Dobinson, Jonathan --- "Managing Tribunals: the ALRC Review of the Federal Civil Justice System" [2004] ALRCRefJl 4; (2004) 84 Australian Law Reform Commission Reform Journal 15

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Reform Issue 84 Autumn 2004

This article appeared on pages 15 – 18 & 70 of the original journal.

Managing tribunals: The ALRC review of the federal civil justice system

By Jonathan Dobinson*

The Australian Law Reform Commission (ALRC) completed its review of the federal civil justice system in early 2000 with the release of the report Managing Justice (ALRC 89).^[1] Insofar as the ALRC’s terms of reference may have been directed to help ‘fix’ a crisis in access to justice, the ALRC’s investigation did not support the crisis theory—at least not in relation to federal courts and tribunals. However, the ALRC did find that contrary to the 1970s push for tribunals as a quicker, cheaper alternative to courts, some federal review tribunals were just as expensive as, and sometimes slower than, the courts.

The ALRC inquiry focused on practice, procedure and case management in federal tribunals and civil courts, as well as on related issues such as costs, accountability of judicial officers and tribunal members, legal aid and expert witnesses.

The tribunals examined were the Administrative Appeal Tribunal (AAT), which reviews the decisions of many different government agencies and the specialist merits review tribunals, the Migration Review Tribunal (MRT), the Refugee Review Tribunal (RRT), the Social Security Appeals Tribunal (SSAT) and the Veterans’ Review Board (VRB). The ALRC’s recommendations also would have been important to the way in which the Administrative Review Tribunal (ART), the proposed new tribunal to be formed by amalgamating these tribunals (with the exception of the VRB), would have operated. However, in February 2001 the Senate rejected the ART legislation, and on 6 February 2003, the Government announced that it would not seek to reintroduce the ART Bills into the current Parliament.

As a part of its research for the inquiry, the ALRC undertook—and also commissioned—major empirical research in a number of areas. For example, the ALRC examined 1,665 AAT cases to collect data about the conduct of proceedings—how long they took, what events were involved and what outcomes were experienced. Questionnaires also were sent to parties and representatives involved in these cases. Further, the ALRC consulted widely with tribunal members and management, government agencies and others with an interest in the system of administrative review.

The ALRC also engaged in a broad-based, national, community consultation program, releasing six preliminary consultation documents, six issues papers, a background paper and a major Discussion Paper: Review of the Federal Civil Justice System (DP 62). The ALRC received approximately 400 written submissions from litigants, lawyers and legal professional associations, community groups, state and federal legal aid commissions (LACs), community legal centres (CLCs), legal academics and legal educational institutions, government departments and agencies, as well as the various federal courts and tribunals under review.

The final report contains 138 recommendations, covering a wide range of issues and problems, and aimed at the variety of participants and institutions that influence the general quality, and the particular practices and procedures, of the federal civil justice system. In June 2003, the Government released a point-by-point response to the report, describing it as one of the “most significant” ever produced by the ALRC.

Cost and speed

Contrary to claims that tribunals are generally cheaper than courts, the ALRC’s research showed that government expenditure on tribunals is now on a par with spending on courts. The case survey research revealed that private costs for certain tribunal matters were little different from the costs of judicial review matters in the Federal Court and that the median duration for finalising cases in the AAT was longer than for cases in the Federal Court and Family Court. The ALRC suggested that moves towards greater use of alternative dispute resolution (ADR) processes also need to be subjected to empirical study, to ensure it is not continually assumed that all alternatives to litigation are necessarily cheaper and faster.

The ALRC’s evaluation of the AAT was that its processes were generally effective. In particular, the AAT conference system was shown to be highly successful in helping the parties settle disputes concerning government decisions. The general view was that AAT proceedings do not require any radical change but needed to be ‘fine-tuned’, in particular to address concerns about the time taken to resolve cases.

In relation to the other specialist review tribunals, the ALRC considered that, in some cases, their processes did not assist the proper investigation of case facts and recommended improved information sharing between the tribunals and the agencies whose decisions they review.

Education, training and accountability

While it is of the utmost importance to get the structures, practices and procedures of civil justice right, systemic reform and the maintenance of high standards of performance also require a healthy professional culture—one that values lifelong learning, takes ethical concerns seriously, and embraces a ‘service ideal’.

To promote and facilitate the sharing of professional information and experience among administrative review tribunal members, as well as assisting in education and training of administrative decision makers, the ALRC recommended the establishment of a Council on Tribunals as a national forum for tribunal leadership, involving the heads of federal and state tribunals engaged in administrative review and the President of the Administrative Review Council (ARC). In its response to the report, the Government noted that the ARC had consulted with relevant tribunals regarding the proposal and drafted a constitution for the proposed body. Following support from tribunals, the Council of Tribunals met for the first time in June 2002. At this meeting the Council decided to expand the concept of a Council of Australian Tribunals to a Council of Australasian Tribunals (COAT) taking in New Zealand.^[2]

The ALRC further recommended that every federal review tribunal should have an effective professional development program with stated goals and objectives. This should include induction and orientation programs, mentoring programs, and continuing education and training programs. In particular, training in administrative law principles relevant to decision making should be made available to members of tribunals who do not have legal qualifications. The government response stated that professional development activities take place in the AAT and other tribunals. The Government also noted that the constitution of the COAT includes objects concerned with the training and support of members of tribunals, standards of behaviour and conduct for members of tribunals, and the development of performance standards for tribunals.^[3]

Legal assistance

Many of the parties involved in legal disputes are unable to pay the full costs of the legal advice and representation they require. The ALRC found that the number of unrepresented parties involved in litigation is seen to be large and increasing. In the ALRC’s research samples, for example, about 33% of AAT cases involved one or more unrepresented or partially represented parties.^[4]

The ALRC’s recommendations in Managing Justice address the efficiency and effectiveness of delivery systems, the optimal use and coordination of limited resources, and the need for data to show who is receiving legal assistance, their case costs and case outcomes. In particular, the ALRC recommended that federal tribunals (and courts) should publish data in their annual reports on the number of unrepresented parties. In gathering such data, courts and tribunals should consult to develop a standard definition of ‘unrepresented party’ and information on case outcomes and case duration in matters where there is an unrepresented party. It was the ALRC’s view that such data would assist in measuring unmet legal need and the impact of cases with unrepresented litigants on tribunal (and court) resources, as well as relative outcomes for such cases. In response to this recommendation, the Government noted a number of significant activities relating to unrepresented litigants including the AAT Outreach Program, which provides information about the Tribunal’s practices and processes to people who are unrepresented.

Expert witnesses

Expert evidence is often part of the tactical play of litigation and can add significantly to costs. A major problem arises where individual experts become identified as partisan ‘applicant’ or ‘respondent’ experts. This is a particular problem in certain administrative law cases. In this context the ALRC made recommendations providing review tribunals with clear power to order:

• parties to disclose all relevant documents;

• that legal professional privilege does not apply to expert medical reports obtained for the purposes of compensation, veterans’ affairs or social welfare review proceedings; and to

• encourage parties to agree to the instruction of a single agreed expert in cases.

The ALRC generally found that tribunals (and courts) could manage the deliberations of experts more actively by encouraging or requiring party experts: to communicate, or to communicate at an earlier stage in proceedings; and to produce joint reports, statements of facts, agreed chronologies or other evidentiary materials. Accordingly, the ALRC made a number of recommendations aimed at clarifying the role of expert witnesses and facilitating the use of expert evidence including:

• encouraging pre-hearing conferences and other contact between experts;

• requiring experts, with the leave of the court or tribunal, to prepare for and answer questions prior to hearing; and

• encouraging expert evidence to be presented, as in some Federal Court cases, in a panel format, with all experts able to hear and comment on the evidence of the others.

In its response, the Government noted that the AAT is currently examining the issue of expert evidence with a view to developing a specific practice direction on the issue. However, in some tribunals, such as those in the migration jurisdiction, preliminary conferences and experts generally do not need to be utilised.

Case management

The ALRC’s empirical study found that cases in the AAT actually took longer to resolve than cases in the Federal Court or Family Court. This is contrary to one of the founding objectives of the Tribunal, which was set up to provide speedier resolution of cases than court processes. The ALRC made a number of recommendations aimed at ensuring parties cooperate and comply with tribunal directions and timetables. The Government is currently considering these recommendations in relation to the AAT.

The ALRC also proposed that the AAT should examine case management systems in which each case is allocated to a particular decision maker, who takes responsibility for managing and progressing allocated cases from commencement to finalisation. The ALRC’s conclusions in this regard derived in part from analysing case management practices in the Federal Court of Australia and in part from the practices of certain overseas jurisdictions where there are demonstrable benefits from using teams of members and registry staff who consistently manage and determine a particular docket of cases.

Such a case management system would not place members in charge of all conferences but would allow registrars or other tribunal staff to retain responsibility for pre-hearing case events in most cases. However, allocation of a ‘docket’ of cases to teams of members and registrars allows for increased accountability from members and registrars for the effective, timely resolution of cases; for consistent dealing with cases; and flexibility to involve members in making early determinations in appropriate cases. It also affirms that case management is part of the overall review process and subject to direction or intervention by members, where appropriate.

Members and staff of the AAT expressed reservations about broader adoption of the team management approach. In summary, the AAT submitted that the case management system recommended by the ALRC may have disadvantages for the Tribunal in view of its existing pre-hearing processes and multi-tiered membership structure. In Managing Justice, the ALRC agreed that the hierarchical membership and staffing arrangements in the AAT may be more difficult to accommodate within a team management system where members and registrars operate individual calendars and are responsible for scheduling case events. However, at the time, it was thought that these reservations about the team management approach identified by the AAT may be less applicable in the ART, which was expected to have a simplified, flatter membership structure and be subject to fewer constraints in the constitution of tribunals. In its response to this recommendation, the Government stated that the AAT has indicated that it continues to have some reservations.

Overall, the ALRC considered that legislation and practice should emphasise the administrative and investigative character of tribunal processes. That is, tribunal procedures can and should be arranged to permit enhanced and independent inquiry into case facts and a process that does not rely primarily on a single hearing, but on a mixture of oral hearings and decisions on the papers. The ALRC made a number of recommendations:

• encouraging tribunals and the agencies whose decisions are subject to review to develop better arrangements for contact and communication to enable the agency to assist the tribunal to investigate particular cases;

• for the issuing of guidelines for tribunal members on their investigative duties and responsibilities, to encourage them directly to investigate case facts and to assist applicants who are not represented;

• encouraging the proposed ART to use ‘multi-member’ panels for cases which are particularly complex or require specialist member expertise, or where there are significant benefits for the continuing professional development of tribunal members.

Participation of lawyers and other representatives

The ALRC closely considered how parties (including government) participate and are represented in review tribunal proceedings. Parties in tribunal proceedings frequently are unrepresented—in some tribunals, legislation limits the participation of representatives.

The ALRC’s AAT case file research showed that restricting the participation of lawyers and other representatives may increase the numbers of cases going to a hearing rather than resolving by agreement. This would increase the cost of tribunal proceedings and the time cases take to resolve. Parties who were unrepresented tended to withdraw or have their case dismissed or heard by the tribunal. They were less effective than represented parties in obtaining a settlement. Importantly, there also are indications from the case sample that people who are not represented are less successful in challenging government decisions.

For these reasons the ALRC recommended that legislation and practice directions for the new ART should provide the Tribunal with discretion to permit applicant representatives to participate in hearings, as the members consider appropriate and useful including in immigration and refugee and social security cases where there are currently restrictions.

In response, the Government noted that:

• at the hearing of a proceeding before the AAT, a party to the proceeding may appear in person or may be represented by some other person;

• a person appearing before the RRT is not entitled to be represented by any other person but assistance may be provided at all other stages (for example, preparing an application); and

• in the MRT, an applicant is entitled to have another person present to assist them at a hearing, but the assistant cannot present arguments or address the Tribunal unless the Tribunal is satisfied that, because of exceptional circumstances, the assistant should be allowed to do so. Nothing prevents an applicant from engaging a person to assist or represent them otherwise than while appearing before the MRT.

The ALRC also recommended that the federal Attorney-General should specify in the model litigant rules that agencies and agency representatives have express duties to assist the tribunal to reach its decision. In its response, the Government stated that this recommendation will be considered as part of the review of the Legal Services Directions on the Commonwealth’s Obligation to Act as a Model Litigant.

Conclusion

The Australian Government’s formal and detailed response to Managing Justice came three years after the ALRC released the report. During that period, the Government and others have implemented many of the report’s recommendations. However, perhaps due to the distraction and eventual failure of the ART legislation, there has been little implementation of the recommendations that relate to federal review tribunals. The Government’s recently released Federal Civil Justice System Strategy Paper^[5] does not follow up on any of the substantive reform proposals for federal review tribunals.

The Government’s vision for a tribunal equipped to meet the challenges of the future has not yet been spelled out. However, in its response to the ALRC report, the Government stated that it will continue to refer to the report “in equipping the federal civil justice system to meet the challenges of the future”.

* Jonathan Dobinson is a Legal Officer at the Australian Law Reform Commission.

Endnotes

{1} Australian Law Reform Commission, Managing Justice: A review of the federal civil justice system (ALRC 89, 2000).

{2} The Council is made up of Commonwealth, state, territory and New Zealand tribunals. Further information is available in the Administrative Review Council’s Report on the Council of Australasian Tribunals (October 2002) at <www.law.gov.au/www/arcHome.nsf>.

{3} The Government also noted the 2000-2001 project undertaken by the ARC, which examined the ethical responsibilities, accountability, and personal and professional standards of members of merits review tribunals, resulting in A Guide to Standards of Conduct for Tribunal Members (September 2001).

{4} See ALRC Part one: Empirical information about the Administrative Appeals Tribunal (1999), table 7.1.

{5} See Attorney-General’s Department, Federal Civil Justice System Strategy Paper, <www.ag.gov.au/www/agdHome.nsf

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