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Open Government And Accountability Notes

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8. Open Government and Accountability APC Consultation Paper (pp 20-34)

Review of the administrative decision until 1970s At the inception of the Commonwealth, s 75(v) of the Constitution gave jurisdiction to the High Court to issue remedies against an officer of the Commonwealth 'in all matters in which a writ of Mandamus or prohibition or an injunction is sought'. Section 75(v) therefore retained the focus on remedies or writs that is a feature of judicial review under the common law. Costs, government secrecy, legal technicalities, and other factors combined to make judicial review a difficult and hazardous process. The High Court was the sole forum for federal judicial review matters until the Federal Court was established on commencement of the Federal Court Act 1976. Though a number of administrative review tribunals and other administrative review schemes in specific jurisdictions had been introduced, the system was uncoordinated. In consequence, the system was not easily understood by the general community. Australian administrative system Major feature: the statutory framework for judicial review, the AAT, the Commonwealth Ombudsman, and, indeed, the Administrative Review Council.Two features:

* Tribunals and the 'General Counsel for Grievances' (which became the Ombudsman) would all play separate but overlapping roles.

* The central role that administrative tribunals should play in review of executive action. The Committee downplayed the importance of the role of the courts, seeing judicial review as complementary to merits review, rather than the most important feature of the system. The report of the 1976 committee became the basis for the Freedom of Information Act 1982 (Cth). Changes in government since 1970s First, the expansion of government legislation and legislative instruments noted by the Committee has continued.

* This increase in the amount of legislation has contributed to the increase in the volume of discretionary decisions made by public officials. Secondly, during the 1980s and increasing through the 1990s, the privatisation of government services became a central theme of government administration.

* The theory was that the market, through competition between service providers, could provide higher quality services more efficiently than government and many government services were outsourced to private providers.

* A consequence of such privatisation was to put private providers outside administrative review. Outsourcing was therefore seen by many commentators as a threat to government accountability. Thirdly, there has been a significant growth in the regulatory state, in terms of the establishment of independent regulators and an increase in powers granted to those regulators. Fourthly, developments in technology have changed the way in which government administration is conducted.

* Advantages and disadvantages co-exist. The Current system of administrative law in Australia Dual purposes of administrative law:

* to improve the quality, efficiency and effectiveness of government decision making generally, and

* to enable people to test the legality and the merits of decisions that affect them. General principles underlying the administrative law system:

* Lawfulness
*> The principle of lawfulness is supported in particular by the availability of judicial review of government actions.

* Fairness, rationality
*> Achieved through a number of elements of the administrative law system, including: legal standards applied to decision-making procedures through judicial review;? finding the 'correct or preferable decision' through external merits review; and investigations conducted by various accountability agencies

* Openness
*> Freedom of information legislation supports the principle of openness in government decision making. 1

8. Open Government and Accountability

*> Public reporting of the decisions of merits review tribunals and courts also contributes to openness. Efficiency and accessibility.
*> The range of review mechanisms available contributes to the efficiency and accessibility of the administrative law system, by providing a range of avenues for people to hold government accountable for its conduct.

* Make sure separation of power by asking "is the executive acting within power".

* They want to make sure whether the executive acting within the power?

* Principle of legality

* Only exception --> pure executive power

Review of government decisions Four mechanisms:

* internal merits review
*> Internal review occurs where a decision made by an officer of an agency is reviewed by another person in the agency.

* external merits review (including tribunals and the new Office of the Australian Information Commissioner)
*> External review involves a fresh consideration of a case by an external body.

* administrative investigation (for example the Ombudsman), and
*> Ombudsman investigation and review is automatically available for all administrative and decision-making processes of agencies within the Ombudsman's jurisdiction and does not have to be specified in legislation. The Ombudsman has the discretion not to investigate a complaint.The Ombudsman can also conduct 'own motion' investigations.
*> Other Australian Government agencies may have an investigative function that is comparable to that of the Ombudsman.

* judicial review.
*> Judicial review occurs when a court reviews a decision to make sure that the decision maker used the correct legal reasoning or followed the correct legal procedures. Merits review

* Merits review is the process by which a person or body, other than the primary decision maker, reconsiders the facts, law and policy aspects of the original decision and determines the 'correct or preferable decision'.
*> The outcome is decision --> Giving the best decision
*> This is different from judicial review.
Judicial review usually consists of a review of only the procedures followed in making the decision. Accessing and protecting information Individuals can access information or records held by the Government by making applications under the Freedom of Information Act, and apply for external review of these decisions by the Information Commissioner and the AAT. Freedom of Information

Freedom of Information Act 1982 (Cth)

'Freedom of information' (FOI) is a phrase used to refer to legal regimes under which individuals have a right to seek access to information held by public agencies and which, subject to specified exemptions, create a presumption in favour of disclosure of such information. Relationship between FOI and Open Government

* Parliament's intention to 'increase public participation in Government processes, with a view to promote better-informed decision-making': s 3(2)(a) Impediment to FOI (see Executive)

* CMR

* IMR Reasons for promoting citizens' access to PSI (Public sector information)

* Individuals can discover what government knows about them personally and have such 'personal information' corrected if it is inaccurate;

* Government can be more effectively held accountable for what it does;

* Citizens can more effectively participate in 'the processes of policy-making and government itself '. Major changes in 2010

* Minister can no longer issue conclusive certificates, binding on a court or tribunal, that a document is exempt from disclosure. 2

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