Administrative law values, publicisation and outsourcing
Creators: name: Newell, Virginia Alice
Publisher: name: The Australian National University
Year: 2010
Subjects: subject: KM300.N49 2010 ANU
subject: Administrative law
subject: Administrative responsibility

description: The dissertation represents a response to the concept of 'publicisation" popularised by Jody Freeman, which posits the possibility of outsourcing being adequately controlled and overseen through new public and private mechanisms, in which are embedded appropriate public or democratic norms. As there is a nascent administrative law values discourse within the Australian administrative law discipline, I refer to values in my dissertation rather than norms. There are two hurdles to evaluating and utilising the concept of publicisation in the Australian context. The primary hurdle is the need to correctly identify the relevant values. I argue that, in the Australian context, the relevant values to achieve the publicisation of outsourcing are those that underpin the existing administrative law system. I next conduct a critical textual analysis of the 1970 Reform Reports - the Kerr Committee Report, the Bland Committee Reports and the Ellicott Committee Report with the aim of identifying the values that were embedded in the Australian administrative law system at its inception. My aim in conducting this empirical research is to identify administrative law values other than subjectively. The research demonstrates that in terms of administrative law values, the key to the 1970s reforms was the prioritisation of citizen participation in order to promote legality and fairness. The second finding is that while the reports consistently make reference to the need to safeguard executive efficiency, there is a stronger commitment to ensuring that the values of participation, fairness and legality are prioritised. The italicised words represent value-types; The second hurdle to evaluating the concept of publicisation, in a practical rather than theoretical way, is the need to identify an appropriate methodology to use when looking for evidence of publicisation. In the final chapter of this dissertation I conduct two limited values benchmarking exercises designed to illustrate how evidence of publicisation might be identified in the Australian context and I argue that values benchmarking, a form of standards benchmarking, provides a useful methodological framework. One of the values benchmarking exercises pertains to the 2005 amendments to the Ombudsman Act 1976 (Cth) and the proposed 2009 amendments to the Freedom of Information Act 1982 (Cth). The second values benchmarking exercise looks for evidence of publicisation in the federal courts' jurisprudence regarding their jurisdiction to hear judicial review applications where the decision-maker is not a member of the traditional executive (Minister, agency, officer); My conclusion is that publicisation provides a useful way of evaluating new mechanisms by reference to administrative law values. I qualify this support by arguing that new mechanisms should not be recognised as evidencing publicisation if they do not both extend administrative law values and deliver administrative law goals such as executive accountability or administrative justice. I also observe that mechanisms that can be described as evidencing publicisation cannot necessarily be thought of as equivalent to administrative law mechanisms because publicisation does not insist on the administrative law value of citizen participation being embedded and prioritised.