Phillipps, Richard --- "Facing the Hazards: Ethical Issues for Tribunal Members" [1998] ALRCRefJl 4; (1998) 72 Australian Law Reform Commission Reform Journal 17

• Reform Issue 72 Autumn 1998
• This article appeared on pages 17 – 22 of the original journal.

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Reform Issue 72 Autumn 1998
This article appeared on pages 17 – 22 of the original journal.

Facing the Hazards: Ethical Issues for Tribunal Members

Decision makers should be governed by ethical rules, as are other professionals. It is relatively easy to find out about judicial ethics as there are a number of texts and articles dealing with the subject.¹ But there has been little published in relation to the ethics of members of administrative or quasi-judicial tribunals. Do tribunal members face different ethical considerations? Richard Phillipps* sketches out some of the issues.

In his book Judicial Ethics in Australia (Law Book Company, Sydney, 1988), Justice JB Thomas said judicial ethics ensure that the considerable power exercised by judges is exercised properly, and also ensure public confidence in the judiciary.

“We are entrusted, day after day, with the exercise of considerable power. Its exercise has dramatic effects upon the lives and fortunes of those who come before us. Citizens cannot be sure that they or their fortunes will not, some day, depend on our judgement. They would not wish such power to be reposed in anyone whose honesty, ability or personal standards are questionable. It is thus necessary for the continuity of the system of law as we know it, that there be standards of conduct, both in and out of court, which are designed to maintain confidence in those expectations.
“If these standards are not effectively maintained, public confidence in the
independence and trustworthiness of the judges will erode and the administration of justice will be undermined.” ²

Similar considerations may apply to tribunal members. Tribunals can exercise great power, for example, a tribunal may decide if a person is allowed to migrate to Australia, or to receive a social security payment.

Justice Thomas divided judicial misconduct into ‘misconduct in office’ and ‘non-official misconduct’, sometimes described as ‘personal misconduct’. Ethical conduct in office includes competence, efficiency, fairness and courtesy to litigants. Ethical conduct outside of office includes avoiding conduct or behaviour that might bring the court into disrepute, or that might suggest that the judge or magistrate is biased. This division between professional and personal misconduct seems generally to be accepted, although the lines of demarcation may blur.

Judicial vs tribunal ethics

Although judicial ethics are a guide, there are many ways in which tribunals are different from courts. In particular, there are a range of features of tribunals which may expose tribunal members to greater ethical hazards.

In Australia, most judges and magistrates preside over hearings in which both (or all) parties are represented, and in which the parties compete with each other for the outcome. Judges have very limited contact with litigants. Even when litigants are unrepresented, court-room architecture, the formalities of giving evidence and the general dynamics of courtroom procedure act to filter interaction between judge and litigant or judge and witness.

Tribunal proceedings are, typically, described as ‘informal’, although the degree of informality will vary between forums. They are frequently investigative or quasi-inquisitorial, in that tribunal members will take an active part in eliciting information. Parties and their representatives (to the extent that representation is allowed) may have a more passive role. For example, tribunal members are more likely to direct questions to witnesses at a hearing than are judges or magistrates. This means that tribunal members may have much more direct contact with the people who appear before them than do judges.

Courts are staffed by judges selected from the legal profession and, usually, from the Bar. Generally, this means that judges are familiar with ethical concepts such as confident-iality and conflict of interest. Judges are usually appointed for life and typically retire to a pension scheme often described as “substantial” (Thomas, op cit, 66). By contrast, tribunal members are often appointed for a fixed term with the prospect of reappointment for a further term.³ Tribunal members may come from a range of backgrounds. They may have no legal or administrative training, and may be unfamiliar with the conventions which govern the operation of the professions, the legal system or the bureaucracy.

Official conduct: fairness

The primary ethical issue is that of fairness. It is a paramount duty, not just in relation to judicial officers, but in relation to all those who are in authority over others (Wood, at page 12). Indeed, even when the requirements of natural justice have been removed by legislation (see, for example, Migration Act 1958 s476 (2)), there will, in this writer’s view, remain an ethical obligation to treat applicants fairly.

Fairness comprises a number of requirements. They include: to hear both (or all) sides of the case; to act impartially; to consider all relevant information and to disregard irrelevant information. In this regard, the ethical performance of tribunal members can be threatened by a number of contextual factors.

In many cases, the tribunal member is in a very different position to that of a judge. For a judge hearing a case presented by opposing advocates, the issue of impartiality is simply one of ensuring that all parties are heard and that their arguments are considered with equal care. Judges may, and frequently do, from time to time, ask questions of their own but, in general, those questions will be limited to clarifying a point on which a judge is unsure.

By contrast, a tribunal member dealing with an unrepresented applicant in a circumstance where the relevant department is only represented by written submissions, has a far more active role to play in the proceedings and, indeed, has to play a number of roles.

The tribunal member may have to act as a kind of assistant to an applicant (especially if the applicant is unrepresented). This might be done by asking questions, by encouraging the applicant to enlarge on his or her story and by suggesting ways in which the applicant might further reinforce or clarify parts of his or her argument. For example, it might be appropriate, in a particular case, to suggest to an applicant that they seek a medical opinion or provide further evidence as to the state of their relationship with another person. Here, the tribunal has an ethical duty to ensure that while assisting the applicant as far as is reasonably practicable, the tribunal does not become ‘captured’ by the applicant’s point of view.

Next, the tribunal must test the applicant’s arguments. This may be done by asking the applicant questions, by seeking alternative sources of expert opinion, for example, independent medical reports or by testing for document fraud. Then, finally, the tribunal sits in judgment on the conflicting sources of information, including information which may have been obtained at the tribunal’s request.

It is not surprising, in such cases, that applicants become uncertain, confused and suspicious about the actual role of the tribunal. Why is the tribunal member who, five minutes earlier, was asking questions in an apparent attempt to reinforce the applicant’s case, now asking questions in the style of a cross-examiner in an apparent attempt to tear down the case?

Similarly, tribunal members may become confused or threatened by the number of different ‘roles’ they have to perform. In such circumstances, the ethical duty of impartiality takes on a meaning of much greater complexity than it does in the cases in an adversarial proceeding.

Competence

Again, this raises issues of greater complexity in the case of many tribunal members than it will in the case of judges. Most judges will have a background in the law and a degree of familiarity, usually as a result of practice in the courts, with law and procedure in the court in which they are to appear.

By contrast, tribunal members, chosen as they are from a range of backgrounds, may not necessarily have any legal skills, procedural skills or previous experience in a setting involving decision making of the type carried out by the tribunal.⁴ The absence of legal representation in tribunals also means that members may not be ‘kept up to the mark’ in relation to their knowledge of current law by professional advocates in the same way that judges and magistrates are.

These issues raise a number of ethical questions. First of all, to what extent is it the duty of senior members and principal members of tribunals to ensure that tribunal members are put through proper training before commencing actual decision making? Second, to what extent is there an ethical duty on tribunal members to ensure that they keep up to date with the relevant issues (legal, policy or factual) in their area?

Lack of bias

Judges, magistrates and tribunal members are expected to make their decisions on the facts and law before them, uninfluenced by other pressures such as having a financial interest in a case, or dealing with a case involving friends or family, or allowing political or social views to influence the outcome of a case. For the most part, the principles here are unproblematic, even though their application in a particular case might pose difficulties.

But, again, more problems arise for tribunal members than do for judges. Because they have life tenure, judges are in a position, by and large, to distance themselves from their political and business associations, although the degree to which they should shed, for example, investments, may be a matter of debate (Thomas p 45, Wood p 36.). On the other hand, tribunal members, expecting to return to the community and to the need to earn a living, may be forced to retain closer engagement with former associations.

A further possible source of bias arises in relation to government policy. Judges and magistrates do not, as a general rule, have to follow or consider government or ministerial policy when making decisions. Tribunal members must have regard to policy, and must follow ministerial policy unless there are cogent reasons not to do so (see generally Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 and Ali v Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 453; (1992) 38 FCR 144) and in some cases may be required by legislation to follow ministerial policy directions (see, for example, s499 Migration Act 1958).

Does the need to follow policy unless there are ‘cogent’ reasons not to pose an ethical issue for tribunal members? Certainly it increases the risk that tribunal members will consider themselves ‘aligned’ with a departmental or ministerial viewpoint. This risk is increased by tribunals’ greater exposure to the bureaucracy, discussed below.

Personal conduct

There has long been a view that judge and, presumably, tribunal members, should observe a certain standards of conduct even in their personal life.

“Like all self-respecting citizens, a judicial officer should certainly refrain from being drunk or disorderly in public, using obscene language, or engaging in conduct which is abusive, insulting or demeaning of others.”⁵

But to what extent should tribunal members limit or restrain their private behaviour? It has been suggested that judges should avoid activities such as going into public bars, punting at the race track or even allowing their spouses to “adopt the most daring fashion” (Wood at pages 42-43.). It has also been suggested that judges should be held to higher standards than other citizens in relation to issues of sexual morality (Wood at pages 56-58).

To what extent does private behaviour affect the behaviour of a tribunal member or judge? Clearly at one extreme, a tribunal member, judge - or for that matter, police officer or public servant - who was repeatedly observed in public bars in a drunken or offensive state, may well generate concern about whether he or she is capable of fulfilling the duties of office. Similarly, a public official who is notorious for sexual harassment may generate concern amongst the public about whether he or she is capable of treating members of the other sex fairly in hearings or in decision making.

There is a further issue. It is sometimes said that attending public bars or similar places increases the likelihood that a judge will come into contact with a person whose behaviour he or she may have recently adjudicated on, or who may be involved in a case before the judge.

It may be easier to suggest that judges, appointed for life, should live a cloistered life (although the extreme version of that view is now under some criticism (Wood at 24)) than it is to make the same suggestion about tribunal members. Nonetheless, there may be circumstances in which tribunal members have to make changes in their lifestyles, or refuse an appointment. Perhaps the principle should be that tribunal members should refrain from associations or activities in their personal lives which might reasonably be thought to create a perception of bias or incompetence.

Relationships with ministers

Tribunal members, in many cases, are appointed by the minister of the day and will encounter that minister, from time to time. Tribunal members may well feel under pressure to write decisions in a way that suits the views of the current minister. Ministerial or departmental views about ‘hard’ or ‘soft’ attitudes might create pressures on tribunal members to slant their decisions in a particular way.

Given that their further appointment may well be dependent upon the minister in charge of the portfolio whose decisions they review, there is clearly a pressure on tribunal members, which does not exist on judges, to ‘toe the line’ in relation to decisions they make.

Relationships with government officials

Again, tribunal members are in a far more ‘exposed’ position than are judges. Tribunal members, particularly those whose work involves reviewing the decisions of a single department, may well have, for administrative purposes, a duty to maintain an ongoing relationship with that department and certain officials within it.

In addition, they may well be repeatedly dealing with decisions made by a small number of departmental officials. In both cases, there is a risk of tribunal members becoming accustomed to the officials concerned and thereby reacting in a manner that is conditioned by that familiarity. For example, if a tribunal member comes to distrust a particular government official, he or she may have an unfair tendency to disregard that official’s evidence in future cases. The reverse could also be true.

Political affiliations

It is generally accepted that judges and magistrates should resign from any political party of which they may have been members and should eschew public political involvement. Drawing the line may be difficult. Does this mean that a judge should not attend a private social function at the home of a politician and overwhelmingly attended by members of the judge’s former political party branch? Justice Thomas says “... if a judge is friendly with people who are active in politics he should minimise future contacts with them” (at page 52).

The situation is more problematic for tribunal members. Unlike judges, they have not been given life tenure, and may well expect to return to the community after their term of office. They may well be chosen because they represent a particular group in the community, and because they have achieved eminence by championing the interests of that group. Is it reasonable, then, to expect tribunal members totally to abstain from political involvement? Perhaps the question needs to be resolved on a case by case basis. Although membership or direct association with a political party may suggest bias in favour of members of that party, there may well be other political or quasi-political involvement that is acceptable. It may be appropriate, for example, for a tribunal member to be a member of a human rights organisation, even though that organisation sometimes comments on matters of government policy. It may not be appropriate for that tribunal member to actually make such comments.

Relationships with practitioners

One issue that seems to bedevil lay tribunal members is whether or not they can allow a practitioner to appear before them with whom they have previously had some professional or personal involvement. This is somewhat of a non-issue for lawyers and judges who are familiar with the idea that the person before whom one appears may well have been previously a lawyer whom one knew well and with whom one may have shared chambers.

The High Court of Australia has said that even “a prior relationship of legal adviser and client does not generally disqualify the former adviser, on becoming a member of a tribunal (or of a court, for that matter) from sitting in proceedings before that tribunal (or court) to which the former client is a party ... much depends upon the nature of his or her relationship with the client, the ambit of the advice given and the issues falling for determination” (Re Polites and Another: ex parte The Hoyts Corporation Pty Ltd and Others [1991] HCA 25; (1991) 100 ALR 634, 641).

Financial affairs

A tribunal member should avoid any suggestion that he or she is financially interested, even indirectly, in a case which he or she is deciding.

The issue of other employment is also a matter which affects tribunal members differently to judges. Tribunal members may be appointed to full or part time positions. A part time tribunal member would doubtless be acting ethically in accepting employment for the times that the member was not engaged in tribunal business, provided the employment was not such as to draw the tribunal into disrepute.

For full time members, the position is less clear. If a full time member accepts remuneration for other employment there may be the risk of the perception of a conflict between the duty to the tribunal and the duty to another employer. There may also be the risk of disruption to the tribunal due to the absence of the member and the concern that a member might be ‘skimping’ on his or her work to make room for part time work.

Conclusion

Tribunal members, like judges and other professionals, face a range of ethical issues, which may not yet have been adequately resolved. Although it would seem that the main themes of judicial ethics are apposite to the jobs of tribunal members, there are some areas which are more problematic. Some differences arise where the nature of tribunal membership and procedures imposes greater ethical pressures on tribunal members than are imposed on judges. Others, such as ‘distancing’ oneself from the community, may be less practical or reasonable in the case of tribunal members.

* Richard Phillipps is a Sydney solicitor. He has appeared before and worked in a number of tribunals. Most recently, he was Senior Member (NSW) of the Immigration Review Tribunal, a non-adversarial merits review tribunal.

End-notes

1. See, for example, Thomas J., ‘Judicial Ethics in Australia’, Law Book Company, Sydney 1988. Wood D., ‘Judicial Ethics, a Discussion Paper’, published by Australian Institute of Judicial Administration Incorporated, 1996. Berns S., Judicial Decision-Making and Moral Responsibility (1991) 13 ‘Adelaide Law Review’ 119. Thomas J., The Ethics of Magistrates (1991) 65 ‘Australian Law Journal’ 387

2. At page 7.

3. See, for example, Migration Act 1958 s397, Administrative Appeals Tribunal Act 1975 s8.

4. Administrative Review Council discussion paper ‘Review of Commonwealth Merits Review Tribunals’, September 1994, paragraphs 453 ff.

5. Wood at page 23.