|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Administrative Review Council - Admin Review |
Professor Robin Creyke[*]
What does it mean in an Australian context to describe the tribunal process as ‘inquisitorial’? The Australian Institute of Judicial Administration has funded a project to find answers to that question. Inquisitorial process is commonly understood to refer to European-based civil law procedures, where the adjudicator takes an active role in identifying witnesses and seeking out the evidence before reaching a decision. In contrast, in the adversarial process generally adopted in common law countries the adjudicator adopts a neutral stance, leaving it to the parties to present the opposing arguments on which the adjudicator pronounces.
What the researchers have discovered is that, despite some resemblance to the European civil law, Australian parliaments have modified the European model when setting up administrative tribunals. Australian tribunals have usually been established to handle large numbers of cases and have not been provided with funds sufficient to make inquiries. Further, the imperative of speedy and efficient decision making has assumed a prominence that has affected the way inquisitorial practice has been interpreted.
This is reflected in some common statutory features of Australian inquisitorial tribunals. Foremost among them is the litany of adjectives that describe the processes of an inquisitorial tribunal—namely, that the tribunal should operate in a manner described as ‘fair, just, economic, informal and quick’. The list can broadly be divided into two: the tribunal’s processes are to be ‘economical, informal and quick’ and they are also to be ‘fair and just’.
As Justice Lindgren pointed out, however, in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs[1]—a view quoted with approval by the five members of the High Court in Minister for Immigration and Multicultural Affairs v Eshetu—the problem is that ‘the objectives referred to in [s] 420(1) will often be inconsistent as between themselves. In particular, a mechanism of review that is “economical, informal and quick” may well not be “fair” or “just”‘.[2]
Although no-one would cavil at the application of either cluster of adjectives, the competing objectives impose a task on tribunal members. They must decide which category is to take precedence and, with no legislative guidance, this can be difficult. In other words, the legislation has created a quandary for tribunal members.
The difficulties were illustrated in the recent High Court decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs.[3] By a three–two majority, the Court (Kirby, McHugh and Hayne JJ; Gleeson CJ and Gummow J dissenting) found there had been a jurisdictional error when, at a hearing of a woman in detention, oral, but not written, notice, as s 425 of the Migration Act 1958 (Cth) requires, was given to the woman of adverse comments made about her by her daughter.
In criticising the failure to give written notice, Kirby J emphasised the need to be ‘fair and just’ at the expense of being ‘economical, informal and quick’. Why his Honour gave prominence to fairness and justice at the expense of the other criteria was not explained. In contrast, Gleeson CJ took a more practical approach, in effect, applying the ‘economical, informal and quick’ requirements. He pointed out:
It is agreed on all sides that the hearing contemplated by s 425 is not a trial. Subject always to the overriding requirement of procedural fairness, the object of the occasion is to hear evidence and receive arguments in the most useful and efficient manner. This will often involve flexibility in the order of proceedings. There seems to be an incongruity in the intrusion of an inflexible requirement for written communication at a ‘hearing’. The incongruity is heightened in a case such as the present where any such written communication would require oral translation and explanation. Such a case would not be unusual. No doubt many applicants who can read and write in a language other than English cannot read English. Presumably, on the appellants’ argument, what the Tribunal should have done was prepare a letter to the first appellant, fax it to Woomera, then have it translated orally by the interpreter. Having done that, on the findings in the Federal Court about fairness, the Tribunal could then have proceeded as it did. On those findings, the letter would have been pointless. That, indeed, is why the Federal Court decided the case as it did.[4]
As these exchanges show, the competing categories can give comfort to both sides of the debate.
Arguably, the statutory criteria, albeit in competition, do provide one advantage—allowing tribunal members and courts the flexibility to choose one cluster over the other. This is appropriate given the breadth of matters that come before tribunals, notably those with a combined civil and administrative jurisdiction. There does, however, remain room for criticism. How does a tribunal decide whether to emphasise the need for speed, informality or economy over fairness and justice? It is here that neither the parliaments nor the courts have provided sufficient guidance for tribunal members.
Tribunals, too, have not clearly identified what it means for them to be ‘inquisitorial’. What follows is a limited survey of cases decided by the key tribunals covered by the project—the Commonwealth Administrative Appeals Tribunal, the migration tribunals (the Migration Review Tribunal and the Refugee Review Tribunal), the New South Wales Administrative Decisions Tribunal, and the Victorian Civil and Administrative Tribunal. The purpose of the survey is to identify what tribunals understand by the requirement that they operate in an inquisitorial manner and how they have determined what weight should be accorded the competing objectives with which they are faced.
What factors suggest that tribunals should adopt an inquisitorial rather than an adversarial process? The answers to this question are premised on the fact that the procedural obligations of inquisitorial tribunals are different from, and at times more onerous than, those of courts.[5]
The extent to which inquisitorial obligations are imposed on tribunals is influenced by several features:
• the terms of the statute and whether it explicitly or impliedly imposes such a duty[6] • the obligation of the tribunal to reach the ‘correct or preferable’ decision • the respective rights and interests of parties to a dispute and how these are affected by the tribunal’s processes • pragmatic considerations such as economy and speed.
These features are explored in the context of the statutory evidential role of tribunal members—including members’ responsibility to elicit evidence in order to reach the correct or preferable decision; the management of the proceedings (that is, what information to elicit and when); the level of representation of the parties; the onus of proof; and the requirement for tribunals to operate in a speedy and efficient manner.
When there is an explicit duty on a tribunal—for example, to elicit information—the courts enforce that duty. How extensive the obligation is can depend on the parties involved or the impact of the decision. For example, in the veterans’ jurisdiction the failure of the head of the veterans’ agency to investigate a claim, as required by the agency’s legislation, has been criticised by the courts, not least because of the special respect accorded this group in our society.[7]
Section 73 of the Administrative Decisions Tribunal Act 1997 (NSW) also imposes a duty of inquiry on that Tribunal.[8] Nonetheless, the Tribunal has taken a pragmatic view about how extensive that duty should be. As it noted in Battenberg v The Union Club[9], in the context of a refusal to call a witness in a claim of discrimination and victimisation by Mr Andrew Battenberg following his expulsion from the Union Club:
The Tribunal’s broad inquisitorial powers do not impose upon it an obligation to inquire into every matter a party asserts might be relevant to the facts in issue. The duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present its case. That duty does not extend to acceding to every application for evidence to be admitted out of time, which a party believes might assist the Tribunal’s knowledge of its case. One of the directives in s 73 is that the Tribunal act as quickly as possible. The practical effect of granting this application would have been to require a further hearing day to be set aside. For these reasons the application was not granted.[10]
Despite these examples, an explicit statutory obligation on a tribunal to seek evidence is rare.[11] Such requirements as there are generally take a less onerous form. For example, under s 426 of the Migration Act 1958 (Cth) the Refugee Review Tribunal is given the power to obtain a medical report.[12] Despite this provision, the majority of the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB were not prepared to require the Tribunal to obtain a second psychologist’s report in order to assess whether the applicant’s accepted medical condition of post-traumatic stress disorder could have affected his ability to present his case to best advantage.[13] In other words, in the migration context the power of a tribunal set up to be inquisitorial to seek information means no more than that the tribunal must respond to the party’s case. The statutory authority to seek information does not require that the tribunal actively supplement the information supplied by either party.[14]
Commonly, the statutory provisions provide that the tribunal ‘may inform itself on any matter as it sees fit’.[15] A provision of this kind also imposes no duty to initiate action. In addition, the statutory authority to require the provision of documents or to summon witnesses suggests no more than that the tribunal is able to take steps to obtain further evidence. As the cases illustrate, even these powers will be exercised only in circumstances where the information will be relevant.
The implications of these findings can be illustrated by examination of cases relating to the Administrative Decisions Tribunal Act, which contains a specific provision limiting that Tribunal’s duty to inquire to material that is ‘relevant’.[16] In deciding what is ‘relevant material’, the Tribunal considers all the available evidence and whether it is sufficient to enable the tribunal to be satisfied of an outcome.
Failure to meet the threshold test of relevance arose in Neary v The Treasurer, New South Wales.[17] An assertion by the applicant, based on information in a news story and a related press release, that the Treasurer and other Ministers and officers in New South Wales had documents relating to a matter other than documents already released under the Freedom of Information Act 1989 (NSW) was not sufficient to persuade the Tribunal to issue a summons to see whether further information could be obtained. In other words, the precondition that material must be relevant before any duty of inquiry arises does not sanction fishing expeditions to find material.
In deciding what is relevant, the Administrative Decisions Tribunal Act also requires that the public interest be a dominant consideration.[18] The meaning of ‘public interest’ is elusive. For this purpose who is the public? Anyone affected by the decision? The public at large? What is the interest that should be protected? An interest in the speedy resolution of a matter? An interest in ensuring that a hearing is fair? At first sight ‘public interest’ is not an expression that can provide clear guidance to those who must assess relevance.
In practice, interpretation of this provision does appear to have provided some assistance to tribunals. In Law Society of NSW v Carver[19], in deciding what the ‘public interest’ required, the Tribunal gave prominence to the need for ‘fairness’. Before accepting an application to dismiss by consent a claim of professional misconduct by a solicitor, the Tribunal required that it be satisfied that there were grounds or reasons advanced in support. In the absence of such reasons the public interest in ensuring that the consent order was not contrived would have meant that the Tribunal was unwilling to accede to the application for dismissal.
However, in summary, even tribunals under a statutory obligation to inquire have not interpreted their powers as requiring that they take a proactive role. Certainly the bulk of tribunals that have no such explicit obligation adopt this stance. Despite being characterised as inquisitorial, and even when granted powers to compel witnesses and require the production of documents, tribunals are inhibited in their obligation to inquire by other considerations, such as the nature of the parties and the limited effect of the obligation to ‘inform themselves on any matters as they see fit’.
These conclusions are supported by the discussion of the management of proceedings. In theory, a tribunal’s flexible mode of operation is limited only by the minimum standards of fairness—that is, the need to accord natural justice.[20] In practice, however, limitations arising from the onus of proof, the nature of the interests involved, and pragmatic considerations will affect the management of a tribunal’s processes.
The flexibility accorded tribunals means they must decide for themselves how the proceedings will be conducted. As Woodward J noted in this regard in McDonald v Director-General of Social Security[21]:
a tribunal will still have to determine practical problems such as the sequence of receiving evidence and what to do if it is unable to reach a clear conclusion on an issue, but it is more likely to find the answer to such questions in the statutes under which it is operating, or in considerations of natural justice or common sense, than in the technical rules relating to onus of proof developed by the courts. However, these may be of assistance in some cases where the legislation is silent.[22]
How then should a tribunal approach its evidence-gathering task? In the absence of some ordered process, as counsel in Golem v Transport Accident Commission ‘trenchantly observed’, ‘[s]ome procedure, some order of receiving evidence, must be established or we will all simply sit looking at each other in silence’.[23] Otherwise, the dispensation of rules of evidence and procedure altogether in an ‘endeavour to provide some form of rough justice may mean that justice becomes so rough that it ceases to be justice’.[24] In other words, the flexibility accorded tribunals by the explicit lifting of the obligation to rely on the rules of evidence does not mean that ‘Rafferty’s rules’ apply.[25]
If one turns for guidance to their legislation, the Acts establishing tribunals universally provide that the tribunals are not bound by rules of evidence. These provisions do not mean, however, that a tribunal cannot rely on the rules of evidence. Evidential rules, after all, are the principles that have been developed over centuries to ensure fair hearings by courts.[26] Since the ‘bottom line’ for a tribunal too is that its proceedings must be fair, the rules of evidence are a useful guide to achieve this end. As Evatt J noted in R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott[27]:
Some stress has been laid by the present respondents upon the provision that the tribunal is not, in the hearing of appeals, ‘bound by any rules of evidence’. Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although the rules of evidence, as such, do not bind, every attempt must be made to administer ‘substantial justice’.[28]
At the same time, given their statutory permission not to be bound by the rules of evidence, when should tribunals rely on the standard evidential rules? The tendency to do so is most noticeable in cases at the adversarial end of the spectrum, when both parties are represented and the case is being contested in a ‘vigorous, adversarial fashion’.[29] Even on such occasions, however, there is no imperative to this effect. Justice Morris, President of the Victorian Civil and Administrative Tribunal, described the reasons many tribunals can avoid adoption of rules of evidence and court-like process:
First, the method of bringing cases before the tribunal is relatively simple; complex pleadings are unnecessary. Second, the tribunal engages a substantial registry staff to assist parties and to perform work which would ordinarily be done by solicitors in courts of law. Third, hearings are conducted in an ordered manner, but with as little formality and technicality as is practicable. Fourth, the tribunal is empowered to inform itself on any matter as it sees fit and this power is used to promote the fair conduct of a case as well as to achieve a just outcome according to law. For example, tribunal members often ask questions or raise issues in order to overcome an inability of a party to articulate its true case.[30]
Application of the ‘substantial justice’ or fairness approach as an alternative to the rules of evidence arose in Golem.[31] The Victorian Civil and Administrative Tribunal required the respondent, the Transport Accident Commission, to present evidence first. What led to that step was that it was the Commission that had accepted liability for benefits and some six years later, with little in the way of explanation, had revoked them; in other words, as the Tribunal noted, it was the Commission that was seeking to alter the status quo. The Commission also had an obligation, as the primary administrative decision maker, to assist the Tribunal and not behave in an adversarial fashion.[32] For these reasons the Commission was required to initiate the presentation of evidence. Fairness required it. This practice of requiring the ‘respondent’ to commence the evidence giving has also been adopted in the Administrative Decisions Tribunal and in Western Australia’s State Administrative Tribunal.[33]
The absence of rules of evidence also means that material that would be inadmissible in a court—for example, hearsay evidence—can be admitted in a tribunal. At the same time, though, the admissibility of such evidence does not deny the tribunal the prerogative to give the material reduced weight.[34] There is also a discernible reluctance on the part of tribunals to rely on other evidential principles (such as estoppel) that limit opportunities for re-litigation of matters.[35] So, on balance, tribunals are taking advantage of their freedom to adapt their processes to suit particular cases.
How does the inquisitorial mode of operation of tribunals affect the parties? Perhaps the most distinctive aspect of the management of tribunal hearings as compared with court hearings is that evidence is generally obtained in a different manner. There is no discovery; nor is there the same reliance on cross-examination to elicit information or to discredit the testimony of the other side.[36] Instead, agencies are expected to provide the applicant’s file, including the reasons for the decision under challenge, the evidence on which the decision maker relied, and the reasoning adopted to reach the decision. At first sight, this is a markedly different process compared with what applies in the courtroom.[37]
In practice, however, the approaches converge. When parties are represented there is a clear tendency for the parties to play the dominant role, even when the hearings are ostensibly inquisitorial. Indeed, parties’ legal representatives have been criticised by tribunal members for not seeking out all relevant evidence or for failing to conduct a detailed analysis of materials received in evidence (such as medical records), thus forcing the tribunal to perform that task.[38] So, in general, despite tribunals being inquisitorial, there is an expectation that it will generally be the parties that present all the relevant material.
At the same time, the tribunal’s role is not simply to adjudicate on the merits of both cases or to act as an adversarial umpire. The requirement that the tribunal be satisfied that it can reach the ‘correct or preferable’ decision after ‘informing itself in any manner it thinks fit’ does play a part in tribunal processes. In other words, the tribunal is not confined to the material presented by the parties but can seek further information for itself.[39] Deputy President Forgie explained this flexible approach:
There are various ways in which the Tribunal may use its inquisitorial powers. They range from questioning the parties’ witnesses, through asking the parties to procure or produce further material, to producing documentary material from its own research. In a rare case, it may call its own witnesses.[40]
Nonetheless, as the earlier discussion points out, the circumstances in which the tribunal will exercise these powers to ‘request or itself compel the production of further material’[41] are limited. The justification for this is that prolongation of the proceedings flies in the face of the requirement to be ‘quick’. There are resource implications for the tribunal, the subject matter of the hearing, and the culture of the tribunal, which will also affect the level of intervention.
In relation to resource implications, it is noticeable that in veterans’ matters—where the Repatriation Commission calls for and pays relevant medical specialists—there is a greater willingness on the part of the agency (the Veterans’ Review Board) and the Administrative Appeals Tribunal to assist applicants.[42] The absence of this financial support in other cases affects the Tribunal’s willingness to call for, or itself obtain, further evidence.[43]
Another factor bearing on the allocation of responsibility for providing evidence is the level of representation. If both parties are legally represented, the Tribunal will be reluctant to intervene. As the Tribunal remarked in Golem[44]:
the closer one gets to something resembling an adversarial contest with experienced counsel representing the parties, the closer one gets to the system applied in the courts and the greater the reluctance on the part of the Tribunal to interfere and impose its own inquisitorial directions.[45]
In turn, the level of representation is tied to the nature of the interests at stake. Different stances are taken if the matter relates to something of limited monetary value as compared with cases in which personal liberty is involved. Hence, for example, in Goldie v Commonwealth[46] the Federal Court imposed a weighty evidential burden on those making a decision to detain a person as an unlawful non-citizen under s 189 of the Migration Act 1958 (Cth) and cautioned the authorities about the necessity of making ‘due inquiries’ before placing a person in detention.[47]
In practice, in tribunals with combined civil and administrative jurisdiction there are discernible patterns in representation. The credit and planning jurisdictions are traditionally at the adversarial end of the spectrum, with most parties being legally represented. In contrast, in the area of small claims, residential tenancies and domestic building disputes the parties are less likely to be represented.[48] This affects the level of intervention required of the tribunal.[49]
Rarely do the statutes establishing tribunals explicitly refer to the onus of proof.[50] Despite this statutory silence, the general rule is that no party bears a legal onus of proof in tribunal proceedings: the onus falls instead on the tribunal. Nonetheless, it has long been accepted that this does not preclude there being a practical onus on the applicant to make and support their case.[51]
At the same time, the fact that there is a practical onus on the parties does not prevent the tribunal itself taking on the evidence-gathering role. In an inquisitorial proceeding, the tribunal must ‘be satisfied’ of the outcome in the case. In order to meet this level of satisfaction it is often expected that a tribunal will adopt an interventionist role. This expectation has a direct impact on the onus of proof.
This can occur in one of two ways. The tribunal frequently identifies and requires the parties to obtain evidence in order that it ‘be satisfied’ that it has reached the ‘correct or preferable’ decision.[52] This requirement is commonly imposed at preliminary proceedings. Equally, if the tribunal identifies a subject not raised at the hearing it may call evidence on that subject and adjourn the hearing until that evidence is obtained.[53] Alternatively, the tribunal can obtain the evidence itself. It should do so if it is unable to make a correct or preferable decision because of, for example, the absence of a crucial witness. In those circumstances the tribunal may be obliged to call that witness.[54]
Which option the tribunal adopts depends on the character of the proceedings and the assumed skills and resources of the applicant. Hence, in a development proposal the tribunal commented:
it seems to us generally fair that a development proponent who seeks approval for a development, no doubt with a view ultimately to obtaining a profit from the transaction, should bear the responsibility of placing before the decision-maker any expert opinion upon which he relies.[55]
In making its choice, the tribunal must balance the requirement that there be a speedy conclusion to the matter with the need to ensure fairness. In that context, as the Administrative Decisions Tribunal pointed out in KO v Commissioner of Police[56], quoting Ipp JA in Barwick v Council of the Law Society of New South Wales[57], a deficiency in the evidence resulting from a failure to seek material on a question of fact is more likely to raise the possibility of a breach of natural justice. As Ipp JA put it:
where there has been a denial of natural justice affecting the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference to the outcome than where the denial related to the opportunity of making submissions on a question of law.[58]
Once again, the general principles are clear. There is a practical but not a legal onus on the parties, although the level of representation, the type of matter, and the need for the tribunal to be satisfied that it can reach the correct or preferable decision will determine who bears the practical burden at any time.
The more serious the impact on a party, the more likely it is that the Tribunal will adopt a more formal—and hence less inquisitorial—process. For example, in occupational licence cases[59] the Tribunal has noted that the seriousness of the initial decision to deny the applicant a licence suggests a need to adopt more formal processes. In Curcio v Business Licensing Authority[60] the Tribunal noted:
As a matter of procedure such matters ought proceed by way of proper notice to an estate agent with particulars in support being detailed and in circumstances where the case is put by the informant before the estate agent is called upon to answer the allegations.[61]
The Tribunal also ruled as inadmissible a police summary that was substantially in the form of hearsay evidence; it did so on the basis that in a case such as this the rules of evidence should be applied ‘unless for sound reason, their application is dispensed with’.[62] Similarly, in a denial of compensation case[63] the Tribunal refused to override medical professional privilege despite the discretion available under s 80(3) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) to require a party to produce a document.
As noted, a feature of the procedural model of Australian tribunals is that they have often been created to provide speedier dispute resolution than the courts. The emphasis on a ‘quick’ resolution of the matter is often referred to as an answer to a complaint that the tribunal should have taken a more interventionist stance or called for more evidence. For example, in Spano v Business Licensing Authority[64], which concerned an application to be a real estate agent’s representative, the Tribunal pointed out:
Although the Tribunal takes an inquisitorial role, that role is one of review and it must to large degree rely upon the evidence presented to it if it is to operate efficiently and with some speed whilst ensuring fairness to the parties. This Tribunal whilst having all the functions of the Respondent also has the Respondent appearing before it and it cannot be that it is expected to carry out a function that is the equivalent to that carried out by the Respondent at first instance. It may choose to do so, but that should be only in circumstances where the Respondent has failed to have others investigate for it or investigate matters itself that were so pertinent to the outcome of the proceedings before it that fair process demanded action by the Tribunal at the review stage of the process.[65]
The applicant had conducted his case on the basis that he accepted all the factual matters and consequently would not give evidence but was available for cross-examination. The Tribunal criticised this approach to the giving of evidence on the basis that it ‘caused disadvantage to the Respondent and an unnecessary lengthening of the proceedings’.[66]
Similarly, in Campbell v Port Phillip City Council[67] the Tribunal rejected the suggestion that there was an obligation for it to ‘commission its own building expert’. This was a case in which an objection to a development proposal had been pending for more than two years, largely as a result of actions by the applicant. The Tribunal pointed out that natural justice obligations would require that any expert it called could be cross-examined on any evidence forming a key basis for a finding of fact, that this would cause further delay as the report was commissioned and each party was granted time to consider the report, and that this was unacceptable in the face of the statutory obligation to deal with the matter ‘expeditiously’.[68] In other words, the obligation on the Tribunal to be ‘satisfied’ that its decision is the ‘correct or preferable one’ could compel the prolongation of the proceedings in order to obtain further evidence.[69]
At the same time, making further inquiries need not extend the length of the hearing, as Milton Sakkos[70] illustrates. In this case the Migration Review Tribunal did carry out research on its own behalf. This involved an internet search on the incidence of futsal playing in Australia for the purpose of deciding eligibility for the distinguished sporting talent visa. The research was done with little cost and no practical consequences in terms of delay.
The absence of resources, both people and financial, has also been put forward as a reason a tribunal is not able to make its own inquiries.[71] In particular, the tribunal might be reluctant to impose that obligation on itself or to put the parties to extra expense by calling for additional evidence, especially when the parties are not seeking that evidence.[72] These considerations underline the situation in Australia—namely, that tribunals have been established with insufficient funds of their own to perform the inquisitorial task. As Deputy President Bannon remarked of his inability to obtain further evidence in a hearing before the Administrative Appeals Tribunal:
There is no available fund for the Tribunal to embark on inquisitorial proceedings outside the hearing room, and no power to take evidence on commission abroad as provided for example in the Evidence by Commission Act 1885 (Imp) in the case of courts.[73]
Deputy President Forgie noted a consequence of the Tribunal’s practice of relying largely on the material provided by the parties:
This approach may mean that the issues are not explored with the thoroughness that would be the hallmark of a perfect world. We can only do our best and the fact that we cannot do so in the detailed and thorough manner desired by the applicants does not entitle us to walk away from our duty to review the decision.[74]
The modified form of inquisitorial process adopted for Australian tribunals does provide them with an essential degree of flexibility in their operations. Other imperatives, however—such as the need for speed, the needs of the parties, and the limited resources of the tribunal—have meant that tribunals have been reluctant to fully adopt an inquisitorial approach. These factors might explain the somewhat acid comment in Campbell v Port Phillip City Council that, although Eames J in Bausch v Transport Accident Commission[75] had ‘enthusiastically embraced’ the concept of the tribunal as ‘inquisitorial’ as classically defined by Brennan J in Bushell v Repatriation Commission[76], the concept ‘was never enthusiastically embraced by the Tribunal itself’.[77]
In conclusion, although there are exceptions[78], it seems that tribunal processes in this country bear little resemblance to the classic European model. So, on balance, although tribunals have been established with powers to operate in a manner that differs from the traditional adversarial process, in practice they make limited use of this freedom to shape for themselves a distinct mode of operation.
[*] Professor Creyke is Professor of Law at the Australian National University. She was appointed a member of the Administrative Review Council on 8 December 2002 and reappointed on 15 February 2006 for a further three-year term.
[1] (1997) 81 FCR 71.
[2] (1999) 197 CLR 611, 643 (Gummow J); 628 (Gleeson CJ and McHugh J); 668 (Callinan J).
[3] (2005) 215 ALR 162.
[4] Ibid 168 [21].
[5] Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12, 30–3 [73].
[6] For example, in the context of the Migration Act 1958 (Cth), see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12, 16–17 [19] (Gleeson CJ); 21–2 [43] (Gummow and Hayne JJ); 48–9 [123]–[124] (Callinan J).
[7] Re Ross and Repatriation Commission [2002] AATA 497; Re Rowe and Repatriation Commission [2000] AATA 329.
[8] Administrative Decisions Tribunal Act 1997 (NSW) s 73(5)(b): ‘The Tribunal is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings’.
[10] Ibid [23]–[24].
[11] However, see the Injury Prevention, Rehabilitation and Compensation Act 2001 (NZ) s 140(e).
[12] Migration Act 1958 (Cth) s 426.
[14] Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389.
[15] See, for example, Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 98(1)(c).
[16] Administrative Decisions Tribunal Act 1997 (NSW) s 73(5)(b). Section 73 is the general procedural provision for the Tribunal.
[18] Administrative Decisions Tribunal Act 1997 (NSW) s 60(3)(c).
[20] Re De Brett Investments Pty Ltd and Australian Fisheries Management Authority [2004] AATA 704; Mahon v Air New Zealand Ltd [1984] AC 808; Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666; Re A Taxpayer and Commissioner of Taxation [2004] AATA 398. Whether natural justice imposes an obligation to inquire is still an open question.
[21] [1984] FCA 57; (1984) 1 FCR 354.
[22] Ibid 356.
[23] [2002] VCAT 319, 4 (vii).
[24] Ibid 3.
[25] Ibid 4 (vii).
[26] Kuswardana v Minister for Immigration and Ethnic Affairs [1981] FCA 66; (1981) 35 ALR 186, 199; Jacques Nominees Pty Ltd v National Mutual Trustees Pty Ltd (2000) 16 VAR 152; Buffalo Corporation Pty Ltd v Bulla Road Pty Ltd [2000] (unreported, 26 May 2000).
[27] [1933] HCA 30; (1933) 50 CLR 228. See also Golem v Transport Accident Commission [2002] VCAT 319.
[28] R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228, 256.
[29] Golem v Transport Accident Commission [2002] VCAT 319, 3 (v).
[30] Ogawa v University of Melbourne [2005] VCAT 197 [21].
[32] R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 13 CLR 13.
[33] Evidence provided to the author by the presidents of both tribunals.
[34] Freeman v Transport Accident Commission [2004] VCAT 40 [27].
[35] Re Jebb and Repatriation Commission [2005] AATA 470 [46].
[36] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437, 450 [57] (Gummow and Heydon JJ), quoted in Dimian v Health Insurance Commission [2004] FCA 1615.
[37] PJ Beaconsfield Gold NL and Australian Securities Commission [1998] AATA 787.
[38] Re Demosthenous and Comcare [2001] AATA 949; Re Erdstein and Comcare [2004] AATA 798; Re Ross and Repatriation Commission [2002] AATA 497; Re Rowe and Repatriation Commission [200] AATA 329.
[39] Re Hargreaves and Australian Community Pharmacy Authority (No 2) [1995] AATA 326; (1995) 41 ALD 147; Re Bessey and Australian Postal Corporation [2000] AATA 404.
[40] Re Beer and Australian Telecommunications Commission [1990] AAT 5974; Re De Brett Investments Ltd and Australian Fisheries Management Authority [2004] AATA 704 [128].
[41] Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408, 424–5.
[42] See, for example, Re Talma and Repatriation Commission [2003] AATA 866.
[43] Re Erdstein and Comcare [2004] AATA 798.
[44] [2002] VCAT 319. See also Rzanovski v Transport Accident Commission (General) [2005] VCAT 652 [7].
[46] (2002) 117 FCR 566.
[47] Ibid 569 [6].
[48] Ibid 571 [13].
[49] Re Mustafay and Secretary, Department of Family and Community Services [2004] AATA 819; Re Hudson and Child Support Registrar [1998] AATA 863.
[50] Veterans Entitlement Act 1986 (Cth) s 15(4). See also Transport Accident Act 1986 (Vic) s 76(2), which states: ‘A person claiming to be entitled to receive compensation under Part 3 during the first 18 months after the transport accident or under Division 1 or Part 10 bears the onus of proving the entitlement’. See also Micu v Ferretti [2000] VCAT 1283 [49].
[51] McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354; Golem v Transport Accident Commission [2002] VCAT 319; Rzanovski v Transport Accident Commission (General) [2005] VCAT 652 [7]; Re Hargreaves and Australian Community Pharmacy Authority (No. 2) [1995] AATA 326; (1995) 41 ALD 147; Re De Brett Investments Pty Ltd and Australian Fisheries Management Authority [2004] AATA 704; Australian Postal Commission v Hayes [1989] FCA 176; (1989) 18 ALD 135.
[52] Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408, 424–5.
[53] Re Richards and Australian Federal Police [1999] AATA 724.
[54] Re Bessey and Australian Postal Corporation [2000] AATA 404; Re Lutter and Comcare [2000] AATA 2.
[55] Campbell v Port Phillip City Council [1999] VCAT 128 [32].
[58] Ibid [111]. Ipp JA was in turn quoting the headnote for the judgment of the High Court in Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141.
[59] Curcio v Business Licensing Authority [2001] VCAT 423.
[60] Ibid.
[61] Ibid [24].
[62] Ibid [26].
[63] Treverton v Transport Accident Commission [1998] VCAT 581.
[65] Ibid [3]–[4].
[66] Ibid [6].
[68] Ibid [32]. For the need for proceedings to be conducted expeditiously, see Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 98(1)(d). Among other tribunal hearings in which speed has been cited as the reason for a failure to make further inquiries is Re Talma and Repatriation Commission [2003] AATA 866.
[69] Re Heard and Repatriation Commission [2004] AATA 773.
[71] Re Hargreaves and Australian Community Pharmacy Authority (No 2) [1995] AATA 326; 41 ALD 147; Re De Brett Investments and Australian Fisheries Management Authority [2004] AATA 704.
[72] Re Achurch and Comcare [2003] AATA 902.
[73] Re LNC (Wholesale) Pty Ltd and Collector of Customs [1988] AAT 4818.
[74] Re De Brett Investments and Australian Fisheries Management Authority [2004] AATA 704 [131].
[76] [1992] HCA 47; (1992) 175 CLR 408, 424–5.
[77] Campbell v Port Phillip City Council [1999] VCAT 128 [32].
[78] Although the survey was limited, it appeared to be the longer serving or academic members of tribunals who are more likely to advert to or adopt an inquisitorial approach to a tribunal hearing.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AdminRw/2006/3.html