Year by eventful year, a century has passed since the birth of Edward Aloysius McTiernan on 16 February 1892 at Glen Innes, New South Wales. The second of two children of Patrick McTiernan, police constable, and Isabella McTiernan (nee Diamond) came into a world on the brink of great political and legal changes. His life virtually spanned the whole history to date of the Commonwealth of Australia. It saw mighty wars, great scientific and social changes and the apogee and fall of the British Empire. Instructive it is to reflect upon the world he entered and the controversies which were agitating Australia and the mother country at a time young Edward was born.

A year before his birth, an event was to take place which affected the course of his life. In 1890, provision was first made for the payment of members of Parliament elected at the next general election in the colony of New South Wales.

Judges often describe their courts as an arm of government. The very arrangement of the Constitution provides some justification for this claim, and it furthermore guarantees a role to the High Court in the review of administrative action. The discharge of this role manifests another dimension of the governmental role of the courts: what they do by way of review has a direct and sometimes profound effect on the business of politics and the administration of government. This is perceived by the judges, who are often at pains to distinguish their role from that of the executive. It is also understood by the politicians, who often criticise the judges for overstepping the mark. All this is not of course solely or even primarily a consequence of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act), but in some respects the Act has thrown into sharper relief the tension between judges and politicians which flows from the exercise of judicial review.

Rhetorically and ideologically, the nineteen eighties has been a decade in which the individual has held centre stage. From American Express advertisements to the assumptions of neo-classical economists (and back again), Western society is imagined to be, and justified as, a society of autonomous self regarding individuals. Yet for all that, we remain a society of institutions. We live our lives largely in (and, to a significant extent, through) the institutions where we grow up, work, play and procreate. Institutions dominate virtually every area of social life and simultaneously sustain and infuriate us by providing the best and the worst experiences of our daily lives. We seem to be forever complaining about them and often seek to change or supplant them. But few believe that we should, or even could, do away with them and recreate a society of free willing individuals without institutional links and ties. Those who want to get rid of the family generally want more egalitarian and supportive structures.

Administrative law folklore in Australia concentrated for so long on the amusing British cases that portrayed courts as unpredictable and interventionist. Colourful examples included Roberts v Hopwood, which saw the proposal of the Poplar Borough Council to pay equal wages to men and women overturned as an eccentric and feminist exercise in socialistic philanthropy; Prescott v Birmingham Corporation, which displayed the same judicial aversion to a Council proposal to provide free bus transport to elderly pensioners; and Padfield v Minister of Agriculture, which disparaged a naively expressed but politically understandable Ministerial decision not to conduct an enquiry into inefficiencies in a milk marketing scheme.

The Australian reality, it was often overlooked, was usually more predictable and less interventionist. A predominant theme was the pertinence of judicial restraint in penetrating the exercise of a broad administrative discretion. Accordingly, some of the foundation cases of Australian administrative law reached conclusions which, by contemporary standards, seem astonishing.

The Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) was part of a package of legislation, comprising also the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), the Ombudsman Act 1976 (Cth), and the Freedom of Information Act 1982 (Cth). That package has been variously described as putting Australia in the forefront of administrative law reform in the common law world and as the basis for a lawyer led recovery. Perhaps because it is a more technical measure, the ADJR Act has attracted less attention than other elements of the package. Nevertheless, it is a key element. Moreover, judicial review under the Act has raised some far reaching questions.

Although some fifteen years have passed since Australia ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR) and so incurred an obligation to respect, protect, promote and ensure each individual's “right to adequate housing”, in Australia the right remains little more than a rhetorical tool used by welfare activists. Despite the increased political and legal profIle of human rights in Australia with the establishment of such bodies as the Commonwealth's Human Rights and Equal Opportunity Commission (HREOC), the “right to .adequate housing”, like many other economic rights, has been largely ignored. In an attempt to highlight the gap between Australia's international commibnent and its domestic response, the first part of this paper examines the Eontent and implications of the right to adequate housing and Australia's obligation under Article 11 of the ICESCR. The second part focuses on the Federal Goyernment's response, discussing in particular the absence of any legal provision· for the right's protection and the lack of comprehensive administrative policies aimed at the right's progressive realisation. For the purposes of this latter discussion, a case study of federal policies concerning the homeless, a group most apparently lacking in “adequate housing”, demonstrates the extent to which administrative policies continue to embrace notions of “worthiness” rather than “universal dignity”, making realisation of a “right to adequate housing” impossible.

Procedure is at the heart of administrative law, just as it is at the heart of public administration. The development of administrative law is rooted historically in questions of the availability of remedies, and the related question of standing. Delivering the Second Reading Speech for the Administrative Decisions (Judicial Review) Bill 1977 in the House of Representatives, Mr Ellicott QC said -

The present law relating to the review by the courts of administrative decisions is in a most unsatisfactory state. A great deal has been written about the shortcomings of the present procedures and it is not, I think, necessary for me to elaborate on these deficiencies in the present context. The law in this area is clearly in need of reform - indeed, it could be said to be medieval - and simplification and to be put into statutory form. What the present Bill seeks to do is to establish a single simple form of proceeding in the Federal Court of Australia for judicial review of Commonwealth administrative actions as an alternative to the present cumbersome and technical procedures for review by way of prerogative writ, or the present actions for a declaration or injunction.

There are five recent decisions of the High Court of Australia, four of which were given in matters which had arisen under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the Act”), and all of which have a significance for the operation of the Act, as well as for public law generally. They are Park Oh Ho v Minister for Immigration and Ethnic Affairs, Chan fee Kin v Minister for Immigration and Ethnic Affairs, Attorney-General (NSW) v Quin, Haoucher v Minister for Immigration and Ethnic Affairs and Australian Broadcasting Tribunal v Bond. The primary concern of this paper is to consider some aspects of their significance for the operation of the Act.

I have had an interest in inquisitorial procedures and a lack of conviction to the often claimed superiority of adversarial procedures as long as I have have any interest in the law. Until recently however I found it difficult to engage other Australian lawyers in discussions which questioned whether the adversarias system is necessarily the best. It seems that my experience reflected the strength of the “Anglo-American legal culture”.

The decision of the Court of Appeal of New South Wales in Government Insurance Office of New South Wales v Glasscock demonstrates both th traditional view that a trial should be adversarial and a more open approach to the question. One submission of counsel for the appellant was that the trial hal miscarried because of the extent of judicial intervention, which was summed u by saying that the adversarial basis of the trial had been lost as a result of the judge's intervention.

The Australian Taxation Office (“ATO”) currently employs in excess of 18,000 staff engaged in collecting all the main taxes and charges imposed by Parliament (except customs, excise duties and departure taxes). For the year ended 30 June 1990, the ATO collected $75.96 billion in Commonwealth revenue. Through its National Office, sixteen Branch Offices and eighteen Regional Offices, the ATO received over 11 million income tax returns, issued over 8 million tax assessments, conducted over 25,000 audits and answered over 4 million taxpayer enquiries and requests for advisings during that year. These figures show that the work of the ATO is very much a matter of mass decision making.

It is not surprising, therefore, that the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”) has had an effect on taxation administration. However, the perspective of the ATO is that the ADJR Act has had a substantial impact on some areas of that administration and little or no impact on others.

I was asked to address the impact of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) in the field of broadcasting. That is not the title of this paper, as I frankly doubt that the availability of review under the ADJR Act has made that much difference in this area.

This is not to say, of course, that there have not been important challenges to administrative decisions in this field, with significant consequences, both for those of us working in the area and for administrative law in general. I remain to be convinced, however, that similar challenges would not have occurred, or that there would have been that many less applications for review, if parties to proceedings before the Australian Broadcasting Tribunal (“ABT”) had been left to their remedies under the general law.

The crucial problem arises when we ask, not what role mediation should play: in creating law, but how far and in what respects should it enter into the administration of laws.

Leon Fuller, Carter Professional General Jurisprudence, Harvard University.

Over the next generation, I predict that society's greatest opportunities will live in tapping human inclinations towards collaboration and compromise rather tha stirring our proclivities for competition and rivalry.

Dr Derek Bok, President, Harvart University, 1982 Cardozo Lecture.

Three very different books published in close succession combine to highlight and dramatise the unresolved issues presented by the need that all governments feel to engage in security and intelligence activities within with an borders.

For most of the twentieth century, this Earth has been the arena for a titanic infrontation between democracy and tyranny, between free debate and the great, between the rule of law and the tendency of people to disappear from the feets. The votaries of democracy, freedom and the rule of law have not always been possessed of absolute virtue and have at times been forced, or have chosen, adopt some of the methods of their adversaries. One of these is the practice of ercising surveillance over persons or activities that are judged to constitute a reat to national security. These threats are normally classified in three legories: terrorism, espionage and subversion.

This paper considers the impact of the Administrative Decisions (Judicial Review) Act 1977 (eth) (“the Act”) in the area of personnel management in the Australian Public Service (the“APS”). It is written from the perspective of a lawyer, rather than that of a public administrator.

The paper is in four parts, dealing with: the place of personnel management in the “new administrative law”; developments in the area of review of personnel decisions since the Act came into force; the reasons for these developments, and the extent to which they may be attributed to different aspects of the Act; and assessment of the changes that have occurred.