Creyke, Robin --- "Tribunals: Divergence and Loss" [2001] FedLawRw 20; (2001) 29(3) Federal Law Review 403
* 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[5] Emeritus DC Pearce, unpublished address at Parliament House, Canberra, 1996.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[9] Emeritus DC Pearce, unpublished address at Parliament House, Canberra, 1996.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.