Particularly during the last 25 years, the work of tribunals at both the State and Federal levels has become a central feature of Australia’s democratic governments.

If I were to be asked what I considered to be the future of the Australian tribunal system at Commonwealth and State levels – my answer would be "Tribunals are here to stay!"

Recent developments in NSW, Victoria and at the Commonwealth level all point to a vigorous and expanding area of dispute resolution. Tribunals are seen as an adequate answer to demands for:

1. Cheaper and quicker justice
2. Specialised decision-making
3. A check on executive power
4. Improved standards of government decision-making.

If I were to be asked an additional question – what kind of tribunal system will we have – where is it going? – my answer would be more circumspect.

This second area of enquiry is an important one – as Paul Dawson said when writing about Tenure and Tribunal Membership in 1997:

 All tribunals, whatever their function, are established to be independent forums making objective determinations. The reality and perception of their independence is important given the role they play in the various Australian administrative and adjudicatory systems.

In the context of tribunals, what does independence mean?

Independence involves a variety of things.

It can mean freedom from interference in making a particular decision but it can also mean working in an institution which operates independently in relation to the provision of resources, the appointment and reappointment of its members and protection of their office.

Because, as President of the AAT, I am particularly concerned with a tribunal which reviews on the merits decisions of the executive government, I intend in this address to focus on this kind of tribunal. Much of what I say, however, has general application.

As everyone at this conference would be aware, the genesis of the current system of administrative review tribunals in Australia is found in the work of the two well-known committees: the Commonwealth Administrative Review Committee (otherwise known as the Kerr Committee) and the Committee on Administrative Discretions (otherwise known as the Bland Committee).

It is often valuable, when looking forward to a developing enhanced tribunal system, to begin with an historical perspective.

The Kerr Committee recommended that the Chairman of the proposed tribunal be a judge. This does not appear to have developed from the view that this would enhance the tribunal's independence. It derived more from the view that the status of the Administrative Review Tribunal would be raised by having a judge as the Chairman of the Tribunal. The judge could rule on all questions of law and the acceptability of the decisions made would thus be greater. Experience has shown it to be so and the more recently created tribunals - the ADT in NSW and VCAT in Victoria - have judges as their heads.

The Kerr Committee accepted the need for the continued existence of specialist tribunals and therefore made a number of recommendations in relation to Commonwealth administrative tribunals generally. Without much explanation the Kerr Committee concluded that it did not think 'complete independence' was necessary and it did not think that physical separation of a tribunal's premises from the premises of the administration was important. Neither the Kerr Committee nor the Bland Committee addressed comprehensively the issues relating to the relationship between administrative tribunals and the executive branch of government.

The concept of independence, however, was an important aspect of the Government’s response to the recommendations of those Committees in the form of the Administrative Appeals Tribunal Bill 1975. In the Second Reading Speech on the Bill in the House of Representatives, the Hon. K E Enderby QC, then Attorney-General stated:

It is clear from the Administrative Appeals Tribunal Bill 1975 and the Second Reading Speech that the independence of the AAT from the executive branch of government was seen as an important feature of the system. The mechanism the Government considered was appropriate to implement the independence of the AAT was that employed to protect the independence of the federal judiciary: tenure for the presidential members who would preside over the Tribunal, lengthy term appointments for members and narrow powers to suspend or remove a member from office. This approach, at that time, had bipartisan support.

When the AAT commenced operation on 1 July 1976, it had jurisdiction to review decisions made under some 25 enactments. As the ARC has noted in its recent report, the number of applications to the Tribunal did not begin to increase markedly until the early 1980s when the Tribunal was given jurisdiction to review decisions relating to social security and Commonwealth employees' compensation. (Now referred to as the "bulk" jurisdictions because of the volume of work.)

The AAT's jurisdiction has been extended over time to the point where the Tribunal has jurisdiction to review decisions made under more than 320 enactments. The number of applications to the Tribunal has increased each year and more than 7000 applications were lodged in 1998/99. This period has also seen changes in the practice of appointments to the Tribunal. In particular, the practice of appointing full-time senior members with tenure ceased in the early 1990s. The four senior members appointed to the Tribunal since that time have all been appointed for fixed terms of years. These changes reflect broader changes in the administrative review system at the Commonwealth and State levels.

The advent of the AAT did not see the demise of other administrative review tribunals which then existed at the Federal level. The Student Assistance Review Tribunal ('SART') which was created in 1974, the Social Security Appeals Tribunal ('SSAT') which was established in 1975 and the Tribunals dealing with veterans' entitlements continued to undertake review of decisions following the commencement of the AAT. Nor did the existence of the AAT prevent the creation of new specialist tribunals over time. The Repatriation Review Tribunal was created in 1979 and replaced by the Veterans' Review Board in 1985. The SSAT was established under the Social Security Act 1947 in 1988 and assumed the jurisdiction of SART in 1995. The Immigration Review Tribunal ('IRT') was created in 1989, the Refugee Review Tribunal ('RRT') in 1993 and the Migration Review Tribunal ('MRT') in June of this year.

Of course, each of these specialist tribunals was established under statute. There are legislative provisions for each tribunal which deal with issues such as appointment and removal of members. In many respects these provisions are the same as those which apply to members of the AAT. For example, the members of each of the tribunals are appointed by the Governor-General. The Governor-General must remove a member of any of these tribunals if the member becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors or compounds with his creditors or makes an assignment of his or her remuneration for their benefit.

The central difference between the membership provisions for the AAT and those of the specialist tribunals relates to the term of appointment of members. Presidential members of the Tribunal who are also judges hold office until the age of 70 or until he or she ceases to be a judge. Full-time Deputy Presidents and Senior Members of the AAT who were appointed with tenure hold office until the age of 70 or 65, as the case may be. Other members of the AAT hold office for the period specified in their instrument of appointment which will be 7 years at most. Members of the MRT, RRT and VRB and the National Convenor of the SSAT hold office for the period specified in their instrument of appointment which cannot exceed 5 years. Other members of the SSAT hold office for the period specified in their instrument of appointment which cannot exceed 3 years.

One can conclude from practice and legislation in the last 15 years that Federal Governments no longer consider tenure appropriate for most members of administrative review tribunals. This is also the view the ARC adopted on its review of Commonwealth merits review tribunals. In relation to this the ARC stated:

It is also the case that the workload of tribunals will fluctuate based on any number of variables. This is not to say, however, that the independence of tribunal members, and in particular the perception of their independence, does not continue to be essential to the proper functioning of the system of administrative review. As the ARC has stated:

The integrity of the tribunal system rests with the community’s acceptance that the system is independent and therefore has value to them as citizens. Tenure for tribunal members, when it was introduced because of its association with the independence of the judiciary, was an understandable way in which to establish, in the minds of the public, the independence of those members. We have moved beyond the argument that independence can only be achieved through tenure and, In in an environment in which tenure for tribunal members does not exist, the challenge must be to find other ways of ensuring that tribunal members are, and are perceived to be, independent.

It does not seem to me that this issue has been adequately addressed by governments who have established administrative Ttribunals. Questions have been raised at various times about the appointment and reappointment of members to tribunals. The most recent example in the Commonwealth sphere was the round of appointments made to the Immigration Review Tribunal in 1994. Questions and concerns relating to the appointments were raised in the Commonwealth and Victorian Parliaments and the media gave some attention to the debate on the issue. This led to the Senate referring to the Joint Standing Committee on Migration an inquiry into the appointments process. Issues raised during the inquiry included the following:

• whether a portfolio Minister should preside over and make recommendations in respect of appointments to that Minister's portfolio review tribunal;
• the composition of, and procedures adopted by, the advisory committee convened to consider applications for IRT membership;
• the selection criteria which were used as the basis for considering appointments;
• whether certain appointments were made on the basis of political patronage rather than merit.

A majority of the members of the Joint Standing Committee concluded that nothing in the evidence before the Committee demonstrated that those who had been appointed to the IRT did not meet the selection criteria or were otherwise unsuitable for the positions. What is significant, however, when discussing the perception of independence of tribunal members is the fact that the inquiry was held and the nature of the concerns expressed about the appointment process.

The appointment and re-appointment processes created for members are rarely found in legislation. This is somewhat surprising because committees considering this sensitive topic have often recommended it. A recent example is the way this issue was dealt with in Victoria.

With respect to appointment, reappointment and removal issues for the proposed new tribunal, the Department of Justice also proposed the establishment of a Victorian Tribunal Council ('Council'). It would comprise:

• the President of VCAT, from time to time;
• an additional Supreme Court judge nominated by the Chief Justice to hold office for 7 years;
• a Deputy President of VCAT nominated by the Attorney-General to hold office for 7 years or until ceasing to be a Deputy President;
• an ordinary member of another Division of VCAT nominated by the President of VCAT to hold office for 7 years or until ceasing to be a member;
• 3 nominees of the Attorney-General, at least one of whom is not a lawyer, to hold office for 7 years; and
• the Legal Ombudsman.

The Council’s role would be to oversee the appointment process. Firstly, it would advertise for applications. It would consider applications received and any persons proposed for appointment by the Attorney-General or the Department of Justice. The Council would provide the Attorney-General with a list of the suitable candidates containing at least twice as many names as the number of vacancies. After consultation with Cabinet, the Attorney-General would put forward the names of the successful candidates for appointment by the Governor-in-Council, all chosen from the list provided. If the Attorney-General considered the names on the Council's list to be unsuitable, he or she could require the Council to submit a fresh list.

This recommendation was not adopted in the ensuing legislation. A transparent appointment process of this kind, however, would do much to reassure the public as to the integrity of the Tribunal system in an environment where tenure for such decision-makers is not favoured. Whatever the deficiencies of a system of tenure, it does assure the integrity of the system. the independence of the members of tribunals. The community could rest assured that members were appointed because of their skills and abilities and that the appointment was merit-based. A Council of this kind might do the same. Thus, public confidence in the integrity and quality of the tribunal system would be enhanced. A Council of the kind proposed in Victoria would go a long way towards meeting community concerns in this area.

 In relation to the appointment of members to each of the Commonwealth administrative review tribunals, the relevant legislative provisions provide only that the members are to be appointed by the Governor-General. The actual practice of appointments to these tribunals exists outside of the statute which establishes the tribunals. The appointment of tribunal members, as for all statutory office holders, remains a prerogative of the executive government and the Governor-General appoints tribunal members on the recommendation of the Executive Council. Ministers remain responsible for the selection and the appointment process.

However as the ARC has noted, the trend in selection and appointment processes for tribunal members in recent years has been to make them more open and transparently merit-based. This is seen as critical to ensure that "tribunals comprise members with the skills required to perform effectively the functions of the tribunal and also to ensure that tribunals are able, and perceived to be able, to operate free from undue influence." There has been increasing consistency in the manner of the selection and appointment in recent years, but there is still no uniformity in the way in which tribunal members are appointed to Commonwealth administrative review tribunals and, perhaps even more importantly, reappointed.

Nor is there any uniformity in respect of the terms for which members are appointed to these tribunals. The legislative provisions relating to the period of appointment prescribe only a maximum term of appointment which ranges from three to seven years. Recently terms of appointment have rarely been for the maximum number of years and in some cases have been for relatively short periods of time. The proposal to amalgamate the AAT, MRT, RRT and SSAT has been cited as the explanation for this.

The ARC has noted that, in general, terms shorter than three years "are undesirable since they do not give the members any sense of security". Short term appointments may also discourage suitable people from applying for a position as a tribunal member. More significantly, however, it is arguable that appointing tribunal members for short periods of time with the prospect of reappointment could undermine their independence or at the very least the perception of independence. The argument is expressed by Paul Dawson in the following way:

It is reasonable to conclude that the combination of short term appointments and the prospect of reappointment can give rise to a perception that tribunal members may be unduly influenced in their decision making. This is of concern when the decisions made by such people involve Governments and sensitive policy areas.

Members of the MRT, RRT, SSAT and VRB and members of the AAT on fixed term appointments may be reappointed. As with the legislative provisions relating to appointment of tribunal members, there is no detail in the relevant statutes about how the reappointment of tribunal members should be conducted. The reappointment of members remains a ministerial responsibility.

As the ARC has acknowledged, "the reappointment of some but not necessarily all tribunal members as their terms expire will lead to concerns about the basis of any reappointment decisions", and yet there are, however, no common guidelines for Commonwealth administrative review tribunals on reappointment. Nor is there a known uniform practice among the tribunals in relation to the reappointment of members.

The ARC has suggested that concerns about reappointment decisions can be minimised if all members seeking reappointment are assessed according to publicly known criteria. This would appear to require an assessment of the member's performance against the selection criteria for members of the particular tribunal. In fact, members seeking reappointment would undergo some kind of performance review. This whole area in my view, needs detailed consideration. A comprehensive and if possible, uniform approach would greatly enhance the integrity of the system.

 As the Chief Justice of Western Australia, the Hon David Malcolm AC, said recently in speaking on the same topic as I am addressing today, but in relation to the judiciary:

He concluded in this paper that steps to achieve accountability which were administered by the Executive Government would damage the independence of the judiciary, so that performance issues could only be managed by the judges themselves. The aim was to secure "neutrality, independence of mind and the absence of external interference". These would be, in my view, admirable goals for the tribunal system.

Performance management for tribunal members, in general, is an issue which has been discussed most intensively in the 1990s. Performance appraisal of one kind or another has become an accepted practice in most Commonwealth tribunals. Performance of members may be measured against time standards, against the requirements set out in a code of conduct for members, against the terms of a performance agreement or against the selection criteria. The process may involve the provision of statistical information about performance, self-appraisal, an assessment by a more senior member of the tribunal and/or a formal interview. However, performance appraisal for members is not conducted in a uniform way in the different tribunals.

Just as it has been expressed in relation to the Courts, concern has been expressed about measuring performance as it relates to the independence of tribunal members. Certainly, the existence of a performance management scheme can give rise to speculation about the potential for pressure to be placed on members in respect of decisions in particular cases. This is so even if review outcomes are not included as one of the performance measures. A more significant issue in terms of the independence of tribunal members relates to the reasonableness of the performance standards and, in particular, those which relate to how tribunal members deal with their caseload. There is a trend to prescribe, more particularly in legislation or in practice directions, the way in which the review must be conducted. If standards relating to the conduct of the review are unreasonable, the pressure to meet performance targets may negatively affect the ability of tribunal members to give adequate attention to individual cases and the standard of their work must suffer.

One of the claimed advantages of having a performance appraisal scheme is that it enables members and the senior members of the tribunal to identify areas in which tribunal members require assistance to undertake their function better. The ARC observed marked differences in the level of in-house training provided to members and that only some tribunals had a formal professional development program, an essential adjunct to required performance standards.

The statutes which establish the Commonwealth merits review tribunals make provision for the removal, and in some cases for the suspension of, tribunal members in particular circumstances. None of the statutes, however, provide a mechanism for removal or suspension on the grounds of incompetence.

The grounds for removal which are common to all the tribunals are proved misbehaviour or physical or mental incapacity and where the member becomes bankrupt or insolvent. The Governor-General may remove an AAT member from office on the ground of proved misbehaviour or incapacity only on an address praying for the removal being presented by each House of the Parliament in the same session. This, of course, is the same protection from removal which federal judges enjoy. The involvement of Parliament is not required for the Governor-General to remove a member of the MRT, RRT, SSAT or VRB on the ground of proved misbehaviour or physical or mental incapacity. Additional grounds for removal exist in relation to the MRT, RRT, SSAT and VRB, none of which relate to a member's competence in carrying out the review function.

The Governor-General may suspend a non-presidential member of the AAT on the ground of misbehaviour or incapacity and the Attorney-General must lay a statement of the ground of the suspension before each House of the Parliament within 7 sitting days after the suspension. Unless each House declares within 15 sitting days that the member should be removed from office, the suspension terminates. The protection provided to non-presidential members of the AAT is greater than that provided to members of the SSAT and VRB who may also be suspended from office. The portfolio Minister may suspend a member of the SSAT or VRB on the ground of misbehaviour of physical or mental incapacity. On the Minister's recommendation, the Governor-General may remove the member, continue the suspension for a further period or terminate the suspension.

Not surprisingly the removal and suspension provisions have never been employed. It could be argued that they have been an effective tool in maintaining the independence of tribunal members. While this has some resonance in respect of AAT members with tenure, it is less applicable to part-time members or members with fixed term appointments. De facto suspension or removal can be effected in respect to part-time members by not giving them work. For both full-time and part-time members with fixed term appointments an easier form of removal is the discretion not to reappoint the member to the relevant tribunal.

THE PIPER CALLS THE TUNE

Issues relating to independence and accountability extend beyond the individual tribunal member to a tribunal as an organisation. In large part, these issues revolve around the question of the funding of tribunals. This is another issue which is not dealt with consistently among Commonwealth merits review tribunals. The AAT, MRT and RRT are separate agencies for the purposes of the Financial Management and Accountability Act 1997 and receive a single allocation of funding from the Department of Finance and Administration. The SSAT and VRB, on the other hand, are funded directly by the agencies with portfolio responsibility.

As the ARC has noted, where a review tribunal receives its funding from an agency whose decisions form all, or a large part of, its workload, it is possible that the tribunal's independence will be, or will be perceived to be, compromised by that arrangement. In terms of perception, there is the danger that the tribunal may be considered to be under pressure to make decisions which favour the agency. In terms of actual effects, a tribunal's independence may be adversely affected if the agency does not allocate sufficient funds to enable the tribunal to undertake its review function properly. This is also the case, however, for tribunals funded by a central agency. They are not immune from the possibility that the appropriation they receive will not be sufficient to perform their review function adequately.

The challenge in this area is to devise a method of funding which will provide tribunals with adequate funding and which also enhances the public perception of independence from agencies whose decisions it reviews. As the ARC has recognised, under an ideal funding model tribunals should have complete discretion in the use of the funds in pursuit of their objectives. Tribunals are fully accountable for the appropriations they receive through the normal governmental processes.

As you will have gathered from my necessarily brief remarks, there are many live issues being considered in the different tribunals in Australia. This is a lively and developing part of the legal system and it has expanded and changed greatly in the last 25 years. We should expect those changes, I hope for the better, to continue and perhaps some aspects of my remarks will provide fuel for the debate. I would like to conclude by enunciating some goals for those who have the task of designing and developing tribunal systems, particularly those involved in merits review.

Such a system should provide and be seen to provide a mechanism of review that:

. is independent of those agencies whose decisions it reviews;

• for the standard of its decision-making;
• for its processes; and
• for the efficient management of its public resources.

It is axiomatic that, to achieve such goals, these bodies must have as members, persons who are:

1. Properly qualified.
2. Independent.
3. With proper individual and institutional financial support.
4. Prepared to be properly accountable.

Institutions like that would enhance the Australian democratic system.

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