Browning, Aneita; Wong, Esme --- "The right fit: non-adversarial dispute resolution in the AAT" [2017] PrecedentAULA 47; (2017) 141 Precedent 36

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THE RIGHT FIT: NON-ADVERSARIAL DISPUTE RESOLUTION IN THE AAT

By Aneita Browning and Esme Wong

The Administrative Appeals Tribunal (Tribunal) reviews certain administrative decisions, as permitted through statute. This task requires the Tribunal to stand in the shoes of the original decision-maker. Between 1991 and 1993, mediation was introduced on a graduated basis^[9] to assist the parties who are, in simple terms, the decision-maker and the person adversely affected by a decision. Since then, there have been further developments in the alternative dispute resolution (ADR) processes in the Tribunal with a focus on non-adversarial ADR that fits the specific needs and circumstancesof the parties. That approach is consistent with the Tribunal’s statutory objectives; flexibility and facilitation are features of case management and also pre-hearing dispute resolution. This article outlines some of the ADR processes available to parties involved in a merits review before the Tribunal.

FACILITATING RESOLUTION

As observed by Senior Member Handley (later Deputy President) in 1991, the practice of mediation adopted by the Tribunal required ‘voluntary participation by all parties, in an atmosphere of confidentiality, of persons in conflict agreeing to be assisted by a neutral third party mediator who will encourage them to find their own solutions to the dispute by focusing on their issues, interests and needs’ in reaching a lawful decision.^[10]

Although that largely remains true today, the processes adopted by the Tribunal now offer more than mediation to assist parties in dispute to reach a resolution through non-adversarial engagement. Each of those processes is consistent with the statutory objectives in s2A of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act):

‘In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:

(a) is accessible; and

(b) is fair, just, economical, informal and quick; and

(c) is proportionate to the importance and complexity of the matter; and

(d) promotes public trust and confidence in the decision-making of the Tribunal.’

In addition to Handley’s summary, the relationships between the parties are integral to progressing a matter towards finalisation. The needs of the parties in their particular circumstances are central. While we often think of applicants as self-represented individuals with limited resources, some applicants may in fact be well-resourced corporate entities such as mining companies. Regardless of their resources, however, there is often an ongoing relationship between the decision-maker and the affected party.

The Tribunal operates eight Divisions: Freedom of Information; General; Migration & Refugee; National Disability Insurance Scheme; Security; Social Services & Child Support; Taxation & Commercial; and Veterans’ Appeals. Although the Tribunal is intended to be less formal and complicated than courts, over time and with the expansion of the jurisdiction, procedures have become more varied (for example, special rules apply for migration, social security and security appeals matters). Before appearing in an ADR process before the Tribunal, practitioners should ensure familiarity with the Practice Directions for the relevant Division. Here we take a broad, introductory look at the non-adversarial dispute resolution models available in the Tribunal.

ALTERNATIVE DISPUTE RESOLUTION (ADR)

Boulle noted in 1993 that ‘recent innovations which reinforce the mediational potential of the Tribunal’s functions’ prevent the Tribunal from becoming too ‘legalistic, adversarial and judicialized [sic] in character’.^[11] Before looking at the different models of ADR available in the Tribunal, it is worth considering its role.

The Tribunal is not a court and does not do the work of a court. Rather, as is often said, the Tribunal stands in the shoes of the original decision-maker. The Tribunal is acting as the decision-maker in looking at the law, policies and facts in a given situation, and in doing so it makes the correct or preferable decision. It is not conducting a trial nor handing down a sentence. With that in mind, it is even more apparent why ADR processes are appropriate in the Tribunal, to help the parties co-operate rather than compete.

The AAT Act now helpfully sets out the range of options available in s3(1):

‘"alternative dispute resolution processes" means procedures and services for the resolution of disputes, and includes:

(a) conferencing; and

(b) mediation; and

(c) neutral evaluation; and

(d) case appraisal; and

(e) conciliation; and

(f) procedures or services specified in the regulations;

but does not include:

(g) arbitration; or

(h) court procedures or services.

Paragraphs (b) to (f) of this definition do not limit paragraph (a) of this definition.’

Not all of these non-adversarial processes are available in all Tribunal Divisions, but where they are, participants and practitioners should look at the best options available for their matter and circumstances.

The following definitions are adopted by the Tribunal:

Conference:

An informal, private meeting arranged by the Tribunal. A conference is usually the first step in a review after the Tribunal accepts the application. The Tribunal might decide to hold more than one conference to talk about the case. Conferences give the review applicant a chance to say why they think the decision is wrong and, where possible, come to an agreement with the relevant department about how their case should be resolved.^[12]

Conciliation:

‘A process in which the parties to a dispute, with the assistance of a Tribunal member, officer of the Tribunal or another person appointed by the Tribunal (the conciliator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The conciliator has no determinative role on the content of the dispute or the outcome of its resolution, but may advise on or determine the process of conciliation whereby resolution is attempted, may make suggestions for terms of settlement and may actively encourage the participants to reach an agreement which accords with the requirements of the statute.’^[13]

Mediation:

‘A process in which the parties to a dispute, with the assistance of a Tribunal Member, officer of the Tribunal or another person appointed by the Tribunal (the mediator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The mediator has no advisory or determinative role in regard to the content of the dispute or the outcome of its resolution, but may advise on or determine the process of mediation whereby resolution is attempted.’^[14]

Case Appraisal:

‘An advisory process in which a Tribunal member, officer of the Tribunal or another person appointed by the Tribunal, chosen on the basis of their knowledge of the subject matter, assists the parties to resolve the dispute by providing a non-binding opinion on the facts and the likely outcomes. The opinion is an assessment of facts in dispute. The opinion may be the subject of a written report which may be admissible at the hearing.’^[15]

Neutral Evaluation:

‘An advisory process in which a Tribunal member, officer of the Tribunal or another person appointed by the Tribunal, chosen on the basis of their knowledge of the subject matter, assists the parties to resolve the dispute by providing a non-binding opinion on the likely outcomes. Neutral Evaluation is used when the resolution of the conflict requires an evaluation of both the facts and the law. The opinion may be the subject of a written report which may be admissible at the hearing.’^[16]

Each approach is intended to assist the parties to reach an outcome without the need for a hearing.

In this setting when we are thinking ‘alternative’ in the non-adversarial dispute resolution context, it incorporates both the sense of being alternative to the matter proceeding directly through a hearing process, and also alternative in allowing greater accommodation of the parties in their particular needs.

COMMENCING MATTERS IN THE TRIBUNAL

The process varies across Divisions but typically, once the application has been received the process for review includes engagement with staff such as a customer service officer who will conduct ‘Outreach’ to assist with procedural (but not legal) information.^[17] Then there will be a case conference with, typically, a Conference Registrar. Shepherd, Desses, Richardson and Sheedy observed that ‘[c]onferences are the cornerstone of the Tribunal’s pre hearing process’.^[18] The conference may be by phone or in person. This early intervention assists parties to prepare for the progress of the application by refining or narrowing the issues in dispute. At this stage the parties may be referred to one of the processes listed in s3(1) of the AAT Act.

Participation

As captured in Handley’s summary, there are a number of essential qualities of the ADR process. Those qualities – voluntary participation, confidentiality, the agreement to be assisted, neutral third party mediator, facilitating ‘own solutions’, and lawful outcome – are captured in various guides and guidelines prepared by the Tribunal for participants such as ADR Guidelines;^[19] Conciliation Preparation Toolkit^[20] and Guidelines to Act in Good Faith in ADR Processes at the AAT;^[21] and Guidelines on Confidentiality in ADR Processes.^[22] Underpinning non-adversarial dispute resolution in the Tribunal is the obligation to act in good faith.

Good faith

According to The Duty to Act in Good Faith in ADR Processes at the AAT the willingness to ‘act in good faith is integral to the ADR process’.^[23] However, good faith requires more from practitioners who have legal and ethical obligations and also for Commonwealth litigators who are bound by the model litigant rules.

In general terms, the expectation is that a willingness to act in good faith means that fairness is maintained and confidence in the agreement is reached.^[24]

Accessibility

Although typically conducted face-to-face, there are circumstances where the processes may be tailored to assist participation. For example, it may be appropriate for parties to appear remotely where distance to travel or special circumstances such as health or mobility considerations are an issue. This is consistent with the objectives of the Tribunal.

Interpreters and other services or support can be implemented at any stage of Tribunal proceedings, including case management, dispute resolution and hearing. While procedures for access to additional resources may vary in the Divisions where there is consistency between the identified need, the s2A obligation that the Tribunal be accessible and the non-adversarial dispute resolution method oblige the Tribunal to make appropriate accommodations.

Validity of the outcome

A case from earlier this year that exemplifies the value of non-adversarial dispute resolution in the Tribunal is VDRZ and Innovation Australia [2017] AATA 123 (VDRZ). This was a complex matter set down for three weeks hearing before the President and a Deputy President, however, through facilitated ADR the parties were able to reach agreement. This saved the parties time and money, they were able to reach a mutually satisfactory resolution as well as the obvious public savings.

VDRZ also provides guidance on the validity or lawfulness of a decision reached between parties. President Kerr referred to s34D of the AAT Act and considered the terms of the agreement reached. The President gave effect to the agreement reached between the parties on grounds that the procedural requirements set out in s34D were complied with.

Familiarity with s34D is useful for participants and practitioners:

‘(1) If:

(a) in the course of an alternative dispute resolution process under this Division, agreement is reached between the parties or their representatives as to the terms of a decision of the Tribunal:

(i) in the proceeding; or

(ii) in relation to the part of the proceeding; or

(iii) in relation to the matter arising out of the proceeding;

that would be acceptable to the parties; and

(b) the terms of the agreement are reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal; and

(c) 7 days pass after lodgement, and none of the parties has notified the Tribunal in writing that he or she wishes to withdraw from the agreement; and

(d) the Tribunal is satisfied that a decision in the terms of the agreement or consistent with those terms would be within the powers of the Tribunal;

the Tribunal may, if it appears to it to be appropriate to do so, act in accordance with whichever of subsection (2) or (3) is relevant in the particular case.

(2) If the agreement reached is an agreement as to the terms of a decision of the Tribunal in the proceeding, the Tribunal may, without holding a hearing of the proceeding, make a decision in accordance with those terms.

(3) If the agreement relates to:

(a) a part of the proceeding; or

(b) a matter arising out of the proceeding;

the Tribunal may, in its decision in the proceeding, give effect to the terms of the agreement without dealing at the hearing of the proceeding with the part of the proceeding or the matter arising out of the proceeding, as the case may be, to which the agreement relates.^[25]

In VDRZ, President Kerr addressed the issue of ‘the overall appropriateness of giving effect to the parties’ agreement (see concluding words of s34D(1) of the AAT Act) and explained that the decision was appropriate because:

‘[T]he Tribunal should assist parties to settle their disputes where possible. It is self-evident that it is desirable that proceedings should be settled. The AAT Act expressly recognises this with the entirety of Division 3 of Part IV of that Act being titled “Alternative Dispute Resolution Processes” and s34A(3) expressly requiring parties to a proceeding referred to an alternative dispute resolution process to act in good faith. The Tribunal should especially encourage settlement in cases such as the present, where the burden on the Tribunal’s resources will be considerable if the matter proceeds and where well-resourced litigants represented by experienced legal practitioners have reached agreement as to the terms of a decision to be made.’^[26]

The participants and the Tribunal need to be satisfied of the validity of any agreement reached through an ADR process.

CONCLUSION

Returning to Handley’s observations in 1993, ‘[r]elationships should be restored and the process should be satisfactory to the parties. It must be a credible alternative to litigation and adjudication’.^[27] Even with the passage of time and changes in ADR procedures, that aspiration has not changed. Often the relationship between the aggrieved party and the decision-maker is ongoing so there is a need to foster harmony, or at least minimise animosity, between the parties. In the past two decades, the jurisdiction has become more complex but there are a series of Tribunal resources available that practitioners should access, particularly to understand the differences between Divisions. In some areas there is more formality, however, assisting parties to reach their own resolution continues to be a feature of the Tribunal’s operations. Disposing of matters without a hearing reduces costs and increases efficiency among other direct benefits for the parties. When participants and practitioners are well informed, the non-adversarial approach to merits review in the Tribunal is the best fit.

Aneita Browning is a member of the Independent Tasmanian Bar based in Hobart. EMAIL [e-mail].

Esme Wong is an Associate Lawyer and Migration Agent at Eugene Alexander & Associates, Hobart. PHONE [phone] EMAIL [e-mail].

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^[9] J Handley, ‘Mediation in Administrative Law – the Commonwealth AAT experience’, AIAL Forum No. 5, June 1995, 34.

^[10] Ibid.

^[11] Laurence Boulle, ‘ADR Applications in Administrative Law’ Acta Juridica, 1993, 138.

^[12] AAT, Conference Process Model <http://www.aat.gov.au/steps-in-a-review/alternative-dispute-resolution/conference-process-model> AAT, Conferences <http://www.aat.gov.au/steps-in-a-review/conferences> .

^[13] AAT, Conciliation Process Model <http://www.aat.gov.au/steps-in-a-review/alternative-dispute-resolution/conciliation-process-model> .

^[14] AAT, Mediation Process Model, <http://www.aat.gov.au/steps-in-a-review/alternative-dispute-resolution/mediation-process-model> .

^[15] AAT, Case Appraisal Process Model, <http://www.aat.gov.au/steps-in-a-review/alternative-dispute-resolution/case-appraisal-process-model> (emphasis in original).

^[16] AAT, Neutral Evaluation Process Model, http://www.aat.gov.au/steps-in-a-review/alternative-dispute-resolution/neutral-evaluation-process-model> (emphasis in original).

^[17] ‘Outreach’ is defined by the Tribunal as when ‘you are representing yourself, we will contact you to explain the review process and give you an opportunity to ask questions about it’. See AAT, Representation, <http://www.aat.gov.au/steps-in-a-review/overview-of-the-review-process/representation> .

^[18] Stephen Shepherd, Mary Desses, Kim Richardson and Tracy Sheedy, ‘Conference Registrars in the Administrative Appeals Tribunal: A Personal Perspective’ (Paper presented at AAT Conference, September 2010).

^[19] AAT, Alternative Dispute Resolution Guidelines, June 2006.

^[20] AAT, Conciliation Preparation Toolkit (2013) <http://www.aat.gov.au/AAT/media/AAT/Files/ADR/Conciliation-Preparation-Toolkit.pdf> .

^[21] AAT, The Duty to Act in Good Faith in ADR Processes at the AAT (11 December 2013) <http://www.aat.gov.au/steps-in-a-review/alternative-dispute-resolution/the-duty-to-act-in-good-faith-in-adr-processes-at> .

^[22] AAT, Confidentiality in ADR Processes (17April 2014) <http://www.aat.gov.au/steps-in-a-review/alternative-dispute-resolution/confidentiality-in-adr-processes> .

^[23] AAT, above note 13.

^[24] Ibid.

^[25] VDRZ and Innovation Australia [2017] AATA 123, [5].

^[26] Ibid.

^[27] Handley, above note 1, 34.