Martin, Wayne --- "The Development of State Tribunals" [2004] ALRCRefJl 5; (2004) 84 Australian Law Reform Commission Reform Journal 19

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Reform Issue 84 Autumn 2004

This article appeared on pages 19 – 22 of the original journal.

The development of state tribunals

By Wayne Martin*

Tribunals are an integral part of the administrative review systems of all Australian States and Territories. As at the Commonwealth level, state and territory tribunals provide for the resolution of a wide range of disputes. Like Commonwealth tribunals, state and territory tribunals are generally considered to provide a quicker, less formal and cost-effective alternative to court action.

Importantly, in the context of this article, state tribunals are not constrained by the constitutional doctrine of separation of powers and have been able to expand into areas that Commonwealth tribunals cannot.

Development of state tribunals

In the first part of the last century, social developments such as the expansion of welfare and pension entitlements led to increased government intervention in areas previously dominated by private, rather than public interests.^[1]

Accountability mechanisms in existence at that time centred around judicial review, which was not equipped to respond quickly to large increases in executive decision making. As a result, in all jurisdictions, Commonwealth and State, tribunals started to emerge to fill this gap. They did so however in an essentially uncoordinated way, often responding to needs in specific subject areas rather than with regard to the development of a broader based administrative review regime.

By the 1950s, the growing specialisation of administrative functions and disputes had resulted in the establishment at both Commonwealth and state levels of large numbers of specialist administrative tribunals.^[2]

At that time, tribunals existed in the following areas: regulation of industrial conditions; public service disciplinary tribunals; award of pensions; supervision of social conditions; licensing of occupations involving special skill or public responsibility; supervision over trade, commerce and transport; assessment of taxes, rates and duties; legal protection of industrial property; compensation for interference with private property rights in the public interest; and various matters of state policy.^[3]

Examples of such tribunals included the coal industry tribunals (Commonwealth, NSW), the War Pensions’ Entitlement Appeal Tribunal (Cth), the Pensions’ Tribunal (Qld), the Miners’ Pension Board (Tas), the Sugar Cane Prices Disputes Tribunal (Qld) and fair rents tribunals (Vic, WA).

Moves to rationalise and reform the administrative review system stemmed from this increase in the number of tribunals. In 1971, the Commonwealth Administrative Review Committee released a report (the Kerr Committee Report) relating to the Commonwealth’s administrative review system.^[4]

The major theme underlying the Kerr Committee Report was the need to develop a comprehensive, coherent and integrated system of administrative review. The Kerr Committee preferred the option of a general administrative review tribunal, as opposed to a court or specialised tribunals. The Committee noted two particular advantages in such an approach: many areas of decision making would not justify the creation of a specialist tribunal; and the creation of a general tribunal was preferable to the proliferation of specialist tribunals. It was recognised that there was a need to avoid a future reversion to the haphazard growth of administrative law bodies.^[5]

The Kerr Committee Report was followed by two further reports in the 1970s, the Bland Committee Report and the Ellicott Report, which also considered reform to the Commonwealth administrative review system.^[6] Although, in view of the impact of these reports, the Commonwealth is often seen as taking the leading role in subsequent administrative reform of both Commonwealth and state administrative systems, similar moves were also underway at the state level.

In 1968, the Victorian Statute Law Revision Committee tabled a report in the Victorian Parliament proposing the creation of a general administrative appeal tribunal.^[7] The report of this Committee was in fact the subject of close consideration by the Kerr Committee several years later.^[8] However, it was not until 1984 that Victoria created an Administrative Appeals Tribunal. In 1998, a generalist civil and administrative tribunal was created—the Victorian Civil and Administrative Tribunal.

Two years after the Kerr Committee Report, and prior to the creation of the Commonwealth Administrative Appeals Tribunal in 1976, the New South Wales Law Reform Commission (NSWLRC) also published a report on Appeals in Administration.^[9]

The NSWLRC report proposed a system similar to that suggested in the Kerr Committee Report, although there were significant differences in the details of the proposals for a general administrative appeal tribunal. Two functions were recommended for the tribunal. The first was an inquiry and direction function whereby the actions of officials could be set aside if beyond the scope of the decision making power or where decisions were harsh, discriminatory or otherwise unjust. An appeal function was also proposed for the tribunal, for cases requiring a judicial determination such as would be given in an ordinary court.^[10]

State and territory tribunals - the current situation

Since the 1970s, tribunal reforms have occurred in all jurisdictions. Versions of the generalist administrative review tribunal adopted by the Commonwealth have been adopted in a number of States and Territories. Several other States are currently considering the establishment of such tribunals. A summary of the current position in each State and Territory is below.

Victoria

As mentioned above, the Victorian Civil and Administrative Tribunal (VCAT) was established in 1998. It amalgamated the Victorian AAT and a number of smaller tribunals. VCAT has three divisions—the Civil Division, which exercises original jurisdiction in relation to disputes between individuals, the Administrative Division, which primarily conducts merits review of administrative decisions of government, and the Human Rights Division, which hears matters relating to discrimination complaints and guardianship issues.

New South Wales

The Administrative Decisions Tribunal Act 1997 established the Administrative Decisions Tribunal (ADT), which commenced operating in 1998. Like VCAT, the ADT has jurisdiction to review various administrative decisions, in addition to resolving some general complaints, such as discrimination and retail shop leases. It has six divisions: the General Division; and five specialist Divisions—the Community Services Division, the Revenue Division, the Equal Opportunity Division, the Retail Leases Division and the Legal Services Division.

Australian Capital Territory

In 1989, the Commonwealth enacted the Administrative Appeals Tribunal Act 1989 as part of the move to self-government. The Australian Capital Territory’s Administrative Appeals Tribunal largely mirrors the Commonwealth AAT.

Western Australia

In 1982 the Law Reform Commission of Western Australia (LRCWA) recommended that all administrative appeals be determined in an Administrative Law Division of the Supreme Court.^[11] That proposal was the subject of considerable debate until, in 1996, two reports, the Commission on Government Report No 4, and the Gotjamanos Report^[12] each recommended the creation of a State Administrative Tribunal. In 1999 the LRCWA revised its earlier recommendation, and joined with those suggesting the creation of a state tribunal modelled broadly along the lines of VCAT.^[13]

In 2002, the Report on the Establishment of the State Administrative Tribunal (a report of the Western Australian Civil and Administrative Review Tribunal Taskforce), recommended the establishment of a State Administrative Tribunal (SAT), modelled on the Victorian and New South Wales generalist tribunals. The government approved the establishment of the proposed tribunal and the State Administrative Tribunal Bill 2003 is currently before the Western Australian Parliament. The Bill is the largest legislative package ever introduced into that Parliament, as a result of the large number of Acts which it amends. The government has stated that it wishes the Tribunal to commence operations on 1 July 2004, although this may be optimistic, given that the legislation has been referred to Committee. In the meantime, premises have been constructed and a number of tribunals have been co-located at those premises, sharing common registry facilities and hearing rooms.

Tasmania

A review of Tasmania’s administrative appeal processes, conducted in 2003, recommended the creation of a broadly based Civil and Administrative Appeals Tribunal.^[14] The Tasmanian Government has accepted the recommendation and a working party has been established to consider the scope or jurisdiction of the proposed tribunal, its structure, appeal provisions and the relationship between it and other tribunals and courts.^[15]

Queensland

In 1993, the Electoral and Administrative Review Commission issued a report recommending the establishment of a general administrative review tribunal.^[16] Although a generalist tribunal like the Victorian tribunal has not been created to date, a number of tribunals have been co-located and amalgamations of some are occurring. For example, last year the Commercial and Consumer Tribunal Act 2003 established the Commercial and Consumer Tribunal, which replaced a number of tribunals, including the Queensland Building Tribunal, Property Agents and Motor Dealers Tribunal, Retirement Villages Tribunal and Liquor Appeals Tribunal.

South Australia

In 1984, the Law Reform Committee of South Australia published a report, proposing the establishment of a General Appeals Tribunal to hear most administrative appeals.^[17] This proposal was not implemented. Instead, an administrative division of the District Court was created. Currently, the District Court hears administrative and disciplinary matters brought to it under a number of Acts, relating to consumer credit, conveyances, dog and cat management and so on. District Court judges also preside over a number of statutory tribunals, such as the Medical Practitioners Professional Conduct Tribunal and Equal Opportunity Tribunal.

Northern Territory

In 1991, the Northern Territory Law Reform Committee recommended the establishment of a General Appeals Tribunal to review most administrative decisions. Although there are a number of specialist tribunals, the Northern Territory to date has not established a generalist tribunal.

The separation of powers

It is clear from the previous discussion that state and territory tribunals deal with a wide range of matters, including administrative matters (for example, review of planning decisions) and civil disputes (for example, small claims disputes and retail lease disputes).

The jurisdiction of Commonwealth tribunals is limited as a result of the constitutional separation of judicial and executive powers. The High Court has emphasised that as a result of the doctrine of separation of powers, Commonwealth tribunals have no power to make binding and determinative findings of law and have no power to enforce their decisions.^[18] In other words, Commonwealth tribunals cannot act judicially.

Unlike the Commonwealth, States are not so constrained. The High Court has determined that the doctrine of the separation of powers is not part of the constitutional law of the States.^[19]

Essentially, this means that the States are free to create tribunals, such as small claims tribunals or generalist civil and administrative tribunals like the VCAT and the ADT, and the SAT proposed in WA, that combine both administrative review functions with ‘judicial-like’ determination of disputes between individual parties. NSW has even flagged the possibility that its ADT might be able to exercise a judicial review jurisdiction.

Conclusion

The great variety of tribunals that exist in Australia was an important issue in identifying the need for and the membership of the Council of Australasian Tribunals (COAT).

The COAT, established in 2002, was largely facilitated by the Administrative Review Council (the Council). The objectives of the COAT include the facilitation of discussion and consultation between tribunals in Australia and New Zealand and supporting the development of best practice models and model procedural rules, standards of behaviour and conduct for members and increased capacity for training and support for members.^[20]

In determining the scope of the membership of the COAT, having regard to the range of functions and procedures of tribunals, the Council settled on a broadly embracing definition of tribunal, which was inclusive, rather than exclusive. Accordingly, for the purposes of membership of the COAT, “tribunal” was eventually defined to mean:

“any Commonwealth, State or Territory or New Zealand body whose primary function involves the determination of disputes, including administrative review, party/party disputes and disciplinary applications but which in carrying out this function is not acting as a court.”^[21]

It will be interesting to see if the development of tribunals in the States continues towards a generalist civil and administrative tribunal model. Irrespective of this, however, the system of tribunals in all Australian jurisdictions will no doubt benefit from the dialogue that is now being facilitated by the COAT.

* Wayne Martin QC is the President of the Administrative Review Council.

The author wishes to thank the Administrative Review Council Secretariat for its work on this article.

Endnotes

{1} S Morris, The Emergence of Administrative Tribunals in Victoria, Paper delivered at the Annual General Meeting of the Victorian Chapter of the Australian Institute of Administrative Law Incorporate, Parliament House, Melbourne, 13 November 2003.

{2} W Friedmann, Principles of Australian Administrative Law (1950), 27.

{3} Ibid, 87–95

{4} Parliamentary Paper No 144, 1971.

{5} Administrative Review Council First Annual Report 1977 (1977), 4.

{6} Ibid.

{7} Ibid, 2.

{8} S Morris, The Emergence of Administrative Tribunals in Victoria, Paper delivered at the Annual General Meeting of the Victorian Chapter of the Australian Institute of Administrative Law Incorporate, Parliament House, Melbourne, 13 November 2003, 3.

{9} New South Wales Law Reform Commission, Appeals in Administration (Report No 16) (1973).

{10} See the NSW Law Reform Commission’s summary of the Report on Appeals in Administration, Appeals in Administration - summary of recommendations.

{11} See Law Reform Commission of Western Australia, Review of Administrative Decisions: Appeals (Project No 26(1)) (1982).

{12} J Gotjamanos and G Merton, Report of Tribunals Review to the Attorney-General, (1996).

{13} See Law Reform Commission of Western Australia, Review of the Criminal and Civil Justice System in Western Australia (Project No 92) (1999).

{14} G Vines (State Service Commissioner), Report of the Review of Administrative Appeal Processes, (2003).

{15} J Jackson, Tasmanian Attorney-General, Administrative Appeals Tribunal (Media Release, 30 June 2003).

{16} See Electoral and Administrative Review Commission, Report on Review of Appeals from Administrative Decisions.

{17} See discussion in J Anderson, ‘Merits Review in the States and Territories: Developments and Dilemmas’, in J McMillan (Ed), The AAT: Twenty Years Forward, (1998), 273.

{18} See Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245.

{19} See Kable v Director of Public Prosecutions for New South Wales [1996] HCA 24; (1996) 138 ALR 577. However, the situation in relation to the applicability of the doctrine of separation of powers to the Territories is less clear. See discussion in T Blackshield and G Williams, Australian Constitutional Law and Theory: Commentary and Materials (3^rd Ed, 2002), 270–286, 1251.

{20} Ibid, 14.

{21} See clause 2(1) of the Constitution of the Council of Australasian Tribunals.