The concept of public office as a public trust does not figure prominently in contemporary Australian law relating to the exercise of power by public office holders. But echoes of the concept of fiduciary obligation are to be found in the standards which the law imposes upon the exercise of official power by administrative decision-makers. This is an area in which Australian law has developed considerably, particularly since the 1970s when a number of important law reform measures were introduced by the Commonwealth Parliament to provide for judicial review and other forms of review of official administrative decisions. The package of reforms, known as the 'Administrative Law Package' established the Administrative Appeals Tribunal, provided easier mechanisms for judicial review of administrative decisions by the courts through the Administrative Decisions (Judicial Review) Act 1977 (Cth), and provided for an administrative complaints process through the establishment of the Ombudsman.
The Commonwealth Administrative Law Package brought into being new mechanisms for merits and judicial review which were of general application. They brought before the Administrative Appeals Tribunal and the Federal Court, for consideration on the merits and for error of law or process, decisions ranging across a very wide spectrum of official powers. Some areas contributed more than others. Much Commonwealth administrative law was developed through decisions about veterans' entitlements, social security benefits, immigration and taxation. In the commercial sphere, regulators were challenged, particularly in relation to the exercise of coercive investigative powers. Those developments had an effect, as they were intended to, upon primary decision-making. As a legal member of the Social Security Appeals Tribunal in the late 1970s, before it acquired statutory status, I was able to observe the impact of the Commonwealth Administrative Law Package on the kind of documentation that was provided by officers of the department making decisions under the legislation.
It is not surprising that out of this increase in administrative review and judicial decision-making there should emerge discussion about the possibility of some unifying rubric such as administrative justice which would accommodate normative standards of general application to decisions made by public officials. A notion of 'administrative justice' was perhaps necessary to avoid the colonisation of administrative decision-making and review by models of decision-making. For if one thing was always clear, it was that while judicial review was significant, the important questions about administrative justice had to be answered in the way that was able to be applied by persons holding office as decision-makers. In that category I include Ministers of the Crown and the whole range of officials exercising official power and forming part of, or arms of, the Executive Government.
An overarching concept of 'administrative justice' is in some ways no less difficult to achieve than an overarching concept of 'ethical conduct' in the exercise of public power. There is, nevertheless some utility in identifying normative standards which can legitimately be said to answer to the designation 'just' and which are capable of general application in our system of administrative law and practice. A statement of such standards can provide a framework by which we can not only judge systems, practices and particular decisions, but can provide a basis for their review and improvement.
These standards, I suggest, must be linked to the constitutional framework in which they operate, which includes a written constitution, representative democracy, the rule of law, formal or conventional separation of legislative, executive and judicial powers, and a milieu of recognised common law rights and freedoms. There are other desirable linkages to international human rights norms, or at least those which have been afforded recognition, if not statutory force, in domestic law, in treaties to which Australia is a party or which have entered the realm of customary international law and can therefore be taken as potentially informing the common law. The basic norms of administrative justice are evaluative and qualitative. They should be related to the requirement that power is exercised for the purposes for which it is conferred: that is the purposes of the law conferring it.
A minimalist approach to administrative justice asks the question – 'When Parliament enacts a law which empowers an official to make decisions affecting individuals, what are the minimum criteria by which those decisions and the processes by which they are made, can be regarded as just and in accordance with the purpose for which they are conferred?' An official empowered by a law to make a decision affecting the rights, privileges or liabilities of somebody else will meet the requirements of the law if he or she makes the decision: