Creyke, Robin --- "Better Decisions' and Federal Tribunals in Australia" [2004] ALRCRefJl 3; (2004) 84 Australian Law Reform Commission Reform Journal 10

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Reform Issue 84 Autumn 2004

This article appeared on pages 10 – 14 & 71 of the original journal.

‘Better Decisions’ and federal tribunals in Australia

By Robin Creyke*

Australia set up tribunals early in its history. They were not necessarily called tribunals but they had characteristics in common.

They operated in a less formal manner than a court, their members were not generally judges or even lawyers, and they reviewed decisions made by government ‘on the merits’. That is, they reconsidered the law, relevant government policy, and the facts of the case to remake the decision. This form of review, known as ‘merits review’, is simpler, cheaper and faster than going to court and is generally what people want.

These early tribunals often reflected significant areas of Commonwealth administration. There were Boards of Review and Valuation Boards in tax matters, Repatriation Boards and appeal tribunals for claims for war pensions, there was a Tariff Board for review of customs tariff decisions, a Film Censorship Board, a Copyright Tribunal, an Australian Broadcasting Control Board, Seamen’s Pension and Allowance Committees for compensation for seamen involved in interstate trade, a Lighthouse Advisory Committee for those who manned lighthouses, and a Commonwealth Conciliation and Arbitration Commission, for handling industrial matters.^[1]

As the list indicates, there was no general policy directive to set up an appeal tribunal in all key areas of federal government. There were no migration tribunals, no postal tribunal, no review body for quarantine matters, nor a tribunal for banking and insurance, fisheries, or citizenship. The establishment of a tribunal probably owed more to factors such as pressure from well-organised lobby groups like war veterans or unions, or the magnitude of the commercial interests involved, than to any coherent reason for setting up a tribunal rather than a court to deal with appeals against government decisions. Nonetheless, by the 1970s merits review tribunals outnumbered courts by more than two to one.^[2]

The ad hoc approach to tribunal development led to a major government review of the Commonwealth system for reviewing government decisions. The review in the early 1970s was chaired by Justice John Kerr, then a Judge of the Commonwealth Industrial Court. Other members were Justice Anthony Mason, then a Judge of the Supreme Court of New South Wales, Mr Bob Ellicott, Commonwealth Solicitor-General at the time, and Professor Harry Whitmore, then Dean of the Faculty of Law, Australian National University.

The Kerr Committee proposed a comprehensive package of reforms: a new federal court to review decisions if unlawful; a tribunal with general jurisdiction to hear appeals on the merits; an ombudsman or inquiry body which would investigate grievances that on expense grounds did not warrant litigation; and an Administrative Review Council to steer the creation of the new structures, to monitor their operation, and to advise agencies which decisions should be subject to merits review. The overall impact was to replace the existing piecemeal and often procedurally complex review systems with a system which would be streamlined, simplified and provide Australians with more accessible review avenues than had previously been available.

The most far-sighted and innovative of these recommendations was undoubtedly the establishment of the tribunal to be called the Administrative Review Tribunal (ART). The Tribunal was to replace the existing system of appeals to specialist merit tribunals and was a step taken by no other country with a common law legal system. Features of the Tribunal were its expert membership; that review would be external and independent; that it would have a national operation; and that it would play a central role in the review of administrative action.^[3]

All the recommendations were implemented due to endorsement by the later Bland Committee,^[4] and a lucky convergence of people and political events. The reformist Whitlam government picked up the recommendations, and the Bill for the Tribunal, by then called the Administrative Appeals Tribunal (AAT), was introduced by the Attorney-General, Kep Enderby. Enderby’s successor, Bob Ellicott, Attorney-General in the Fraser government, appointed Justice Gerard Brennan as its first President. It was an inspired choice, since it was Brennan’s wise care and custody which ensured the infant Tribunal developed as planned.^[5]

Subsequent events

Over the next two decades, merits review by the AAT grew apace. By 2000 the AAT could hear appeals from most agencies making decisions affecting citizens and over 300 pieces of legislation authorised the AAT to conduct external, independent merits review. At the same time, partly due to pressure from the superior courts,^[6] and partly through the influence of legal culture, AAT hearings had often become more formal than planned.

Although the AAT’s role was growing steadily, this did not lead to a diminution of the number of other tribunals. It was envisaged by the Kerr Committee and strongly advocated by the Bland Committee that the number of tribunals operating in the Commonwealth be strictly limited.^[7] That was consistent with their vision of a coherent and integrated system of administrative review. History has taken a difference course. Pressure from areas with a high volume of appeals such as financial support for tertiary students, social security, veterans’ affairs and migration led to the emergence of specialist tribunals.

The oldest of these was the Student Assistance Appeals Tribunal set up in 1974. Its functions were moved to the Social Security Appeals Tribunal (SSAT) in 1995.^[8] The SSAT was set up in 1975. Initially it was a body that only made recommendations, but from 1988 the SSAT has had determinative powers. The Veterans’ Review Board (VRB) followed in 1985, a successor to the earlier Repatriation Review Tribunal initiated in 1979, which itself had been preceded by two bodies set up in 1929.^[9] The most recent of these specialist tribunals was the Immigration Review Tribunal established in 1989 and replaced in 1999 by the Migration Review Tribunal (MRT). A Refugee Review Tribunal (RRT) was also set up in 1993 to replace an earlier body, which only had recommendatory powers.^[10] The major specialist tribunals were not alone. Numerous other tribunals including the National Native Title Tribunal, the Professional Services Review Committee, the Australian Industrial Relations Commission, and the Trade Practices Tribunal were established in these intervening years.

Given this proliferation of tribunals it was not surprising that a degree of alarm should be felt by government. In the 1980s when downsizing of government became the vogue, developments of this kind were seen as wasteful of resources, and cost-cutting alone warranted pruning this luxurious growth.^[11] That task was given to the Administrative Review Council, which was to provide an overall assessment of the effectiveness of the evolution of the tribunal system, particularly the growth of specialist tribunals. Concern was indicated by the reference to tribunals’ “disparate practices and procedures” and to the need to discuss the administrative review system to ensure its “effectiveness and efficiency”. In summary, the message was that the administrative review system should be “simple, affordable, timely and fair”.^[12]

The Council’s final Better Decisions^[13] report recommended a return to the Kerr/Bland model. The key recommendation was that the majority of specialist tribunals and the AAT be folded into a new supertribunal, to be called the Administrative Review Tribunal (ART)— ironically, the original name chosen by the Kerr Committee. The new ART was to have a number of specialist divisions corresponding to the major specialist tribunals and a general division. There was to be a Review Panel to which appeals could be made on limited grounds. A single agency, preferably one which rarely had its decisions reviewed, would have responsibility for the ART. The Council noted “there remain strong reasons why a judge is likely to be eminently suitable for appointment as President”.^[14]

Other recommendations were designed to streamline tribunal operations. Accordingly, it was recommended that tribunals should adopt the objectives governing the major specialist tribunals, that is, that they should offer a mechanism of review which is “fair, just, economical, informal and quick”. Multi-member panels should be standard, but each division of the ART could adopt other procedures which fitted their particular type of matter, and take an active involvement in the cases which came before them, rather than the more traditional adversarial approach which generally applies in the courtroom. Representation was to be permitted, although simple cases could be ‘heard’ on the papers. Reasons for decision were to be provided as a matter of routine, and tribunals should develop a minimum set of core skills and abilities for their members, who would continue to be drawn from people with a wide range of skills and experience. Tribunals were to set up joint working parties to develop common standards, and sharing of resources was encouraged. The appointment of members was to be a more transparent process, and attention was to be paid to the impact of tribunal decisions—their normative effect—on agencies.^[15] In all, it was the most comprehensive examination of the Commonwealth’s merit review system since the 1970s. The thrust of the report was that merits review tribunals should be retained, albeit in a better integrated structure.

The Better Decisions report was presented in 1995. In March 1997 the then Attorney-General, the Hon Daryl Williams, announced that the government accepted the recommendations “in principle”. An ART would be established with each division to “develop and maintain flexible, cost effective and non-legalistic procedures relevant to their jurisdictions”. An interdepartmental committee was set up to refine the proposals, with an overall strategy of reducing “the number of applications, the overall costs of merits review and excessive legalism”.^[16] Other features of the proposal were that general control of the ART was to reside in the Attorney-General’s Department, although funding for individual divisions would come from the departments whose decisions were being reviewed, and the new head of the Tribunal would not necessarily be a judge.

There followed an intense period of lobbying. Key concerns were loss of independence, and that the essence of merits review would be undermined. A journalist on The Sydney Morning Herald noted that “Williams stands alone against the dismantling of a cheapish, non-legalistic avenue for citizens to have decisions which hurt their lives looked at again with independent eyes”, another, that the new body “will be funded by the departments whose decisions are being questioned and subject to direction by the ministers of those departments”, and a third wrote under this graphic heading: “A ‘tidy’ country means democracy in a mess”. The Australian, commenting on the proposals for the president to be a chief executive officer rather than a judge, assisted by a management board of department heads, wrote that “the proposal would appear to give ultimate control to the bureaucrats whose decisions are supposed to be subject to independent review”. The NSW Bar said it would be “critical of any plan to replace tribunals with government-controlled bodies”. The federal Opposition justice spokesman said the plan was part of a “massive and sustained attack by this Government on the rights of citizens to hold them accountable. The approach is completely undemocratic and unacceptable”.^[17]

According to The Canberra Times, the committee was to reduce the scope of merits review by limiting the functions of the ART to reviewing decisions because they were “not reasonable or defensible” rather than because they were wrong.^[18] Concerns were also expressed about provisions that members comply with government policy, that ministerial directions could trump those of heads of ART divisions, that Ministers rather than the tribunal itself were to appoint staff, and that agency control over divisions was to be paramount. There was wide unease that this tribunal was to be an executive style tribunal which was designed to operate in a manner which would “harmonise with the needs of the institutions and policies of government”.^[19] Such an approach would, it was feared, detract from the authority and independence of the tribunal.

Structural problems also emerged. Following pressure from the veterans’ community, the VRB was to remain outside the new ART. The only connection between the two was that ex-service applicants, unlike others, had a full right of appeal to the Review Panel. A second and major omission from the Better Decisions blueprint was that the migration and refugee division of ART, which would have provided up to one-third of the Tribunal’s caseload, was to be exempt from the core provisions of the two ART Bills.^[20] When all that remained of the supertribunal were divisions corresponding broadly with the SSAT and the AAT, the case for the change fell away. The development of a “comprehensive, coherent and integrated” tribunal had been undermined.

Other departures from the Better Decisions model also became apparent. The Bills had entrenched core procedural provisions contrary to the promise of flexible procedures, there appeared to be no significant cost-savings, and the norm for hearings would be single member panels, representation only with leave, no right of appearance, and hearings on the papers. The resemblance between the Bills and the Better Decisions report had became tenuous.

In the event, in February 2001, the Bills were defeated in the Senate. Given that the ART Bills in combination were the longest introduced into the federal Parliament, this must have been a blow to all those who had contributed to this mammoth effort. Subsequently, in February 2003 the Attorney-General indicated that he would not seek to reintroduce the legislation during the current Parliament. However, he indicated that the Government also remained committed to “sensible reform of the existing tribunals on an individual basis” starting with the AAT.^[21]

What has happened since?

That commitment to ‘sensible reforms’ for particular tribunals has been no empty promise. The recommendations of the Better Decisions report, followed as it was by those in the Australian Law Reform Commission’s Managing Justice report^[22]—a blueprint for the civil justice system including tribunals—had considerable merit. It became apparent that many of these changes could be achieved without involving the Parliament.

An apparently wasteful duplication of resources is beginning to be alleviated by sharing of tribunal premises, libraries, IT systems, and registry and front counter staff. The two migration tribunals—the MRT and the RRT—are progressively moving to share premises and resources. Rationalisation of the SSAT has seen responsibility for the control of some of the smaller SSAT registries devolve to larger metropolitan centres. The Veterans’ Review Board is likely to acquire wider appeal functions following the report of the Senate Finance and Public Administration Committee into proposed legislation to amalgamate veterans’ and military compensation schemes.^[23]

The call to streamline tribunals procedures, to introduce performance standards, minimum skill sets for members, and for professional development training will be met in part by the Council of Australasian Tribunals (COAT) set up in June 2002. This was an initiative of the Administrative Review Council and brings Australia into line with Canada and the United Kingdom, both of whom have a coordinating body dedicated to the development of tribunals.^[24]

The proposals to reduce the use of multi-member panels has had some effect. Roughly four out of five cases heard by the AAT are now decided by a single member. This compares with the position pre-the ART Bills when, in some years, nearly half of cases were heard by multiple member panels.^[25] Similar streamlining has occurred in the SSAT where previously three member panels were the norm and, in disability cases when a doctor was present, four member panels were used. Today, the norm for tribunals is for two-member panels only. However, multi-member panels are still the standard with the migration tribunals being notable exceptions.

A comparative survey of the specialist tribunals, the MRT/RRT, SSAT and VRB, indicated all four have implemented nearly half of the recommendations relating specifically to tribunals. In particular professional development is a focus, core skills for tribunal members are required, performance appraisal is practised, and there is a public appointment process with requirements to meet stated criteria. Terms of appointment are between three to five years, renewable. Reasons are provided, hearings are generally provided, with hearings on the papers only by consent, representation is permitted, if requested, but not always by lawyers. An active inquisitorial approach is applied by all four tribunals.^[26]

Recommendations which have not been implemented universally are for use of alternative dispute resolution as appropriate, there is no uniform rule about practice directions by heads of tribunals, nor for the content of statements of reasons. Not all hearings are in public, nor is there agreement about methods of managing confidential or sensitive information. These may be matters which COAT could address.

The Attorney-General’s 2003 press release on tribunals noted that the “AAT must be able to deliver informal, fast and fair merits review, unfettered by costly and legalistic procedures”. It referred to the aim of “enabling the AAT to flexibly manage its workload and to ensure that reviews are conducted as efficiently as possible”. Amendments to the AAT Act have been drafted but not tabled. Hence, any estimate of their content is speculative. A possible topic for inclusion might be the increased flexibility in empanelling members. After the Better Decisions report there was a discernible tendency to appoint people to the AAT at lower levels^[27] than previously. This might create difficulties in relation to provisions in the AAT Act, which require that only senior members can undertake certain functions. Other possible amendments might be increased directions powers for the President, and revised qualifications for members.

Conclusion

A distinctive feature of the Australian tribunal system is the development of the concept of the merits review tribunal with ability to hear appeals across all areas of public administration. The idea was endorsed in 2001 in the United Kingdom in the Leggatt Report Tribunals for Users, which proposed a similar body for the UK. Most States and Territories in Australia have also set up a tribunal with wide jurisdiction.

At the same time, there needs to be recognition of the variety of matters which come before these tribunals. As the demise of the ART Bills indicates, steps which appear to stifle diversity by restricting the individual culture and mode of operations of elements of the system will be opposed firmly by their constituents. Another key attribute of tribunals is their independence and any attack on that independence by moving the tribunals too close to the executive is unlikely to succeed.

Although the amalgamation proposal of the Better Decisions report may not have been accepted, it is clear that already many of the reforms proposed for the ART supertribunal are being implemented. The federal tribunal landscape in 2004 strongly reflects the recommendations for more uniform procedures and for the increased professionalism of tribunal members. So all has not been lost. Indeed it can be said that the report has had a significant impact on the framework of tribunal review in Australia. Amalgamation may not have been achieved, but it appears that many of the reforms proposed by the report will in fact quietly materialise.

* Professor Robin Creyke is the Alumni Chair of Administrative Law, Law Faculty, Australian National University; Special Counsel, Phillips Fox Lawyers; Member of the Administrative Review Council; Commissioner, ACT Independent Competition and Regulatory Commission; and Vice-President, Australian Institute of Administrative Law.

Robin acknowledges with gratitude the assistance of Sandy Flecknoe-Brown in the development of this article.

Endnotes

{1} Commonwealth Administrative Review Committee Report (Kerr Committee Report) (1971) [18].

{2} Final Report of the Committee on Administrative Discretions (Bland Committee Report) (1973), Appendices D and E.

{3} R Creyke and J McMillan ‘Administrative Law Assumptions ...Then and Now’ in R Creyke and J McMillan (eds) The Kerr Vision of Administrative Law at the Twenty-Five Year Mark (1998),10-19.

{4} Final Report of the Committee on Administrative Discretions (Bland Committee Report) (1973).

{5} L Curtis ‘The Vision Splendid: A Time for Re-Appraisal’ in R Creyke and J McMillan (eds) The Kerr Vision of Administrative Law at the Twenty-Five Year Mark (1998), 45.

{6} In Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 the High Court clearly signalled its intention to supervise tribunals with considerable stringency.

{7} Final Report of the Committee on Administrative Discretions (Bland Committee Report) (1973), recommendations xix-xxi.

{8} Law and Justice Legislation Amendment Act (No 1) 1995 (Cth).

{9} The earlier bodies were a War Pensions Entitlement Appeal Tribunal, and a War Pensions Assessment Appeal Tribunal: P Toose, Independent Enquiry into the Repatriation System (Toose Report) (1975), Vol 1, 26-27, 31.

{10} The Refugee Status Review Committee.

{11} Administrative Review Council, Review of Commonwealth Merits Review Tribunals, Discussion Paper (1994).

{12} Administrative Review Council, Better Decisions: Review of Commonwealth Merits Review Tribunals, Report No 39 (1995), terms of reference, 181.

{13} Ibid.

{14} Ibid, [4.19].

{15} Ibid, recommendations 1-102.

{16} Commonwealth, Parliamentary Debates, House of Representatives, 20 March 1997, 2602 (D Williams).

{17} M Kingston ‘Anger as government watchdogs lose teeth’ and ‘Fair play legacy looks doomed’, The Sydney Morning Herald, 30 June 1997 1, 6; A Horin ‘A “tidy” country means democracy in a mess’, The Sydney Morning Herald, 5 July 1997, 39; J Brough ‘Canberra seeks to wipe out reviews’ The Sydney Morning Herald, 1 July 1997, 7; Editorial ‘Independence is a must for reviews’ 2 July 1997, 12; C Dore ‘Law Council fears Coalition threat to democratic rights’, The Australian 1 July 1997, 5; ‘Warnings against tribunal changes’, The West Australian, 1 July 1997, 30.

{18} J Waterford ‘Government re-opens case for independent review rights’, The Canberra Times, 28 April 1997, 1-2.

{19} J McMillan ‘The Conflicting Values in Administrative Law and Public Administration: A Marriage Strained’ in S Argument (ed) Administrative Law & Public Administration: Happily Married or Living Apart Under the Same Roof? (1993), 2.

{20} Administrative Review Tribunal Bill 2000; Administrative Review Tribunal (Consequential and Transitional Provisions) Bill 2000.

{21} Attorney-General (D Williams), ‘Improving the Federal Merits Review Tribunal System’, Media Release, 6 February 2003.

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

{23} Senate Finance and Public Administration Committee, Administrative Review of Veteran and Military Compensation and Income Support (2003).

{24} Canada: Canadian Council of Tribunals. UK: UK Council on Tribunals.

{25} Administrative Appeals Tribunal Annual Reports 1987/88–2002/03.

{26} Information provided by the Executive Officer, MRT/RRT, Melbourne; Office Manager, SSAT, Canberra; Registrar, VRB.

{27} Often members rather than senior members.