing these events):
22 June 2007: "Access Card for Health &
Welfare Benefits: What are the issues?" - Professor Chris Puplick, member of the Taskforce;
Professor Graham Greenleaf, teacher at the University of NSW
1 August 2007: “The
Issue of Private Sector Licences under the Comcare Scheme”, Mr Martin Dolan, A/CEO, Comcare
and Dr Gary Rumble, Partner, DLA Phillips Fox.
20 August 2007: "Bias in
Court/Tribunal Proceedings", The Hon Brian Sully QC, former Justice of the Supreme Court of
NSW.
11 September 2007: “The Cole Inquiry into Certain Australian Companies and UN
Oil for Food Programme: Lessons for Government” – Mr John Agius SC, Senior Counsel assisting
Commissioner Cole, and Professor Stephen Bartos, Director of the Allen Consulting
Group.
30 October 2007: “Natural Justice and investigations into public sector
misconduct” Dr Max Spry, Brisbane Barrister, and Mr Bob Cook, Partner, Minter Ellison.
8. PublicationsAlice Mantel continues with her outstanding work
as Editor of AIAL Forum, the Institute’s flagship publication, of which she has produced a
bumper crop in 2006/2007.
In recognition of the quality and quantity of Alice’s
work, and the fact that she is shouldering more of the editing workload herself, the
Executive approved a modest honorarium for Alice for the 2006/2007 year.
Peter
Prince, with the support of his former employer, the Department of Health and Ageing, has
previously provided the content for the “developments in Administrative Law” segment of AIAL
Forum. Peter has now changed jobs and is unable to continue with this work. We thank Peter
for his contribution and the Executive is exploring options for replacing this important
part of AIAL Forum.
9. FinanceAs the Treasurer will report more fully in his report,
the Institute is in good financial shape (showing a profit of $19,750 for the 2006/2007
financial year), due mainly to a very successful 2007 Forum, solid membership growth, the
increase in membership fees, and a modest decrease in expenditure.
Thank you to
Treasurer David Fintan, and for all of the Executive and Members for helping to make this
such a successful year financially for the Institute.
10. AcknowledgmentsOn behalf of the Institute I thank Jenny
Kelly and Jessica Keyes at IPAA for their ongoing contribution to the administration of this
Institute, including in particular the suggestion they have made, and which the Executive
has taken up this year, for the use of EFTPOS for the payment of membership and conference
fees by members, greatly reducing inefficiencies in those transactions.
Jenny and
Jessica also made the further suggestion that the Executive approve the signing of cheques,
by members of staff of the Institute, up to a limit of $5,000, thereby streamlining the
payment of most of the routine expenses of the Institute, and removing many of the
opportunities for lost cheques, and delayed payments.
These two innovations will
without doubt improve the ease of administration of the Institute’s finances.
The
cheque signing initiative will require an amendment to the Rules of the Institute which will
be presented to the AGM tonight, and which I commend to you.
Thanks are also due to
David Fintan our Treasurer for his hard work on maintaining the books of the Institute,
including their auditing.
Thank you also to Kathryn Cole for her membership of and
contribution to the Executive and in particular her excellent work on helping to revitalise
and maintain the Institute’s website. It is a tribute to Kathryn’s work in this area that
the website is now a much more friendly and useful place to display our wares and encourage
new members and participation in AIAL activities.
Finally, I thank all Executive
members, new and old, and all State and Territory Chapter Officers for their contribution to
this mainstay administrative law institution, the AIAL.
Michael
Will
President
Australian Institute of Administrative Law
Canberra, 7 November
2007
