A comparative study of the systems of review of administrative action by courts and tribunals in australia and vietnam what vietnam can learn from australian experience (excerpt

A COMPARATIVE STUDY OF THE SYSTEMS OF REVIEW OF ADMINISTRATIVE ACTION BY COURTS AND TRIBUNALS IN AUSTRALIA AND VIETNAM WHAT VIETNAM CAN LEARN FROM AUSTRALIAN EXPERIENCE Author: Nguyen Van Quang obtained his PhD in Law from La Trobe University, Melbourne, Australia in 2007 and currently is Deputy Head of International Cooperation Department and Chair of Administrative Law (Postgraduate Studies) at Hanoi Law University, Vietnam He can be contacted at nguyenvanquang@hlu.edu.vn ABSTRACT This thesis is a critical comparative study of the systems of review of administrative action by courts and tribunals in the Australian and Vietnamese jurisdictions Its purpose is to determine the feasibility and desirability of applying Australian legal experience in Vietnamese conditions It examines the law and legal institutions of both countries with regard to the subject matter of administrative law in order to make comparisons and, more importantly, to draw on Australian experiences which may be relevant to Vietnam’s legal reform It focuses on four related themes, namely, the models of adjudicative bodies, the scope of judicially reviewable administrative actions, the grounds for review and the powers of courts in the Australian and Vietnamese jurisdictions This comparative analysis establishes the basis for a number of proposals for improvements in the judicial review mechanism and for the adoption of a model of administrative tribunals in Vietnam The thesis argues that the key to a sensitive and accurate comparative law study is the ‘law in context’ approach, based on which proposals can be made that are feasible and desirable in the Vietnamese conditions It then concludes that while Australian experience may offer Vietnam some ideas about how to reform its administrative law system, if the reform is to be effective it needs to be carried out gradually, consistent with the Vietnamese context CHAPTER SEVEN TOWARDS A WELL-FUNCTIONING ADMINISTRATIVE REVIEW SYSTEM IN VIETNAM: PROPOSED REFORM Introduction Over the last fifteen years, in pursuing the establishment of a socialist law-based state (nha nuoc phap quyen xa hoi chu nghia), Vietnam has done much to construct and develop its laws and legal institutions, the present task being judicial reform (cai cach tu phap).2 The current reforms of Vietnam’s laws and legal institutions have in part been a response to the requirements of regional and international integration The reform of Vietnam’s administrative review system in this context is aimed at the construction of a system that can serve the objectives of judicial reform and meet to meet the goal of accession to the WTO,4 which was achieved on 11 January 2007.5 The goal of the establishment of a law-based state was officially launched at the Seventh National Congress of Delegates of the Communist Party of Vietnam in 1991 This goal was then reaffirmed in Van kien Dai hoi Dang toan quoc [Trans: Documents of the National Congress of Delegates] in 1996, 2001 and 2006 It is also affirmed by the Constitution 1992 (amended in 2001) Judicial reform is mentioned in the two recent documents of the Communist Party of Vietnam, that are Nghi quyet so 08-NQ/TW cua Bo Chinh tri ve mot so nhiem vu tam cua cong tac tu phap thoi gian toi [Trans: Resolution of the Political Bureau No 08-NQ/TW on Some Judicial Principal Tasks for the Forthcoming Period], and Nghi quyet so 49-NQ/TW 02-6-2005 cua Bo Chinh tri ve ‘‘Chien luoc cai cach tu phap den nam 2020’’ [Trans: Resolution of the Political Bureau No 49-NQ/TW on ‘‘Strategy on for Judicial Reform by the Year 2020’’] For a summary of these Resolutions in the English language, see 'Strategy for Judicial Reform to 2020' (2006) 12(139) Vietnam Law & Legal Forum and Cao Mai Phuong, 'Party Resolutions on Judicial Reform' (2006) 12(139) Law & Legal Forum For a discussion of Vietnam’s judicial reform reflected in Resolution of the Political Bureau No 08-NQ/TW on some judicial principal tasks for the forthcoming period, see Pip Nicholson, 'Vietnamese Jurisprudence: Informing Court Reform' in Pip Nicholson and John Gillespie (eds), Asian Socialism and Legal Change: the Dynamics of Vietnamese and Chinese Reform (2005) 159, 160-70 Amongst the aims for the development of Vietnam’s legal system to the year 2010, one is to build a legal system which ‘should not only reflect the specific features of this country, but also must meet international standards in order to be able to help Vietnam perform her international commitments based on the principles of national independence, self-determination and socialist orientation’ See Inter-Agency Steering Committee for Vietnam’s Legal System Development, Report on Comprehensive Needs Assessment for the Development of Vietnam’s Legal System to the Year 2010 (2001), 25-6 at 20 may 2006 See Submission Paper to the National Assembly (To trinh Quoc hoi) No 15/CP-XDPL dated 21 October 2005 on the draft of the amended Law on Complaints and Denunciations (Luat Khieu nai, To cao) (unpublished material, on file with author) The granting of administrative jurisdiction to the people’s courts in 1996 marked the establishment of a channel for judicial review of administrative action in Vietnam where, previously, complaints about administrative actions could usually be resolved only via the internal review system Since then there have been continued debates about how to improve the quality of the administrative adjudication of the people’s courts While the judicial review of administrative action is becoming an increasingly recognised channel for resolving administrative disputes, much work needs to be done to enhance its effectiveness One of the obvious examples is that although the administrative jurisdiction of the courts has been gradually extended,7 the courts lack the capacity to cope with the increasing number of administrative disputes between administrators and the administered.8 The public is also concerned about the inadequacies of the internal review mechanism in the administrative system There is a widespread belief that administrators not usually correct their wrong decisions, and as a result the internal review system does not seem to be trusted In fact, for several reasons, as a high ranking state official has claimed, a large percentage of internal review decisions have been concluded to be wrong 10 However, as opportunities to use external review mechanisms are limited, people still have to rely heavily on the internal review system Several solutions to the above problems have been proposed On the one hand, having proposed and implemented several reforms, Vietnam has committed itself to the strengthening of the capacity of the current court system to resolve administrative See at 11 January 2007 for information of Vietnam’s membership to the WTO See ‘Dan kien co quan cong quyen: Chuyen khong hiem [Trans: Ordinary People Sue Public Authorities: It Is No Longer a Rare Story]’ (2004) at 02 April 2004 For more details see section II of Chapter Four and section I.B.2.a of this Chapter of the thesis See Nghia Nhan, ‘Nganh toa an kho kham noi viec xu ly tranh chap dat dai [Trans: Courts Are Unendurable to Resolve Land Disputes]’ (2003) at 22 July 2003; Hong Phuc, ‘Toa an chua du suc giai quyet khieu kien ve dat dai [Trans: Courts’ Capacity Is Not Enough for Resolving Land Complaints]’ (2003) at 22 July 2003 See Anh Thu, ‘Giai quyet khieu nai khong the ‘vua da bong vua thoi coi’ [Trans: Resolving Complaints Cannot Be ‘Playing and Refereeing at the Same Time’]’ (2005) at March 2006 See also Van Tien, ‘Nen lap co quan tai phan hanh chinh? [Trans: Should Administrative Tribunals Be Established?]’ (2005) at 20 March 2006 10 For more details, see below at n 24 cases.11 On the other hand, the debate about whether Vietnam should establish external administrative tribunals along the lines of those found in some Western countries is currently at the centre of attention.12 The idea of establishing administrative tribunals in Vietnam is well supported, on the basis that administrative tribunals could not only overcome the inadequacies of internal review, but the resolution of administrative complaints by these administrative tribunals could also be more effective than that achieved by the courts.13 Although some people are still concerned about the justification for the establishment of such tribunals in the conditions of Vietnam, 14 the recent proposal of the Ministry of Natural Resources and Environment (Bo Tai nguyen va Moi truong) to set up land tribunals indicates support for the efforts of reformers to adopt a new mechanism for resolving administrative complaints Whether those proposals would be promising in the Vietnamese context? To what extent the Australian experience could suggest to Vietnamese legal reformers how they should reform their system? What would be potential challenges for Vietnamese legal reformers in the course of adopting those proposals? All these questions are the main concerns of this Chapter This Chapter is divided into three Parts It begins with a discussion of the shortcomings of the current system of resolution for administrative disputes in Vietnam It is followed by an analysis of several proposed reforms of the Vietnamese administrative review system in which it is contended that the Australian legal experience and institutions may offer Vietnam some ideas about how to reform its administrative law system To support this argument, the current Vietnamese debates about the establishment of administrative tribunals, and several related suggestions drawn from the Australian experience are specifically discussed This Chapter emphasises that if the reform of the administrative review system is to be effective, it needs to be carried out gradually, consistent with Vietnamese conditions Given that reforming the administrative review system in a country in transition like Vietnam is not an easy task, this Chapter also points out several potential challenges, both theoretical and practical, which Vietnam would face in the course of reform 11 For more details Part II of this Chapter 12 See Van Tien, above n See ‘Can co co quan tai phan hanh chinh [Trans: The Need for Establishing Administrative Tribunals]’ (2005) (2005) at 06 March 2006 14 See Anh Thu, ‘Chua the thi diem mo hinh co quan tai phan hanh chinh [Trans: The Model of Administrative Tribunals Could Not Be Piloted Yet]’ (2005) at 10 March 2006 13 I CURRENT CHANNELS OF RESOLUTIONS FOR ADMINISTRATIVE DISPUTES IN VIETNAM: REVEALING THE SHORTCOMINGS As in many other countries, several review channels have been set up in Vietnam to ensure the fairness, lawfulness and transparency of government decision-making, the accountability of decision-makers and above all, to protect the legitimate rights and interests of individuals and organisations These include channels which are not directly concerned with the resolution of particular administrative disputes They have also been set up for the purposes of supervision and investigation of administrative decisionmaking institutions in order to detect administrators’ errors and devise mechanisms for reducing their incidence The three channels that exist for this purpose, which were discussed to some extent in Chapter Two, are:    supervision (giam sat) by the National Assembly and the local people’s councils; inspection (thanh tra) by the inspection bodies system; audit (kiem toan) by the state auditing bodies This Chapter focuses not on these system-oriented institutions but on those concerned with disputes about the legality and correctness of particular administrative decisions (acts) 15 These administrative disputes are currently settled through two channels: resolving complaints and denunciations (giai quyet khieu nai, to cao) or internal review and judicial review of administrative action Some general points with regard to these two channels were made in Chapter Two of the thesis, but their shortcomings in resolving administrative disputes in the legal practice of Vietnam will be the main theme of this section A Resolving Complaints and Denunciations: the Question of Reliability ‘Internal review’ in the Vietnamese legal context is a formal review process regulated by the Law on Complaints and Denunciations It firstly refers to a process by which primary decision-makers whose administrative decisions (acts) 16 are the subject of complaints or denunciations are themselves responsible for resolving these complaints 15 It should be noted that supervision (giam sat), inspection (thanh tra) and audit (kiem toan) are, surely, in some ways concerned with legality of administration However, the main purpose of these systems is not to deal with particular administrative disputes 16 `For a definition of an administrative decision (act) which is subject to complaints and denunciations or judicial review see Law on Complaints and Denunciations (Luat Khieu nai, To cao) 1998 (latest amended in 2005) and the Ordinance on Procedures for Resolving Administrative Cases (Phap lenh Thu tuc giai quyet cac vu an hanh chinh) 1996 (latest amended in 2006), see Chapter Four of the thesis and denunciations 17 ‘Internal review’ also refers to cases where complaints about decisions (acts) are resolved by officials who are not primary decision-makers but who work in the same agency or the same system with them.18 In this regard, internal review in Vietnam is very similar to that in the Australian legal context.19 In the period before Vietnamese people’s courts were granted administrative jurisdiction, resolving complaints and denunciations was almost the only channel which was available for resolving administrative disputes Even after the Vietnamese courts acquired administrative jurisdiction in 1996, this channel has continued to play a pivotal role in resolving administrative disputes, partly due to the limitations of the judicial review channel But while the significant role of the internal review channel is undeniable, much has been discussed about its shortcomings as a justification for the need to reform the current review system It should be noted that the advantages and disadvantages of the internal review system appear to be common in most administrative law systems 20 Through internally 17 In accordance with the Vietnamese law, complaints about decisions (acts) of heads of state administrative agencies or those of other officials in the agency are resolved by the heads of agencies at first instance (giai quyet khieu nai lan dau) (Articles from 19 to 26 of Law on Complaints and Denunciations) 18 Under the law of Vietnam, if the complainant is not happy with the decision to resolve complaints at the first instance, the complaint can be resolved at the second instance (giai quyet khieu nai lan hai) where officials at higher levels are responsible for resolving complaints about decisions (acts) of officials at lower levels in the same system It should be noted that, according to the Law on Complaints and Denunciations, the state inspection bodies are also granted powers to resolve complaints and denunciations about state administrative agencies’ decisions (acts) in some special cases However, in terms of organisation, the state inspection bodies are part of the system of state administrative agencies, and therefore resolving complaints in these cases is also referred to as ‘internal review’ For more details see articles from 19 to 28 of Law on Complaints and Denunciations 19 Internal review in the Australian legal context is defined as ‘a process of review on the merits of an agency’s primary decision’ which is ‘undertaken by another officer within the same agency, usually a more senior officer’ (see ARC, Internal Review of Agency Decision Making - Report to Attorney General Report No 44 (2000), [7.13]) However, it should be noted that, while ‘internal review’ in the Vietnamese legal context is always a formal review process, ‘internal review’ in the Australian legal context is both formal and informal Internal review is formal in the Australian legal context in the sense that it has become institutionalised For example, under the Social Security (Administration) Act 1999 (Cth), there is provision for internal review by the Secretary, the Chief Executive Officer and Authorised Review Officers, depending on the decision ‘Internal review’ in the Australian legal context may be also relatively informal in the sense that there is no statutory basis for conducting internal review, and applicants obtain internal review through communication (possibly coupled with negotiation) with relevant officials 20 For a summary of advantages and disadvantages of internal review in the Australian administrative law context, see Matt Minogue, 'Internal Review of Administrative Decisions' (2001) Issue No 54 Admin Review 54, 55-6 reviewing administrative decisions, decision-makers will have the opportunity to selfreview, self-judge, and self-correct their questioned decisions if they see fit to so Moreover, internal review can be quick and cheap in comparison with external review channels However, internal reviewers are generally believed to be reluctant to overturn their own, their colleagues’ or their subordinates’ decisions In any case, people, usually doubt the impartiality of internal review decisions, and this has become a barrier, discouraging them from actively using the internal review process The disadvantages of internal review can be clearly seen in the legal practice of Vietnam First, there is a widespread belief that as reviewers are authors of the decisions (acts) in question, or are working in the same agency or system, appellants will find it hard to gain truly impartial review decisions through internal review One of the barriers to the effectiveness of internal review, as many high-ranking Vietnamese officials admit, is that officials in charge of reviewing their own decisions (acts) are often reluctant to change ones which are claimed to be incorrect 21 In cases where officials internally review decisions (acts) made by their staff, errors in making decisions are sometimes covered up in order to protect local interests.22 Another factor affecting the quality of the internal review process is the attitude of officialdom and imperiousness, which is reflected in a lack of a sense of responsibility found in a number of officials who are responsible for resolving complaints 23 It is claimed that in the course of resolving complaints and 21 See Anh Thu, above n In this newspaper article, Anh Thu quoted the words of Mr Nguyen Dinh Loc (the Depute to the National Assembly and the former Minister of Justice) who claimed ‘no administrator wants to confess his or her errors If he or she was not put under hard pressure, his or her decisions would never be corrected’ In Vietnam, although there are no official statistics relating to results of resolving complaints and denunciations at the first instance, it is believed that the number of cases where state officials altered their incorrect decisions (acts) after being internally reviewed at first instance is very small For example, the Deputy to the National Assembly Mr Nguyen Dinh Xuan has even revealed that the number of cases where state officials uphold their decisions (acts) after internal review at first instance made up 99% of the total number of received complaint cases See Nhu Trang, ‘Co the kien neu khieu nai khong duoc giai quyet [Trans: If Complaints Are Not Properly Resolved, Complainants Can Initiate Their Cases at Court]’ (2005) at 01 March 2006 22 This problem is mentioned in official state documents of the Government of Vietnam, for example, in Report No 1567/CP-V.II of the Government to the National Assembly presented at the Sixth Session of the National Assembly XI on tasks to resolve complaints and denunciations in the year 2004 See ‘Cong tac giai quyet khieu nai, to cao nam 2004 [Trans: Resolving Complaints and Denunciations in the Year 2004] (2004) at March 2006 23 This was confirmed at the session on 21/3/2004 of the Standing Committee of the National Assembly discussing the Summation Report of the implementation of the Law on Complaints and Denunciations 1998 from January 1999 to the end of the first quarter of 2004 See Van Tien, ‘Dan it khieu nai moi dang ngai! [Trans: It Should Be Worrying Only If People Complain Less!]’ (2004) at 01 March 2006 denunciations, state officials rarely communicate directly with the complainants whose rights and interests are allegedly affected by their decisions (acts).24 To make decisions for resolving complaints and denunciations, senior state officials generally rely on proposals by their staff and give little personal attention to the complaint 25 As some officials with responsibility to help more senior officials to deal with complaints and denunciations are open to corruption, biased decisions are likely to be made.26 Second, although the reliability of the internal review mechanism is usually questioned, it could be improved if these decisions were to be potentially reviewed externally by other channels, for example, by the judicial review mechanism This is because, if internal reviewers faced the risk of being externally reviewed, they would have to be careful with their decisions if they did not want to ‘lose face’ in public However, this would require that there be a real possibility both that decisions are externally reviewed, and that they are found to be defective As noted, before July 1996 when Vietnamese courts were not granted administrative jurisdiction, complainants did not have the right to lodge applications for judicial review of administrative action Almost all complaints about administrative decisions (acts) were settled within the administrative system The exclusive reliance on internal review created a bureaucratic ‘monopoly’ in resolving administrative disputes and administrators did not have to worry about the risks of being sued at court The quality of internal review, therefore, was not improved An example reflecting this 24 Although the latest amended Law on Complaints and Denunciations requires that officials in charge must directly communicate with complainants prior to making the decision resolving complaints, until recently, this procedure was optional This is a reason why officials in charge rarely meet complainants to discuss the decision (act) in question Due to the lack of communication with complainants prior to making decisions, most complainants are not happy with decisions for resolving complaints Mr Nguyen Dang Dai, the Vice Director of the Board of People’s Aspirations of the National Assembly, revealed that cases in which complainants were happy with internal review decisions made up only roughly 30% while 70% of internal review decisions were concluded to be wrong See Van Tien, ibid 25 Under the law of Vietnam, to deal with complaints and denunciations, each administrative state organ usually sets up a section or appoints one or more officials that are responsible for receiving letters of complaints and denunciations, considering all related matters and submitting resolutions for complaints and denunciations to competent officials who will make decisions to resolve complaints and denunciations 26 See Nhu Trang, ‘Khieu kien keo dai co quan cong quyen thieu trach nhiem [Trans: Complaints Are Prolonged Due to the Irresponsibility of State Authorities]’ (2004) at March 2006 Nhu Trang referred to the words of Mr Nguyen Dang Dai, the Vice Director of the Board of People’s Aspirations of the National Assembly (Ban Dan nguyen cua Quoc Hoi) and Mr Bui Ngoc Thanh, the Vice Chairperson of the Committee for Social Issues of the National Assembly, who pointed out that there were many negative influences by state official in charge, especially with their assistant staff, which was one of reasons why many internal review decisions remain biased practice is that annually there was a large backlog of cases of complaints.27 Also, there were frequently cases where complaints could not be finalised for a long time.28 Since the judicial review of administrative action became available in Vietnam, it appears that the situation has not changed very much The main reason for this is the fact that the judicial review of administrative action in Vietnam has limitations, and that complainants still have to rely heavily on the internal review mechanism 29 Recently, Vietnam has made some amendments to laws relating to resolving complaints, which, to some extent, gives people more opportunities to initiate administrative cases at court.30 Theoretically speaking, this could become a reminder that state officials have to be careful with their internal review decisions otherwise they could potentially be judicially reviewed However, the current limited capacity of administrative adjudication of Vietnamese courts does not allow them to judicially review all kinds of administrative decisions (acts).31 Internal review, therefore, continues to be the main review channel in Vietnam B Judicial Review of Administrative Action in Vietnam: Continuing Limitations On the basis of their experiences, legal experts, scholars, administrators and the public in general have started raising many questions relating to the exercise of administrative jurisdiction in Vietnam.32 Their common concerns are the limitations of 27 For more details see Chapter Two of the thesis which discussed the Summation Report for the resolution of administrative complaints in Vietnam in the 1991-1996 period compiled by the State Inspectorate (Thanh tra Nha nuoc) 28 See Vu Thu, 'Thu tuc to tung hanh chinh [Trans: Administrative Procedure]' in Dao Tri Uc (ed), He thong tu phap va cai cach tu phap o Viet Nam hien [Trans: Judicial System and Judicial Reform in Vietnam at Present] (2002) 340, 344 29 For a detailed account of the limitations of the judicial review of administrative action in Vietnam, see section I.B of this Chapter 30 There have been two important amendments First, the Vietnamese courts have jurisdiction to hear administrative cases falling within 22 categories and therefore, in comparison with the primary administrative jurisdiction that was conferred on the Vietnamese courts in 1996, the administrative jurisdiction is considerably extended Second, in accordance with the old Law on Complaints and Denunciations, after complaining about administrative decisions (acts) at first instance, if the complainant chooses to further complain at second instance, he or she was not allowed to initiate an administrative case at court Now the latest amended Law on Complaints and Denunciations does not put this restriction on a complainant who has already complained at the second instance 31 For more details, see section I.B.1.a of this Chapter 32 See for example, Nguyen Anh Tuan, 'Giai quyet khieu kien hanh chinh - Nhung vuong mac va giai phap [Trans: Resolving Administrative Cases - Difficulties and Solutions]' (2001) Issue No Tap chi Quan ly Nha nuoc (State Management Review) 15; Vu Thu, 'Mot so khia canh cua viec nang cao hieu suat hoat dong cua toa hanh chinh viec giai quyet cac khieu kien hanh chinh [Trans: Some Issues on Promoting the Efficiency of Administrative Courts Regarding Hearing Administrative Cases]' (2003) Issue No Nha resolving administrative disputes by the courts and the necessary reforms needed to make judicial review more effective On the surface, the limited capacity of judicial review of administrative actions is reflected in the modest number of administrative cases heard by Vietnamese courts over the last ten years since they were granted administrative jurisdiction Annually, the Supreme People’s Court of Vietnam issues a Summation Report on the operation of the entire court system, including administrative divisions Although the statistics in the table below show an upward trend in the hearing of administrative cases,33 they also indicate the paucity of administrative cases accepted and resolved by the courts (see Table 7.1 below) Comparing this modest number of administrative cases with the huge number of applications lodged in the internal review system, 34 one can clearly see the limited exercise of administrative jurisdiction of the courts According to the Report of the State Inspector General, from 1999 to the end of the first quarter of the year 2004, the administrative system received 1,360,000 visits from citizens who came to lodge their complaints, denunciations or petitions and 459,243 out of 639,590 accepted complaints were adjudicated.35 Table 7(1): Hearing Administrative Cases at First Instance by Vietnamese Courts from 1996 to 2004 Year Accepted Resolved 1996 36 (cases) 17 (cases) 1997 117 97 1998 327 201 1999 408 319 2000 539 419 2001 803 564 nuoc va Phap luat (State and Law) 25; and Le Xuan Than, 'Mot so y kien ve to chuc va hoat dong cua Toa hanh chinh [Trans: Some Viewpoints Regarding the Organisation and Functioning of Administrative Courts]' (2002) Issue No Nha nuoc va Phap luat (State and Law) 31 33 The table is drawn up on the basis of data summarised from the Annual Summation Reports of the Supreme People’s Court in the period from 1996 to 2004 These Reports are internal documents which are on file with the Supreme People’s Court in Hanoi See Nhu Trang above n 26; Dang Vy and Van Tien, ‘60% don thu khieu nai lien quan den dat dai [Trans: 60% of complaints relate to land issues]’ (2004) at 20 May 2004 See also Chapter Two of the thesis for the detailed number of complaints received annually by the administrative system in Vietnam from 1991 to 1996 35 See Dang Vy and Van Tien, above n 34 34 conforming to WTO requirements, strong consideration should be given to the establishment of specialist administrative tribunals resolving administrative disputes relating to the implementation of trade agreements under the framework of the WTO.180 Apart from these, it would be strongly recommended to establish specialist tribunals settling administrative disputes in which merits will often matter, and where the legal and technical specialisation of adjudicators is a feasible expectation and will normally be required In fact, the establishment of specialist tribunals that would handle administrative disputes relating to certain specific matters has support For example, Mr Nguyen Van Thanh, the Head of the Inspectorate Science Institute of the Government Inspectorate of Vietnam has suggested that specialist tribunals should be established to deal with administrative disputes arising from some areas such as land management or intellectual property management; 181 Mr Quach Le Thanh, the former Inspector General, has suggested the establishment of administrative tribunals dealing with trade-related administrative disputes.182 In particular, the idea of adopting the model of such tribunals is evident in the recent proposal by the Ministry of Natural Resources and Environment (MNRE) (Bo Tai nguyen – Moi truong) to establish land tribunals (co quan tai phan ve dat dai).183 More particularly, as Mr Dang Hung Vo – the Vice Minister of the MNRE optimistically points out, these tribunals would:  be under the management of either the National Assembly or the Government, but be independent of local governments whose decisions would be subject to the review of the land tribunals;  be impartial in resolving administrative disputes relating to matters of land management;  possess full capacity to deal with land disputes, as the tribunal members would be specialists whose experience was primarily concerned with land management and land law; 180 For further details in relation to this point, see Chapter Four of the thesis See Toa an nhan dan toi cao (Supreme People’s Court), above n 40, 169 182 See Anh Thu, above n 14 183 See Thanh Ngoc, ‘Se co co quan tai phan chuyen phan xu ve dat dai?’ [Trans: Will There Be Tribunals Specialising in Land Disputes?] (2005) at 30 March 2006 Thanh Ngoc conducted an interview with Mr Dang Hung Vo – the Vice Minister of the Ministry of Natural Resources and Environment [MNRE] regarding the proposal of the establishment of land tribunals initiated by the MNRE 181  have powers to set aside decisions or substitute new decisions for disputed decisions.184 Although little has been said about the details of such Vietnamese land tribunals, the proposal by the MNRE indicates the efforts of Vietnam in setting up a model of specialist tribunal to effectively review administrative decisions (acts) in the area of land management There are several reasons why this proposal of the MNRE should be given strong consideration First, as mentioned in section II.B.2 of this Chapter, administrative disputes in land management currently make up nearly 60% of the total number of administrative disputes arising in Vietnam.185 If in Australia the establishment of the MRT and RRT is explained by the huge number of cases relating to migration, the creation of administrative tribunals for resolving administrative disputes relating to land management should be the first choice in Vietnam Second, according to the statistics of the Government Inspectorate, administrative disputes relating to land management in Vietnam mainly fall within the following specific areas:186   compulsory acquisition of land for various purposes set out by the law;187 resolution of disputes on land use rights In practice, these administrative disputes are usually concerned with matters of fact rather than matters of law For example, administrative disputes on decisions relating to the acquisition of lands happen frequently in practice In these disputes, what does matter is not whether decisions to acquire lands are lawful, but whether the compensation decided by competent state departments for households or organisations who have lands subjected to compulsory acquisition is fair In dealing with this question, the main concern is related to technical issues and factual matters such as the determination of land prices which are applicable to the cases in question, the calculation of areas of acquired lands, or the total costs associated with the acquisition of lands To effectively 184 Ibid See Nhu Trang, above n 26 186 Ibid 187 In accordance with the law of Vietnam, the State can acquire lands which are legally used by individuals or organisation for the purposes of defence, national security, national and public interest or economic development In these cases, the State will compensate individuals or organisations whose lands are acquired (articles 39 and 40 of Land Law 2003) 185 settle these disputes, apart from having land law knowledge, adjudicators will be required to have expertise relating to land management and the real estate market Administrative tribunals, rather than courts of law, would therefore be suitable for resolving this kind of administrative dispute Potential Challenges Adopting a new legal institution is obviously not an easy task It first and foremost requires comprehensive analysis of the feasibility of adopting the new model In this case there will be several potential challenges facing reformers who want to adopt land tribunals Firstly, in terms of perception, the concept of administrative tribunals as a totally new model in Vietnam is still somewhat vague to many people, including legal scholars While there is a lack of details for this new model, it is likely that people will doubt whether it could overcome the shortcomings of the current system of review channels.188 While a trial of the model of administrative tribunals seems to attract strong support, a comprehensive study of such tribunals, including foreign experiences, could enhance understanding This would play an important role in successfully adopting the model in Vietnam It should also be noted that, misperceptions could become a major factor leading to the failure of adopting such a new model For example, in China a proposal to establish administrative tribunals performing an administrative review function as can be seen in many common law countries was initiated in 1988.189 However, because it was felt that ‘the existence of too many different supervision channels fragments and further weakens the system of supervisions as a whole’ 190 the establishment of the model of ‘administrative appeal tribunal’ in China was not supported In addition, there is concern that the model of administrative tribunals might work quite well in some Western countries which have different political, socio-economic, legal and cultural conditions from those of Vietnam, but that this would not guarantee 188 For example, in the session of the Standing Committee of the National Assembly on 29 July 2005, the Committee decided that the model of administrative tribunals had not been able to be tried yet in Vietnam due to the lack of detailed proposals submitted by the Government See Anh Thu, above n 189 See Sarah Biddulph, ‘Through a Glass Darkly: China, Transparency and the WTO’ (2001) Australian Journal of Asian Law 59, 65 190 Ibid that it would work effectively in Vietnamese conditions Dong, a legal expert of the Government Inspectorate, for example, has pointed out that the traditional sociopsychological factors of the Vietnamese, such as the desire to live harmoniously and to avoid litigation, may discourage them from accessing administrative tribunals.191 He also has doubted whether, without a separation of powers, a civil society, and political pluralism, this Western model could work well in the conditions of Vietnam The several theoretical concepts in relation to legal transplantation as discussed in Chapter One of the thesis would suggest answers to the questions raised by Dong It is widely accepted that countries which have different political, socio-economic, legal and cultural backgrounds may face similar problems and that their common interests in finding solutions to the problems would reduce those differences and open opportunities to learn from each other This appears to be clear in the context of internalisation and globalisation Learning from the Australian experience of specialist administrative tribunals, therefore, is feasible, but it should be noted that such experience may offer only general ideas about the model of specialist administrative tribunals, while the important task of Vietnamese reformers is to design such tribunals to be appropriate for the conditions of Vietnam Secondly, adopting the model of administrative tribunals would require the enactment of a range of new statutes governing the organisation and operation of these tribunals.192 Rules relating to organisation must first of all clearly determine the status of administrative tribunals in the current state apparatus of Vietnam, otherwise, a potential challenge would be the issue of division of state powers.193 It is important to note that administrative tribunals, as part of the executive branch would have to be impartial and independent of the government authorities; functionally, they should be like courts as they perform administrative adjudication but they would belong to the executive branch and their decisions could become the subjects of judicial review by courts Also, See Do Xuan Dong, ‘Tai phan hanh chinh lieu co thay the duoc co che ‘‘nguoi bi kien cung la nguoi khoi kien’’?’ [Trans: Can Administrative Tribunals Eradicate the ‘‘Player as Referee’’ Mechanism?] (2006) at 20 May 2006 192 The Standing Committee of the National Assembly of Vietnam was very concerned with legal rules relating to the organisation and operation of administrative tribunals They concluded that unless these rules were drafted and clarified, the trial of administrative tribunals could not start See Anh Thu above n 193 As mentioned in III A of this paper, concern about the blurred division between executive power and judicial power was expressed when assessing the model of administrative courts under the Government A similar question could also be raised in relation to the organisation of administrative tribunals since administrative tribunals, as part of the executive branch, perform administrative adjudication 191 procedural rules for review by administrative tribunals and mechanisms to execute tribunal decisions must be clarified In this regard, it is expected that the procedural rules of administrative tribunals would be designed to make this review channel easily accessible Thirdly, the establishment of administrative tribunals would also face challenges relating to staffing and budget Currently, as above noted, Vietnam is trying to reform its court system in order to improve the quality of adjudication Amongst its main tasks are a restructuring of the court system and an improvement in the number and quality of its judges, especially of its local judges This of course requires a large budget Setting up a new institution would therefore put more pressure on the state budget For this reason it would be likely that the authorities would have to consider whether they should reform the current administrative courts or set up new administrative tribunals Therefore, the question of staffing and budget must be taken into account in detailed proposals relating to the establishment of administrative tribunals Finally, Vietnamese administrative law reformers need to realise that ‘bureaucratic culture’ would always be a factor affecting the adoption of review institutions like administrative tribunals Generally, the effectiveness of review systems depends on partly whether they are acceptable to administrators Also, it is very common that administrators tend to be wary about institutions which supervise their activities As discussed in Chapter Two of the thesis, the introduction of ‘New Administrative Law’ package in the 1970s in Australia was not effortless and it encountered criticisms of government departments; thus, this package of reforms was not always welcomed by Australian administrators.194 Particularly, in a discussion of the proposed model of an ART, Peter Bayne has observed that: An ART cannot enhance the prospect of administrative justice in the corridors and cubicles of the Australian Public Service (APS) unless the values held by officers of APS, from its leaders down to the primary decision-makers, are sympathetic to respect for the law and the role of an external review 195 In the case of Vietnam, as noted in this Chapter, negative attitudes of government departments and officials toward the judicial review of administrative action is a reason why the operation of this review channel is still limited in Vietnam.196 194 See a discussion of this point in Chapter Two of the thesis Peter Bayne, 'The Proposed Administrative Review Tribunal - Is There a Silver Lining in the Dark Cloud?' (2000) Australian Journal of Administrative Law 86, 99 196 See section I.B.1 of this Chapter 195 However, it also should be noted that external review agencies may serve useful functions for administrators, and Australian experience, in fact, has suggested that the viewpoint that ‘executive intransigence to external review’ lacks substantial grounds.197 It is obvious that once one accepts that mistakes in the making of administrative decisions are inevitable, there need to be procedures for correcting them and external review systems would be a good choice for performing such procedures Also when appeals are available, administrators can deal with unmeritorious informal complaints by telling the complainant to appeal and in such cases appeals usually vindicate the decision-maker Importantly, appeals are a very good channel providing information about how the bureaucracy works to managers and they can ‘achieve a far greater control and accountability within bureaucracy’ 198 In practice, Australian administrators who opposed a vigorous judicial review and external merits review systems have learned to live with a system of accountability and indeed accept accountability as a professional obligation The Australian experience suggests to Vietnamese administrative law reformers that while ‘bureaucratic culture’ would be potential challenge to the success of the adoption of a new external merits review channel in Vietnam, over time, as the bureaucrats would acknowledge useful functions that this review channel would serve, it should no longer be a major concern Conclusion Vietnam is on the way to improving its administrative review mechanisms for the purposes of protecting the legitimate rights and interests of individuals and organisations, ensuring the accountability of administrators to the government and the public, improving administrative decision-making and meeting the requirements of international integration To deal with this task, Vietnam has committed itself to strengthening the quality of administrative adjudication by its courts and to searching for an effective model of merits review This Chapter has shown that studying Australian legal experience could suggest to Vietnamese law reformers some ideas how to effectively reform their administrative review system One of examples regarding this suggestion is that while the current internal review and judicial review channels in Vietnam have revealed a number of shortcomings, the model of administrative tribunals as seen in common law countries like 197 See John McMillan, 'Better Decision-Making: by What Standard?' (2002) Issue No 105 Canberra Bulletin of Public Administration 43, 44 198 Roman Tomasic, 'Administrative Law Reform: Who Benefits?' (1987) 12 Legal Service Bulletin 262, 263 Australia could be considered as a solution to the issue in question In fact, the idea of a trial of the model of specialist tribunals initiated by the Ministry of Natural Resources and Environment is currently supported by the local conditions of Vietnam Adopting a new legal institution is of course not an easy task In the context of a developing legal system, Vietnam faces potential challenges, arising from dealing with perceptions, the legal foundation and the problems of staffing and budget, in the course of the trial of a totally new review channel Unless administrative tribunals were established, and operated, it would be hard to give comments on the effectiveness of the model of administrative tribunals in the Vietnamese conditions Nevertheless, a recognition of these challenges should be the starting point in preparing for the successful adoption of this new model in Vietnam GENERAL CONCLUSION Over the last two decades, Vietnam, as a country in transition, has made great efforts to construct and improve its legal system in order to become a state characterised by rule of law This has been evidenced by the introduction, since July 1996, of laws and legal institutions for the judicial review of administrative action However, given Vietnamese conditions, establishing an administrative review system which can ensure the fairness, lawfulness and transparency of government decision-making and the accountability of decision-makers, and protect the legitimate rights and interests of individuals and organisations adversely affected by the irregular actions of decision-makers will require a long process Many challenges face Vietnam in the course of this long process of reform This thesis offers suggestions, drawn from Australian-Vietnamese comparative analyses, regarding Australian ideas that Vietnamese law reformers should (or should not) adopt for reforming their administrative review system, given the local conditions It argues that while Australian experience might provide Vietnamese law reformers with some general ideas about how to reform their system, the key to success appears likely to be choosing the appropriate steps in the long reform process I Understanding the Context: Reforming the Vietnamese Administrative Review System in the Vietnamese Conditions This comparative study has shown that Australia has an administrative review system which is believed to be ‘an example of world’s best practice’ However, the Australian system, which is generally comprehensive, complicated and expensive, can only function effectively in its ideological, political, historical, socio-economic, cultural and legal context It is therefore impossible for Vietnamese law reformers to look to the whole Australian system as the basis for reforming their administrative review system Nevertheless, understanding the context of the two systems can help to draw on Australian ideas that could be relevantly adopted in the Vietnamese conditions As we have seen, besides the extraordinarily complicated judicial review system, which is partly due to its federal structure, Australia has a merits review tribunal system which plays a major role in reviewing administrative action Thus, while Australian courts are given a very broad jurisdiction to judicially review administrative actions, this jurisdiction is rarely mobilised since most administrative disputes are effectively resolved by merits review tribunals The complexity of the Australian system of administrative adjudication bodies reflects successive governments’ attempts to make administrative justice more accessible, thereby meeting the requirements of a democratic society and the rule of law This complex administrative review system, however, can be afforded only by relatively wealthy countries such as Australia Also, it is noted that while a ‘bureaucratic culture’ is normally a factor affecting the effectiveness of administrative review institutions, Australian bureaucrats, in a society where ‘rule of law’ is well respected, have accepted accountability as their professional obligation Thus, the Australian administrative review system functions smoothly and it is rare to see negative attitudes among bureaucrats towards institutions which supervise their activities reflected in resistance to their decisions Further, to facilitate the ability of applicants to challenge the validity of administrative action, Australian law sets out a complex system of substantive and procedural rules, which generally are not always easy to understand and follow However, since most Australian applicants have access to legal representation, following such complicated rules is not a major problem for them, although it may be for would-be applicants who lack access to legal representation The Vietnamese administrative review system has been established and developed in Vietnam’s distinctive political, socio-economic, cultural and legal conditions It is obvious that any improvement of laws and legal institution will involve dealing with fairly complex political and philosophical issues As noted, several principles influenced by the socialist political and legal ideology, such as ‘leadership of the CPV’, ‘socialist legality and a socialist law-based state’ and ‘concentration of powers’ have been maintained in the Vietnamese Constitution Understanding the Vietnamese administrative review system, and, more importantly, making any proposal to reform this system, must necessarily be put in the context of compliance with those constitutional principles In order to comply with the principle of the ‘leadership of the CPV’, as we have seen, proposals for reforming the Vietnamese administrative review system need to be politically supported by the CPV Suggestions for extending the scope of judicially reviewable administrative actions or for adopting a model of administrative review tribunals would be feasible only if they were consistent with resolutions of the CPV Similarly, suggested proposals for a model of regional people’s courts need to be considered in relation to how this model could conform to the principle of concentration of powers It is also noted that since ‘leadership of the CPV’ and ‘concentration of powers’ have traditionally been dominant principles governing the organisation and operation of the State apparatus, it is understandable that the judiciary appears to be rather weak amongst the three branches of government in Vietnam The lack of judicial independence of the courts, especially that of the local courts, their limited adjudicative capacity, and the low quality of judges in terms of professionalism and professional ethics, are typical examples reflecting a weak judiciary in Vietnam Thus, if they wish to make proposals for radical reforms in relation to the Vietnamese court system, law reformers need take into account its limitations in order to ensure the feasibility of such proposed reforms Any attempt at reforming the Vietnamese administrative review system also needs to take into consideration Vietnamese distinctive societal factors Since Vietnam experienced a feudalist regime for thousands of years, dealing with vestiges of feudalist ideology inspired by Confucianism still remains a current issue, and law reformers certainly should recognise this in the course of reforming the Vietnamese administrative review system For example, one barrier to the development of legal institutions supervising public administration is the traditional hesitation to take legal action against administrators in order to maintain societal harmony, or because of negative attitudes towards review mechanisms by state officials who are believe themselves to be ‘sons of Heaven’ Another factor affecting the reform of the Vietnamese administrative review system is economic development Since economic development is closely related to changes in perception and attitudes of people towards non-material values such as ‘legality’, ‘fairness’ or ‘justice’ and the willingness of people and government to pay the cost of legal institutions, proposals for reform need to be seriously considered in regard to whether those reforms would be affordable in the economic conditions of Vietnam as a developing country II Proposed Reforms of the Vietnamese Administrative Review System: Adopting Australian Ideas Given the Vietnamese Conditions It is argued that the key to the making of a sensitive and accurate comparative law study is a ‘law in context’ approach, which requires a comparativist perspective on not just law but also on the connection between law and society Adopting such an approach, this thesis has provided several comparative analyses which establish the basis for a range of proposed reforms of the Vietnamese administrative review system Model of Vietnamese Administrative Adjudicative Bodies: Courts and Merits Review Tribunals It has been pointed out that the existence of merits review tribunals in parallel with courts of law, as has been seen in the Australian jurisdictions, seems to be common to most administrative law systems This thesis has therefore, supported the recent proposals of Vietnamese law reformers for the restructuring of the court system and the adoption of external merits review tribunals along the lines of those found in some Western countries It has been clearly shown that the Australian model of courts, with the complication of a federal structure and jurisdictional divisions, is not a relevant model for Vietnam However, ideas of how to organise a jurisdiction-based court system that could maintain judicial independence and adjudicative quality can be derived from the Australian court model More importantly, this thesis has argued that the Australian model of merits review tribunals could well be proposed to Vietnamese law reformers as a model of administrative review tribunals that could be suitably adopted in the Vietnamese conditions In particular it is suggested that the proposed model of land tribunals of Vietnam, which are very similar to Australian specialist administrative tribunals, would be promising and, therefore, should be adopted quickly to cope with a huge number of administrative disputes emerging from state land management Gradually Extending the Scope of Judicially Reviewable Administrative Action: an Appropriate Solution for Vietnam It has been argued in this thesis that a very broad scope of judicially reviewable administrative actions is desirable for maintaining basic ‘public law’ values such as ‘rule of law’, ‘accountability’ of administrators, and ‘safeguarding of individual rights’ Since the scope of judicially reviewable administrative action under the law of Vietnam is still limited, and there are therefore many types of administrative actions falling outside the scope of judicial review of administrative action, this thesis has pointed to the need to expand the administrative law jurisdiction of Vietnamese courts It is suggested that the immediate adoption of very broad administrative law jurisdiction, like that of the Australian courts, would not be feasible in the Vietnamese conditions While expanding the administrative law jurisdiction is strongly supported by the CPV, the limited adjudicative capacity of the Vietnamese courts is a major barrier to radical reform in this regard .It is therefore proposed that the administrative law jurisdiction of Vietnamese courts should be gradually extended, provided that first priority is given to administrative law jurisdiction that enables courts to resolve common administrative disputes In this regard, the extension of the jurisdiction of the AAT of Australia could serve as a good example for Vietnamese lawmakers to follow Adopting Detailed Rules Relating to the Judicial Review of Administrative Action: What Could Australian Experience Suggest to Vietnamese Law-Makers? An administrative review system cannot effectively function unless there is a comprehensive system of legal rules facilitating the course of reviewing administrative actions This thesis has examined legal rules relating to the two important areas of judicial review of administrative action, namely, grounds for review and orders of review What was observed from the comparative analyses in relation to these aspects is that the law of Vietnam still lacks detailed rules that establish legal bases for an effective system of judicial review of administrative action To overcome this shortcoming, it is proposed that while Australian experience might suggest to Vietnamese law-makers a technical borrowing of Australian rules, it would be necessary to seriously consider how to make this borrowing feasible given the Vietnamese conditions and the Australian practice Particularly relevant would be the incorporation, in the Ordinance on Procedures for Resolving Administrative Cases of Vietnam, of framework provisions on grounds for review or of legal provisions clearly setting out orders of review as we have seen in the ADJR Act of Australia Also, the recent publication of selected cases by the Supreme Court of Vietnam as an adoption of relevant elements of the doctrine of precedent as seen in common law countries like Australia should be encouraged However, it is suggested that the adoption of the ‘unreasonableness’ rule as a ground for review, or the conferral of discretionary powers to make final of orders of review on courts, as we have seen in the law of Australia, should not be recommended in the Vietnamese legal context Similarly, while a ‘guiding’ precedent system would be desirable, a ‘binding’ precedent system like that of Australia should not be recommended for Vietnam III Constructing a Well-Functioning Administrative Review System in Vietnam: Challenges and Prospects On ‘the transplant effect’, Berkowitz et al have argued that ‘[i]f the transplant adapted the law to local conditions, or had population that was already familiar with basic legal principle of the transplanted law, then we would expect that the law would be used’.199 Undoubtedly Vietnam has a long way to go in improving the administrative review system on the basis of the adoption of experience suggested from concepts of laws and legal institutions of Western countries like Australia Briefly speaking, the adoption of such Western notions would have to go through a complex process, including the observation, the assimilation and the application of foreign experience in the local conditions In the course of this complex process, Vietnamese law reformers would face a range of challenges Also, it seems to be unavoidable that this reform process would involve a compromise between Vietnamese ‘traditional’ values shaped by socialist political and legal ideology, and Western liberal notions This thesis has pointed out specific potential challenges and dilemmas that would affect the process of reforming the Vietnamese administrative review system, and the issues that need to be considered when looking at ways to encourage this reform process Nevertheless, in spite of the following specific challenges that have been identified, this thesis contends that there are good reasons for assuming that a well-functioning administrative review system can ultimately be achieved in Vietnam (1) In terms of perception, the process of reform will involve concepts of laws and legal institutions imported from the West which will appear new to Vietnamese people Misconceptions about such new ideas, which are likely to occur, could negatively affect the reform process For example, as noted in the thesis, since the model of merits review tribunals is totally new to Vietnam, people have doubted whether this model could offer an effective way to overcome the shortcomings of the current system of review channels This in turn has slowed down the reform process However, comprehensive research into the model of administrative review tribunals and the dissemination of such research could enhance the public perception of this new legal institution (2) The process of reforming the Vietnamese administrative review system will also encounter dilemmas in reconciling principles influenced by the socialist political and legal ideology, and fundamental values inspired by Western notions As noted, while the model of regional courts is proposed as a way to encourage the judicial independence of local courts, especially in hearing administrative law cases, the question, however, remains as to how this model can be adopted and remain consistent with constitutional principles such as ‘leadership of the CPV’ and ‘concentration of powers’ It is suggested 199 D Jerkewitz, K Pistor and J-F Richard, 'The Transplant Effect' (2003) 51 The American Journal of Comparative Law 163, 168 that to deal with these dilemmas in the current Vietnamese context it is important to revisit the perception and the application of the constitutional principles underlying the organisation and operation of the state apparatus in general, and of the court system in particular In practice, recent debates in relation to the perception and the application of these constitutional principles in Vietnam have shown promising signals for the reform process This trend has been supported by the context of globalisation and international integration in which fundamental values such as ‘rule of law’, ‘separation of powers’, ‘democracy’ and ‘good governance’ seem likely to be recognised even amongst countries that have different legal and socio-political traditions (3) Reforming the Vietnamese administrative review system would require a comprehensive program for issuing new enactments supporting the organisation and operation of this system, and Vietnamese lawmakers must take this task into account in the course of reforming the review system The lack of such enactments would obviously affect the effectiveness of newly adopted laws and legal institutions For example, as noted in this thesis, while the need to adopt rules relating to grounds for review is emphasised, these rules would appear to be meaningless if general substantive principles of administrative law underpinning the grounds for review were not developed Similarly, adopting the model of administrative tribunals would require the enactment of a range of new statutes governing the organisation and operation of these tribunals (4) Reforming the Vietnamese review system would of course involve paying the cost of laws and legal institutions In the context of a developing country, economic constraints must be taken into consideration in the course of reform As noted in this thesis, although administrative tribunals might be a good model for reviewing administrative actions, adopting this new model in parallel with strengthening the capacity of the Vietnamese courts would impose a heavy burden on the state budget Similarly, while a comprehensive system of rules might well help Vietnamese applicants to effectively challenge the validity of administrative actions, it may cost them a great deal for legal services in order to understand and follow those rules However, the impressive economic achievements of Vietnam in recent years have given Vietnamese law reformers the courage to continue the making of proposals towards a wellfunctioning administrative review system (5) Finally, as noted, the legal culture of the Vietnamese people will also be a factor affecting the effectiveness of laws and legal institutions in relation to the review of administrative action It should, however, be noted that this factor may cease to be a problem before too long Socio-economic development may well lead to changes in people’s perception of non-material values It is unrealistic to expect that ‘a rule of law state’ and ‘a civil society’ will exist in Vietnam within a short time, but a society where people can realise their legitimate rights and interests and would not be hesitant to bring legal actions against government officials should be feasible within the short term future of Vietnamese society ... summary of advantages and disadvantages of internal review in the Australian administrative law context, see Matt Minogue, 'Internal Review of Administrative Decisions' (2001) Issue No 54 Admin Review. .. of administrative action became available in Vietnam, it appears that the situation has not changed very much The main reason for this is the fact that the judicial review of administrative action. .. fear of retaliation in case of winning, 42 also discourage individuals and organisations from initiating administrative cases Instead of bringing an action against government departments (or their