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It is clear that tribunals are a permanent feature of the administrative law landscape. The concept of merit review of administrative decisions by bodies other than courts[1] has survived initial resistance from the executive,[2] distrust by the courts,[3] the managerialist pressures of the 1980s, and the downsizing, outsourcing movements of the 1990s.[4] As Pearce commented,[5] the recommendation in the Better Decisions report in 1995[6]—the most comprehensive examination of the Commonwealth's merit review system since the 1970s—that merits review tribunals should be retained, albeit in a more integrated structure, is evidence of that acceptance. The Coalition Government, not without some struggle,[7] broadly accepted that recommendation and the results, in the Administrative Review Tribunal Bill 2000 (ART Bill) and the Administrative Review Tribunal (Consequential and Transitional Provisions) Bill 2000 (ART (CTP) Bill) attest to that response.[8] Such a development shows how far we have come in twenty five years.[9] In the States and Territories, there has been the same process of slow acceptance followed by expanded use of tribunals, many of them dealing with work previously done by courts.[10]
What has led to this position? Tribunals have certain characteristics, which often given them advantages over the courts. As the Franks Committee in the United Kingdom noted in the 1950s, these include 'cheapness, accessibility, freedom from technicality, expedition and expert knowledge of their particular subject'.[11] To that list should be added tribunals' flexibility–a feature illustrated by the disparate variety of tribunals, generically described, in Australian society,[12]as well as those features described in the following passage:
The arguments for establishing tribunals to deal with certain categories of dispute rather than giving jurisdiction to the ordinary courts have variously been based on constitutional arguments, lack of resources of the court system to deal with new and potentially huge case loads, claims of class bias in the courts, and the positive benefits of tribunals over ordinary courts in terms of their speed, economy, informality and expertise.[13]
Macauley lists the reasons for the growth of administrative bodies as:
Tribunals have been set up for one or more of those reasons in every Australian jurisdiction. This paper will not explore the rationale for tribunals, but instead will focus solely on the style and operation of these decision-making and adjudicative bodies. The first part of the paper assesses whether differences are emerging between the various bodies set up to make or review decisions across executive government—the general jurisdiction tribunal. Second, the paper analyses the proposed new Commonwealth body, the Administrative Review Tribunal (ART) which was proposed to replace the specialist Commonwealth tribunals and the Commonwealth's Administrative Appeals Tribunal, a generalist review body. The status of the proposal, following the defeat of the two ART Bills in the Senate in February 2001, is unclear.
It has been common in writings on Australian tribunals to laud the popularity of the multi-jurisdictional or general jurisdiction tribunal as a notable indigenous contribution to tribunal jurisprudence. The evidence for the popularity of this native species has been the setting up of bodies with comparable functions. These, in chronological order, were the Administrative Appeals Tribunal in Victoria (AAT-Vic) in 1982,[15] the Administrative Appeals Tribunal (AAT-ACT) in the Australian Capital Territory in 1989,[16] in 1991, an Administrative and Disciplinary Division (called the Administrative Appeals Court) as part of the Divisional Court in South Australia,[17] the establishment in New South Wales in 1997 of its Administrative Decisions Tribunal (ADT),[18] and the metamorphosis, in 1998, of the Victorian AAT into the Victorian Civil and Administrative Tribunal (VCAT).[19] That only leaves Tasmania, the Northern Territory, Queensland and Western Australia[20] without a general jurisdiction tribunal. If each of those jurisdictions was to adopt the general jurisdiction model there would be national coverage.
What is the likelihood of that occurring? In Tasmania, a Magistrates Court (Administrative Appeals Division) Bill 2001 has been drafted but has not yet been presented in Parliament. The Northern Territory Law Reform Commission has also previously recommended the setting up of a generalist tribunal for the Territory, a recommendation which at present is unlikely to be accepted.[21] A body to be called QICAR (Queensland Independent Commission for Administrative Review) was proposed but not accepted for that State.[22] However, there are moves afoot in Queensland to revive interest in amalgamation of tribunals. [23] In yet another favourable report,[24] the Law Reform Commission of Western Australia in 1999 recommended that a body be set up with a combined review and original jurisdiction which would incorporate existing bodies with the exception of the industrial relations body and the Workcover tribunal.[25]. The change of government in Western Australia in 2001, makes those moves more likely and the proposal for a West Australian Administrative and Review Tribunal (WACART) may materialise in 2002.[26]
Although many of the reports recommending establishment of a single general jurisdiction tribunal start with the Commonwealth model, it is becoming clear that the States and Territories are developing bodies with quite distinctive features from those of the Commonwealth's AAT and even more so, the now dormant proposal for the ART. It has been common to downplay these features. However, to dismiss as a minor aberration that tribunals should have jurisdiction, for example, over private law matters is to underestimate the impact this can have on the tribunal as a whole. In the discussion which follows the proposal at the Commonwealth level for the ART will be contrasted with general jurisdiction State and Territory tribunals. The discussion will focus on jurisdictional differences, the impact on the tribunals of judicial headship and tribunal procedures.
The absence of formal separation of powers limitations has freed State and Territories to grant jurisdiction to tribunals in a manner which is not possible in the Commonwealth.[27] The result has been the creation of tribunals with a truly polyglot jurisdiction. The Western Australian Law Reform Commission described the phenomenon in these terms:
Most boards and tribunals also have non-adjudicative functions, including administrative, investigative, educative and policy development roles. Some administer professional registration and licensing, often subject to review by the courts. Others investigate complaints relating to a code of conduct prior to referring the matter for determination if there is a case which warrants adjudication.[27]
If to that list is added the regulatory function possessed by some bodies, the arbitral function invested in, for example, native title tribunals, and the quasi-legislative function involved in the development of rules of procedure for tribunals, it is apparent that the range of functions of State and Territory tribunals is considerable.
This jurisdictional freedom has been taken advantage of in New South Wales, Victoria and, to a lesser extent, the Australian Capital Territory to combine quite disparate matters in their general jurisdiction administrative tribunals.[28] The combination of civil with administrative jurisdiction is the most obvious indicator of that feature. Another is the exercise of original and review jurisdiction within the one body. [29] What is significant about this 'Christmas pudding' approach is that, unlike the purely review jurisdiction of the ART, there is a mixture of executive, legislative and judicial powers being exercised within the one body. In other words, generalist tribunals in the States and Territories are not simply merits review bodies, nor are they purely court-substitute, or disciplinary bodies, but agencies exercising the entire spectrum of government powers.
The distinction is most striking when State or Territory tribunals have taken over functions previously exercised by courts. This is simply not possible, constitutionally, for Commonwealth tribunals. Hence, State and Territory tribunals can exercise judicial power and do so when they exact criminal penalties.[30] In the same vein, the New South Wales Government has flagged the possibility that it may permit the Administrative Decisions Tribunal to exercise a judicial review function.[31] The Minister for Police, the Hon Paul Whelan, introducing the ADT Bill, described the benefits of this foreshadowed move:
A further additional benefit is that the jurisdiction of the tribunal can be guided by developments in common law. [32]
Whelan went on:
It will also permit an additional option to provide that for certain matters not considered suitable for merit review to nevertheless be reviewable in the ADT as a cheaper and quicker review mechanism than going to the Supreme Court.[33]
His reasons neatly sum up the advantages of the tribunal exercising judicial review functions. Whether the New South Wales Government will take this step is yet to be seen, but it is significant that the Minister chose the high profile occasion of the Second Reading Speech on the Bill to signal the possibility.
In Victoria the growing affinity between courts and tribunals is illustrated by the overlap of jurisdiction between the Victorian Civil and Administrative Tribunal (VCAT) and the Victorian Magistrates Court. It has even been suggested that the two ought to operate as 'concurrent, competitive rather than exclusive' jurisdictions in Victoria in order that parties may have a 'choice as to the form and style of dispute resolution'.[34] Indeed, a Victorian Discussion Paper concluded that the number of undefended small claims at the magistrates court level in that State, suggested that 'VCAT could and should in due course be given a more substantial civil claims jurisdiction.'[35] Since these suggestions were made in the context of a paper which referred to more wide-ranging proposals, including the abolition of intermediate courts in Victoria and New South Wales, it is evident that there may be fundamental changes occurring in court hierarchies in the States.[36] In turn, this could lead to an accretion of jurisdiction in civil and possibly also minor criminal matters for their general jurisdiction tribunals. In short, the model can be described as quasi-judicial, not administrative.
These developments, which have no counterpart in the Commonwealth, herald moves which will lead to a significant change in the way the State and Territory general jurisdiction tribunals operate. This is in part due to a combination of ordinary civil jurisdiction with both original administrative decision-making and administrative review functions. More significantly, the addition of civil (and even more so, criminal) jurisdiction is likely to affect the manner of the tribunals' operation.[37]
That impact can only be enhanced by the practice, in both the ADT and the VCAT, of encouraging cross-membership of panels.[38] Deployment of members across the administrative/civil divide leads to cross-fertilisation of practices which will inevitably tend towards the quasi-judicial mode of procedure. Such moves would result in bodies which to an even greater extent than at present differ in structure, culture and role from the foundation model, the Commonwealth AAT.
These developments are the more likely since it is clearly intended that the diverse jurisdictions of the State and Territory general jurisdiction tribunals operate in an integrated fashion. When introducing the Bill for the ADT, the Minister indicated that the original and review jurisdictions of the ADT should operate 'relatively autonomously.'[39] A justification he gave for the amalgamation of tribunals was that '[t]he growth of tribunals has fragmented responsibility for determining legal rights, leading to a lack of consistency and in some case arbitrary decision making'.[40] Hence, he described the benefits of creating a single body as not just maximising use of resources, but also creating 'consistency in approach' and ensuring 'the application of the principles of procedural fairness to the decision making and review process'.[41]
Similarly, in Victoria, the Hon Jan Wade, in her Second Reading Speech for the VCAT Bill, noted her government's intention to institute the Tribunal as a 'one-stop shop'. VCAT was to be 'the central component of the government's reform initiatives to streamline administrative structures and enhance the current operations of tribunals'.[42] These sentiments again reflect a commitment to creating a tribunal structure which would share more than premises, counter staff and information technology. The views of Justice Kellam, the President of the VCAT, are redolent with his intention to meld a single body out of the disparate tribunals brought under the VCAT umbrella, to remove cultural differences and to create an integrated institution.[43]
The proposed ART was, by contrast, to be positively monocultural. The ART was not to exercise original jurisdiction, nor civil jurisdiction. The Tribunal was to be solely a review body with a case-load which would comprise decisions made only by administrators. This limited role meant the ART would not sup at that varied diet of powers – administrative, legislative and adjudicative—which are on the menu for the States and Territories. The structure of the ART was fragmented, not coherent. In addition, the constitutional inhibitions on the exercise of judicial power meant that the ART would never be in a position, for example, to impose fines or to exercise a judicial review jurisdiction.
Furthermore, it was clear that the ART was intended to be at the administrative rather than the judicial end of the spectrum of adjudicative bodies. In 1998, Renee Leon, presenting the Coalition Government's position on ART, said: 'Merits review should be perceived and conducted as an administrative review process, not as a quasi-judicial process'.[44] This firm intention to separate the ART's functions from the quasi-judicial arena marked a departure from the mode of operation of at least the AAT and possibly other Commonwealth tribunals. Emphasising the closeness of the ART with the agencies whose decisions it reviews set the ART on a course which increasingly would have diverged from the paths chosen for the equivalent State bodies. Although the AAT may have provided the blueprint for the State bodies, the Commonwealth's ART proposals embarked on a new phase in tribunal development in Australia, one which increasingly would have marked it out from its State and Territory counterparts. Whether Australia will yet see these steps materialising is one of the interesting questions arising following the re-election of a Coalition Government.
Those at the head of an institution, even those institutions in which individual members are professionals and are accorded a degree of independence, have both the capacity and obligation to set the tone or culture of the body.[45] At the time the AAT was set up, a judicial President was seen as essential if the Commonwealth AAT was to survive in the hostile and suspicious climate engendered by its establishment.[46] Even in 1995 when Better Decisions was published, the report noted that the qualities it saw as essential for the new President 'would ordinarily (but not necessarily) be found in a person who is a judge'.[47] It is indicative of the passage of twenty-five years since the setting up of the AAT that judicial leadership for the ART would have been jettisoned by the Commonwealth government.
The Better Decisions report had recommended that the President of the ART 'have high legal skills, high level experience in decision-making and dispute resolution, and an ability to determine authoritatively any decision from the diverse range of matters that would come before the tribunal'.[48] The report noted that '[t]hese qualities would ordinarily be found in a person who is a judge'.[49] Subsequently, it became clear that the President was not to be drawn from those enjoying judicial office.[50] The reversal of thinking may be indicative of confidence that the Tribunal system no longer needs the protection of a judicial cloak. It may, less creditably, point to a deliberate desire to downgrade the role of Commonwealth merits review tribunals in the system of government. Whatever the motive, it was clearly another signal that the ART should be seen as an administrative review, not a court-substitute, body, which was to adopt a less judicial-style culture.
Whether that result could have been realised would have depended on some of the other factors which impact on judicialisation. These include external pressures from the courts, the degree to which cross-membership between the ART's divisions would have been permitted, whether quasi-judicial practices could have been abandoned by members of the former AAT, and whether there would have been a sufficient balance between short and longer term appointments for members to achieve that degree of independence hitherto provided by those with judicial stature. Since it is at present unclear whether the moves toward some form of amalgamation of the Commonwealth's tribunals will be pursued it may be some time before it is known whether these attempts to eliminate the perceived judicial leanings of at least the AAT will be implemented, much less whether they were capable of bearing fruit.
The practices vary within the States and the Territory, although judicial headships predominate. Judges head the VCAT, the ADT, and the South Australian Administrative Appeals Court. At the time of writing, however, the President of the ACT AAT is a former member of the ACT Department of Justice and Community Safety. The Western Australian Law Reform Commission did not specifically recommend that its proposed general jurisdiction administrative tribunal would be chaired by a judge, opting instead for a 'legal practitioner with appropriate qualifications and status' who would be appointed for up to seven years.[51] The Report noted, however, that the person must have 'sufficient status to be the senior presiding officer to members of the guardianship and legal practitioners complaints lists'.[52] Given the judicial membership from time to time of those bodies, and assuming WACART is set up it is probable that it will have a judicial president.
In South Australia judgeship is predetermined by incorporation of the administrative review body in the Divisional Court. In New South Wales[53] and Victoria[54] there has been a deliberate decision to appoint to the senior positions within the ADT and the VCAT persons with judicial stature. There are several reasons for this choice. The first is a combination of the impact of the role and status of the judiciary in society and judicial sensitivity. Since judges frequently chair bodies like professional disciplinary tribunals, and both the ADT and the VCAT have taken over these disciplinary functions, it is, as a matter of propriety, seen as necessary for the head of any body which has review jurisdiction over such matters to be a judge. Use of judicial officers also means that the legal profession is more likely to take the tribunal seriously.
The second reason is jurisdictional. Original or review decision-making in the civil jurisdiction is traditionally undertaken by judicial officers. Hence, the perception, particularly of the legal profession, is that the practice should continue. If New South Wales implements its proposal for the ADT to exercise a judicial review jurisdiction, it is clearly appropriate for that function to be exercised by a judge. Judicial review has, after all, always been undertaken by judges of the superior courts.
There is another, pragmatic, argument in favour of judicial appointments. In Victoria, it was seen as efficient for the President of VCAT (a Supreme Court judge) and the Deputy Presidents (County Court judges) 'to exercise the powers of the Supreme and County courts respectively' on appeal from VCAT. As the Attorney-General noted: 'It will create a "one-stop shop for tribunal applicants" and 'will reduce delays for parties who wish to appeal to the Supreme Court [or the County Court] against a tribunal decision'.[55] Although the current practice is that this power only be exercised in emergency circumstances, it is indicative of the close relationship between the VCAT and the court system. Similarly, in New South Wales the president of the tribunal, by arrangement with the courts, is to use judicial officers from the court 'to more effectively exercise [the ADT's] functions'.[56] These practices are similar to those which apply at the Commonwealth's AAT where it has been common for Presidential members to have joint appointments on the AAT and the Federal Court. The proposed removal of judicial membership of the ART meant that the ART would not have enjoyed the perceived advantages of any such combined judicial and administrative review function.
More importantly, the presence of a judicial member, appointed until retiring age, is a useful managerial tool. Use of judicial members can be a means of insulating members with lesser terms from having to make politically unpalatable decisions.[57] The absence of judicial appointments to a tribunal does not mean that the same protection can not be offered. However, to achieve this objective necessitates the taking of creative steps, for example, by ensuring that at least senior members of tribunals should have a sufficiently lengthy term, for example, five years, to enable them to perform this insulating role.
The outcome is that in the States there is a strong judicial presence at the higher levels of the two general jurisdiction State tribunals. If the thesis is correct that an organisation, particularly one in which individual members exercise considerable autonomy, takes its tone and culture from the top, then having a judicial membership amongst its senior ranks means that a more judicial flavour is likely to percolate through the tribunal. Add the likelihood that the civil jurisdiction of both bodies will continue to operate in accordance with court-like processes, and there is a distinct possibility that these bodies will place themselves towards the judicial, rather than the administrative, end of the judicial-executive spectrum.[58] That outcome would be consistent with the history of the Commonwealth AAT model, judicial headship of which may have been partly responsible for fostering patterns of formal quasi-judicial processes within that Tribunal, at least in its early years.[59]
It is not easy, by relying solely on the legislation, to identify the differences between the procedural regimes proposed for the ART and those in the States' general jurisdiction tribunals. Nevertheless, reliance on the written framework is inevitable since the ART has not and may not commence operation, and the ADT and the VCAT are still relatively new. What is clear from such an examination is that all three jurisdictions intended to move away from a court-like process for these tribunals. That intention marks a striking development in the evolution of tribunals.
The Franks Report on Tribunals and Inquiries said of tribunals that they were an alternative to the courts, not part of the administration:
Their role was to be judicial, their task the application of rules after a more or less formal procedure involving a hearing of the parties and the giving of reasons.[60]
Sir Gerard Brennan, the first President of the Commonwealth's AAT, noted that its powers, including those to compel the attendance of witnesses and to obtain documents, and the power to permit parties to cross-examine opposing witnesses marked a clear departure from the administrative to the judicial model.[61] Fiona Cameron identified as some of the factors which led to an adversary culture in the AAT 'the influence of legally trained participants and the manner in which the Federal Court has interpreted the requirements of natural justice.'[62] The assumption was that tribunals were part of the adjudicative arm of government and should act in a court-like manner. Some or all of these reasons led the Commonwealth AAT to develop an adversarial culture.
That development was explicitly rejected by those responsible for setting up the latest (in the States) or proposed (in the Commonwealth) general jurisdiction tribunals. The Victorian Attorney-General referred to the need to avoid 'proceedings becoming unnecessarily legalistic, [and] adversarial'.[63] The New South Wales Minister, when introducing the Bill for the ADT, noted the 'criticism which has been levelled against the Commonwealth and Victorian tribunals that despite legislative prescription for informality and flexibility the actual hearings have become formal and adversarial'.[64] The Commonwealth Attorney-General expressed the desire for the ART 'to develop a flexible, non-adversarial culture, with an emphasis on informality and accessibility.'[65]
What was wrong with the procedural design of the AAT? Why did it not operate as was intended and as the AAT Act said it should—eschewing the rules of evidence and with as little formality and technicality as possible?[66] Alan Hall, a former Deputy President of the AAT, identified certain provisions in the AAT Act[67] which he believed promoted an adversarial culture. These were:
To that list could be added provisions which:
Although the formal processes—the 'trappings of judicial decision-making'[70]—are not the only indicia which may lead to a quasi-judicial flavour, they are significant. Given the views of the three Attorneys-General, what is surprising is that when the provisions of the ART and ART (CTP) Bills, and the VCAT and the ADT legislation, are examined, it is clear that provisions of these kinds have been retained.
The provisions to which reference is made in the following material are taken from the ART Bill. Representation was still contemplated, although it could be restricted by either the Tribunal or practice and procedure directions (cl 105).[71] Hearings, generally in public, (cl 100) were still the central feature of ART proceedings (Parts 4-10). However, provision was made for inquiries to be conducted by Inquiry Officers (Part 4, Div 6) and the Tribunal could direct that conferences, inquiries, counselling, mediation and conciliation be used (ss 109, 110). The Tribunal was not bound by the rules of evidence (cl 91) and was to act with as little formality and technicality as possible (cl 92). Although similar provisions in the AAT Act 1975 (Cth) did not appear to achieve informality, a further provision in the ART Bill that the Tribunal could control the scope of review by limiting the facts, the evidence and the issues, signalled a departure from adversarial proceedings by opening the way for the Tribunal, rather than the parties, to control what happened (cl 93). Whether this power to control the proceedings would have been sufficient to counteract pressure for adversarial processes still needs to be tested.
The word 'parties' had been excised—to be replaced by 'participant' (cl 84) or 'person', and 'submissions' were no longer to be made. Despite these changes, 'evidence' was still to be to given by participants who could also 'make statements' and 'present arguments' as well as 'answer questions' (cl 96). Similarly, the Tribunal was still able to summons persons to appear, require them to give evidence, to provide documents or other evidence and answer questions (cl 95), and to do so under oath or on affirmation (cl 98). In light of these provisions for formal proceedings there was a danger that the nomenclature changes would have had no substantive effect.
No formal qualifications were required for any member, although informally the Attorney-General had indicated that he expected the President and the Executive Members (heads of the six divisions) would have been legally qualified.[72] In cases of disagreement between tribunal members, when a panel of members was to hear a matter, the views of the presiding member were to prevail (cl 89). Since presiding members were more likely to be the President, an Executive member or a senior member and it was likely that they would mostly have been people with legal qualifications, the predominant voices would have been the legally qualified members. The only exception would have been where the presiding member was not in a majority and when more than two members comprised a panel. In such a case, the majority view would have prevailed (cl 89(2)(a)).[73] So despite the apparent efforts to remove a legal culture by reducing the number of lawyers on the tribunal, the impact of these moves was likely to have been less effective than hoped.
There is a right of representation before the Tribunal (s 71).[74] The Act also contains references to 'disputes', 'proceedings', 'hearings' (ss 67, 70). However, a feature of the Act is the emphasis on modes of alternative dispute resolution (Part 4) and use of assessors (Part 5, Chapter 2). Disputes are to be formally resolved at a hearing, generally in public (s 75(1)) with those appearing described as 'parties' (s 67). Parties have a right to present their case and to make submissions (s 70); witnesses can be examined on oath, or affirmation, or make a statutory declaration; they may be examined or cross-examined, and may be compelled to attend and to answer questions on summons or otherwise (ss 83, 84). Hearings can be adjourned (s 73).
Membership comprises a judge of the District Court as President, two Deputy Presidents and non-presidential judicial members (who must either be a magistrate, judge, judicial members of the Industrial Relations Commission or legal practitioner of at least 7 years standing), as well as non-judicial members and assessors (ss 4, 17). When opinion on a panel is divided normally the majority is to prevail unless the dispute is about a legal issue, in which case, the views of the legal member prevails. If the panel is equally divided, the views of the President or other judicial member, if sitting, prevails (s 78). In addition, provision is made for the correcting of errors in orders or reasons (s 87). Costs may be awarded (s 88), although the Tribunal cannot enforce the recovery of civil and criminal penalties (ss 82, 82A).
Representation is not a universal right but is quite widely permitted (s 62).[75] The Act refers to 'hearings'(Part 4, Div 7) and 'proceedings' (s 3). The word 'proceedings' encompasses inquiries, compulsory conferences and mediations (ss 3, 64, 65). Indeed there is considerable emphasis on alternative modes of dispute resolution (Part 4, Divs 4-6). Hearings are generally in public (s 101). Rules of evidence are not to apply and a flexible process is to be adopted (s 98). Although persons who use the Tribunal are called 'applicants', the Act also refers to 'parties' (Part 4, Div 2). Each party has the right to call or give evidence, to examine, cross-examine or re-examine witnesses and to make submissions, although the Tribunal may limit the evidence admitted (s 102). The Tribunal may summons a person to attend and give evidence or produce documents (ss 104, 105). If the Tribunal chooses, evidence must be given on oath or by affidavit (s 102(3)). If there is only one member on a panel, that person must be legally qualified; if there is more than one member, at least one must be a legal practitioner (s 64(2), (3)). When opinions are equally divided, the view of the presiding member is to prevail (s 66) and the presiding member is usually a legal practitioner (ss 9-13, 65). Failing to comply with an order is a criminal offence and orders, includes those in administrative proceedings, may be enforced following filing in the Supreme Court (ss 3, 121, 122, 133). Costs may be awarded to the other party 'if it is fair to do so' in the circumstances (s 109(2)) and a representative of a party may be required to pay another party's costs (s 109(4)).
Commentators acknowledge that the 'VCAT has been clothed with many of the trappings of a Court',[76] and that even the 'administrative review functions are now seen as a quasi-judicial rather than an administrative function in Victoria'.[77] The structure of the procedural provisions of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) clearly support these views.
The impression provided by this analysis of the legislation is that State bodies have certainly adopted procedures more akin to a court-like model. It is certainly a matter of degree, but a reader of the three documents can clearly see the patterns which have been chronicled. That is probably both inevitable and acceptable given their combined jurisdiction. At the same time, there is also an increased focus in the State legislation on alternative modes of dispute resolution than the meagre four provisions devoted to that mode of dispute resolution in the ART Bill.[78] The explanation may be that there is minimal scope for a mediated settlement in many of the cases which come before the Commonwealth specialist tribunals. The statutory discretions are simply too confined. Hence, of the more than 8,000 applications to the AAT in 1999-2000, only 905 were settled by mediation or conciliation.[79] However, it may also sound a warning to the ADT and the VCAT that, fashionable though they may be, alternative modes of resolving disputes may have limited scope.
For the ART, however, where the strongest signals had been given that the tribunal system was to be disassociated from the judicial world and become more closely aligned to the executive mode of thinking and operating, it is probably not acceptable. That is in line with the views of the Australian Law Reform Commission which, in its Managing Justice report noted:
The Commission considers that the legislation and practice of review tribunals should further emphasise the administrative and investigative character of tribunal processes. ... The Commission's proposals in this regard should not be taken to threaten the flexible decision making processes adapted to different types of case or to undermine tribunal independence. Rather these are proposed to enhance and render more effective the distinguishing characteristics of administrative review.[80]
Whether the proposals in the ART legislation would have achieved these goals may be questionable. The legislation demonstrates a continuing emphasis in its procedural regime on adjudicative trappings. The provisions of the two Bills for the ART are complex. Hence, the proposed regime was likely to be a legal playground for some years to come. In addition, unless the Federal Court lowered its demands on tribunals' reasons, for example,[81] and unless the membership of the ART had actively embraced the administrative rather than the quasi-judicial ethos, these goals would not have been able to be achieved.
The earlier examination has illustrated the different models of tribunals which are developing in Australia. In that discussion it was posited that the ART would have pioneered an executive model tribunal. The attempt in the ART Bill and the ART (CTP) Bill to change the style of the Commonwealth's principal tribunal, it is argued, would have involved some loss for the form and mode of operations of merit review tribunals in Australia.
Divergence with respect to the proposed ART occurred at two levels. In the first instance, it is clear that the ART was not closely modelled on the structure for a combined tribunal contained in the Administrative Review Council's Better Decisions report with its six divisions covering all the existing jurisdiction of the veterans, social security, migration and AAT jurisdictions.[82] At the same time, there was an attempt in the Bills to create uniform practices and procedures for the ART which did not reflect the need for diversity of practice within the new body. What started as the model in Chapter 8 of the Better Decisions report, was clearly modified as part of the interdepartmental processes. The result is that the ART legislation depicted a framework for the new tribunal which was conceptually muddy.
When ART was proposed, according to Professor Marcia Neave, then President of the Administrative Review Council, the aim was to establish 'a "comprehensive, coherent and integrated" Administrative Review Tribunal'.[83] This vision was challenged early in the evolution of the ART when the Veterans' Review Board (Board) was excluded from the ART's first tier divisions and permission was given, in the case of veterans' appeals from the Board, for second tier review as of right, although not necessarily by a three panel tribunal.[84]
A body blow was delivered with the disclosure in the ART (CTP) Bill that the migration and refugee division of ART was to be exempt from Parts 4-10 of the ART Bill.[85] Those Parts covered the entire procedural framework to apply to the ART, from the lodging of an application to the exercise of a right of appeal and, importantly, were formally entrenched.[86] Instead, a comparable set of procedures was to be included in the Migration Act 1958 (Cth), but without the imperative of adherence to core procedural requirements.
Given that the migration and refugee cases would have comprised more than one-third of the ART's caseload, and the veterans' appeals jurisdiction a further five per cent of cases, this differential treatment for close to half the ART's projected case-load of 40,000 cases per annum means that any vision of a 'comprehensive, integrated and coherent' framework for the new body would, necessarily, have been discarded.[87]
Not only was the ART's structure badly flawed but the problem was compounded by the absence of the physical amalgamation—the collocation of tribunals in one ART tribunal building—which was promised. The Second Reading Speech for the ART Bill noted: 'The new tribunal will use the infrastructure of the existing tribunals' as well as their 'support personnel'.[88] That sounds remarkably like 'business as usual'! If it meant, as it appeared to do, that the cost of relocating five tribunals had proved financially disadvantageous—a matter which should have been sorted out before the decision was made to propose the dismantling of the existing tribunals—that was disappointing.
The outcome was that the failure to arrange for the physical propinquity for the divisions of the ART, and the exemption from some or all of ART's procedures of two of its major jurisdictions, would have posed a daunting challenge to the new President and the Chief Executive Officer in their aim to create a cohesive institution with common goals and aspirations.
Another deficiency was the proposal for management of the ART. Previously it had been asserted that the President of the ART 'would have overall management responsibility for the Tribunal, in consultation with the Executive Members.' The Executive Members were to head ART's six specialist divisions, and all were given authority to issue directions 'to promote consistency and best practice across the ART'.[89] It became clear, however, that the directions of portfolio Ministers could trump those of the President (or an Executive Member).[90] Indeed, it was proposed that the Minister for Immigration and Multicultural Affairs could issue directions for the immigration and refugee division about the composition of the tribunal, the conduct of reviews, the priorities for reviewing decisions and the allocation of the work of the Tribunal.[91] This suggestion, if implemented, would significantly have restricted the opportunity for the ART's executive to establish common processes for the new body.
It had also been promised that for the appointment of members there would be 'an independent selection process conducted by the Tribunal itself'.[92] However, the indication in the ART Bill was that it was for the portfolio Ministers to choose staff. Officially the President was not even granted the courtesy of consultation about those selected.[93] Even the cross-appointment of members to other divisions was only to be made with the permission of the 'responsible' Minister of the members' primary division and the Minister of the division to which the person was to be deployed.[94]
What was also worrying was that there was an absence of transparency about the procedures, which also ran counter to early promises. The Attorney-General had previously said that the power to issue general directions of a procedural nature 'could only be included in the legislation if agreed by Parliament' and '[a]ny such directions would themselves be subject to parliamentary scrutiny and Parliament would have the power to disallow them'.[95] In the event, when the legislation appeared, it became apparent that none of the clauses dealing with directions, including which divisions were to host particular reviews, divisional functions;[96] the constitution of panels for all or specific reviews,[97] and the procedures for conducting those reviews,[98] were to be subject to parliamentary scrutiny. Indeed, the only part of the scheme which was to be disallowable was the Code of Conduct.[99]
It was clear from these provisions that agency control over divisions was to be paramount. That could only detract from the powers of the President, the Chief Executive Officer and the Executive Members. The Better Decisions report had indicated that the President should have the status and powers of a Secretary of a Commonwealth Department.[100] Heads of Commonwealth agencies certainly have the authority to hire and deploy staff and to do so without seeking formal permission from other agencies. The departure from this vision of the ART only detracted from the authority and independence of the Tribunal and was certainly at odds with the accretion of power to heads of Commonwealth agencies.[101]
The loser was the new tribunal itself. Any attempt to create a corporate culture, an ethos, for the ART when it had members granted the degree of autonomy given to the migration and refugee division, was destined to fail. It also threatened the freedom of action of the ART's executive and posed 'potential risks to [the ART's] independence and to the authority upon which legitimacy is delicately built'.[102]
What can be done? If an attempt is made to reintroduce the legislation, it is essential to reconsider the proposed structure for the ART. Since the savings to the Department of Immigration and Multicultural Affairs from the amalgamation of its two external review tribunals with the ART was to be only in the region of some $4.1 million over four years,[103] it would be preferable to excise migration and refugee matters from the proposed ART. It is obvious from the special treatment accorded the migration division that there was reluctance at the political level for migration to be included in the scheme. In that event, assuming that reluctance continues, it would be wiser to permit the two migration tribunals to continue their separate existence.
The need to create a separate set of practice and procedure rules for the five percent of veterans' cases was also managerially inefficient. If amalgamation is feasible, steps should be taken to encourage the Veterans' Review Board to come under the ART umbrella in the same way as the other specialist bodies, as was first proposed. To achieve this change would require considerable effort to educate the veterans' community of the advantages of the move.
The most significant structural change, however, would be to abandon the idea of a single structure, to move instead to collocation of the specialist bodies in a federal style arrangement, with retention of the ART as the body with review functions for the smaller jurisdictions and with a second tier review function, by leave, for review from the high volume areas. The clear message from the veterans and migration tribunals of their unwillingness to participate in any integrated structure, and the disadvantages of the proposal for the income support division (see below), suggest that the cultural diversity amongst the established specialist tribunals is too great for the attempt to impose uniformity. That attempt should be abandoned.
It was not only the structure of the new body which was flawed. Early indications from the government were that the model for the ART was to be loosely based on the operations of the Social Security Appeals Tribunal (SSAT).[104] In other words, the informality, speed, simplicity, and the inquisitorial, rather than adversarial, process adopted by that specialist tribunal was to be the template for the ART. At the same time, it was signalled that the ART procedure was to be sufficiently flexible to permit differences in the manner of operation of divisions. The theme was to 'maintain flexible, cost-effective and non-legalistic procedures', with an emphasis on 'flexibility', since a division's procedures were to be 'relevant to their jurisdictions'.[105]
That flexibility had been advocated by Better Decisions which 'cautioned against simplistic approaches to achieving' the objective of providing a mechanism of review which is 'fair, just, economical, informal and quick.'[106] Similarly, Neave noted that 'procedural differences between Tribunals may be necessary to respond to particular groups of clients'.[107]
The need for a recognition of the complexity of matters to be covered by the ART was exemplified by this passage from the Managing Justice report:
Applicants in review tribunal proceedings are strikingly diverse. They may be individuals claiming refugee status, overseas business people seeking extension of temporary visas, war veterans and widows, disability claimants seeking pensions or benefits, Commonwealth employees or seafarers claiming workers' compensation, small business entities, such as pharmacies or tax agents affected by business licensing decisions, or businesses affected by customs, tariff or diesel fuel rebate decisions. Their interests in challenging administrative decisions, and the skills and resources available to them in this process, differ markedly.[108]
The report had also recommended that complex cases should not be heard without representation, nor by a single panel.[109]
So the introduction of the ART Bill in June 2000 came as something of a shock. Single panel members were to be the norm, exceptions being permitted only in cases involving 'a principle, or issue, of general significance' or when the case required members with a 'particular expertise of relevance'.[110] Moreover, the relevant expertise was not the expertise in welfare, social administration or disability—the skills of existing members of the SSAT—but rather expertise in insurance claims, public health, government health policy issues, and superannuation matters.[111] There was no right of appearance by an applicant, nor to representation.[112] Hearings on the papers were to become commonplace. Moreover these hearings were to be conducted without one of the usual safeguards which exist in other jurisdictions, namely, that this procedure would be adopted only if the decision was the most favourable to the applicant.[113] Although the ALRC's Managing Justice report supported increased use of hearings on the papers, it did so only on condition that the 'decisions should have full regard to the interests of the applicant'.[114]
Second tier review—already not available to the migration and refugee division—was to be rare in the remaining divisions, only being permitted where the review raised a principle, or issue, of general significance'. [115] This was a major paring back of the review rights recommended by the Better Decisions report.[116] The need for predictability and certainty in the tribunal system, just as with courts, demanded a mechanism for settling differences of view which would emerge within the tribunal. That was unlikely to occur when there was a legislative barrier to second tier review which looked disturbingly like the 'eye of the needle' of biblical and, more recently, Bropho fame.[117]
The limitation on the exercise of second tier review rights was also an area in which insufficient attention had been given to the 'fairness' element of the charter of the ART, namely, that it be 'fair, just, economical, informal and quick'.[118] The right of appeal to the Federal Court is not an adequate alternative appeal mechanism. A body with the fees of the Federal Court is not an appropriate choice for review of decisions when three quarters of the applications would be either from those claiming refugee status or seeking visas to enter Australia, or were on income support (including veterans), or were people seeking compensation for disabilities which occurred in their workplace.[119] In addition, there was to be no guarantee that the matter would not be sent to the Federal Magistrates Court. That is not to denigrate that Court. However, it was not set up to be a final and authoritative appeal body, nor was its charter to handle appeals with that thoughtfulness which an applicant, who may already have navigated three or possibly four levels of merits review, either expects or welcomes.
Of equal concern was that the structure, management, and practice and procedure of the tribunal were made overly restrictive by being designated as 'core provisions'. That meant they could only be amended by other Acts, not subordinate legislation.[120] Given the difficulties involved in the passage of legislation through the Senate, the opportunity to amend 'core provisions' was unlikely to be availed of with frequency. The amendments effected by the ART (CTP) Bill, migration excepted, illustrated that generally agencies had accepted the special status of the core provisions and had not attempted to exempt themselves from their limitations.
These features of the Bill were disturbing because they were likely to cement the structure, management and procedures in the ART Bill as the template for the ART's mode of operations. In other words, the Bill ensured there was a rigidity accorded the core provisions which belied the early indications that flexibility of procedures would be permitted. That was contrary to the Managing Justice report which had recommended that, in recognition of the diversity of matters which were likely to come before it, the ART should utilise a range of practices and procedures which were adapted to suit its different review jurisdictions.[121] A similar view was expressed in the Better Decisions report.[122]
The procedural regimen for the ART was also much closer to the more limited processes available in the migration and refugee review tribunals. That is, single member panels were to be the norm, there was no right to representation, and no right of appearance, and there were strict controls on proceedings, including through use of Ministerial directions. There is an irony in this facet of the proposals since the migration and refugee review division were exempted from the obligations imposed by the 'core provisions' of the ART scheme. It was also disturbing since, as the Managing Justice report noted '[t]he RRT, in particular, is a very pared-down merits review model'.[123] It is also questionable whether Australian citizens should have been offered the same minimal level of administrative justice as is accorded to non-citizens.
Had the proposal been implemented, the result would have been that all the ART's users would have been the poorer. However, the burden of the loss would have fallen most heavily on those in the income support division, the least powerful politically of the review tribunal's constituency. That too was ironic given that the starting point for the way the ART was to operate had apparently been the processes operating in that body. What the Bills offered was a merits review tribunal which would have offered less rigorous review, less review, and review from a body which would be of lower stature than at least the AAT. An opportunity to enhance rather than degrade the administrative justice system had been lost.
Tribunals are a significant provider of adjudication services. That is not just because they are the front-line of justice for many people. They are also responsible for developing law affecting more Australians then the courts. As a general rule, their decision-making occurs more quickly than hearings before the courts, they consider more cases, and hence have the opportunity to provide a more comprehensive view of the law on a topic and, because of the frequency with which their jurisdiction is invoked, they often lead the way in examining issues of general relevance to the wider community. These features mean that tribunals are an important element of the legal landscape.
This paper has explored the general acceptance of tribunals, not just to perform the adjudicative function in jurisdiction-specific areas, but also increasingly for tribunals with general jurisdiction to provide jurisprudence of benefit across public administration. Despite their common functions, the general jurisdiction model of tribunal is demonstrating a surprising flexibility. That is appropriate given the breadth of matters which come before them whether at the States and Territory level, or even in the Commonwealth sphere. As the demise of the ART Bills indicates, steps which appear to restrict the need for diversity by attempting to constrict the individual culture and mode of operations of individual elements of the tribunal system will be opposed firmly by their constituents. The strength of that opposition will be the greater when uniformity is also seen as an attack on the independence of such tribunals. The failed attempt to create a tribunal which was closer to the executive in its mode of operations is an indication of the strength of that opposition, and a signal that if the attempt to amalgamate the Commonwealth's tribunal is revived it will need some serious rethinking if it is to be implemented.
* Reader in Law, Law Faculty, Australian National University, Special Counsel to Phillips Fox Lawyers[.]
1 There is no agreed definition of a tribunal. The term 'tribunal' is not a term of art. For discussion of the definitional difficulties see L Curtis, 'Agenda for Reform: Lessons from the States and Territories' in R Creyke (ed) Administrative Tribunals: Taking Stock (CIPL, 1992) 34; ALRC Review of the adversarial system of litigation: Federal tribunal proceedings IP 24 (1998) paras 2.2-2.9. For the purposes of this paper, tribunals refers to those bodies other than courts which make or review administrative decisions.
[2] H Whitmore, 'Administrative Law in the Commonwealth: Some Proposals for Reform' (1972) 5 FLRev, 7.
[3] Despite earlier antipathy in Victoria (P Bayne, 'Dispute about tribunals' (1990) 64 ALJ 494) the then Victorian Attorney-General, the Hon Jan Wade said in the Second Reading Speech for the Victorian Civil and Administrative Tribunal Bill that tribunals 'are now considered to be an integral part of the Victorian justice system' (Parliament of Victoria, Legislative Assembly Hansard Debates 9 April 1998, 972).
[4] There were apparently proposals to abolish the AAT altogether (M Neave, 'Bureaucratic Rationality Versus Individualised Justice—New Developments in Australian Federal Administrative Review Tribunals' paper presented at the Conference on Best Practices in Administrative Justice, Canadian Council of Administrative Tribunals, Vancouver, October 1999, n 4).
[5] Emeritus DC Pearce, unpublished address at Parliament House, Canberra, 1996.
[6] Administrative Review Council Report No 39 Better Decisions: review of Commonwealth merits review tribunals (1995).
[7] R Creyke, 'Whither the Review System?' in R Creyke and M Sassella Targeting, Accountability and Review: Current Issues in Income Support Law (1998) CIPL, fn 12.
[8] The Bills were defeated in the Senate on 24 February 2001. That defeat does not mean that the Coalition Government will not persevere with its attempt to reform the Commonwealth review tribunal system. However, that renewed effort may rely on use of executive rather than legislative power.
[9] Emeritus DC Pearce, unpublished address at Parliament House, Canberra, 1996.
[10] P Sallman, Richard T Wright Going to Court: A Discussion Paper on Civil Justice in Victoria April 2000, 36.
[11] Franks Committee Report of the Committee on Administrative Tribunals and Inquiries (1957) Cmnd 218, 9.
[12] ALRC Review of the adversarial system of litigation: Federal tribunal proceedings IP 24 (1998) 19-20.
[13] H Genn, 'Tribunals and Informal Justice' (1993) 56 The Modern Law Review 395.
[14] R W Macauley, Practice and Procedure Before Administrative Tribunals Vol 1 Toronto, Carswell, 1997, 1-2.
[15] Administrative Appeals Tribunal Act 1982 (Vic).
[16] Administrative Appeals Tribunal Act 1989 (Act).
[17] Divisional Court Act 1991 (SA) ss 7, 52. This body, although part of a court, operates in a manner similar to a tribunal in that it eschews rules of evidence and is to operates in an informal manner. The body also makes or reviews administrative decisions.
[18] Administrative Decisions Tribunal Act 1997 (NSW); Administrative Decisions Legislation Amendment Act 1997 (NSW), Administrative Decisions Tribunal Legislation Amendment Act 1998 (NSW).
[19] Victorian Civil and Administrative Tribunal Act 1998 (Vic).
[20] Western Australia may follow suit with its proposals for a Western Australian Civil and Administrative Review Tribunal (WACART)—see R Creyke, 'Tribunals, and Access to Justice' a paper delivered at the 25th Anniversary Conference of the Caxton Community Legal Service, Brisbane, 12 October 2001, 3.
[21] P Johnston, 'Recent Developments Concerning Tribunals in Australia (1996) 24 FLRev 325.
[22] Electoral and Administrative Review Commission Report on Review of Appeals from Administrative Decisions (1993). See W Lane, 'Reform of Administrative Law in Queensland' (1996) 79 Canberra Bulletin of Public Administration 174 at 186; W Lane and S Young, Administrative Law in Queensland (LBC, 2001) Chapter 3.
[23] R Creyke, 'Tribunals, and Access to Justice' a paper delivered at the 25th Anniversary Conference of the Caxton Community Legal Service, Brisbane, 12 October 2001, 2-3.
[24] For earlier reports see P Johnston, 'Recent Developments Concerning Tribunals in Australia (1996) 24 FLRev 330-332. The Law Reform Commission had previously recommended there be an Administrative Law Division of the Supreme Court (1982); the Commission on Government Report No 4 (1996) advocated all administrative review bodies be amalgamated into one Administrative Review Tribunal. This was modified by the Report of Tribunals Review to the Attorney General by Commissioner Gotjamanos and G Merton (the Gotjamanos Report) which favoured a State Administrative Appeals Tribunal to assume the review functions of most existing boards and tribunals.
[25] Law Reform Commission of Western Australia, Project 92 1997-1999, Review of the Criminal and Civil Justice System in Western Australia recs 371, 372.
[26] The Attorney-General, the Hon Mr J McGinty, requested a report on such a body. That report, presented in the middle of 2001, has endorsed the recommendation with a slight change of acronym to WACART, the West Australian Administrative and Review Tribunal.
[27] Constitution Chapter III; R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254; Clyne v East (1967) 68 SR (NSW) 385; Building Construction Employees and Builders' Labourers Federation of NSW v Minister for Industrial Relations (1986) 7 NSWLR 372; Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 138 ALR 577; Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348; Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 138 ALR 220.
[27] Law Reform Commission of Western Australia, Project 92 1997-1999, Review of the Criminal and Civil Justice System in Western Australia, para 33.4.
[28] NSW: General Division (includes administrative law matters), Community Services Division, Legal Services Division, and Equal Opportunity Division; Vic: Civil Division (comprising anti-discrimination, small claims in civil matters, credit and domestic building disputes, guardianship and administration determinations, residential tenancy and retain tenancy matters); and Administrative Division (merits review of government action including planning appeals, land valuation, occupation and business regulation taxation, freedom of information, and the disciplinary functions of the former Credit Authority, the Estate Agents Disciplinary and Licensing Appeals Tribunal, the Motor Car Traders Licensing Authority, the Prostitution Control Board, and the Travel Agents Licensing Authority).
[29] NSW: Administrative Decisions Tribunal Act 1997 Chapters 3-5; Vic: Victorian Civil and Administrative Tribunal Act 1998 Part 3.
[30] For example, the ACT Administrative Review Tribunal can impose fines when reviewing decisions under the Liquor Act 1975 (ACT) ss 58, 60A, 104.
[31] The Hon Mr Paul Whelan, then Minister for Police, in the Second Reading Speech for the Administrative Decisions Tribunal Bill 1997, Legislative Assembly of NSW, Hansard Debates 29 May 1997, 9605.
[32] Ibid.
[33] Ibid.
[34] P Sallman, Richard T Wright Going to Court: A Discussion Paper on Civil Justice in Victoria April 2000, 43.
[35] Ibid.
[36] Ibid 39-44.
[37] The future of these developments will depend on how successful are the ADT and the VCAT in attracting jurisdiction across government administration. In other words, will they become the general jurisdiction tribunals for the States. In that context, it is troubling to note that steps have been taken to amalgamate, in New South Wales, the Fair Trading Tribunal and the Residential Tribunal to form the Consumer Trader and Tenancy Tribunal as a 'one-stop shop' for consumer disputes in NSW (Media Release, Minister for Fair Trading 'Super Consumer Tribunal approved by NSW Parliament', 25 October 2001), a move which could insulate such consumer bodies from inclusion in the ADT.
[38] NSW: Administrative Decisions Tribunal Act 1997 s 21. Vic: The Hon Jan Wade, Victorian Attorney-General, Second Reading Speech for the Victorian Civil and Administrative Tribunal Bill 1998, Parliament of Victoria, Legislative Assembly, Hansard Debates, 9 April 1998, 974.
[39] The Hon Paul Whelan, then Minister for Police, in the Second Reading Speech for the Administrative Decisions Tribunal Bill 1997 (New South Wales Parliament, Legislative Assembly, Hansard Debates 29 May 1997, 9604.
[40] Id 9605.
[41] Id 9606.
[42] The Hon J Wade, Victorian Attorney-General, Second Reading Speech, for the Victorian Civil and Administrative Tribunal Bill, Parliament of Victoria, Legislative Assembly, Hansard Debates, 9 April 1998, 972.
[43] The Hon, Mr Justice Kellam, 'Commentary: Developments in Administrative Tribunals in the last two years', (2001) 29 F L Rev 427.
[44] R Leon, 'Tribunal Reform: The Government's Position' in S Kneebone (ed), Administrative Law and the Rule of Law: Still Part of the Same Package? (1998) AIAL, 352. The intention that the ART not be led by a judge (see below) and that the Tribunal operate in 'an informal, non-legalistic environment' and 'develop a flexible, non-adversary culture' are also indicative and were confirmed by the Commonwealth Attorney-General, the Hon D Williams, AM QC MP, Second Reading Speech for the Administrative Review Tribunal Bill 2000, Parliament of the Commonwealth, House of Representatives, Hansard Debates, 29 June 2000, at http://search.aph.gov.au/search/ParlI .../Second +reading+speeches& action+view+WCU at page 2; 'Reform of the Merits Review Tribunals: Government Proposal' unpublished paper, 4 September 1998, 6-7.
[45] Belief in the truth of this suggestion is certainly held by the current federal government. In the Second Reading Speech for the ART Bill, the Commonwealth Attorney-General, The Hon Daryl Williams AM QC MP noted that the desire not to have a judge as the President of the ART, was 'in keeping with the government's goal of creating an informal, non-legalistic environment in the new tribunals'. (http://search.aph.gov.au/search.ParlI.../ Second+reading+speeches&action=view&WCU 29/06/2000 at 2.)
[46] H Whitmore, 'Administrative Law in the Commonwealth: Some Proposals for Reform' (1972) 5 FLRev 7. Administrative Review Council, Report No 39, Better Decisions (1995) (Better Decisions) para 4.18.
[47] Better Decisions, para 4.19.
[48] Ibid para 8.32.
[49] Ibid.
[50] For example, Commonwealth Attorney-General's Department 'Reform of the Merits Review Tribunal: Government Proposal', (1998) 12; R Leon, 'Tribunal Reform: The Government's Position' in S Kneebone (ed), Administrative Law and the Rule of Law: Still Part of the Same Package? AIAL (1998) 351.
[51] Law Reform Commission of Western Australia, Project 92 1997-1999, Review of the Criminal and Civil Justice System in Western Australia rec 392.
[52] Ibid 33.22.
[53] In New South Wales, the President must be a judge—at present Judge Kevin O'Connor, while the Deputy Presidents, and non-presidential judicial members must either be a judge or magistrate or a lawyer of 7 years' standing (Administrative Decisions Tribunal Act 1997 (NSW) s 17).
[54] Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 10, 11. The first President is Justice Kellam, a Judge of the Supreme Court and the two Vice Presidents are Judge Davey and Judge Wood of the County Court.
[55] The Hon J Wade, Victorian Attorney-General, Second Reading Speech for the Victorian Civil and Administrative Tribunal Bill, Parliament of Victoria, Legislative Assembly, Hansard Debates, 9 April 1998, 973, 974.
[56] The Hon Paul Whelan, Minister for Police, Second Reading Speech for the Administrative Decisions Bill 1997, New South Wales Parliament, Legislative Assembly, Hansard Debates, 29 May 1997, 9606.
[57] Justice Kellam, above n.44, 431.
[58] Indeed Justice Kellam in his paper, ibid, notes that 'The administrative review functions are now seen as a quasi-judicial rather than an administrative function in Victoria' (at 430).
[59] Note Sir Gerard's acknowledgment that, with hindsight, this may have been mistaken (see Sir G Brennan 'Twentieth Anniversary of the AAT: Opening Address' in J McMillan (ed) The AAT—Twenty Years Forward AIAL/ANU 1998, 5.
[60] AE Boyle, 'Sovereignty, Accountability, and the Reform of Administrative Law' in G Richardson and H Genn (eds), Administrative Law and Government Action: The Courts and Alternative Mechanisms of Review Clarendon Press, Oxford, 1994, 83-84.
[61] Sir Gerard Brennan, 'Comment: the Anatomy of an Administrative Decision' [1980] SydLawRw 1; (1990) 9 Syd L Rev 1-8.
[62] Fiona Cameron, 'NSW ADT: Scope for inquisitorial procedures in new Administrative Decisions Tribunal' (1997) 42 Law Society Journal 41.
[63] The Hon Jan Wade, Victorian Attorney-General, Second Reading Speech for the Victorian Civil and Administrative Tribunal Bill 1998, Parliament of Victoria, Legislative Assembly, Hansard Debates, 9 April 1998, 974.
[64] The Hon Mr Paul Whelan, Minister for Police, Second Reading Speech for the Administrative Decisions Tribunal Bill 1997 (NSW) New South Wales Parliament, Legislative Assembly, Hansard Debates, 29 May 1997. 9604.
[65] The Hon Daryl Williams AM QC MP, Commonwealth Attorney-General, Second Reading Speech for the Administrative Review Tribunal Bill 2000, House of Representatives, Hansard Debates, 29 June 2000, 2.
[66] Administrative Appeals Tribunal Act 1975 (Cth) s 33(1)(b).
[67] Administrative Appeals Tribunal Act 1975 (Cth) ss 32, 33, 35, 38, 40.
[68] A Hall, Teaching materials for Advanced Administrative Law, Australian National University, 1992, 1.
[69] In its 25 year history only two full time presiding Members have not had legal qualifications (B Barbour 'Alternative – Appropriate: A shift in thinking about tribunal processes': paper presented at the Conference on Best Practices in Administrative Justice, Canadian Council of Administrative Tribunals, Vancouver, October 1999, 22.
[70] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 65 per Bowen CJ and Deane J at 65.
[71] The ALRC Managing Justice report (Report No 89, 1999) recommended that the ART should be given a discretion to permit representation—broadly defined—in all divisions of the Art including the migration and refugee division, and the income support divisions (rec 123). It is doubtful that the relatively relaxed attitude behind the ALRC's recommendation will be implemented. The ART Bill permits the practice and procedure directions (cl 105) to deny representation and Ministerial directions on practice and procedure could do so universally or for classes of cases (cl 161(6)).
[72] The Hon Daryl Williams AM QC MP, Commonwealth Attorney-General ABC's Radio National 'Law Report', 3 October 2000, transcript p 10.
[73] Evidence that a significant number of members with legal qualifications are likely to be retained is that the members of the Refugee Review Tribunal and the Migration Review Tribunal are to be 'rolled over' into membership of the Migration and Refugee Division of the ART. The MRT Annual Report 1999-200 showed that 26 of the 31 members of the MRT had legal qualifications (see 63-73).
[74] The section numbers are taken from the Administrative Decisions Tribunal Act 1997 (NSW).
[75] The sections are taken from the Victorian Civil and Administrative Tribunal Act 1998 (Vic).
[76] J Pizer, 'The VCAT—The Dawn of a New Era For Victorian Tribunals' in S Kneebone (ed), Administrative Law and the Rule of Law: Still Part of the Same Package? (AIAL, 1998) 384.
[77] Justice Kellam, above n.44, 430.
[78] ART Bill cll 162-165.
[79] Administrative Appeals Tribunal Workload Indicators, June 2000, 4, 4A, 5. I have carefully not included pre-hearing settlement of matters in these figures, since it is notorious that between 78 per cent and 79 percent (that is, nearly 4 out of 5) AAT applications settle before a formal hearing (Administrative Appeals Tribunal Workload Indicators, June 2000, 11).
[80] ALRC Managing Justice report (Report No 89, 1999) para 9.14.
[81] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 557.
[82] Better Decisions Ch 8.
[83] M Neave, 'Bureaucratic Rationality Versus Individualised Justice—New Developments in Australian Federal Administrative Review Tribunals', a paper presented at the Conference on Best Practices in Administrative Justice, Canadian Council of Administrative Tribunals, Vancouver, October 1999 17; Better Decisions para 8.2.
[84] No amount of 'deeming' that first tier ART review of VRB decisions is in fact second tier review can conceal the anomaly (ART (CTP) Bill Sch 9 cll 2-5.
[85] ART (CTP) Bill Sch 14 Item 90.
[86] ART (CTP) Bill Sch 14.
[87] Sue Pidgeon, 'The creation of the ART is not just a cobbling together of four tribunals who will share corporate services but otherwise do their own thing.' (See 'Proposed reform in the federal arena. The management of disputes involved the Commonwealth: Is litigation always the answer conference?', paper delivered at the Joint ACCC, ALRC and Commonwealth Ombudsman Conference, Canberra, 1998, 164). The Hon Daryl Williams AM QC MP, Commonwealth Attorney-General, Second Reading Speech for the ART Bill, '[I]t is not the government's intention that the new tribunal will merely be the sum of its parts'. (2).
[88] The Hon Daryl Williams AM QC MP, Commonwealth Attorney-General, Second Reading Speech for the ART Bill 3.
[89] S Pidgeon 'Reforming the System: Proposed Reform in the Federal Arena' paper delivered at the Seminar on the Management of Disputes Involving the Commonwealth, 22 April 1999, Canberra, 7.
[90] ART Bill cl 161(6), ART (CTP) Bill Sch 14, amending the Migration Act 1958 (Cth) ss 337, 353A.
[91] ART (CTP) Bill Sch 14, amending s 353A of the Migration Act 1958 (Cth).
[92] The Hon Daryl Williams AM QC MP Commonwealth Attorney-General, 'Reform of the merits review tribunal system' May 1998, 3. See also ART Bill cl 32.
[93] ART Bill Part 2, Div 2.
[94] ART Bill cll 16, 68.
[95] The Hon Daryl Williams AM QC MP Commonwealth Attorney-General, 'Reform of the merits review tribunal system' May 1998, 4.
[96] ART Bill cl 68.
[97] Ibid Part 5, Div 2. See also ART (CTP) Bill Sch 14.
[98] Ibid Part 6, Divs 1, 4, 5, 6; Part 9, Divs 10, 11.
[99] Ibid cl 25.
[100] Better Decisions para 8.25.
[101] P Kennedy, 'The Intersection between Employment Law and Administrative Law: Brief Reflections of a Former APS Manager' 2, a paper delivered at the ANU Law Faculty's Centre for International and Public Law, Public Law Weekend, 10-11 November 2000.
[102] J Raine, C Sheppard and S Snape, 'ICTs and the Globalisation of Administrative Justice Systems: Lessons from the UK Parking Appeals Service' paper presented at the Conference on Best Practices in Administrative Justice, Canadian Council of Administrative Tribunals, Vancouver, October 1999, 14.
[103] The Hon Daryl Williams AM QC MP Commonwealth Attorney-General and Senator the Hon Amanda Vanstone, Minister for Justice and Customs '2000-2001 Budget – Law and Justice Overview' 9 May 2000, 2.
[104] S Pidgeon above n.90, 9.
[105] For example, The Hon Daryl Williams AM QC MP, Attorney-General and Minister for Justice, News Release, 'Reform of Merits Tribunal' 20 March 1997; R Moss, Attorney-General-s Department 'Towards an amalgamation of administrative merits review tribunals', paper delivered at the 5th Annual Administrative Law & Ethics Conference, 24 November 1997, Canberra, 2.
[106] M Neave, 'Bureaucratic Rationality Versus Individualised Justice—New Developments in Australian Federal Administrative Review Tribunals' paper presented at the Conference on Best Practices in Administrative Justice, Canadian Council of Administrative Tribunals, Vancouver, October 1999, 17.
[107] Ibid, 8.
[108] ALRC Managing Justice Report No 1989 (1999) para 9.4.
[109] Ibid para 9.33. As the Report also noted: 'In complex cases where both parties are represented it may be appropriate for the tribunal to deal with the case in a manner similar to a court. If the law and facts in such cases are to be investigated by the tribunal and the participation of parties limited, merits review could be very time consuming and a significant additional public expense.' (para 9.34).
[110] ART Bill cl 69. This was contrary to the ALRC's Managing Justice report which recommended use of multi-member panels in all review jurisdictions, in those cases 'which are particularly complex or require specialist member expertise, or where there are significant benefits for the continuing professional development of tribunal members' (rec 119).
[111] ART (CTP) Bill Sch 3, amending the Insurance Acquisitions and Takeovers Act 1991 (Cth) s 67(4), (5), (6), the Narcotic Drugs Act 1967 (Cth) s 14A(2), and the Superannuation Act 1976 (Cth) s 154(7). Significant losers from this requirement are the compensation jurisdiction in which 62% of applications are heard by multi-member panels and taxation claims where nearly one in five hearings are by multi-member panels (Administrative Appeals Tribunal Workload Indicators, June 2000, 14-15) and income support applicants for whom multi-member hearings before the SSAT have been standard.
[112] ART Bill cll 96, 105.
[113] ART Bill cl 96(3), (4). Cf Migration Act 1958 s 360(2)(a)(b) (MRT) s 425 (2)(a)(b) (RRT). In effect these provisions are that hearings on the papers can only be considered if either the applicant consents or the finding is the most favourable in the circumstances.
[114] ALRC Managing Justice Report No 89 (1999) para 9.25.
[115] ART Bill cl 69.
[116] Better Decisions rec 97.
[117] Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1, 12 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ).
[118] ART Bill cl 3(c).
[119] Figures based on 14,000 applications for migration and refugee division; 12,000 for the income support division; 1,800 for veterans' appeals division, and 1,800 for compensation cases in the general division (based on MRT Annual Report 1999-2000; Administrative Review Council Twenty-second Annual Report 1997-1998; AAT Workload Indicators, June 2000).
[120] ART Bill cl 7. As an aside, the Bill appears to contain an anomaly. Practice and procedure directions are included amongst the 'core provisions'. However, portfolio Ministers are able to override practice and procedure directions for their particular division (cl 161(6)) although their directions are not even subordinate legislation. This may be a drafting problem which needs rectification.
[121] ALRC Managing Justice Report No 89 (1999) rec 127. See also para 9.4.
[122] Better Decisions paras 8.86-8.89.
[123] Ibid 9.39.
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