Barker, Michael; Simmonds, Ralph --- "Delivering Administrative Justice in Wa: the Emergence of the State Administrative Tribu" [2004] ALRCRefJl 6; (2004) 84 Australian Law Reform Commission Reform Journal 23

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Reform Issue 84 Autumn 2004

This article appeared on pages 23 – 28 of the original journal.

Delivering administrative justice in WA: The emergence of the State Administrative Tribunal

By Michael Barker and Ralph Simmonds*

Administrative lawyers, public administrators and public policy thinkers tend to talk about the purpose of administrative law in terms of the provision of a measure of ‘administrative justice’ for citizens and others affected by the decisions of public officials.

However, administrative law is capable not only of correcting errors, but also of identifying new ways of making decisions that help to improve the quality of public decision making generally. By providing review of the facts and merits of decisions of public officials, in some cases, and by making specialist decisions of a primary or original nature, in other cases, an administrative tribunal is a policy tool intended to achieve a measure of administrative justice and to improve public decision making.

This article focuses on the proposed establishment of a general administrative tribunal, to be known as the State Administrative Tribunal (SAT), as a means of securing administrative justice in Western Australia.

New administrative law

In Australia, the ‘new administrative law’ introduced at the Commonwealth level in the mid-1970s has slowly, but surely, influenced the development of administrative law in the States and Territories. In Victoria in 1984, an Administrative Appeals Tribunal was established to bring together a number of existing appeal tribunals. Then, in 1998, a more significant reform was achieved in the bringing together of a wide range of appeal tribunals and other boards and tribunals in the form of the Victorian Civil and Administrative Tribunal. In 1997, New South Wales established an Administrative Decisions Tribunal.

Western Australia provides the most recent example of the application or development of the ‘new administrative law’ in Australia. There is presently before the State Parliament a State Administrative Tribunal Bill and related legislation.^[1]

The enactment of a State Administrative Tribunal Act, when combined with a proposed State Judicial Review Act^[2] and existing legislation dealing with other aspects of administrative law and public administration,^[3] will result in WA having a package of administrative laws designed to advance the interests of administrative justice and secure better public decision making not dissimilar to Commonwealth law.

The proposal to establish a State Administrative Tribunal in WA may be traced directly to the 1957 report of the Committee on Administrative Tribunals and Enquiries (the Franks Committee Report)^[4] in Britain and the expanded vision of those recommendations conveyed in what became known as the Kerr Committee Report^[5] in Australia. However, the proposal in WA goes further than the proposals for harmonisation between tribunals envisaged by the Franks Committee Report and the creation of a wider range of administrative review possibilities and accountability mechanisms envisaged by the Kerr Committee Report. The SAT is intended to have a jurisdiction that will result in it exercising an original decision making function in a number of specialist areas and a review function in respect of a considerable range of public decisions within the State, as well as a disciplinary hearing function in the place of a large number of existing professional and occupational boards.

The reform process

The current proposal for an SAT has something approaching a 40 year history, beginning in the mid-1960s when the WA Law Society was urged to support the establishment of a general administrative tribunal.^[6] Then, in the late 1970s, the Law Reform Commission of Western Australia (LRCWA) was asked to report on the review of administrative decisions. In 1982, the LRCWA recommended that an administrative appeals facility should be developed within the State’s existing court system.^[7]

In terms redolent of the observations of the Franks Committee and the Kerr Committee Report, the LRCWA concluded that arrangements concerning administrative appeals in WA at that time were the result of ad hoc legislation over a long period of time without an overall plan. There were then 257 administrative decisions subject to a statutory right of appeal to more than 43 different appellate bodies.

The LRCWA report lay on the shelf for many years. Ten years later some of the dust was blown off it when the Royal Commission into Commercial Activities of Government and Other Matters recommended the establishment of a single, overarching administrative tribunal.^[8] That Royal Commission—inquiring into what was colloquially known as ‘WA Inc’—made a number of recommendations designed to secure or improve open government, accountability, and integrity in government. In this context, the Royal Commission expressed concern about the lack of an administrative appeals tribunal in WA.

In advocating the setting up of such a tribunal, the Royal Commission suggested that the tribunal should be located outside the court system.^[9] A tribunal, it thought, would be better able to deal with policy orientated review and decision making than a court. Moreover, the authority of the court would not be compromised by its intrusion into matters of policy and administration.

The recommendation of the 1992 Royal Commission was reiterated in 1996 in the Commission on Government Report^[10] and the Report of Tribunals Review to the Attorney-General.^[11] The Commission on Government—set up as a result of a recommendation of the Royal Commission—recommended the creation of a single tribunal to be known as the Administrative Review Tribunal, again standing apart from the court system.^[12]

The Tribunals Review Report to the Attorney-General recommended the rationalisation of the present situation by the creation of a State Administrative Appeals Tribunal, which would assume the administrative appeal functions of various tribunals and some boards, courts and public officials.^[13] It proposed that the presiding member should have the status of a District Court Judge.^[14]

The Tribunals Review Report did not contemplate that the new tribunal should assume functions of an original decision making type or the disciplinary functions then exercised by a large number of professional and occupational boards. Indeed, the Report recommended that the jurisdiction of such bodies as the Equal Opportunity Tribunal, the Information Commissioner, the Guardianship and Administration Board and the Legal Practitioners Disciplinary Tribunal, as well as those bodies operating in the areas of workers’ compensation and industrial relations, should remain separate and independent.

These reports were followed by a further report of the LRCWA in 1999 on the criminal and civil justice system in WA.^[15] As part of a wide-ranging review, the LRCWA adopted the Tribunals Review Report recommendations that an administrative review body be established, amalgamating the review and appellate functions of existing tribunals and boards and a number of courts, apart from those in the industrial relations and WorkCover areas.^[16] However, the LRCWA noted that developments in other States, particularly in Victoria and New South Wales, had seen the significant extension of the jurisdiction of administrative decision making bodies. In light of those developments, the LRCWA recommended the establishment of a Western Australian Civil and Administrative Tribunal, which would amalgamate the adjudicative and review functions of all existing tribunals and boards and some courts and other entities, except in the areas of industrial relations and workers’ compensation.^[17]

Taskforce on the establishment of an SAT

In March 2001, the State Attorney General established a Taskforce to act on the recommendation in the 1999 LRCWA Report and to develop a model of a civil and administrative tribunal for consideration by government. The Taskforce submitted its report the following year.^[18]

It recommended that a new State Administrative Tribunal be established to:

• assume the administrative review functions of the various avenues of appeals, tribunals and many of the court, ministerial and public officials appeals; and

• exercise the original jurisdiction of many of the existing original decision making boards and tribunals as well as those of the professional and occupational boards in respect of disciplinary hearings.

The Taskforce considered that its proposals would address structural deficiencies in the existing ad hoc system, promote better decision making and secure a number of significant benefits for citizens and public administration alike. The Taskforce expressed the view that once a generalist tribunal was set up to deal with administrative decisions, the need to provide appeal or review rights in respect of various administrative decisions to courts would cease to be rational. This was because the court system was not the place for administrative decision making to be reviewed on its merits. Courts were best equipped to deal with the declaration and enforcement of existing legal rights, not with the formulation or application of government policy or the review of administrative decision making on its merits.

Indeed, the Taskforce considered that with the development of a generalist tribunal there could be very few compelling reasons why the existing array of administrative review appeals to courts, ministers and public officials should not be assumed by the tribunal.^[19]

The Taskforce also recommended significant changes to the manner in which vocational disciplinary matters are dealt with in WA. The typical vocational board in WA both regulates and supervises professions and occupations. The Taskforce recommended that the nexus between the general regulatory functions of these boards and their disciplinary functions should be broken. This would mean the functions of the vocational boards would generally be confined to licensing and general regulation, as well as receipt and investigation of complaints. If a board considered there were grounds to discipline a licensed person, it should, in effect, prosecute that complaint by way of application to the SAT.

The Taskforce also proposed that the functions of the Guardianship and Administration Board and the Mental Health Review Board be co-located with the new tribunal and that the SAT take on some new and important areas of decision making, including state revenue appeals and land compensation claims.

However, the Taskforce suggested that the functions of the assessor of criminal injuries compensation, the Information Commissioner, the Small Claims Tribunal, and the Small Debts Division and Residential Tenancies jurisdiction of the Local Court, should all remain separate.^[20]

So far as the structure of the new tribunal and the powers, practice and procedure of the new tribunal were concerned, the Taskforce had considerable regard to the model represented by the Victorian Civil and Administrative Review Tribunal.

The Taskforce recommended that the new tribunal should have senior judicial leadership. It stated the view that experience in like tribunals throughout Australia suggested that judicial leadership helped to ensure public confidence in the integrity, independence and impartiality of such a tribunal. The tribunal should otherwise be composed of senior members and members who were both full time (or part time) and sessional and had legal and other special qualifications or experience relevant to the various areas of jurisdiction of the tribunal.

Other Taskforce recommendations relating to the powers, practice and procedure of the tribunal included:

• an emphasis on mediation, conciliation and other forms of alternative dispute resolution;

• speedy progress to formal resolution in the event that alternative dispute resolution should prove unsuccessful;

• as far as possible, the tribunal should be a no-cost jurisdiction, save in some existing areas (for example, disciplinary proceedings) where a person might be properly required to meet the expenses of the applicant;

• the tribunal should be bound by rules of natural justice and procedural justice, but be able to regulate its own practice;

• proceedings should be conducted with as little formality as possible and not bound by strict rules of evidence; and

• the tribunal should adopt flexible procedures depending upon the factual and legal issues, and whether or not the parties were represented.

The State Administrative Tribunal Bill

The State Administrative Tribunal Bill 2003 (SAT Bill) and the related State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Bill 2003 now before the State Parliament provide for the establishment of a State Administrative Tribunal. The Attorney-General has indicated he would like to see the Tribunal commence in mid-2004.

The Bill largely adopts the recommendations of the Taskforce. In some areas, the Taskforce’s recommendation as to the inclusion of a particular function in the Tribunal is not reflected in the Bill and, in some other areas, the Bill goes further than the Taskforce suggested. However, these differences are matters of detail. Generally speaking, the recommendations of the Taskforce as to the model of the tribunal, the scope of its jurisdiction, and its proposed means of operation are reflected in the Bills currently before the Parliament.

As a result, the breadth of the current proposal in WA is significantly greater than that of the Commonwealth Administrative Appeals Tribunal and reflects, and in some respects extends, that of the Victorian Civil and Administrative Tribunal.^[21] In this way, the passage of the State Administrative Tribunal legislation will effect a significant change in public administration in WA.

Something of the ‘flavour’ of the new Tribunal may be gained from an overview of the structure of the proposed Tribunal and how it may be expected to operate.

The SAT Bill adopts the Taskforce’s recommendation that the Tribunal should have judicial leadership and a full time and sessional membership. The Bill provides for a President and at least one Deputy President. Under the proposed legislation the President must be a Supreme Court Judge and the Deputies Judges of the District Court.^[22] The Bill also provides for the appointment of senior members and ordinary members as well as sessional members,^[23] reflecting the recommendations of the Taskforce.

Broadly speaking, the Tribunal’s jurisdiction will canvass such decision making fields as human rights and equal opportunity, resources and development, vocational regulation, and general civil and commercial decision making.

The Bill also implements the Taskforce’s recommendation concerning the giving of reasons and provides for decision makers to give reasons for their decision. Additionally, a decision maker whose decision is under review in the Tribunal will be required to provide the Tribunal with all documents it holds relevant to the decision.^[24] This requirement alone will change the process by which decisions are currently reviewed. A matter which is currently exempt from disclosure will remain so, although the Tribunal would be able to view it.

It may be expected that the SAT will adopt flexible procedures designed to suit the nature of the application before it. Consistent with the recommendations of the Taskforce, in some cases, this could mean that the Tribunal should be comprised of a single member. In other cases, multi member tribunals will be appropriate. The Bill also provides for some matters to be determined ‘on the papers’, without the need for a formal hearing.^[25]

In relation to the hearing of disciplinary applications, the Bill provides that the Tribunal should be comprised of at least three members, one of whom will be the presiding legal member, one a suitably qualified person from the vocation in question and the other a person having knowledge or experience of that vocation, though not necessarily a person practising within that vocation.^[26]

It may be expected that the Tribunal will adopt user-friendly forms of application and hearing procedures, as suggested by the Taskforce. Save in a few areas where an application upon lodgement may be assessed on the papers by a Tribunal member to determine the most appropriate way forward, it may be expected that most applications, and certainly all review applications, will be listed for a directions hearing soon after lodgement.

The SAT may also be expected to employ modern case management practices and technology in the handling and disposition of applications; provide for the electronic lodgement of applications and other relevant documents; and provide Tribunal members with web based access to the Tribunal’s information base and other resources through individual portals.

Geographical considerations play an important part in the organisation and operation of any court or administrative tribunal. In a State the size of WA these considerations loom large. It may be expected that the Tribunal will be based in Perth, but will, where appropriate, sit in country and regional areas. To permit the more effective delivery of its services in outlying areas, it may also prove useful to appoint local Magistrates as members of the Tribunal to determine particular types of applications, as suggested by the Taskforce.

In areas such as guardianship and administration, mental health, and resources and development, members of the SAT may be expected to operate a circuit or otherwise take the Tribunal to the people and places in question, in accordance with the existing practice of boards and tribunals working in those areas.

The Bill enables questions of law to be referred to the President by a tribunal in the course of the hearing of an application.^[27] In that way, judicial guidance can be provided to a tribunal before a matter is finally determined, thus reducing the likelihood of an appeal and the inconvenience for parties connected with an appeal.

However, decisions of the Tribunal will be appealable to the Supreme Court of Western Australia, although on points of law only.^[28] A decision of a judicial member will be appealable to the Full Court of the Supreme Court (soon to be the Court of Appeal) with the leave of that Court. Decisions of a tribunal will otherwise be appealable to a single Judge of the Supreme Court, with the leave of a Judge.

Conclusion

The model of choice for reform that has strongly emerged recently is the Commonwealth’s now 27-year-old ‘new administrative law’. Western Australia has followed this model. At the same time, WA has been able to draw on the experience under the Commonwealth arrangements, as well as the related experience of other States, to arrive at variations that are meant to improve on the received model. Given the way administrative actions by public officials of the state can touch the lives of all Western Australians, this should be of considerable benefit.

At the same time, the Western Australian implementation of the new administrative law may be of value to others considering reforms of a similar nature.

This article is an edited version of a paper presented to the Australasian Law Reform Agencies Conference (ALRAC) in Wellington, New Zealand in April 2004.

* The Hon Justice Michael Barker, Supreme Court of Western Australia. Justice Barker chaired the WA Civil and Administrative Review Tribunal Taskforce and was one of the counsel assisting the WA Royal Commission into the Commercial Activities of Government and Other Matters.

The Hon Justice Ralph Simmonds, Supreme Court of Western Australia. Justice Simmonds was previously the founding Dean and Professor of Law of the School of Law at Perth's Murdoch University. He was also Chairman of the Law Reform Commission of WA.

Endnotes

{1} State Administrative Tribunal Bill 2003 (WA) and State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Bill 2003 (WA).

{2} Not yet introduced into the WA State Parliament, but recommended by Law Reform Commission Western Australia, Report on Judicial Review of Administrative Decisions Project No 95 (2002).

{3} Such as the Parliamentary Commissioner Act 1971 (WA), Freedom of Information Act 1992 (WA) and the Public Sector Management Act 1994 (WA), which sets up the Commissioner for Public Sector Standards.

{4} Committee on Administrative Tribunals and Enquiries (1957).

{5} Commonwealth Administrative Review Committee Report (1971).

{6} See J Wickham ‘Power Without Discipline. The Rule of “No Law” in Western Australia’, (1965–[1965] UWALawRw 4; 1966) 7 UWALR 88, 104–105.

{7} Law Reform Commission of Western Australia, Report on Review of Administrative Decisions: Appeals Project No 26(I) (1982).

{8} Report of the Royal Commission into Commercial Activities of Government and other Matters (1992), Part 2.

{9} Ibid, [3.5].

{10} Commission on Government Report No 4 (1996).

{11} Report of Tribunals Review to the Attorney-General by Commissioner Gotjamanos and Mr G Merton (1996).

{12} Commission on Government Report No 4 (1996), [7.1.4, 7.4.4].

{13} Ibid, 41–43.

{14} Ibid.

{15} Law Reform Commission of Western Australia, Review of the Criminal and Civil Justice System—Final Report Project 92 (1999). One of the authors (Simmonds) was a member of the Commission during the production of the Report, while Wayne Martin QC was the Commission’s Chairman during that period. For more on the Report, and the reorganisation of the Commission that preceded it, see R Simmonds, ‘Renewing a Great Idea from the 1960s? The Law Reform Commission of Western Australia’ [2003] AIAdminLawF 13; (2003) 38 AIAL Forum 36–42.

{16} Law Reform Commission of Western Australia, Review of the Criminal and Civil Justice System—Final Report Project 92 (1999), [33.9].

{17} Ibid, Recommendation 371.

{18} Western Australian Civil and Administrative Review Tribunal Taskforce Report on the Establishment of the State Administrative Tribunal (2002). Available online at: <www.health.wa.gov.au/mhareview/resources/documents/ Taskforce_Report_on_the_Establishment_of_a_State_Admin_Tribunal.pdf>.

{19} The Taskforce did recognise that there was a range of government decisions involving ministerial appeals that required the exercise of political policy judgment by the government of the day or that were otherwise unsuited to determination by a tribunal.

{20} Western Australian Civil and Administrative Review Tribunal Taskforce Report on the Establishment of the State Administrative Tribunal (2002), 121–124.

{21} As to the Victorian Civil and Administrative Tribunal’s jurisdiction, see M Kellam ‘Civil and Administrative Tribunals—Can Their Performance Be Improved?’ (2001) 29 AIAL Forum 31.

{22} SAT Bill, cl 107 and 111.

{23} SAT Bill, cl 115 and 116.

{24} SAT Bill, cl 24.

{25} SAT Bill, cl 60(2).

{26} SAT Bill, cl 11(4). In the case of applications under the Medical Act, the Tribunal would be comprised of four members: see SAT (Conferral of Jurisdiction) Bill, cl 22A.

{27} SAT Bill, cl 59.

{28} SAT Bill, cl 104.