INSTITUTIONAL ADAPTATION AND THE ADMINISTRATIVE STATE

The contemporary executive in Australia is a large, unwieldy and complex beast - very different from what it was at Federation. Over the years, the structure of the executive has changed dramatically through devolution from traditional governmental departments to agency and corporate structures, as well as privatisation and contracting out. This process was accompanied by a proliferation of Ombudsmen, auditors and tribunals tasked with monitoring the executive. This article analyses how Australian parliamentary and judicial institutions have adapted to significant changes to executive structure and operation by reference to three critical junctures at which the Australian administrative state was significantly reconfigured: (1) the introduction of the 'new administrative law' package, including statutory judicial review, tribunals and oversight bodies such as the Commonwealth Ombudsman; (2) the advent of the 'new public management' movement that led to large-scale corporatisation, privatisation and outsourcing in the public sector; and (3) the recent trend of automation of government decision-making, which may pose new challenges to the reviewability of government decisions. This article shows that at the first critical juncture, the Australian judiciary and legislature adapted the increasingly unwieldy executive to the constitutional system through judicial interpretation that strictly separated Commonwealth and state tribunals and the courts, co-option of oversight bodies by the legislature as supports for responsible government, and constitutionalisation of judicial review. However, the seismic changes to executive structure and operation in the form of privatisation and outsourcing have only been partially adapted to the constitutional scheme, with a drastic reduction of legal accountability via judicial review. This article suggests that the latest challenge of technocratisation of the bureaucracy needs to be carefully monitored to ensure that automated systems in the Australian public sector are compliant with responsible government and legal accountability.