Janina Boughey: Challenging Administrative Action in the Modern Mixed Administrative State

Governments have engaged the private and community sectors to assist them in performing their functions and delivering services for centuries. Indeed, the colony of New South Wales probably could not have been established without government contractors: the British Government relied on private merchants to transport convicts in the late 18th and early 19th centuries. As government functions, powers and services have expanded, developed and evolved, so too have the relationships between governments and the private and community sectors. Modern governments rely on the private sector in a large range and variety of contexts, including: to design, build and sometimes operate automated systems; to assess the needs of, and deliver services to, people with disability, the elderly, and job seekers; to manage those deprived of their liberty, including those in hotel quarantine during the COVID-19 pandemic.

I have just started a research project, generously funded by the Australian Research Council, which aims to examine and assess how “administrative law accountability” can best, and most appropriately, be maintained in modern outsourcing arrangements. The project will analyse and compare the complaints mechanisms, review and information rights of individuals when government functions and services are outsourced, in Australia, Canada, New Zealand and the United Kingdom.

That sounds like an enormous task, and it is: the project will run over 3 years. But there are a few caveats and parameters which make it achievable (I hope!). The first is that I am not looking at court-based review mechanisms or remedies. Those are topics which have already attracted a great deal of excellent scholarly attention, particularly following the implementation of New Public Management philosophies in the 1980s and 90s (though I don’t mean for a moment to suggest that they have been satisfactorily resolved). Although the availability of court-based remedies will clearly inform governments’ choices about what other administrative law accountability mechanisms are appropriate, and what those mechanisms need to do, the bulk of my work will be in assessing those non-court-based mechanisms.

Secondly, I am only concerned with  outsourcing arrangements in which the non-government party is involved in administering a law or policy in a way which affects the rights, interests or obligations of individuals. Essentially, the kinds of actions and decisions which, when made by governments, are or would be amenable to some form of challenge or complaint by the affected individual.

Sometimes this will be clear, such as in situations where governments have outsourced decision-making which directly affects the welfare entitlements of individuals. However, the complex relationships between government and contractors in many programs make drawing this particular line is trickier than it might seem at first glance. Take, for example, a contract to build an automated system to process immigration visa applications. A government might argue—as the Australian Department of Home Affairs recently did —that this is no more than an IT procurement contract. But even if the private company is not going to have any ongoing role in operating the system, the design phase will involve the company making “decisions” and having influence over the way the law is administered. Together, the agency and company will interpret the relevant statute and translate them into rules written in machine-consumable language. Governments will usually rely on the private sector’s expertise to explain the limits and operation of technology, and this will usually influence, and may even drive, what the government system is designed to do and how laws and policies are implemented. For an example of how technology can drive the administration, and even drafting, or laws, you need look no further than the UK’s Universal Credit system. A company which has developed an automated decision-making system might also claim that the details of how the system operates are commercially valuable; affecting information access rights and potentially preventing review bodies from being able to assess whether the system  is based on the correct interpretation of the law. Thus, it’s not as simple as asking whether a particular decision, power or function was previously amenable to administrative law oversight.

The first stage of my project will therefore be exploratory. I will need to get a picture of the various services and functions that governments outsource, and the relationships between governments and the private and community sectors under various outsourcing arrangements. I then need to develop a method of categorising these to decide what is “in” and what’s “out” of my project; where contractors are exercising powers and functions which ought to be subject to administrative law oversight.

The next stage will examine the extent to which administrative law accountability is lost when government functions are outsourced. Australia’s (now sadly and ill-advisedly defunct) Administrative Review Council recommended in 1998 that there should be no loss of review and information rights when governments rely on contractors. But my preliminary research indicates that there often are. There have been some efforts to retain some administrative law accountability in some circumstances in some of the jurisdictions I’m interested in. So, the availability of administrative law accountability may be described as  “patchy” at best. Importantly, however, there has not yet been any detailed assessment of how those mechanisms which are in place operate, or their effectiveness and suitability to different, modern outsourcing arrangements. That work is the ultimate goal of my project.

I would very much welcome insights, case studies, connections and discussions about my project from the readers of this blog!

Dr Janina Boughey is a Senior Lecturer in the UNSW Faculty of Law

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