Queensland University of Technology Law and Justice Journal
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ROBIN CREYKE[*]
on 6 September 2001, the Queensland Attorney-General Rod
Welford, was reported as saying[2]
that ‘[a] tribunal could be established with the power to review all
government administrative decisions’. At the same
time the report noted
that ‘no decisions on amalgamation of the review bodies into a single
structure, a tribunal with special
divisions, or whether one or two bodies
should remain separate’ had been made. However, the Attorney-General did
flag that
‘efficiency would improve by having a shared registry where
people could file all their applications in the one
place’.[3] So it appears that
at least co-location of tribunals is contemplated.
This paper raises a
number of questions:
| • | What is the current system? |
| • | What is happening elsewhere which might give a pointer to a desirable development in Queensland? |
| • | Is the current system in need of change? |
| • | What is the optimum structure for any tribunal system? Should it have a general jurisdiction merits review tribunal or are specialist tribunals preferable? |
| • | What are the desirable elements of any reform? |
| • | Who should monitor the system? |
In 1993 the Electoral and Administrative Review Commission (EARC)
recommended the establishment of a generalist merits review body,
the Queensland
Independent Commission for Administrative Review
(QICAR).[4] That decision, if
implemented, would have seen the over 130 existing review bodies reduced to 26,
the creation of appeal rights for
over 1000 decisions not then subject to
review, and the setting up of the Queensland Administrative Review Council as
‘an independent
body to promote and co-ordinate the whole Queensland
administrative review
system’.[5] The EARC report
noted that the start-up cost of the development would be about $8.3 million with
recurrent operating costs being
about $10.2 million. That compared with the
existing costs of about $8.75 million a year. However, the proposed tribunal
system
would review nearly double the number of decisions as compared with the
2,000 under the existing scheme, so there were considerable
cost savings for
decisions which would be transferred, even excluding the cost of court review,
estimated at a further $1 million.[6]
The report also noted that the submissions on this issue had been almost
universally supportive of the proposal, only the Ombudsman,
Treasury and two
local authorities expressing reservations on grounds of need and
cost.[7] In particular, EARC commented
that there was ‘no objection by private individuals, or business
organisations, all of whom indicated
approval’.[8]
Although
the Parliamentary Committee on Electoral and Administrative Review (PCEAR)
endorsed the recommendation for a general jurisdiction
review tribunal, the
report did question the estimated costs of the
proposal.[9] So there the matter
rested, an opportunity lost, until 1999 when the Legal, Constitutional and
Administrative Review Committee of
the Queensland Parliament, in its review of
the office of the Queensland Ombudsman, recommended reactivation of the EARC and
PCEAR
proposals.[10] That
recommendation, coupled with the speech of the Attorney-General in September,
may flag the government's revived interest in
making changes to the tribunal
system in the State.
In the meantime, changes have been occurring elsewhere. The prototype of
a general jurisdiction tribunal was the Commonwealth's Administrative
Appeals
Tribunal set up in 1976[11] as part
of a package of administrative law
reforms.[12] That package has
received warm commendation outside Australia. Professor Corder referred
approvingly to the model when recommending
administrative law reforms in South
Africa;[13] the developments have
been lauded in Canada[14] and more
recently in the United Kingdom Leggatt report on tribunals, which noted that the
Commonwealth's development of a merits
review tribunal model was the
‘closest to the kind of coherent tribunal system we were
contemplating’[15] and that
the United Kingdom had much to learn from Australian practices in this
field.[16]
The adage
‘a prophet is without honour in the prophet's own country’ is
illustrated strikingly with regard to the spread
of the general jurisdiction
model of tribunal within Australia. It was not for another eight years that a
State chose to follow suit.
The Victorian Administrative Appeals Tribunal was
established in 1984.[17] Another
five years passed before the next move, the replication of the Commonwealth
system in the Australian Capital Territory,
when it achieved self-government in
1989.[18] Two years later in 1991,
South Australia became the first State to locate its general administrative
review jurisdiction in a court,
the District
Court.[19] So in 1995 when PCEAR
reported, only one State, Victoria, and one Territory, the ACT, had followed the
Commonwealth model and another
State, South Australia, had taken the
intermediate step of locating its administrative review jurisdiction within its
court system.
In other words, the prophet had remained without honour for a
considerable period in most States and Territories.
However, in the six
years since 1995, use of the single, generalist, model has accelerated, albeit
the model has been adapted. In
1997, New South Wales set up the Administrative
Decisions Tribunal,[20] to combine a
general jurisdiction administrative tribunal with existing civil jurisdiction.
Victoria has followed suit. That State
abandoned its administrative review-only
tribunal and in 1998 set up a tribunal which brings under the one tribunal roof
routine
civil (citizen v citizen) matters as well as challenges to
administrative decisions.[21] The
combination of matters in the Victorian Civil and Administrative Tribunal gives
it a caseload of over 90,000 cases per annum
and makes it the largest and
busiest tribunal in Australia.[22]
The flexibility of the model is indicated by the fact that the New South Wales
and Victorian tribunals make both primary and review
decisions.[23]
Western
Australia is poised to follow the New South Wales and Victorian model and
combine low-level judicial with administrative review
in a Western Australian
Civil and Administrative Review Tribunal
(WACART).[24] The Tasmanian
government has also drafted a Magistrates Court (Administrative Appeals
Division) Bill 2001 which places the administrative
review jurisdiction in the
Magistrates Court in that State. When Tasmania and Western Australia have
implemented their proposals,
only Queensland and the Northern Territory will not
have a general jurisdiction tribunal at which citizens who are aggrieved by
government
decisions may seek review.
So should Queensland follow these leads and establish a general
jurisdiction merits review body? Is the prophet worthy of honour
above the
Tweed? Queensland already has an
Ombudsman,[25] a Supreme Court
exercising both common law and statutory judicial
review,[26] and numerous specialist
review tribunals.[27] These are
added to the existing parliamentary review avenues, the media, and increasingly,
internal review.[28] In addition,
Queensland has the Legislative Standards Act 1992 which defines the core
principles which should desirably underpin legislation, including the
requirement that legislation which provides
for administrative decisions
impacting on the rights and obligations of citizens should be
‘sufficiently defined and subject
to appropriate
review’.[29] Queensland has
also opened the door to access to information held by government through its
Freedom of Information Act 1992 (Qld). Why go further? What is the
advantage of having a generalist tribunal, as has been done elsewhere, rather
than a series of
specialist tribunals? Could it not be argued that the
objective in the Legislative Standards Act 1992 of providing for
appropriate review rights is met by having subject-specific
tribunals?
Before responding to these specific questions it is salutary
to be reminded of the rationale for independent external review of
administrative
action. The most authoritative analysis of the accuracy of
decision-making within government - the Commonwealth Auditor-General's
series of
reports on executive decision-making - suggests that executive decisions at the
Commonwealth level display an error rate
which is disturbing. Should a similar
analysis be undertaken of decisions within public administration in the States
and Territories,
there is no reason to doubt that the same results would be
replicated.
In an assessment in 2001 of new age pension claims, the
Auditor-General estimated that there was an
‘actionable’[30] error
rate (that is significant errors) of 52.1 per cent (+/-6.8 percentage
points).[31] Administrative
procedure errors such as incomplete forms, or failure to date stamp forms were
higher still at 95.6 per cent (+/-3.5
percentage
points).[32] Error rates which
impacted directly on payments occurred in 27.6 (+/- 5.9 per cent) of new age
pension claims.[33] What is more,
Centrelink's assessments were very different. Using Centrelink's own quality
assurance tools, the error rate for
the same period was only 3.2 per cent,
within the 5 per cent error rate which was the agreed standard in the business
agreement between
the Department of Family and Community Service and
Centrelink.[34] In an earlier
audit of special benefit, another income support measure, the Auditor-General
concluded that 43 per cent of new claims
were incorrectly assessed, and a
further 25 per cent were not fully assessed, placing the potential error rate at
nearly two-thirds
of decisions.[35]
These figures are consistent with more conservative figures produced by
Softlaw Corporation Pty Ltd. Softlaw has assessed the accuracy
of government
decision-making as part of its provision of expert IT systems to replicate and
introduce greater consistency and accuracy
in the processes of decision-making
under statute. Softlaw's assessments have placed the error rate within
government generally as
between 25 to 30 per
cent.[36]
If arguably
between one in four and sometimes as high as one in two decisions by the
executive contain ‘actionable’ errors
which could affect the
outcome, there is an urgent need to improve decision-making processes. The
implications of defective decision-making
are many. Pre-eminently there is the
human dimension, confronting the clients of government with bewildering outcomes
and a potential
loss of legal entitlements. Disputation between citizen and
government is likely to intensify as a result, causing stress on both
sides of
the relationship. There are cost implications for government too, in money
mistakenly paid to claimants, and in administrative
and other resources devoted
to the resolution of disputes arising from contested or defective decisions.
That suggests that every
avenue should be used which could enhance the
possibility that citizens receive their correct entitlements and that the widest
selection
of administrative review mechanisms should be adopted to keep
government accountable.
So how does a generalist tribunal rather than a series of specialist
tribunals better respond to these findings? The advantage of
tribunals
generally is that they are ‘faster, simpler and cheaper than recourse to
the courts’.[37] But that
comment is capable of applying to all tribunals. The biggest criticism of
tribunal systems composed solely of specialist
tribunals is that their tribunals
have been developed in a haphazard fashion. The result is that there is no
consistent pattern of
decisions which are reviewable, and no common procedures,
making it difficult for citizens bringing claims and those who appear for
them.
Other criticisms are that they duplicate resources, premises and infrastructure,
and are generally an inefficient way to administer
administrative justice.
In advocating a general jurisdiction model for Queensland, EARC had this
to say:
It is clear enough that the present arrangements do not provide
adequate administrative review. There are too many decisions which
are either
not reviewable at all, or which the review body (eg the Ombudsman) does not have
authority and power to change or persuade
decision-makers to reverse. Where
there are review rights, they are less "accessible" than they could be, and
there also appear
to be too many review bodies and too many people eligible to
review administrative decisions.[38]
Similar arguments have been made in the 2001 Leggatt report on tribunals
which recommended that the 70 or so tribunals in England
and Wales be brought
together into a single and separate system. The report proposed a single
Tribunal Service to run tribunals under
the auspices of the Lord Chancellor's
Department. There would be a unified structure for tribunals with like tribunals
grouped together
in nine divisions and rights of appeal for each group within
the same structure. Key aspects of the proposals are evident from the
following
extracts. They highlight some of the advantages of the general jurisdiction
model, namely, coherence, accessibility, and
enhanced stature.
| • | ‘The important place which tribunals now play in the modern system of administrative law would best be recognised by forming them into a coherent system to sit alongside the ordinary courts’.[39] |
| • | ‘The overriding aim should be to present the citizen with a single, overarching structure. It would give access to all tribunals. Any citizen who wished to appeal to a tribunal would only have to submit the appeal, confident in the knowledge that one system handled all such disputes, and could be relied upon to allocate it to the right tribunal. This would be a considerable advance in clarity and simplicity for users and their advisers. The single system would enable a coherent, user-focussed approach to the provision of information which would enable tribunals to meet the claim that they operate in ways which enable citizens to participate directly in preparing and presenting their own cases’.[40] |
| • | ‘Tribunals should do all they can to render themselves understandable, unthreatening, and useful to users, who should be able to obtain all the information they need about venues, timetables, and sources of professional advice’ from a single source.[41] |
| • | ‘The procedural reform of formal dispute resolution processes, in courts and tribunals, involves a distinctive and common set of issues ... [L]eaving procedural reform of tribunals scattered across a series of departments is impeding modernisation’.[42] |
Those views have been replicated in this country. In introducing the
Bills to set up the Administrative Decisions Tribunal, the Minister
for Police,
the Hon Mr Whelan, commented that:
The growth of tribunals has fragmented
responsibility for determining legal rights, leading to a lack of consistency
and in some cases
arbitrary decision making. It may also lead to poor resource
allocation in relation to decision
making.[43]
Other criticisms
he made of the existing system were that:
| • | The functions, operation and constitutions of tribunals varied enormously; |
| • | Clear conflicts of interest often arise between agencies and their specific tribunals; |
| • | The lack of independence of tribunals leads to a lack of confidence in tribunals; |
| • | Tribunals often lack the commitment or capacity to apply principles of natural justice; |
| • | Tribunal decision-making may become arbitrary, inconsistent and lack coherence; |
| • | The resource allocation to tribunals, especially when each tribunal has its own infrastructure and administrative support, is inefficient; |
| • | It is inequitable for citizens to be faced with different fee structures and time limits when dealing with different tribunals.[44] |
In 1998, the Victorian Attorney-General, Mrs Wade, said much the same. In
advocating the consolidation of Victorian tribunals, the
Attorney-General
referred to the ‘problems created by the undisciplined proliferation of
tribunals’ and the need for
‘administrative efficiencies and the
scope for sittings in rural
Victoria’.[45] In her speech
introducing the Bill she said:
The establishment of the Victorian Civil
and Administrative Tribunal, to be known as VCAT, will:
| • | Improve access to justice for all Victorians including the business community; |
| • | Facilitate the use of technology (such as video link-up and interactive terminals), consequently improving access to justice for Victorians living in both metropolitan and rural areas; |
| • | Complement measures to increase alternative dispute resolution programs by providing a range of procedures including mediation and compulsory conferences to help parties reach agreement quickly; |
| • | Streamline the administrative structures of tribunals, thereby improving their efficiency; |
| • | Develop and maintain flexible, cost-effective practices; |
| • | Introduce common procedures for all matters, yet retain the flexibility to recognise the needs of parties in specialised jurisdictions; and |
| • | Achieve administrative efficiencies through the centralisation of registry functions, improvement of information technology systems and more efficient use of tribunal resources.[46] |
The
evidence from its Annual Reports and speeches by its President, Mr
Justice Kellam, suggest that many of these benefits have already been achieved,
despite the short
time which has elapsed since it has been set
up.[47]
Is there any reason to think these same advantages would not occur in
Queensland? There is evidence of some residual scepticism about
adopting a New
South Wales or Victorian model in Queensland. In a 1999 report commissioned by
the Queensland Department of State
Development it was suggested that the
Queensland business community is indifferent to the advantages of synthesising
the Queensland
tribunal system.[48]
This attitude contrasts with the earlier view of business reported in the EARC
report which expressed support for reform to the
system of administrative
review.[49]
There are two
responses to this indifference. It is arguable that the use made by companies
and business interests of tribunals is
relatively
low.[50] Of more significance,
however, is that in Queensland, more than in other Australian jurisdictions,
business has embraced alternative
dispute resolution processes at the expense of
using courts or tribunals. The reason is that these are seen as being more
cost-efficient,
more satisfactory in terms of time taken to resolve disputes,
and better able to secure the confidentiality of the outcomes than
other forms
of dispute settlement.[51]
This should not lead to the conclusion that alternative dispute
resolution, rather than a generalist tribunal, would best meet the
needs of
aggrieved citizens generally. There are other special reasons for the use by
business of alternative dispute resolution.
Business is better able to access
the advantages of these processes since business people and corporations are
able to meet their
contradictors on equal terms; and they can more easily afford
often privately offered alternative dispute resolution. It should be
remembered
that a prerequisite to achieving a negotiated outcome is that both parties stand
on an equal footing. Many applicants
for government assistance do not meet this
criterion. The cost of alternative dispute resolution is also relatively high,
a cost
able to be absorbed by business, and warranted by the matters at stake.
An individual seeking to overturn the removal of a driving
licence needed for
occupational purposes, for example, may not want, nor be able, to pay the costs
of employing a private dispute
resolution service.
So much has been
conceded by the Attorney-General when he flagged his interest in changing the
current system. As he is reported
to have said, his aim ‘was to make the
system less bureaucratic and more responsive to people's needs’. Moreover,
his
reference to an administrative appeals tribunal with specialist divisions
indicates more than a minimum co-location model and suggests
that he is
contemplating bringing together tribunals under a common
umbrella.[52] So there is current
recognition within government of the advantages of some form of amalgamation.
That said, Queensland could adopt one of two models: simple co-location
of all or most Queensland specialist tribunals; or a single,
generalist
jurisdiction tribunal. The advantages of the co-location model are that it
preserves the status quo, retains the flexibility
of a variety of specialist
bodies, while permitting cost savings from use of a common registry and
administrative infrastructure.
The disadvantages are that it perpetuates the
complexity and lack of coherence of the system, does not permit further savings
other
than those involved in co-location, and enhances the possibility of
tribunal capture by its respective agency. This first option
also denies the
possibility for development of an administrative law jurisprudence across
tribunals on matters of common interest,
such as, for example, the failure to
notify citizens of decisions, the minimum content of statements of reasons, the
circumstances
in which tribunals can revisit their decisions, and when tribunals
are estopped from acting.
Counter-arguments to a single administrative
appeals body with wide jurisdiction are that it would not be cost effective and
might
lead to greater formalism and inflexibility. The cost argument can be met
by examining the books of the VCAT. In its first year
of operations, the VCAT
dealt with 75,076 cases within its budget of $18.3
million.[53] In its second year of
operations, with a slight increase (9 per cent) to the budget ($20 million),
VCAT resolved 89,368 cases, an
increased caseload of 19 per
cent.[54] Matters finalised for
2000-2001 exceeded 92,000 with no increase in the
cost.[55] It is clear that VCAT is
demonstrating the greater efficiencies from having a unified, not just a
co-located, system.
As to formalism and inflexibility, that too is
discounted by the Victorian experience. Despite having members of the new
tribunal
who were formerly magistrates and therefore more familiar with formal
court processes, the presence in the VCAT headquarters in Melbourne
of several
styles of hearing rooms, and a concerted focus by the presidential members on
changing the culture of tribunal members,
has helped develop a flexible attitude
amongst most tribunal members.[56]
Of critical importance is the need to avoid over-judicialisation of processes.
As the Leggatt report noted there was a need for
‘tribunal decision-making
processes not ... [to] be excessively elaborate and heavy-handed, if they were
to have a pervasive
effect in improving agencies' decision-making’. The
report went on to note that if they were to be effective processes ‘had
to
be reasonably replicable in the administrative context, and to take account of
the kind of sensible risk-management that administrative
decision-makers
needed’.[57] Attention to
these issues at the management level can avoid problems developing.
These
arguments suggest that not only is a single tribunal structure desirable, but it
is also feasible. Embracing the concept of
a general jurisdiction tribunal will
assist the development of legal principles across government, will make for
certainty and will
provide a fairer system of administration. These advantages
will only occur if there is a common structure and a single body offering
merits
review akin to the model in New South Wales and Victoria and proposed for the
Commonwealth's now dormant Administrative Review
Tribunal.
Whichever of
the two models is adopted, co-location should be a goal. When tribunals are
co-located in a recognisable “Tribunals
Centre”, akin to the
Courthouse or Court building, when Tribunal Centres are found in each capital
city and every major regional
centre, and when tribunals are developed under a
common statutory umbrella, they will be truly accessible to the public, will
have
acquired a visibility and a presence which will improve their standing in
the community, and will better be able to fulfil their
purpose of providing
accessible justice to Australian citizens.
Even if it is accepted that a coherent, simplified structure for
tribunals is desirable, any change to the system will only reap the
advantages
the change makes possible if certain pre-requisites are met. These include
common benchmarks for funding; the assurance
of tribunal independence; and a
mechanism to monitor compliance with tribunal decisions. It is only if these
conditions are satisfied
that the improvement generally to decision-making - the
systemic effect of administrative review - will occur.
Accurate costing of tribunal amalgamation is a chancy business. No
Australian jurisdiction has managed to establish how many tribunals
exist, much
less how much they cost.[58]
Indeed, there is no satisfactory definition of what is a
tribunal.[59] The EARC report, based
on its assessment of what bodies should be categorised as tribunals, estimated
that it would cost over $8
million to introduce a general jurisdiction tribunal
for Queensland. However, after the establishment costs had been absorbed, the
report indicated that there would be a reduction in the overall costs of the
system.[60] That view appears to be
vindicated, as indicated earlier, by the cost savings of bodies like the VCAT.
The Leggatt report addressed the issue of costs at two levels: savings
to be achieved from having a single body managing tribunals,
and those reaped
from centralising the determination of salary levels of tribunal members. The
report recommended that there be a
co-ordinating body, the Tribunals Service,
managing tribunals. The cost of establishing that Service is to be borne by
agencies in
proportion to the number of cases that each agency
generates.[61] This is an additional
and new cost. Against this, the report noted that avoiding the duplication of
accommodation and services, establishing
a common network of hearing centres
providing ‘accessible venues for smaller tribunals, and efficiency and
economies of scale
for the larger tribunals’ means ‘savings can be
passed on to departments and authorities in the form of low unit
costs’.[62] The report also
recommended that assessment of pay and conditions of individual tribunals be
made by a single body.[63] In that
way, benchmarks and consistent salary scales could be devised so that variations
would need to be justified, and justified
openly, with further potential for
savings.
In a jurisdiction like Queensland which does not have
comparable numbers of tribunals or matters to contend with to those which exist
in the United Kingdom, it is not essential to set up a new agency for these
purposes.[64] All that is required
to concentrate the administration of tribunals, is to use an existing agency
such as the Department of Justice.
Assessment of salary scales for tribunal
members is also desirable and can be achieved by pegging tribunal salaries to
public service
or judicial salary scales, or by having salary levels decided by
an independent body like the Commonwealth Remuneration Tribunal.
Use of devices
such as these provides for a fair and transparent system and mean that, over
time, the increased cost argument can
be met.
A criticism of a general jurisdiction tribunal, often made by those
within public administration, is that its membership does not
boast the
expertise of the primary decision-maker, much less of any specialist review
body. As Sir Gerard Brennan once remarked in
relation to this issue and the
Commonwealth's generalist tribunal, the Administrative Appeal Tribunal (AAT):
There are two chief justifications for providing a system of external merits
review: first, the decisions on review are the product
of more mature abilities
and greater powers than those possessed by the group of primary decision-makers
and can reflect a more detached
consideration than that which can be given by
the primary decision-makers; secondly, the independence of a review tribunal
satisfies
the individual applicant that perceived injustice at the hands of
government can be rectified or at least a fair hearing can be had.
If the
proposed ART [the Commonwealth's Administrative Review Tribunal proposed to
replace the AAT] were to lack the status of the
AAT, not to possess the same
legal strengths nor to exhibit expertise higher than that possessed by primary
decision-makers, to be
constituted by members appointed on the recommendation of
the Minister whose department’s decisions are to be reviewed and
to be
funded to the extent that that department determines, its utility would be much
less than that of the
AAT.[65]
The issue can be
addressed by appointing members to tribunals who have expertise in all the areas
of specialism reviewed by the general
jurisdiction review body. The generalist
tribunal may also require detailed briefs from agencies or applicants to
supplement the
general knowledge of tribunal members. More controversially the
general jurisdiction tribunal could accord a degree of deference
to the
fact-finding of the original or review decision-maker, thus obviating the need
for the tribunal to second-guess the earlier,
more specialist, decision-maker on
factual issues. Since it is in the area of fact-finding that much disputation
occurs, this solution
is rarely likely to be adopted.
Another way of
meeting this criticism is to ensure that where expertise is required, that
expertise is specified in the statute constituting
the reviewing body. In its
discussion of the selection processes for tribunal members, the Better
Decisions report recommended that ‘all prospective members should be
assessed against selection criteria that relate to the tribunal's
review
functions and statutory
objectives’.[66] The Leggatt
report also recommended that ‘[s]tatutory qualifications for appointment
to all tribunals should ... be amended
to provide specific criteria for
appointment’[67] and to ensure
that ‘candidates will be chosen for their ability and propensity to
develop and display the necessary interpersonal
skills, as well as possessing
other relevant professional skills and
knowledge’.[68]
The
reference to ‘propensity’ is significant. Empirical research has
indicated that over time, there is a tendency for
each member of a
multi-disciplinary tribunal panel to acquire a comparable level of expertise to
others on a panel.[69] This too is
an argument for discounting the call for specialist expertise, since it suggests
that given intelligence, training, and
flexibility, a member of a tribunal is
capable of developing familiarity with discipline-specific concepts and facts
sufficient to
enable the member to test and evaluate technical evidence. That
too was the conclusion of the Better Decisions report which argued
tribunal members should at least have core skills and competencies, namely,
demonstrable intelligence, analytical
skills, an ability to write, and
decision-making experience in order to be effective tribunal
members.[70]
These
recommendations indicate that the need for specialist expertise should not be
overstated. Indeed, it is not a pressing issue
in all areas. For example, the
assessment of entitlement to funds for income support or deciding whether
discriminatory or harassing
behaviour has occurred, are matters which reasonably
intelligent people are capable of undertaking without specialist expertise.
However, in areas such as awarding of occupational licences, assessment of
entitlement to medical or pharmaceutical benefits, or
determination of
environmental, and land disputes, technical knowledge and expertise may be
necessary. Nonetheless, having at least
core competencies is essential for all
tribunal members, particularly if their decisions are to earn the respect of
primary decision-makers.
Attention to these issues is of critical importance
for, as an experienced former tribunal head and member of public administration
noted: ‘Appointments strongly influence not only the quality of tribunal
decisions but also public opinion and perceptions
of
tribunals’.[71]
How to be and be perceived to be independent is one of the most pressing
issues for tribunals. The Better Decisions report noted, in words which
apply generally to tribunals:
The Council ... acknowledges that many
issues of independence arise in relation to tribunals as well as courts. It is
crucial that
members of the community feel confident that tribunal members are
of the highest standard of competence and integrity, and that they
perform their
duties free from undue government or other influence. The Council noted in its
discussion paper that satisfaction
with a tribunal's performance appears to be
highly correlated with opinions as to the quality of its members, and this point
has
been reinforced during the
inquiry.[72]
Several of the
well-recognised methods of achieving an optimal level of independence have been
discussed earlier in this paper. Others
are sufficiently well-known to need only
a brief mention. These include centralising the management of tribunals,
ensuring an arrangement
for administrative support for tribunals separate from
those which apply generally within public administration, managing the
appointments
process through a single, preferably “neutral” agency,
devising a transparent and rational way of allocating administrative
costs of
tribunals and of determining the salaries of members, and introducing specific
statutory criteria which identify desirable
membership qualifications. Further,
regularly canvassed suggestions are that members have adequate terms of
appointment, usually
in excess of a parliamentary
term,[73] and that there should be
judges on a tribunal, with the advantage of tenure for either the lifetime or to
standard retiring age that
is a normal incident of judicial office. Appointment
to tribunals of judicial members mean that judges can be allocated to hear
controversial
or political cases. As a management tool, use of judicial members
in such cases insulates tribunal members on lesser terms from any
political
consequences. Each of these practices, if accepted by the Queensland
government, would go some way to ensuring the independence
of its tribunal
system.
Two further steps would cement that outcome: eschewing use of
tribunals as “parking spots” for “mates” of
politicians;
and raising the entry level for tribunal members. The two are
interrelated.
The issue of political appointments to tribunals is a contentious one.
Australia has seen its share of political cronyism in the appointments
process.[74] How can such practices
be avoided, particularly in a system in which appointments are made at the
discretion of individual
ministers?[75] The Better
Decisions report commented on the inquiry into appointments to the
Immigration Review Tribunal and called for ‘more open and merit-based
selection and appointment processes for all tribunals’ and noted that
‘[s]uch processes would minimise the scope for
speculation about the basis
upon which members have been
selected’.[76] Open selection
meant appointments following public advertisement - the advertisement listing
the selection criteria - from a pool
of persons who had successfully passed a
preliminary assessment of suitability. There would be a register of those who
met the criteria
and merit-based selection would mean that appointments would be
made solely from those listed on the register. Although some of these
requirements are met by the appointment processes for some tribunals, there are
many examples of tribunals appointment which fall
short of such a
process.[77]
In England and
Wales, an independent Judicial Appointments Commission is under
contemplation.[78] The use of such
a body does not obviate ministerial appointments. However, if the proposal is
accepted the Appointments Commission
will review ‘the processes and
policies for making and reviewing ... appointments’ and ‘for
handling grievances
and appeals’, and will provide an independent filter
for the appointments process which will make it harder for political
appointments
to occur.[79]
An
alternative approach has been adopted in Victoria. The President of VCAT,
Justice Kellam, has developed a protocol for conclusion
with the incumbent
government, relating to the selection, appointment, and reappointment processes
for VCAT. This form of semi-formal
agreement on the issue is an assurance that
the processes will be more open and merit-based. The Protocol was successfully
concluded
with the previous Kennett Government. Although the current Government
has not yet entered into a comparable agreement, the existence
of the previous
agreement creates political pressure for the arrangement to continue. The
agreement also sensitises those involved
to the need to avoid political cronyism
appointment practices, and is itself a step forward.
Ideas can also be
sought outside the common law and an examination of the French system is
instructive. The French have probably
the most sophisticated administrative
system of the civil law states.[80]
That system is identified by the separation from its court system of the
institutions which resolve disputes concerning public administration.
This
separation of the judicial from the administrative system is an offshoot of the
historical antipathy between the Parliament
and the courts and resulted in post
1789 Revolution times in a decree forbidding the courts from exercising
jurisdiction over administrative
matters. The decree created the Conseil
D'Etat or Council of State, the Council being at the apex of administrative
bodies responsible for deciding complaints about matters of
administration.[81] This description
indicates that the French system of handling complaints against the executive
differs markedly from common law systems
and in particular the rigid separation
of the judicial and the executive system is the antithesis of the common law
model.
What is notable about the French system is that the Council is a
highly effective institution. The Council ‘has been successful
in winning
the confidence of a public distrustful of lawyers, and also enjoys ...
considerable prestige among civil servants, and
the
public’.[82] As one
commentator noted:
The esteem it enjoys in comparison to other public
entities and departments is similar to the special aura surrounding the Supreme
Court in the United States of America, or the British House of Lords, and is
much greater than that of the Diplomatic Corps or other
ministries, including
the Ministry of Finance. Its 250 members are chosen from among the most
brilliant French civil servants, and
constitute a small
elite.[83]
It is this
eminence of the French administrative review system which is remarkable and
which warrants examination.
Since the administrative review system is
regarded as part of the executive, recruitment to the Council of State and its
related courts
or tribunals is, for the most part, direct from the civil
service, either by examination or invitation. Recruitment is generally
from the
Ecole nationale d'administration - ENA, which provides post-graduate
training for civil servants. As Falcone notes:
Admission to the ENA is by
a competitive examination open to university graduates and members of the civil
service. After two years
of intensive studies, ENA graduates are classed by
order of merit, based on their scores during the more than 16 or 17 examinations
taking place along the two-year-training period, and an overall assessment of
their studies. On the basis of their ranking, ENA
graduates choose from among
the administrative positions offered to them. The Council of State and the
Inspectorate of Finances
... invariably attract the greatest number of the
highest ranking
graduates.[84]
Such high
regard is generally not bestowed on adjudicative bodies, other than courts, in
Australia. The High Court's treatment of
tribunals in Craig v South
Australia[85] speaks of the lack
of respect for tribunals, at least from the perspective of the judiciary.
Tribunals in this country are generally
seen as a more efficient and cheaper
option for challenging decisions, but tribunal membership and work does not have
the same social
status as membership of the court system and courts have
maintained a monopoly over authoritative adjudication. Nor is there more
respect for the tribunal system in the United Kingdom. The Leggatt report
commented on the inferior status of tribunals in England
and Wales as compared
with Ombudsman and courts,[86] and
the decreased public confidence in their decision-making which flowed from that
poor reputation.[87] As the report
noted: ‘All too often those who sit in tribunals see themselves, and are
regarded by others, as inferior to the
courts’.[88]
What has
the French system got that the common law system lacks? There are two possible
answers: a reputation borne of the quality
and effectiveness of its
decision-making over more than two centuries; and a stature and public
confidence due both to the high level
qualifications required for service in the
administrative review system and the intimate experience of public
administration which
is possessed by its tribunal members. As Falcone pointed
out, the adjudicative system:
remains part of the administrative
machinery of the state, albeit a highly specialized one. ...
When summoned
before the Council deliberating on a litigation, an administrator recognizes
that his judges are not strangers to the
administrative process. They are not
viewed as amateurs throwing legal wrenches into administrative works, which is
sometimes the
case with high court judges in other countries. On the contrary,
French officials are well aware that their judges are administrative
experts,
who have a high command of the inner workings of public administration, as well
as of the rule of law
itself.[89]
Could such a
system be replicated in Australia? Normally, one should be sceptical about
importing practices from a system which is
the product of a different history
and social system. Nonetheless, there is a lesson from the French experience.
The high level training
required of its tribunal members has undoubtedly
contributed to the quality of the output of the French administrative review
system.
That in turn has earned the respect granted the Council of State and its
subordinate bodies. These two factors are symbiotic in that
the requirement for
high level qualifications could only be imposed because of the respect accorded
to the institution and its status
in French society.
Australian
jurisdictions could emulate the French experience by imposing educational
qualifications which will enhance the skill-level
of tribunal members. It is
not suggested that candidates should come solely from within public
administration, nor that high level
and specialist training in the manner which
has evolved in France would be feasible in this country. Nonetheless, in time,
it could
become a pre-requisite for membership of a tribunal in Australia that
people have graduated from one of the increasing number of
dedicated courses
which are relevant to the tribunal experience offered by
universities.[90] If to those
specialist qualifications were added courses focusing on public policy and
public administration, Australia would be
moving in a similar direction to the
one charted in France.
The French take pride in their administrative
system, including the Council of State. It is a matter for the highest
congratulations
to be accepted into the elite administrative law stream of
government. The entrance examinations are stiff and appointment highly
prized.
There is no doubt that their tribunal system is a part of the executive. That
has not meant that tribunals should be downgraded
as compared with courts. The
two systems sit proudly side-by side, each fulfilling complementary and
important roles. If, as suggested
in this paper, a pool of suitably qualified
people was to be established in this country, and protocols of the kind
concluded in
Victoria became the norm, these and the other steps outlined
earlier would diminish the likelihood of political
appointments.[91] Over time, our
tribunal system would be regarded more highly, with the consequence that well
qualified and able people would view
service on a tribunal as a goal to which to
aspire. That in turn would benefit the administrative review system to the
ultimate advantage
of the thousands of Australian citizens who use their
services.[92]
There are two goals of administrative review: to redress individual
complaints; and to improve the quality generally of primary decision-making,
to
the advantage of the many who seek benefits or entitlements from government.
This goal has consistently been
acknowledged,[93] but little has
been done to implement it - at least in an institutional sense - in Australia.
Queensland could lead the way in this
critical aspect of administrative review.
What is needed is an office or body charged with ensuring that decisions are
implemented
in the individual case, that, when courts or tribunals have found
anomalies, injustice or inconsistency in legislation or policy,
the legislation
or the policy is changed, and that front-line decision-makers take account of
court and tribunal findings.
Ensuring that public administration heeds
what courts and tribunals decide is a product of good communications. A
disturbing aspect
of an empirical report into dissemination of information from
external review bodies within Commonwealth agencies is that the majority
of
agencies have an ad hoc approach to keeping their staff informed of
developments. What information is shared is mostly passed on through informal
methods
of communication such as discussion with colleagues and
email.[94] The finding is of
concern since it indicates an absence of focus on the systemic impact of review.
If fewer than half of all officers
are able to absorb relevant developments, it
is unlikely that any lessons are being learned from review bodies, let alone
their recommendations
implemented. This undermines the potential for external
review to produce substantive change in the policy and practice of government
decision-making. The findings also mean that agencies are more likely to repeat
mistakes.
There have been a range of suggestions about an institutional
response to these issues. EARC considered whether QICAR should have
a role in
monitoring systemic problems, and ensuring that steps be taken on a regular
basis to advise government of
them.[95] Ultimately, the monitoring
role was allocated by EARC not to QICAR or to the Ombudsman, but to the proposed
general administrative
review body, the Queensland Administrative Review
Council or QARC. [96] That
recommendation has not been implemented. In Western Australia, it was
recommended that the Ombudsman investigate non-compliance
by an agency of an
order made in a specific case, as well as non-implementation
generally.[97] An earlier
recommendation from that State's Commission on Government had been that a
Commissioner for Public Sector Standards ‘would
act as a bridge between
the [tribunal system] and the rest of the sector when assessing the decisions of
the tribunal and their importance
for
decision-making’.[98] Again,
neither suggestion has been implemented. The Leggatt report recommended that
there be a forum for two-way feedback between
tribunals and agencies in England
and Wales.[99] That recommendation
is based on the twice yearly formal meeting between the head of the Commonwealth
AAT and government agencies.
It will be interesting to see whether this
relatively mild form of monitoring is adopted in England and
Wales.
Queensland has the capacity to address this problem and to do so
in a way which will be a trailblazer for others. In the search for
an
appropriate institutional mechanism, the Gotjamanos and Merton report advocated
use of the Ombudsman for this purpose. That is
an appropriate suggestion, not
only because of the relatively high status of Ombudsman generally in Australia,
but also because its
officers are familiar with the internal processes of
agencies, are used to conducting investigation, and have established an enviable
reputation for their effective mediating role between citizens and government.
If Queensland were to implement this suggestion,
their efforts would be watched
with considerable interest elsewhere in Australia.
Where to from here? If the suggestions by the Attorney-General are to be
implemented in Queensland, it gives the State an opportunity
to draw on the
experience of the different models of tribunals around Australia to upgrade its
tribunal system. It is now timely,
given the general acceptance of a generalist
jurisdiction tribunal model elsewhere in Australia, Northern Territory excepted,
for
Queensland to adopt, in some form, a more coherent system. If the
opportunity is seized so too will the status of its tribunals
be enhanced. To
quote Leggatt ‘Only so will tribunals acquire a collective standing to
match that of the Court System and a
collective power to fulfil the needs of
users in the way that was originally intended’ when tribunals were
established as cheaper,
fairer and more accessible avenues for justice in our
community.[100]
[*] Robin Creyke is a Reader in the Law Faculty, Australian National University, Barrister, Supreme Court of Queensland, and Special Counsel with Phillips Fox Lawyers.
[1]
The
Macquarie Dictionary defines ‘accessible’ as ‘1. easy
of access; approachable. 2. attainable: accessible evidence. 3. Open to
the influence of ...: accessible to
bribery’.
[2] At a
function hosted by the Australian Institute of Administrative Law (AIAL).
[3] S Monk, ‘Tribunal plan
to review government decisions’, Courier Mail (Brisbane), 6
September 2001.
[4] Electoral and
Administrative Review Commission, Report on Review of Appeals from
Administrative Decisions (1993) Vol 1, para 70, xxviii. The report followed
the recommendations of the Fitzgerald Report: G E Fitzgerald, Report of the
Commission of Inquiry into Possible Illegal Activities and Associated Police
Misconduct (1989) which had criticised the absence of a body offering merit
review of decisions in Queensland (at 128).
[5] Ibid xxix.
[6] Ibid paras 64-66,
68.
[7] Ibid para 20.
[8] Ibid.
[9] Parliamentary Committee on
Electoral and Administrative Review, Report on Review of Appeals from
Administrative Decisions (1995) 124-125.
[10] Legal, Constitutional and
Administrative Review Commission, Queensland Parliament, Report of the
Strategic Review of the Queensland Ombudsman, rec
22.
[11] Administrative
Appeals Tribunal Act 1975 (Cth). The Tribunal commenced operation on 1 July
1976.
[12] These included the
statutory code for judicial review by courts, the Administrative Decisions
(Judicial Review) Act 1977 (Cth), the Ombudsman Act 1976 (Cth), the
Freedom of Information Act 1982
(Cth).
[13] H Corder and
Tiyanjana Maluwa, ‘Administrative Justice in Southern Africa: Background
and some issues’ in H Corder
and Tiyanjana Maluwa (eds),
Administrative Justice in Southern Africa (Department of Public Law,
University of Cape Town, 1997) 6, 15.
[14] Terence G Ison, ‘The
administrative appeals tribunal of Australia: a study paper prepared for the Law
Reform Commission of
Canada’ (Law Reform Commission of Canada,
1989).
[15] Sir A Leggatt,
Tribunals for Users One System, One Service: Report of the Review of
Tribunals (2001) Part II, Individual Tribunals, The Australian Example, para
3.
[16] Ibid for example 1.18,
2.5.
[17] Administrative
Appeals Tribunal Act 1984 (Vic).
[18] Administrative Appeals
Tribunal Act 1989 (ACT). It could be argued that there was minimal choice
involved in this development since, prior to self-government, ACT residents
had
enjoyed the benefits of the Commonwealth's
scheme.
[19] District Court
Act 1991 (SA). Section 7 describes the relevant division of the Court as the
Administrative Appeals
Court.
[20] Administrative
Decisions Tribunal Act 1997 (NSW). The Tribunal was not launched officially
until 25 February 1999.
[21]
Victorian Civil and Administrative Tribunal Act 1998
(Vic).
[22] Victorian Civil
and Administrative Tribunal Annual Report 2000-2001,
3.
[23] NSW: Administrative
Decisions Tribunal Act 1997 ss 7-8, 37-38; Vic: Victorian Civil and
Administrative Decisions Tribunal Act 1998 ss 41-42, 44,
48.
[24] Gotjamanos and Merton,
Report of Tribunals Review to the Attorney General (1996) (Gotjamanos and
Merton report).
[25] The
Parliamentary Commissioner for Administrative Investigations.
[26] Judicial Review Act
1991 (Qld); and the Queensland Supreme Court's inherent jurisdiction to
issue the equitable and the common law remedies, including the
prerogative
writs.
[27] The EARC report
estimated in 1993 that there were over 130 review bodies in Queensland at that
time (EARC, Report on Review of Appeals from Administrative Decisions
(1993) Vol 1, para 18, xxii.) The Department of the Premier and Cabinet
Discussion Paper, Appeals from Administrative Decisions (2001) 16
estimates that there are some 33 separate external review bodies. The
Queensland Government Register of appointees to
Queensland Government Bodies,
has estimated that at the end of 2001 there were 38 bodies with the title
"tribunal"
<http://statauth.premiers.qld.gov.u /stat/list-board.html>
. The
disparity clearly suggests that the criteria for deciding what is an external
review body differed.
[28]
EARC, Report on Review of Appeals from Administrative Decisions (1993)
Vol 1, para 2.147.
[29]
Legislative Standards Act 1992 (Qld) s 4(3)(a).
[30] An
‘actionable’ error was defined as an error against one of eight
criteria which related broadly to whether the claim
was for the ‘right
person’ and related to the ‘right product’ (or benefit type),
was at the ‘right
rate’ and was assessed from the ‘right
date’. Each of these matters is critical to an accurate assessment of
entitlement:
Auditor-General Audit Report No 34 2000-2001 Performance Audit,
Assessment of New Claims for the Age Pension by Centrelink
18-19.
[31] Auditor-General
Audit Report No 35 2000-2001 Performance Audit, Family and Community
Services' Oversight of Centrelink's Assessment of New Claims for the Age
Pension 15.
[32] Ibid
16.
[33] Ibid
27.
[34] Centrelink's Procedure
and Accuracy Check and Quality on-Line
systems.
[35] Australian
National Audit Office, Special Benefit, Centrelink, Department of Family and
Community Services, Audit Report No 20 (1999-2000) para 11. See also
Commonwealth Ombudsman, Balancing the Risks (1999), Issues Relating to
Oral Advice: Clients Beware
(1997).
[36] P Johnson,
‘Softlaw Corporation Pty Ltd’ (unpublished paper, 1999).
[37] Sir A Leggatt,
Tribunals for Users One System, One Service: Report of the Review of
Tribunals (2001) Chapter 2, 6.
[38] EARC, Report on Review
of Appeals from Administrative Decisions (1993) Vol 1, para 2.149.
[39] Sir A Leggatt Tribunals
for Users One System, One Service: Report of the Review of Tribunals (2001)
para 2.25.
[40] Ibid para 3.8.
[41] Ibid Overview, para
6.
[42] Ibid para
2.27.
[43] New South Wales,
Parliamentary Debates, Legislative Assembly, 29 May 1997, 9605.
[44] Ibid.
[45] The Hon Jan Wade MP,
Attorney-General, Tribunals in the Department of Justice: A Principled
Approach, Discussion Paper (1996)
8.
[46] Victoria,
Parliamentary Debates, Hansard, Legislative Assembly, 9 April 1998, 973
(J Wade, Attorney-General).
[47]
Victorian Civil and Administrative Tribunal Annual Reports for 1999-2000
and 2000-2001.
[48] Department
of State Development, Report on Administration of Regulations - Enforcement
Procedures and Access to Administrative Appeal Mechanisms for Business in
Queensland, March 1999.
[49]
See above n 5.
[50] Robin Creyke, John McMillan and Dennis Pearce, Judicial Review Project Draft Report: A Draft Report on a project on the impact of court decisions on government administration, December 2000. The survey of ten years of judicial review applications found that only 20.5% of applicants were corporations. Similarly, appeals to the Administrative Division of the Victorian Civil and Administrative Tribunal numbered only some 5000 for 1999-2000, of which it is probable that less than half were brought by business interests: VCAT Annual Report 1999-2000, 30-36.
[51] Impression from lectures on
dispute resolution processes in Queensland, given by the Queensland University
of Technology, Bar Practice
Course (Brisbane, January
2000).
[52] Sue Monk,
‘Tribunal plan to review government decisions’ Courier Mail
(Brisbane), 6 September 2001.
[53] VCAT Annual Report
1999-2000, 3.
[54]
Ibid.
[55] Victorian Civil
and Administrative Tribunal Annual Report 2000-2001,
3.
[56] Kellam J (paper
presented at the ANU's Public Law Weekend, 11 November 2000); (2001) 29 FL
Rev 427.
[57] Sir A Leggatt,
Tribunals for Users One System, One Service: Report of the Review of
Tribunals (2001) Part II Individual Tribunals 40.
[58] For example EARC report
Vol 1, above n 4, paras 2.78-2.82; Gotjamanos and Merton report, above n 24,
25-26 .
[59] Australian Law
Reform Commission, Review of the Adversarial system of litigation: Federal
tribunal proceedings, Issues Paper 24 (1998) para 2.3-
2.9.
[60] EARC report, above n
4, paras 64-66, 68.
[61] Sir A
Leggatt Tribunals for Users - One System, One Service: Report of the Review
of Tribunals (2001), Overview, para 29.
[62] Ibid para 5.35. The
Commonwealth's proposed amalgamation of the major federal merits review
tribunals was estimated to result in
a net saving of $13.5m over four years: see
The Hon D Williams AM QC MP, News Release, Budget 2000-2001, Establishment of
the Administrative Review Tribunal, (9 May
2000).
[63] Sir A Leggatt,
Tribunals for Users - One System, One Service: Report of the Review of
Tribunals (2001), paras 6.48 -
6.50.
[64] In England and Wales
the Leggatt report estimates that there are some 70 tribunals making over one
million decisions annually: Sir
A Leggatt, Tribunals for Users - One System,
One Service: Report of the Review of Tribunals, (2001), Overview, para 2,
para 1.1.
[65] ‘The
Mechanics of Responsibility in Government’ The 1998 Sir Robert Garran
Oration (Institute of Public Administration, Annual Conference, Hobart, 25
November 1998) 2.
[66] Better
Decisions, below n 70, para 4.35.
[67] Sir A Leggatt, above n 39,
para 7.23.
[68] Ibid para 7.7.
[69] J Huck, ‘Perceptions
of member roles on an inter-disciplinary tribunal’ a research report in L
Rodopoulos (ed), 'Non-Legal’ Members on Review Bodies: Social Welfare
Jurisdictions (1993) 44,
50.
[70] Administrative Review
Council, Better Decisions: report of Commonwealth merits review tribunals
(Better Decisions), Report No 39 (1995) paras 4.8-4.20.
[71] S Skehill, ‘Future
Directions in Administrative Law’ in K Cole (ed), Administrative Law
& Public Administration: Form vs Substance (1995) 335.
[72] Better Decisions,
above n 70, para 4.4
[73] For
example Better Decisions, above n 70, paras
4.54-4.66.
[74] For example, see
the discussion of the parliamentary inquiry into appointments to the Immigration
Review Tribunal in 1994, which
followed questions raised in the Australian and
Victorian Parliaments, referred to in Better Decisions, above n 70, paras
4.29-4.34. Although the majority of the Joint Standing Committee on Migration, a
Committee of the Commonwealth Parliament,
did not make findings upholding the
suspicions, the dissenting minority report by Opposition members criticised the
appointments
process and particular appointments which had been made. See also
the comment by Ms Sue Tongue in Evelyn McWilliams,
‘“Tribunals”
code of conduct no safeguard’ Australian
Financial Review, 12 October 2001, 55. See also comments by Kellam J,
President of the Victorian Civil and Administrative Tribunal, concerning
political
appointments to tribunals in Victoria in ‘Developments in
Administrative Tribunals in the last two years’ (Paper presented
at the
ANU Law Faculty's Public Law Weekend, 11 November 2000) 3; (2001) 29 FL
Rev 427.
[75] Better
Decisions, above n 70, para
4.66.
[76] Ibid para
4.34.
[77] For example, the fact
that five of the six appointees to the Australian Industrial Relations
Commission in September 2001 had an
employer-background suggests there may have
been an attempt by the Commonwealth Government to “stack” the
Commission.
[78] Sir A Leggatt,
Tribunals for Users One System, One Service: Report of the Review of
Tribunals (2001) para 7.10 referring to the separate inquiry into such a
Commission undertaken by Sir Leonard Peach (the Peach Inquiry).
[79] Ibid para
7.9.
[80] John A Rohr,
‘French Constitutionalism and the Administrative State: A Comparative
Textual Study’ in An Introduction to French Administration Institut
Internationale d'Administration Publique (1996)
36.
[81] Paul-Marie Falcone,
‘The Council of State’ in A Introduction to French
Administration, see n 61,
204-205.
[82] Ibid
205.
[83]
Ibid.
[84] Ibid
207.
[85] [1995] HCA 58; (1995) 184 CLR
163.
[86] Sir A Leggatt,
Tribunals for Users One System, One Service: Report of the Review of
Tribunals (2001) para 6.51.
[87] Ibid
10.18.
[88] Ibid, An Overview,
para 12.
[89] Ibid
213.
[90] For example Monash
University's Decision Making for Tribunal Members course; and a course
for those involved in veterans' law offered by Southern Cross University, both
provided for the first time
in the last two years. ANU also offers course in
Tribunals and Government, and topics of related
interest.
[91] The author is
under no illusion that the French administrative law system is free of political
appointments, a practice adopted
in all western countries. Indeed, the practice
is institutionalised and there are a fixed number of places which can be filled
at
the discretion of government - civil service wide. Further, ENA training has
also been criticised and even the existence of competitive
examination has been
queried: Luc Rouban, The French Civil Service Institut International
D'Administration Publique (1998) 74-75,
81-83.
[92] In that context it
is pertinent to note that a survey of Commonwealth agencies in 1999-2000 seeking
their views on external review
found that the AAT was the review body with the
highest approval rating as compared with the specialist tribunals and the
courts.
The AAT's achieved its approval rating at 89 per cent for being a
mechanisms that ensures that government decision-makers are accountable
and a
high 78 per cent for ensuring that government agencies comply with the law: R
Creyke, J McMillan and D Pearce, External Review Project, findings for
theme 1.
[93] Eg EARC report,
Vol 1, above n 4, 438-338; Better Decisions, above n 70, Ch 6; Gotjamanos
and Merton, above n 24, 182, rec
33.
[94] R Creyke, J McMillan
and D Pearce, External Review Project, findings for theme
6.
[95] EARC report, above n 4,
recommendation at para 13.75.
[96] Ibid para
13.89.
[97] Gotjamanos and
Merton, above n 24, 170-182.
[98]
P Johnston, ‘Recent Developments Concerning Tribunals in Australia’
(1996) 24 FLRev 331.
[99]
Sir A Leggatt, Tribunals for Users One System, One Service: Report of the
Review of Tribunals (2001) para 9.17 and recommendation
226.
[100] Ibid, Overview,
para 8.
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