New methods of accountability in administrative law need to be explored as a result of a rapidly changing world and local environment, Australian Competition and Consumer Commission Acting Chairman, Mr Allan Asher, told a Sydney conference today.
The changes included the increasing globalisation of markets - often putting remedies out of the reach of individual governments - and the reform of the public sector.
"These public sector reforms are having a significant impact on administrative law," he said. "Its reach is shrinking as public sector assets are sold to the private sector or, in some cases, merely corporatised.
"And its application is becoming very murky at the edges in those instances where government services are being provided by private contractors. There are questions about who is liable in the case of negligence, poor service etc. There are also flaws in the protection of privacy when contractors become privy to sensitive information.
"This blurring of the edges of applicability can, in effect, negate the intent of administrative law when the determination of liability requires a complicated court challenge that is beyond the financial means of an individual.
"In the case of privacy, an individual is left dependent on the thoroughness of a government department's monitoring and pursuit of any breaches of privacy clauses in its contracts with private sector providers. That outcome falls a long way short of the original purpose of the law.
Mr Asher said there had been some expansion in the reach of administrative law where the private sector overlapped into the public sector, for example, actions by the Commonwealth Ombudsman.
Mr Asher urged consideration of alternative methods of accountability, including the remedies provided through the ACCC, the Trade Practices Act and the Prices Surveillance Act. These included enforcement of the TPA and the review and remedial mechanisms available under it.
"Nevertheless, they are only a partial answer. Those powers do not add up to an adequate alternative scheme of accountability."
Mr Asher said the powers did not cover the full field of problems that could arise and was a reactive system designed to cure the ills rather than prevent them.
The ACCC did not have the resources to pursue every relatively minor breach of the Trade Practices Act, concentrating on serious breaches and those of national significance, while encouraging private litigation in cases of less import.
"Litigation may simply not be a feasible option for many of the individuals who have a legitimate grievance against a big public sector organisation or privatised corporation.
There was a need to for another third alternative method of accountability, involving installing a coherent user- or consumer-friendly policy from the beginning of the reform process, anticipating most of the different types of problems that are likely to arise as the reforms unfold and attempting to pre-empt them.
"No process could be foolproof, so it would also need an effective mechanism for resolving those disputes that still arise. Such a process would also greatly reduce the prospect of a regulator like the ACCC having to resort to enforcement action in the area.
"The functions of the relevant business organisations undergoing reform would almost certainly be different and the specific changes adopted in each case would vary, so the accountability process would need to be tailor-made to cater for the distinctive features of that particular function or market.
Mr Asher said there were 'generic' elements to such schemes which included:
An audit before the reforms were implemented to provide data on practices that were inadequate and needed to be addressed. Regular monitoring and the publication of its results at periodic intervals would reveal to all the progress being made; Disclosure of sufficient information of a quality that enables consumers or users to make rational choices about their consumption habits. Obligatory standards of service and overall performance that are well-defined, measurable, and closely related to the needs of consumers, with a strong commitment to meet the standards and compensation to customers where the organisation falls short. This quality function can be achieved in variety of ways: through consumer charters, licensing, contract clauses or legislation; An internal mechanism for handling and resolving complaints quickly and a cheap, quick and fair external review mechanism when that is impossible and they turn into disputes.
Some organisations were introducing such schemes, which were "small but positive developments"
"It suggests public and private corporations are beginning to realise that at least some accountability to customers can actually provide a competitive advantage and a stimulus to overall performance," he said. "More concerted efforts along these lines are likely to enhance the gains that still lie latent within micro-economic reform. If they were realised, it might, in turn, enable Australia to participate more confidently in the borderless world."
The changes included the increasing globalisation of markets - often putting remedies out of the reach of individual governments - and the reform of the public sector.
"These public sector reforms are having a significant impact on administrative law," he said. "Its reach is shrinking as public sector assets are sold to the private sector or, in some cases, merely corporatised.
"And its application is becoming very murky at the edges in those instances where government services are being provided by private contractors. There are questions about who is liable in the case of negligence, poor service etc. There are also flaws in the protection of privacy when contractors become privy to sensitive information.
"This blurring of the edges of applicability can, in effect, negate the intent of administrative law when the determination of liability requires a complicated court challenge that is beyond the financial means of an individual.
"In the case of privacy, an individual is left dependent on the thoroughness of a government department's monitoring and pursuit of any breaches of privacy clauses in its contracts with private sector providers. That outcome falls a long way short of the original purpose of the law.
Mr Asher said there had been some expansion in the reach of administrative law where the private sector overlapped into the public sector, for example, actions by the Commonwealth Ombudsman.
Mr Asher urged consideration of alternative methods of accountability, including the remedies provided through the ACCC, the Trade Practices Act and the Prices Surveillance Act. These included enforcement of the TPA and the review and remedial mechanisms available under it.
"Nevertheless, they are only a partial answer. Those powers do not add up to an adequate alternative scheme of accountability."
Mr Asher said the powers did not cover the full field of problems that could arise and was a reactive system designed to cure the ills rather than prevent them.
The ACCC did not have the resources to pursue every relatively minor breach of the Trade Practices Act, concentrating on serious breaches and those of national significance, while encouraging private litigation in cases of less import.
"Litigation may simply not be a feasible option for many of the individuals who have a legitimate grievance against a big public sector organisation or privatised corporation.
There was a need to for another third alternative method of accountability, involving installing a coherent user- or consumer-friendly policy from the beginning of the reform process, anticipating most of the different types of problems that are likely to arise as the reforms unfold and attempting to pre-empt them.
"No process could be foolproof, so it would also need an effective mechanism for resolving those disputes that still arise. Such a process would also greatly reduce the prospect of a regulator like the ACCC having to resort to enforcement action in the area.
"The functions of the relevant business organisations undergoing reform would almost certainly be different and the specific changes adopted in each case would vary, so the accountability process would need to be tailor-made to cater for the distinctive features of that particular function or market.
Mr Asher said there were 'generic' elements to such schemes which included:
An audit before the reforms were implemented to provide data on practices that were inadequate and needed to be addressed. Regular monitoring and the publication of its results at periodic intervals would reveal to all the progress being made; Disclosure of sufficient information of a quality that enables consumers or users to make rational choices about their consumption habits. Obligatory standards of service and overall performance that are well-defined, measurable, and closely related to the needs of consumers, with a strong commitment to meet the standards and compensation to customers where the organisation falls short. This quality function can be achieved in variety of ways: through consumer charters, licensing, contract clauses or legislation; An internal mechanism for handling and resolving complaints quickly and a cheap, quick and fair external review mechanism when that is impossible and they turn into disputes.
Some organisations were introducing such schemes, which were "small but positive developments"
"It suggests public and private corporations are beginning to realise that at least some accountability to customers can actually provide a competitive advantage and a stimulus to overall performance," he said. "More concerted efforts along these lines are likely to enhance the gains that still lie latent within micro-economic reform. If they were realised, it might, in turn, enable Australia to participate more confidently in the borderless world."