Dr Kathryn Cronin

Commissioner, Australian Law Reform Commission

In its recent discussion paper Review of the federal civil justice system released in August 1999 the Commission examined the case and hearing management of federal merits review tribunal proceedings and made proposals on a number of issues including on: effective case management systems; the use of prehearing conferences; the role of decisions on the papers; tribunal investigation; the role of party representation.

The proposals emphasise the duties of tribunals to initiate investigations or inquiries to supplement the evidence provided by parties, the importance of an effective ‘bridge’ between review tribunals and the agencies whose decisions are subject to review and the distinct role of representatives in review tribunal proceedings. The detail of these proposals may be found in the discussion paper.

For present purposes I note that the Commission’s overall findings were that the legislation and practice of review tribunals should be further directed to emphasise the administrative character of tribunal processes. For example, tribunal processes can and should be arranged to permit enhanced investigation by tribunals; discontinuous hearing processes; resolution of certain issues on the papers; cooperative training and working arrangements between tribunals and the government departments and agencies whose decisions are under review.

In this context, the Commission also considered the training and education of tribunal members and concluded that

The Commission proposed that a Tribunals Council should be established to promote and facilitate the sharing of professional information and experience amongst administrative review tribunal members, as well as assisting in education and training for administrative decision makers (ALRC DP62, Proposal 3.4). The proposal is limited to administrative review tribunals because of their particular functions and relationships with government agencies.

The Commission stated that this initiative would also have the beneficial effect of providing another reliable source of practical information and advice for government concerning the operation and development of the administrative justice system, to supplement that provided by statutory advisory bodies such as the ARC and ALRC.

More broadly there are compelling reasons why the administrative justice system in Australia needs new institutions of this sort. Primary amongst these is the need to adapt to a rapid pace of change and changing roles and practices in administrative justice including

The administrative review system is changing dramatically. The changes herald a new system where the demarcation between primary decision makers and tribunals is diminished. Changes within tribunals also undercut hierarchies and modify work practices. The advent of case officers within the Migration Review Tribunal, for example, initiates new cooperative arrangements between registry staff and members.

Leaving aside questions concerning the efficacy of these changes, the new arrangements call for better communication between participants within the administrative justice system and open debate and discussion to afford understanding and acceptance of new practices. They also require new skills, and members and registry staff require education to assist in developing such skills.

While the activities of organisations such as the ARC, AIJA and the Australian Institute of Administrative Law already assist in this regard, new standing institutions such as a Tribunals Council may be needed.

There has long been recognition in Australia of the need for organisations to facilitate the exchange of information and ideas between tribunals and to secure training and education opportunities for tribunal members and staff.

In this context the federal government has proposed that the ARC be given new functions to

In its Better Decisions report the ARC recommended the establishment of a Tribunals Executive, comprising at least the principal members of each federal merits review tribunal. The Tribunal Executive would have the function of identifying areas appropriate for cooperation between the tribunals, planning that cooperation and where appropriate arranging for the providers of services common to all tribunals: (ARC 39, rec85, para 7.49). Areas of cooperation that such an Executive could facilitate include

An Executive could even have a disciplinary role, handling complaints about tribunal members or a role in helping to assess agency decision making according to agreed performance standards.

There is obvious merit in a federal Tribunals Executive. Such cooperation will take place in any case, under the leadership of the President and Executive Members of the divisions of the new amalgamated ART.

However, the Commission envisages a broader collective of tribunal principal members (a Council on Tribunals) which might operate much as the Council of Chief Justices does - as a national forum for tribunal leadership to consider and secure research on matters of common interest and to help coordinate developments in such areas as tribunal appointment processes, education and training, complaints and discipline and performance standards. Amongst other matters, the Council of Chief Justices has undertaken an electronic appeals book project to prepare for electronic publishing, filing and appeal processes and projects on harmonisation of court rules.

One important role for the Council on Tribunals may be in developing appropriate understandings of the independence of tribunal decision making, given that many contemporary changes can be seen to undercut traditional notions of the independence of adjudicators.

The Commission suggests that any Council on Tribunals should include the heads of State administrative review tribunals and the President of the ARC - the latter to

ensure the Council’s links with the ARC with its continuing functions of providing advice the federal government on strategic and operational matters relating specifically to the Commonwealth system of administrative law.

One broader model for a peak body concerned with administrative justice is that existing in Ontario - an incorporated society of both tribunal members and primary decision makers established with the overall aim of improving the administrative justice system.

The Society of Ontario Adjudicators and Regulators is an organisation of individuals (institutions do not qualify) drawn from all agencies involved in the administrative justice system, including those that make decisions at first instance, merits review tribunals and tribunals that act as industry regulators. The Society's goal is simply the improvement of the administrative justice system. The Society was incorporated to facilitate

The activities of the Society have included preparing a statement of principles of administrative justice; a code of professional conduct; a service equity policy; a performance management strategy and sample rules of practice. It has an education advisory committee and an education coordinator appointed to establish training programs for agencies.

In Australia, such a broad based body could emerge from the membership and activities of the AIJA and of organisations such as the Australian Institute of Administrative Law. In this context, Australia appears to be developing career tribunal decision makers, who move from one tribunal to another or work concurrently for two or more tribunals, including both State and federal bodies. Such a membership based body could co-exist with the Council on Tribunals and have a role in

The Commission welcomes the opportunity today to discuss this proposal and notes that the establishment of the ART affords an ideal occasion to consider such coordinating bodies.