This special edition of the Federal Law Review, in the 50th Anniversary year of the Australian National University, contains a study of recent developments in administrative law. The conference at which these papers were presented was part of the first Public Law Weekend hosted by the Centre for International and Public Law in the Law Faculty, and held on 30-31 August 1996. Speakers included eminent administrative law academics from the Australian National University, the University of Sydney and the University of Western Australia, together with legal practitioners and prominent figures from State and Commonwealth public administration. The conference had been preceded by a half-day seminar to celebrate the 25th anniversary of the Report of the Commonwealth Administrative Review Committee (the “Kerr Committee”), one of the foundation documents setting out the blueprint for Commonwealth administrative law.

Speakers at the Public Law Weekend were asked to identify significant developments over the range of government activities which are subject to administrative law. The four sessions, therefore, covered decisions by the newer investigative and inquisitorial bodies; by courts exercising judicial review; by the now firmly entrenched, but disparate, family of tribunals; and, finally, by those bodies creating the jurisprudence relating to access to government information.

We live in times of escalating activity of investigative tribunals uncovering corruption, crime, discrimination and violations of public service discipline. Investigation by agencies of the executive branch of government has become an industry, a form of regulation and policy-making which ranges well beyond the occasional royal commission. This has been matched by an escalating concern of civil libertarians and courts regarding the damage which investigative tribunals may do to those who are investigated or named in their proceedings. There is a question whether the expressed concern of the courts, the protection of reputation, is warranted in the light of the accountability of such tribunals by means of judicial review. The degree to which investigative tribunals cause damage to individuals in a manner which infringes their fundamental rights is constantly a matter of controversy. The degree of success achieved by the tribunals in pursuing their statutory objectives is also often a matter of controversy.

In every freedom on information (FOI) law there is a tension in the opposition between, on the one hand, the expression of a “right” to information accompanied by objects provisions which promote a generous interpretation of this right, and, on the other, the depth and breadth of the grounds for exemption which government is permitted to claim as reasons to resist disclosure of a document.

Dispute between applicants and agencies at the external review stage most often concerns a question (or a number of questions) about whether a document is exempt. The external review body must adjudicate in a manner typical of any application of the law. The body will take a view of the facts, isolate the relevant legal principle or rule (being the relevant exemption provisions), apply that principle or rule to the facts and then decide whether or not the document is exempt. Of course, the process is not so straight-forward as this suggests.

The primary problem in attempting a resume of recent developments concerning tribunals in Australia is one of classification and proliferation. What constitutes a “tribunal” is a much debated and fuzzy conceptual issue. Even if one settles on an acceptable definition, the problem remains of the vast variety of bodies throughout Australia that would require survey. Although this paper addresses some recent legislative proposals concerning particular tribunals, both at State and Commonwealth levels, it concentrates on conceptual developments about certain kinds of tribunals. It is concerned with the underlying pressures and intentions that are driving such proposals. It also takes into account the legal environment, namely specific judicial and executive decisions, which are shaping them.