How does administrative law change bureaucratic behaviour
The Committee presented a plan for an entirely new system of administrative law that rested upon a fresh vision of the role that external review agencies should play in safeguarding the rights of the public regarding executive decision-making.Three Acts were implemented by the Parliament.The Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) established two bodies – an Administrative Appeals Tribunal to undertake merit review of a general range of
Commonwealth decisions, and an Administrative Review Council to perform a research, advisory and coordination function.
The Ombudsman Act 1976 (Cth) established an Ombudsman to investigate complaints of maladministration by Commonwealth government agencies. The Administrative Decisions Oudicial Review) Act 1977 (Cth) conferred upon the newly-created Federal Court a reformed Jurisdiction to undertake Judicial review of Commonwealth decision-making. Purpose of Administrative Law Administrative Law concerns the relationship between the government and the public.
It refers to a wide range of controls exercisable by the law over the powers nd procedures of government decision-makers and administrators. It constitutes a means of protecting the rights of the public by making the government decision- makers accountable. With the growth of technology, financial institutions and globalization, society is becoming more complex, the role of government has expanded in terms of regulation and intervention. This has led to a growth in the number of bureaucratic decision makers which in turn led to an expansion in controls over administrative actions to counter balance the power of the decision makers.
The Kerr and Bland Committees saw that the purpose of Administrative Law was to rotect citizens against government, when government was growing in size and exercising more administrative authority and discretionary power. It pointed to a posed threats to the rights and liberties of citizens . The view from the Kerr and Bland Committees is compatible with that of Professor Cane that the Administrative Law can be used to regulate the way the administrators make decisions so that the power will not be misused. How to measure success of the Administrative Law?
There are two views about the measurement of success of Administrative Law: (i) The instrumentalist believes the success lies in its impact on behaviour and outcomes, ence the law should bring behaviour and outcomes into conformity with specified value. (it) The non-instrumentalist believes its success lies in its rules and practices. The law could be counted as a success if it clearly, consistently and coherently expressed specified values. The supporters of regulatory approach to Administrative Law are instrumentalists whereas the supporters of legal approach are non-instrumentalists.
What are the regulatory and legal approaches to Administrative Law? A regulatory system has three components (i) a set of standards that announce how eople ought to behave; (it) a mechanism for monitoring compliance with those standards; (iii) a mechanism for promoting future compliance. Administrative Law consists of a set of rules and principles about how decisions ought to be made. Individuals affected by the administrative decisions can utilize various tribunals and ombudsmen to review decisions and in turn provide incentive for the decision makers to comply with Administrative Law in future.
The regulatory approach focuses on the future rather than the way decision makers behaved in the past. It aims to prevent potential issues by making the decision akers responsible for it. On the contrary, the legal approach presents administrative law to be used by complainants a means to redress past breaches so that decision makers can be held accountable for such breaches. It looks at the success of administrative law on its ability to provide redress to those adversely affected by unlawful decisions.
The regulatory approach focuses accountability based on the institutional design and interaction between different organs of the system such as ombudsmen, parliamentary committee and internal review. The legal approach focuses more on the accountability of the government to the public. In constitutional terms, the regulatory approach addresses it with separation of power whereas the legal approach focuses on the concept of rule of law. Administrative law focuses on the accountability of government.
By demanding compliance with administrative law principles, and by valuing review mechanisms for rectifying human error, it impacts upon the decision-making processes in order to ensure that the wrongful exercise of administrative power is curbed. The Australian tax system is an example of how administrative law impacts on bureaucratic behaviour. The tax system, being a self assessment system, encourages ne to voluntarily comply with the tax legislation. Tax compliance officers review the tax returns to identity potential risk to revenue.
Where the risks being identified in a review are significant, the tax office will escalate the case to an audit. During an audit, there will be an information request followed by the issuance of a position paper. If the taxpayers realize any errors in their tax returns, they can make voluntary disclosure in order to reduce any shortfall liability and penalty interests. Alternatively they can express their views if there is any contentious issue about the application of law. The taxpayers will be given an opportunity to comment on the position paper before an amended assessment is issued.
The taxpayers can object to the amended assessment which is normally handled by the objection team that is independent from the compliance team. If the decision stays, an application can be lodged to the Administrative Appeals Tribunal to review the decision. The tax office has internal guidelines such as Practice Statement Law Administration for the staff to follow before any administrative decision is made. This ensures the taxpayers would be fairly treated. Before a decision is reached, taxpayers will be iven opportunities to be heard and supply information to support their claim.
The process demonstrates how the Administrative Law influences the bureaucratic behaviour. The decision-makers need to supply proper reasoning before issuing an amended assessment. What are the positive and negative changes on bureaucratic behaviour? On the positive side, more senior public servants are required to be legally trained as they are expected to make decisions based on strong legal grounds so that their decisions will be less likely to be challenged in future. The decisions being made would also be based on fairness with properly established facts.
However, onerous review systems may cause potentially adverse bureaucratic behaviour. The onerous review system may sometimes lead to ‘No further action’ on many potential tax evasion cases. The following explains the negative bureaucratic behaviour that is undesirable to the society goal. review the taxpayers’ tax return and amend the assessments. The review period could be two or four years depending on the size of the business and the nature of entity. Once the ‘period of review expires, the tax office cannot amend the assessment unless there is fraud or evasion for which intention needs to be established.
Knowing this system, some taxpayers may simply delay in supplying information or supplying irrelevant information to make the cases difficult to pursue. By contrast with the private sector for which financial target is the prime objective, the public bureaucrats may not have such incentive to pursue difficult cases that may eventually lead to tribunal review. Further to that, the tax officers need to follow strict guideline when dealing with fraud cases where intention needs to be established. As all elements need to be established before a case can be referred to prosecution, some fraud cases end up being ‘No further action’.
This is undesirable to the societal goal as it means people who dodge the system may not be penalized. Can we Judge the success of Administrative Law as a regulatory tool primarily by its effect on bureaucratic behaviour? As mentioned above, the purpose of the Administrative Law is to make government decision-makers accountable. It promotes the fair procedures and compliance by decisions-makers with legal limitations on their powers. The public can use the merit review system to review the administrative decision of the government. The merit review allows the facts and legal aspects of the decision to be considered afresh.
Based on the merits, the tribunal can affirm, vary or set aside the original decision. From a regulatory point of view, an independent body has stepped in to review the government decisions and therefore it limits the power of the bureaucrats. Therefore, the bureaucrats must obtain sufficient evidence and provide sound reasons to support their decisions. Furthermore, it encourages government bureaucrats to ensure they act consistently with relevant legal requirements. Based on the above, it appears that one can assert that Administrative Law has achieved its purpose as a regulatory tool that impacts on bureaucratic behaviour.