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.

Persons employed within the public (that is, governmental) sector are employed under a variety of legal arrangements. Some are employed under contracts of employment or as independent contractors. Some are employed as members of a government service such as a public service, a police service or a teaching service, pursuant to detailed legislative provisions. A few may be employed solely under the common law relating to service under the Crown. Some are persons who have been appointed to public offices, that is positions which exist separately from the persons who hold office and to which particular powers and duties are attached. Some are both members of a government service and holders of public offices. Terms and conditions of employment within the public sector may also be affected by industrial awards, awards made by remuneration tribunals and general legislation on employment.

This article examines the third paragraph of s 53 from the high ground of history. Section 53 must not be seen as an isolated and unique problem. Rather, it is merely another manifestation of the intractable problem of defining the power to tax. The Bill of Rights, arising out of the Revolution of 1688, defined the constitutional prerogatives of the King, when it provided “[t]hat levying money for or to the use of the Crown, by pretence of prerogative, without grant of Parliament for longer time or in other manner than the same is or shall be granted, is illegal”. Art 1 s 7 of the United States Constitution requires that “[a]ll bills for raising revenue shall originate in the house of representatives; but the Senate may propose or concur with amendments, as on other bills”. Story elegantly under-stated the position when he remarked, “What bills are properly ‘bills for raising revenue’, in the sense of the constitution, has been matter of some discussion”.

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.

Concern for the environment is undoubtedly a “significant social and political force” within the international community. Where members of the international community once viewed environmental protection as a local or national issue, ther have now been compelled to see many environmental problems as global in scope. This change in attitude was exemplified in 1992 when the United Nations convened the United Nations Conference on Environment and Development in Rio de Janeiro, Brazil, attended by representatives from 170 nations, including 130 heads of state and government. One of the outcomes of the conference was the adoption of the Rio Declaration on Environment and Development (Rio Declaration). The Rio Declaration is a declaration of internationally accepted fundamental principles on development and environmental protection. It declares that all nations have a right to development. However, this right must be exercised in such a manner as to “equitably meet developmental and environmental needs of present and future generations”.

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.

Two recent decisions of the High Court, Mutual Pools and Staff Pty Ltd v Commonwealth (Mutual Pools) and Georgiadis v Australian and Overseas Telecommunication Corporation (Georgiadis) have re-opened the debate about the source of the Commonwealth's liability to be sued in civil proceedings. The debate can be expressed in this form: does that liability arise from the Constitution so as to confer a constitutionally guaranteed right to sue the Commonwealth (the “constitutional argument”) or does it arise from rights conferred by s 64 of the Judiciary Act 1903 (Cth) — possibly in combination with “rights to proceed” allowed by the Constitution? In practical terms this is a difference between entrenching the Commonwealth's liability in the Constitution or acknowledging that those “rights to proceed” can be removed by Commonwealth legislation preventing action against it.

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.

The last decade of the nineteenth century saw a number of Conventions held for the purpose of creating the rules under which the Australian colonies would federate in “one indissoluble federal Commonwealth”. The endeavour was designed to be an anchor to the past, creating rules that bind until a super-majority of the living change them. These rules were incorporated into a written document, which declares itself to be the paramount law within the Commonwealth of Australia.

In the past decade problems of expense and delay in the administration of criminal justice have been the subject of numerous expressions of concern. In several Australian jurisdictions, legislative measures designed to improve the administrative efficiency of the criminal justice system so that cases can be disposed of more quickly and cheaply have been introduced. In many cases such legislation has had the effect of diminishing the protections available to accused persons.

The laws which govern the conduct of criminal proceedings in our society reflect the policy that it is preferable for a guilty person to go unpunished than for an innocent person to be convicted. On this basis, as a matter of legal principle, an accused person must be presumed innocent until proven guilty beyond reasonable doubt. It follows that an accused person should not be obliged to help the prosecution establish its case and that no penalty should be imposed in relation to a crime until after a defendant has been convicted.

The case of Langer v The Commonwealth, is important, for it reveals much about the understanding of “democracy” in Australia, including fundamental conflicts as to what is essential, and what is peripheral to our constitutional system of “representative democracy”. The Langer case raises questions about what amounts to a democratic “choice” in an election. Is “choice” merely a matter of being able to select from candidates offered, or does it involve the representation of the will of the people? Is it democratic to compel a voter to lie by requiring the voter to give preferences to candidates he or she rejects, or must voters have a right to vote in an informal manner if they do not wish to express a preference for certain candidates? Is the choice to vote informally a genuine political choice, and is advocacy of such a choice protected by the constitutional guarantee of freedom of political communication? Should it be a criminal offence to advocate activity which is not only legal, but would result in a formal vote?