Battling big brother isn't easy

by Chris Griffith
Written January 1993


my face


Doing battle with Big Brother is among life's most traumatic experiences. The fight against unfair bureaucratic decisions occurs when least expected and involves even the most peace-abiding citizen.

A toxic waste dump is proposed for your area, you tumble down the stairs of the High Court building in Canberra, or find your child inexplicably expelled from school - suddenly the fight is on. Or you could be the Mossman chicken farmer last year whose chickens were confiscated during the strangest of police raids.

The fight against unfair bureaucratic decisions is the steepest of uphill battles that can end with the loss of a job, a home, or a life- style.

Queensland's Electoral and Administrative Review Commission (EARC) in its longest review has spent 18 months investigating a brand-new system of administrative appeals so that citizens can challenge state bureaucrats' decisions at relatively low cost.

The review is examining an appeals mechanism for decisions made by all areas of state and local government: sacked police commissioners and their deputies, expelled school students, and de-registered doctors, architects, and even bee-keepers may find a new or revamped appeals' avenue opening up.

The Commission's chairman, David Solomon, expects the EARC's report will be ready for Parliament in March.

The Commission's work compliments other implemented Fitzgerald report initiatives designed to make the bureaucracy accountable -freedom of information and judicial review.

Currently citizens aggrieved by bureaucrats' decisions have four avenues: political action, the Ombudsman, the uncoordinated existing appeals system, and redress through the courts under judicial review.

Each of these has limitations. The whims of politicians and the media may compromise a chance of direct political re-dress, and the ombudsman, while possessing inquisitorial powers, can only make recommendations to the original decision-maker or minister.

The cost of court action renders judicial review is outside the scope of most. Judicial review is also limited to examining the legality of an administrative decision, not its merits. Courts cannot rehear a matter, nor can they substitute a new decision.

The current state administrative appeals mechanisms, while numerous, are regarded as uncoordinated and inadequate. In many cases appeals are made to the original decision makers and ministers; others result in only recommendations to overturn original decisions.

In an issues paper released in June 1991, the EARC considered the ideal appeals body would be independent of Executive Government with powers to substitute its own decision for the decision under review.

It said administrative appeals should be an informal, speedier, cheaper, and accessible means of resolving disputes compared to the court system. Filing a complaint could cost as little as $300 if the Commonwealth precedent is followed. This is an obstacle to discourage people filing frivolous complaints.

The EARC is also weighing up whether to replace the currently uncoordinated state appeals bodies with a single general-purpose one, or whether to substitute a hybrid scheme.

EARC has canvassed six review bodies: a general appeals tribunal, a revenue appeals body, a land tribunal, a primary industries appeal tribunal, a Professional and Occupational Licensing and Discipline Appeals tribunal, and a Racing tribunal.

It says something about Queensland life that the number of racing industry disputes warrants the industry having one of these six tribunals to itself.

These six bodies would handle disputes with government across all 18 departments - disputes over adoption orders, welfare allocations, body corporate matters, railway land acquisition, pollution control, mining exploration permits, rice quotas, and development decisions.

However there are cases where the EARC, somewhat controversially, has suggested no appeal should be allowed. These include decisions to deny financial assistance to voluntary legal aid bodies, decisions to enter a premises and seize medical records, and decisions that complaints to the Anti-Discrimination commission are frivolous or vexatious.

In this review EARC received less than 100 submissions, most notably from legal groups, welfare and education organisation and, interestingly, from police.

The Queensland Police Union was particularly concerned about administrative mechanisms that may review police dismissals, other punishments, transfers, and promotions.

It will be of little comfort to sacked Deputy Commissioner David Blizzard that the Union which supported his demise said: "the reasons for the decision made affecting any member should be provided in writing to the member concerned by the decision." Nevertheless the EARC's issues papers suggests a Police Minister's decision to remove a Police Commissioner should be subject to independent appeal.

Mr Solomon also said the Commission was considering alternatives to administrative appeals dealt with by the Governor-In-Council, and said the State Government was considering likewise.

This is welcome, as the Governor-In-Council's consideration of Blizzard's appeal was farcical. It is hardly impartial when ministers decide an appeal against their fellow Police Minister's recommendation.

A can-of-worms for the EARC is whether professional bodies should be subject to a government review mechanism, for example when deciding the standing of their members, This includes architects, doctors, in general professionals subject to government regulation.

In its submission, the Queensland Law Society said: "professional bodies should not be subject to independent merits review. Their decisions are not made by government or by employees of the government."

Another can-of-worms is how far the EARC will go in recommending appeal rights for those aggrieved at the planning and development decisions of local government authorities.

The Local Government Association says administrative appeals at this level must be restricted to bureaucrat's decisions. "Unelected bodies with judicial functions should not, as a matter of principle, review the policies of elected representatives," its submission argued.

Perhaps the area that received the strongest coordinated support was appeal rights for children and students. The Parents and Citizens Association, the Brisbane Youth Service, and the Youth Affairs Network all supported appeals being considered outside of government departments.

Dr Ian O'Connor, senior lecturer in the Department of Social Work and Social Policy, University of Queensland, said: "Children and young people are regularly subject to administrative decisions which have profound implications on their life.

Students who believe they have been unfairly disciplined or denied access to certain school activities have very limited option to seek redress," his submission said.

Not so supportive were Queensland's universities, who argued their existing internal appeals procedures were adequate and did not need to be augmented by externally imposed ones.

The degree of user-friendliness and low cost will make or break the new appeals system.