Merits Review

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This article is a topic within the subject Administrative Law.

Contents

Required Reading

R Creyke & J McMillan, Control of Government Action: Text, Cases and Commentary, 3rd ed, 2012, [4.5.9-12], [1.3.1-5E], [3.2.20-25E], [3.2.27-29], [3.2.36-41], [3.3.36-43], [3.2.42-50], [3.3.1-15], [3.3.22-31], [3.4.1-9], [3.4.13-30], [11.5.1-16].

Administrative Appeals Tribunal Act 1975 (Cth).

Internal review

[1]The Administrative Review Council defined internal review as:

“A process of review on the merits of an agency’s primary decision. It is undertaken by another officer within the same agency, usually a more senior officer.”[2]

Advantages

  • Form of merits review
  • Relatively quick and inexpensive
  • Can create personal contact e.g. by telephone, between the citizen and the agency
  • Ensures that proper consideration is given to an issue within an agency at a senior level before the decision is reviewed by an external agency
  • It may impact positively upon the consistency of decision-making and attitudes of fellow officers, particularly given it is the least public form of review
  • Can alert the agency to deficiencies or discrepancies in decision-making practices
  • Form of auditing of performance by management which can prevent gross errors occurring
  • Can be established informally by request of citizen who received a decision as well as by administrative action and statute
  • Among the numerous examples of formal internal review schemes is Centrelink, where recent studies have shown that 33% of decisions are changed after internal merits review

Disadvantages

  • Risk of a public perception of lack of impartiality
  • Adds another layer to the review process, which can be confusing in a complex framework
  • Can prevent speedy resolution by an external review
  • Adds to the cost of administrative review

Historical and philosophical roots of Australian Administrative Law

[3] Administrative Review Council, Review of Commonwealth Merits Tribunals Discussion Paper, 1994

  • “The major features of the present system – the framework for judicial review, the Administrative Appeals Tribunal, the Ombudsman, the Administrative Review Council – stem largely from the recommendations of [the Kerr] Committee.”
  • Although the Constitution recognised supervisory judicial jurisdiction in section 75(v), Australia lacked an active field of administrative law litigation due to a combination of factors such as costs, government secrecy and legal technicalities.
  • The system was uncoordinated and had arisen as responses to pressure in individual areas of an administration which had many “gaps and anomalies and was not easily understood by the general community.”
  • Administrative law reform in the United Kingdom and New Zealand drew attention to options for change.
  • The Kerr Committee highlighted the “steady development of a vast range of administrative discretions that could be exercised in a way that detrimentally affected the life, liberty, property, livelihood or other interests of a person” in a context where “established mechanisms were unable to correct administrative errors and to ensure justice for the individual.”
  • The Ellicott Committee and the Bland Committee followed the Kerr Committee, the main changes that resulted from these enquiries were:
    • Reformed judicial review: the Administrative Decisions (Judicial Review) Act 1977 (Cth)
    • The Ombudsman: the Ombudsman Act 1976 (Cth)
    • Administrative review tribunals: the Administrative Appeals Tribunal Act 1975 (Cth)
    • A supervisory body: the Administrative Review Council was established by the AAT Act.
    • The proposal of the Kerr Committee, to adopt a uniform code of procedure, was not adopted.
  • The Freedom of Information Act 1982 (Cth) and the Privacy Act 1988 (Cth) originated from an election promise and a report by the Australian Law Reform Commission respectively.

R Creyke & J McMillian, ‘Administrative Law Assumptions – Then and Now’

[4] The authors of this paper examined the assumptions about administrative law that permeated the Kerr Committee, in order to identify the philosophical foundations of Commonwealth administrative law. It’s main goals were ensuring rule of the law and the correction of defective decisions. Over the next two decades, a third purpose of ensuring better decision making was formulated.

  • The Australian system of administrative law should be coherent, comprehensive and integrated.
    • The major proposal for achieving this outcome was the creation of a system of courts, tribunals and a General Counsel for Grievances, all playing separate but overlapping roles.
    • Many administrative decisions would be reviewable by more than one body, reflecting the high value the Committee placed on protection of the citizen against the improper exercise of public sector discretionary power.
  • Administrative tribunals should play the central role in review of administrative action.
    • In the minds of the Kerr Committee, merit review by administrative tribunals was the key to achieving administrative justice.
    • The law has not developed along this path, although the jurisdiction and caseload of tribunals has steadily expanded the judiciary tends to be viewed as the centre of the system.
  • The recommendation of independent external review agencies has been supplemented by internal review.
  • The idea that administrative law review should have a uniform national application to Commonwealth administrative decision-making has not been implemented completely, due to the lack of a uniform code of procedure.
  • The Committee thought that the review of administrative decisions should result from a challenge by an aggrieved individual.
    • Unlike the Auditor-General, who self-initiates most investigations and maintains a supervisory oversight of administrative conduct (however, the Ombudsman still has this power).

Tribunal framework in Australian jurisdictions

Commonwealth jurisdiction

[5] “The majority of the Australian community would not generally expect to have any involvement with courts. In stark contrast, the AAT is a place to which many Australians have access simply as part of conducting their business and professions, meeting their responsibilities and conducting their daily lives.”[6]

The turning point in the development of the Commonwealth tribunal system was a report of the Commonwealth Administrative Review Committee in 1971, which recommended the creation of the Administrative Appeals Tribunal (AAT).

  • The AAT was intended to replace may specialist tribunals that had been established ad hoc.
  • The AAT commenced operation in 1976 and has steadily grown in jurisdiction, now extending to more than 400 different Commonwealth enactments.
  • Major areas of AAT review include social security, veterans’ affairs, taxation, Commonwealth employees’ compensation and freedom of information.

At the beginning of the 1980s, a number of specialist tribunals were created so that high-volume areas of review could be dealt with in an informal and expeditious manner by specialists.

  • In their current form, these bodies include the Social Security Appeals Tribunal and the Veterans’ Review Board (both of which maintain a right of appeal to the AAT), as well as the Refugee Review Tribunal and the Migration Review Tribunal.

A 1995 proposal to amalgamate most existing Commonwealth tribunals into a new tribunal, to be called the Administrative Review Tribunal, was defeated in the Senate and never reintroduced. 2005 amendments to the AAT Act did however implement some of the objectives of this restructuring, including that:

  • The AAT is to “act in a manner that is speedy and efficient while being fair (s2A).
  • The tribunal can shorten a proceeding by limiting the facts, evidence or issues it will consider (s25(4A)).
  • The tribunal may rely on a wide range of alternate dispute resolution methods (Pt IV, Div 3).

The emphasis on pre-hearing dispute resolution processes is a feature of the AAT’s operations. Over 80% of applications are disposed of without a hearing and about half of the applications are resolved using the range of pre-hearing procedures.

New South Wales jurisdiction

[7] It was not until 1997 that a general jurisdiction merits review tribunal was established. The Administrative Decisions Tribunal Act 1997 (NSW) created the Administrative Decisions Tribunal (ADT) due to the costly proliferation of tribunals, the absence of consistency in tribunal procedures and concern about the independence of some existing tribunals.

  • The ADT has both civil and administrative jurisdiction.
  • The majority of its work relates to occupational licences, state taxation, access to government information or privacy and decisions of the Public Guardian or the Protection Commissioner who deals with property and financial matters.
  • The ADT’s Appeal Panel hears appeals from a division on a question of law and, with the leave of the panel, the merits of the decision.
  • The tribunal is required to give effect to any relevant government policy in force at the time the reviewable decision was made unless the policy would produce an unjust decision in the circumstances of the case (s 64).
  • The ADT is headed by a President who is also a District Court Judge.

Other prominent NSW bodies are the Land and Environment Court, which contains an integrated system of judicial review, merits review, conciliation, mediation, preliminary conferences and technical assessment; and the Consumer, Trader and Tenancy Tribunal which spans several specialist areas and is the busiest tribunal in the state.

Integration of Commonwealth, state and territory administrative review schemes

[8]The jurisdiction of most Australian tribunals is confined to issues arising under the laws of the local legislature, however, cooperative or integrated review schemes adopted by each legislature provide that appeals will go to a single tribunal.

  • Harmonisation of review rights also occurs, an example being the Commonwealth-State Housing Agreement 1990.
  • These moves towards integration were encouraged by the Hilmer Report in 1993 which proposed the removal of internal barriers to domestic competition and of inconsistent regulatory standards.
  • In 2002, a Council of Australasian Tribunals (COAT) was established to facilitate information exchange among tribunals, joint research and training, and development of national performance standards and model procedural rules.

Appeals

[9]A common aspect of the merit review framework in each jurisdiction is the right to appeal against a tribunal decision. In all jurisdictions legislation provides a right of appeal from its tribunals to the courts on a “question”, “error” or “matter” of law. (This should be contrasted with an issue of fact).

  • The High Court noted in Repatriation Commission v Owens that “the purpose of limiting an appeal to a question of law is to ensure that the merits of a case are dealt with not by the Federal Court but by the Administrative Appeals Tribunal. This distribution of function is critical to the administrative review process.”[10]

Merit review and other forms of statutory appeal

[11]Each system of appeal is created by a statute that determines the scope and form of appeal. As noted in Shi, it is also necessary to have regard to the legislation under which the appealable decision was made.[12]

  • In the absence of statutory indication to the contrary, an ‘appeal’ from an administrative tribunal to a court confers original, not appellate, jurisdiction, and is not confined to review for error of law.
  • Legislation will sometimes specify the form that an appeal will take but more commonly it will not define the scope of an appeal and therefore various principles and presumptions provide guidance, as discussed below.

In Coal and Allied,[13] the High Court explained the categories of appeal:

  • In the case of an appeal in the strict sense, an appellate court or tribunal cannot receive further evidence and its powers are limited to setting aside the decision under appeal and, if appropriate, to substituting the decision that should have been made at first instance.
  • In the case of a hearing de novo, the matter is heard afresh and the decision is given on evidence presented at that hearing.

The main point emphasised in Shi and Coal and Allied was that the extent of a statutory appeal must be discerned from the terms under each statute, taking into account the nature of the appeal body and the decision under appeal, the grounds of appeal and the powers of the appeal body. Two issues that arise prominently are:

1. Whether the appeal body can receive fresh evidence.
2. Whether the function of the appeal body is to correct error or to make a fresh determination.

Applicants A1 & A2 v Browner[14]

Facts: The Witness Protection Act 1991 (Vic) provided that a person who had been removed from the witness protection program by the Chief Commissioner of Police could appeal to the Director of the Office of Police Integrity. The decision was to be made within 72 hours of receiving the appeal.
Issue: What type of appeal is open to the review body?
Held: The Victorian Court of Appeal rejected the Director’s approach of examining whether the decision was one that was reasonably open to the Commissioner and held that the Director was to undertake a hearing de novo.
  • Factors that influenced the court’s decision were the gravity of a decision to remove a person from witness protection, the independent role of the Director and the Director’s power to make any decision that the Chief Commissioner could have made.

Tribunal independence of government

[15]The starting point of independent adjudication is the separation of powers which recognises the court’s independence from direct control by the legislature and the executive.

  • This independence is primarily protected by the security of tenure given to judicial appointees, conventions such as the court’s control of their own administration, budget and rule, and the government’s acknowledgement of the need for restraint in public discussion of the performance of judicial officers.

In contrast, tribunals are part of the executive branch of government; possessing a role akin to that of a government decision-maker, of appraising the merits of an administration decision, looking broadly at legal, factual and policy issues.

  • However, tribunals are expected to perform a court-substitute role and to exhibit impartiality and fairness. Public confidence could be undermined if tribunals were subject to government influence in the same direct way as other executive officers. They are subject to competing pressures of responsiveness and independence.
  • Tribunals often have features indicating they are designed to promote both institutional and individual independence, such as being headed by judges, acting in accordance with the rules of natural justice, immunity from being sued for things done in exercising power and full time members being precluded from taking other employment.
  • Chief Justice Gleeson cynically observed that “the only independence which some of these tribunals enjoy is the freedom to do whatever the government of the day wants them to do, and that they operate in practice as a method of distancing potentially unpopular decision-making from those who would take the responsibility for it.”[16]

Membership

How should tribunal members be appointed and what term of membership and conditions of appointment should they enjoy?

Tribunal members are (of necessity) appointed by an executive officer such as a minister. Some members have the same security of tenure as judicial officers, but more commonly the members (particularly part-time ones) are appointed for a fixed term only.

Management

How should a tribunal be managed and what relationship should exist between the tribunal and agencies whose decisions are being reviewed?

A tribunal should be housed separately from the agencies whose decisions it reviews and have some control over its own budget and staff. It is still contentious whether the portfolio responsibility should reside with the relevant agency or be associated with a neutral agency such as the ministry of justice. Individual tribunals now generally establish performance benchmarks for members.

Government policy

Should a tribunal decision be sensitive to the administrative context in which it occurs by taking account of – even aligning with – the policy environment?

This is a highly controversial issue. In several states, including NSW, there is a statutory mechanism by which a tribunal can be required to decide consistently with a government policy.

Merit Review – the concept and scope

[17]The Administrative Appeals Tribunal was the first of its kind, with a general jurisdiction to review a diversity of administrative decisions. It was assumed from the outset that decisions would be reviewed on their merits, and this position was endorsed by the High Court thirty years later in Shi. As noted by Kirby J in this case, the concept of merit review posed issues:

“According to whose view of the merits? What weight, if any should be given to the decision of the primary administrator...? Upon what evidence should the tribunal act? At what point in time are the ‘merits’ to be examined?”[18]

The AAT Act did not give much guidance on the range of issues that would inevitably arise in defining the concept of merits review, however, it was clear that the AAT was to be different from judicial review.

  • “Merits review by tribunals is considered to be categorically different from judicial review by courts, at least in procedural and remedial terms. Whereas the characteristic merits review remedy is to vary a decision or make a substitute decision, the characteristic judicial remedy is to set the decision aside and remit it for reconsideration.”[19]
  • Unlike judicial review, the AAT is not limited to material available at the time of the decision or limited to the power exercised or reasons given by the primary decision-maker.
  • The intended difference from courts is reflected in the statutory requirement to “provide a mechanism of review that is fair, just, economical, informal and quick.”
  • The distinction has often been expressed as that between inquisitorial and adversarial modes.

In a string of early cases, the AAT spelt out the implications of s 43 and other sections of the act, chief among these are that:

- The tribunal is reviewing a decision and not the reasons given for that decision.
- The tribunal is not generally restricted either to the case stated by the parties or to the material before the primary decision-maker.
- The tribunal is bound to apply the law but not required to decide consistently with executive policy.
- Neither party bears the onus of proving that the decision under review was prima facie right or wrong.
- The rules of judicial proceedings relating to pleadings and evidence are not to be transported into administrative review.

Re Greenham and Minister for Capital Territory[20]

Facts: Dr Greenham sought review by the tribunal of the high valuation of his Canberra residential property. He alleged it was susceptible to earthquake damage and had noise, access and security problems. The tribunal rejected these grounds of objection but found on other evidence that the valuation should be reduced to $27,000. The respondent minister argued that it would be inappropriate for the tribunal to substitute a new decision to that effect because it was going outside of the grounds argued by the applicant.
Issue: Can a tribunal go outside of the grounds argued by an applicant in making its decision?
Held: The emphasis in the Act is on reviewing a decision, in light of any reasons advanced by the applicant, together with any other facts, circumstances or considerations which are relevant to the decision and which emerge during the Tribunal’s consideration.
  • The tribunal should not be inhibited in its review function by any inadequacy in the expression of the reasons for review or lack of understanding by an applicant of the relevant issues.

Correct or preferable decision

The Federal Court’s decision in Drake (No 2) coined the phrase “correct or preferable” to define the scope of merit review. There has been general acceptance of the meaning of “correct” as referring to correct in law or fact. The meaning of “preferable” has been attributed to the context of discretionary decisions.

Drake v Minister of Immigration and Ethnic Affairs[21]

Facts: The Full Federal Court held that a tribunal had failed to properly perform its function by reason that it applied the minister’s criminal deportation policy without making an independent assessment of its propriety. The AAT had affirmed the minister’s decision.
Issue: Should a tribunal decide upon the facts before it or the facts before the primary decision maker?
Held: The question for the tribunal is whether that decision is the correct or preferable decision on the material before the tribunal.
  • The Tribunal is to satisfy itself whether the decision under review “was objectively the right one to be made” not whether it was a decision “which an administrator acting reasonably might have made.”

Shi v Migration Agents Registration Authority[22]

Facts: Mr Shi was a migration agent whose registration had been cancelled in 2003 on the basis that he had breached codes of conduct. The AAT set aside the decision and substituted a new one, relying on evidence of Mr Shi’s changed conduct between 2003 and 2005.
Issue: Could the Tribunal rely on evidence that arose after the primary decision?
Held: It was for the Tribunal to reach its own decision upon the relevant material including any new, fresh, additional or different material that had been received by the Tribunal as relevant to its decision.
  • Administrative decision-makers are generally obliged to have regard to the best and most current information available.
  • The nature of the decision does not support the contention that review was limited to the particular time in the past when the decision was made by the primary decision-maker.
  • The Tribunal has been said to stand in the shoes of the original decision-maker as though it were performing the same function.

Re Visa Cancellation Applicant and Minister for Immigration and Citizenship[23]

Facts: The AAT reviewed a discretionary decision to cancel an applicant’s visa on character grounds.
Issue: The meaning of “correct or preferable”.
Held: The Tribunal is exercising a general discretion and there will remain a judgement as to whether the balance ultimately tips one way or the other.
  • The essential characteristic of a discretionary decision is that there will be alternatives which will be equally lawful.
  • Discretion does not imply a subjective test. Often the only clearly applicable measure or touchstone is the public interest. This employs reference to community standards or values, not the decision-maker’s personal or idiosyncratic view.
    • This may be difficult in our plural society but it should be kept in mind that community values do not depend on transient or fashionable thinking but on more permanent values. They will be informed by legislation of the parliaments.

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd[24]

Facts: A company sought review of the decision to revoke a warehouse licence, contending that the Customs Act did not expressly or impliedly confer power on the Collector of Customs to revoke a licence.
Issue: Is an administrative tribunal confined to issues of fact and policy or can it examine whether the decision under review was lawfully made?
Held: The AAT did have the power to review whether a decision was lawfully made as well as examining issues of fact and policy.

Contemporaneous Review

[25]A key aspect of merit review is that, unless statute indicates otherwise, the tribunal looks at the matter anew, according to the facts and circumstances as they exist at the date of review.

  • Once appealed to a merit review tribunal, the decision becomes the responsibility of the tribunal and the agency does not have any independent authority to alter or tamper with the decision at that stage.
    • This principle was outlined in Re Bloomfield; “it is not open to a decision-maker to purport to revoke, vary or otherwise amend a decision once it has become subject to the process of review...”[26]
  • The ability of the tribunal to receive and act on new material is central to its capacity to make the “correct or preferable” decision.
    • However, there may be a temporal element to the decision. For example, in Shi the Federal Court treated the power to cancel the registration of a migration agent as a disciplinary power that was exercisable when an agent’s conduct fell short of the required standard therefore it did not admit evidence of later conduct as the High Court did.
    • Decisions dealing with the entitlement to social support benefits illustrate a temporal element because “a decision cancelling a pension or benefit brings to an end the entitlement [which] only revives on the lodgement of a proper claim for the grant of the pension or benefit.”[27]
  • An intervening change in the law can arise when legislation to be applied by a merit review tribunal is amended while a matter is before a tribunal. Commonly the amending law will contain a transitional provision that states whether the new provisions apply to proceedings that are underway.
    • If not, the tribunal will decide the case by reference to the facts and matters (including the law) as they stand at the date of the tribunal’s decision (Kavvadias v Commonwealth Ombudsman).[28]

Esber v Commonwealth[29]

Facts: Mr Esber received weekly compensation under the “1971 Act,” Section 49 of which provided that the Commissioner for Employee’s Compensation, upon application by the recipient, could pay a lump sum to the recipient to redeem the weekly payments if it was “particularly advantageous” to the recipient. Mr Esber’s request was refused and he appealed to the AAT. After the appeal was lodged but before the tribunal conducted a hearing, the 1971 Act was repealed by the 1988 Act, which did not contain a similar provision to Section 49.
Issue: Should the tribunal consider the appeal under the 1971 or 1988 Act?
Held: The High Court held (by majority) that Mr Esber’s application was to be determined under the 1971 Act. Section 8 of the Acts Interpretation Act was relied upon:

“Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not...

(c) affect any right, privilege, obligation or liability acquired or accrued or incurred under any Act so repealed; or...
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation...

Procedure and Evidence – their role in merit review by administrative tribunals

[30]The integration between procedural and substantive features of tribunals is central to fulfilling their function of making the correct or preferable decision in any disputed context. Procedure should be flexible and is not intended to be adversarial. According to the Administrative Review Council the merits review system should have several specific objectives:[31]

- Providing applicants with the correct and preferable decision in the individual case.
- Improving quality and consistency of decision-making through a normative effect and taking into account review decisions in the creation of agency policy and legislation.
- Providing accessibility (cheap, informal and quick) and being responsive to the needs of the person using the system.
- Enhancing the openness and accountability of government.

Tribunal procedure is still often subject to the legal rules established by courts, therefore:

  • A tribunal decision can be set aside if it flouts natural justice, if there is no evidence to support a finding by the tribunal or if an irrelevant consideration is taken into account.
  • A tribunal is closer to the judicial rather than the executive end of the spectrum and is therefore expected to meet high standards of natural justice. This is reflected in the decision to apply litigation privilege to the AAT (although it might not apply in other tribunals, dependent on their nature).[32]

Common structural models for tribunal procedure

[33]The statute creating a tribunal will be the first point of reference in ascertaining its procedure. Often there will be special specific procedure to be followed in the case of the particular tribunal, however, it is possible to generalise and say there are proto-typical models that influence the legislative design of Australian tribunals.

  • “There is no one level of formality or informality which is appropriate for all cases... a structured form of hearing, ordered, orderly and dignified, leaves plenty of room for informality. Equally there is room for patience with the difficulties of, and kindness to, applicants, respondents and their representatives...”[34]
  • Bedford and Creyke believe that “Generally speaking tribunals so not operate in an inquisitorial fashion. The culture of adversarialism in Australia is too strong... the trend in contested proceedings, particularly when parties are represented, is for the parties to behave much as they would in a courtroom.”[35]
  • The Commonwealth Legal Services Directions impose a binding obligation on agencies to act as model litigants in courts, tribunals and alternative dispute resolution. They are required to avoid legal proceedings by engaging in alternative dispute resolution where possible.

The models outlined below are not mutually exclusive and different methods may be used by the same court in different disputes or at different stages of a dispute.

Adversarial adjudication

  • In this model the primary role of the tribunal is to resolve the dispute as presented by the parties.
  • Parties are chiefly responsible for defining the issues, assembling and presenting evidence and making submissions to the tribunal.
  • Parties often have legal representation.
  • The hearing is all important.
  • The AAT exhibits many adversarial features, however, it also relies heavily on directions hearings, preliminary conferences and attempts to resolve disputes through settlements and alternative dispute resolution procedures. This is often referred to as the “case management” or “conference system” model.

Non-adversarial and inquisitorial dispute resolution

  • The respondent agency will often not make an oral presentation to the tribunal and instead will provide it with a file of evidence and submissions.
  • The tribunal plays a more active role in identifying evidence for the parties to find or obtaining evidence through its own research.
  • The Refugee Review Tribunal has its own research unit which compiles “country information” on the political and social environment in other countries.
  • Tribunal members may draw heavily on their own specialist knowledge or experience in the area, for example, former departmental officers and medical specialists appointed to the Social Security Appeals Tribunal.
  • Another inquisitorial procedure, which is used by the Migration Review Tribunal, is the case officer procedure, where an application for review is initially handled by a case officer who will prepare a briefing for the tribunal that outlines the issues in dispute, identifies points on which evidence may be needed and makes recommendations on the further course of proceedings.

Decision on the papers

  • A tribunal may examine a file of written argument and evidence to gauge whether ‘on the papers’ the tribunal is disposed to make a decision that is most favourable to the applicant for review.
  • The AAT can determine an issue on the papers if it has the consent of the parties.

Alternative dispute resolution

In the Commonwealth AAT, over 80% of cases are resolved without the need for a formal contested hearing.
  • Procedures include conferencing, mediation, neutral evaluation, case appraisal and conciliation (but not arbitration).

Statutory guidance

See textbook pp 181-2 for legislation extracts which illustrate the expectation that a tribunal should not be confined by the rules of procedure and evidence observed by courts.

The conduct of proceedings and the role of the parties

[36]The AAT has noted that it “does not have the resources to be a fully inquisitorial body, but it has a duty to seek out information which it regards as necessary for the decision of the case in hand...”[37] How far this duty to seek information is taken will depend on the nature of the issue before the tribunal and the course of proceedings in a particular case.

Sullivan v Department of Transport[38]

Facts: Major Sullivan had applied to the AAT for review of a decision not to renew on medical grounds his commercial pilot’s and radio telephone operator’s licences. He was unrepresented at the hearing. He appealed to the Federal Court on the ground that the tribunal had erred by not offering him an adjournment to call a medical practitioner.
Issue: The adjournment of tribunal proceedings and the scope of the tribunal’s obligation to elicit relevant evidence or conduct its own inquiries.
Held: The Federal Court held that the tribunal did have a duty in an appropriate case to consider whether to grant an adjournment but it had adequately discharged that duty in this case.
  • The relevant section of the AAT Act was section 39, that “the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his case.”
  • If a self-represented party does not ask for assistance or guidance, the Court warned that undue interference with the way the person conducts their case may be counter-productive and overawe or distract the person – leading to a failure to extend them an adequate opportunity to present their case.

Evidence, fact-finding and onus of proof

[39]Tribunals are not bound by the same standards of proof as courts, however, there is a question of whether tribunals should nevertheless meet a more rigorous standard of fact-finding than a primary decision-maker. If so, how should this standard be defined?

Re Pochi and Minister for Immigration and Ethnic Affairs[40]

Facts: Mr Pochi appealed against a decision to deport him under the minister’s power in the Migration Act to deport a non-citizen who had been convicted and sentenced to imprisonment for one year or more. Mr Pochi had been convicted of the supply of marijuana while cultivating a 30-acre plantation. Before the tribunal, the minister sought to establish that Mr Pochi had played an entrepreneurial role in the cultivation that went beyond the facts of his conviction. The minister relied on the significant short-term increase in Mr Pochi’s wealth, the inadequate explanation given for the source of that wealth, his association with other people convicted of similar offences and camera evidence (partly hearsay) given by a police officer.
Issue: What evidentiary standards are appropriate for a tribunal?
Held: The Tribunal is equally as free as the Minister in his original investigations, to disregard formal rules of evidence but this flexible procedure should not go as far as to justify orders without a basis in evidence having rational probative force.
  • There is a tension between ensuring that rules of evidence don’t ‘creep in the back door’ and ignoring all rules of evidence, which “represent an attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth.”
  • The evidence was not sufficient to warrant a positive finding that Mr Pochi was involved in commerce in marijuana, only to found a suspicion. A suspicion was inadequate given the seriousness of a deportation order.

Minister for Immigration and Ethnic Affairs v Pochi[41]

Facts: The Full Federal Court dismissed an appeal by the minister against the AAT’s decision in the above case.
Issue: What evidentiary standards are appropriate for a tribunal?
Held: “The basis for sustaining the deportation order should be established, on the balance of probability, to its satisfaction by some rationally probative evidence not merely raised before it as a matter of suspicion or speculation or left, on the material before it, in the situation where the Tribunal considered that, while the conduct may have occurred, it was unable to conclude that it was more likely than not that it had..”
  • This “probative evidence rule” has not been accepted in cases following Pochi.

McDonald v Director-General of Social Security[42]

Facts: The court dismissed an argument that the AAT, in reviewing a decision to cancel Ms McDonald’s invalid pension on the basis that she was not permanently incapacitated for work, had wrongly imposed a burden of proof on Ms McDonald.
Issue: What onus of proof is appropriate for a tribunal?
Held: A tribunal should not require one of the parties before it to discharge a burden of proving or disproving a fact in contention (unless prescribed by statute), rather the tribunal shoulders the responsibility of being reasonably satisfied.
  • A tribunal faces practical problems such as the sequence of receiving evidence and what to do if it is unable to reach a clear conclusion on an issue but it is more likely to find the answer to these questions in the statutes under which it operates or in considerations of natural justice or common sense, than in the technical rules developed by courts.
  • It is not helpful to categorise this common sense approach to evidence as an example of an evidential onus of proof, (although there is still a need to persuade and present evidence).

Epeabaka v Minister for Immigration and Multicultural Affairs[43]

Issue: What onus of proof is appropriate for a tribunal?
Held: The Tribunal must simply listen to all of the evidence and decide the case on the basis of that evidence. The Court rejected the probative evidence principles in Pochi and expanded on the reasoning in McDonald.
  • The tribunal could simply approach the matter solely by reference to “natural justice and common sense” but it is more likely to arrive at the correct or preferable decision if its obligation is to determine the facts in accordance with the civil standard (balance of probabilities) except in respect of those matters where the nature of what must be decided makes this inappropriate.
  • The rule in Bringinshaw v Briginshaw[44] was invoked – the tribunal must feel an actual persuasion. “Reasonable satisfaction” should not be produced by inexact roofs, indefinite testimony or indirect references.

Administrative Tribunals and Government Policy

[45]If a tribunal is constitutionally part of the executive branch and stands in the shoes of the decision-maker, should it wear those shoes faithfully and deal with administrative policy with the same attitude as the decision-maker? Or should the tribunal, as an adjudicative body, lean towards the judicial perspective, and give pre-eminence to the justice of the individual?

Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[46]

Facts: The applicants challenged a deportation order which the AAT had affirmed on the grounds that it had not made an independent assessment of the policy adopted by the minister, under which the original decision was made.
Issue: Applying policy.
Held: An unreflective application of executive policy by a tribunal is an abdication of its function reach a ‘correct or preferable decision’ on the merits of the case. The propriety of applying policy should be assessed in each case. Brennan J came to a different conclusion, laying stress on the responsibility of a tribunal ordinarily to apply a general policy that was lawfully adopted by a minister, and to depart from the policy only cautiously and sparingly when there is a ‘cogent’ reason for so doing.

Re Goodson and Secretary, Department of Employment, Education, Training and Youth Affairs[47]

Facts: To be eligible for youth training allowance a person was required to enter into an activity agreement with the department. The tribunal received evidence that officers in the department had instructions to treat failure to attend an interview as a breach of this agreement if the only explanation given was that the person had not received the letter.
Issue: Blanket policy may equate to failure to exercise discretion.
Held: There are legitimate reasons why a person may not receive their mail.
  • It is also a blanket rule which removes discretion by ruling out whole categories of people and the policy is not relevant to the decision being made about whether the person is seeking work.
  • A policy can be rejected on the grounds that it is unjust.

Re Jetopay Pty Ltd and Australian Fisheries Management Authority[48]

Facts: Jetopay was dissatisfied with the fishing quota allocated to it under an operation plan adopted by the Fishing Management Authority. The tribunal held that it could exercise the discretion of the authority to increase the quota but decided not to on the evidence presented.
Issue: Should the Tribunal respect or follow the policy of the original decision-maker?
Held: An expert body created the policy, which was extensively researched and involved polycentric considerations. A tribunal should be cautious in departing from such policy as a decision is likely to affect third parties.
  • Tribunals don’t generally interfere with small parts of polycentric decision-making.

Hneidi v Minister for Immigration and Citizenship[49]

Facts: Dr Hneidi appealed against an AAT decision to deny citizenship on the grounds that the AAT had given too much weight to a policy which was not expressly endorsed by the minister. The appeal was rejected.
Issue: Weight given to different types of policy.
Held: There is no doctrine which provides that policy should be given different weight according to the status of the policy-maker e.g. departmental versus ministerial. Departmental or ‘low’ policy often provides guidance and consistency and is not “political” in nature.



End

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References

Textbook refers to R Creyke & J McMillan, Control of Government Action: Text, Cases and Commentary, 3rd ed, 2012.

  1. Textbook, pp 252-3.
  2. ARC, Internal Review of Agency Decision Making, Report No 44 (2000).
  3. Textbook, pp 24.
  4. Textbook, pp 27.
  5. Textbook, pp 136-8.
  6. S Forgie, ‘Commonwealth Tribunals: Past, Present and Future’ Paper presented at the Queensland Law Symposium, 3 March 2000.
  7. Textbook, pp 138-9.
  8. Textbook, pp 141-42.
  9. Textbook, pp 142-3.
  10. (1996) 70 ALJR 904.
  11. Textbook, pp 172.
  12. (2008) 248 ALR 390.
  13. Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission, (2000) 203 CLR 194.
  14. (2007) 16 VR 612.
  15. Textbook, pp 143-6.
  16. Quoted in R Tracey, ‘Administrative Tribunals: Some Emerging Issues” (1990) 74 Victorian Bar News 34 at 35.
  17. Textbook, pp 151-4.
  18. (2008) 248 ALR 390.
  19. Peter Cane, “Judicial Review in the Age of Tribunals” (2009) Public Law 479.
  20. (1979) ALD 137 AAT.
  21. (1979) 46 FLR 409.
  22. (2008) 248 ALR 390.
  23. [2011] AATA 690.
  24. (1979) 41 FLR 338.
  25. Textbook, pp 166-70.
  26. Re Bloomfield and Sub-Collector of Customs, ACT (1981) 4 ALD 204.
  27. Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 at 675.
  28. (1984) 1 FCR 80.
  29. (1992) 174 CLR 430.
  30. Textbook, pp 176-82.
  31. “Better Decisions: Review of Commonwealth Merits Review Tribunals” Report No 39, 1995.
  32. Re Farnaby and Repatriation Commission (2007) 97 ALD 788.
  33. Textbook, pp 177-180.
  34. Re Hennessy and Secretary to Department of Social Security (1985) 7 ALN N113 AAT.
  35. N Beford & R Creyke, Inquisitorial Processes in Australian Tribunals, Australian Institute of Judicial
  36. Textbook, pp 184-7.
  37. Re Rowlands and Commissioner for Superannuation (1988) 16 ALD 589 at 600.
  38. (1978) 20 ALR 323.
  39. Textbook, pp 187-195.
  40. (1979) 2 ALD 33.
  41. (1980) 44 FLR 41.
  42. (1984) 1 FCR 354.
  43. (1997) 150 ALR 397.
  44. (1938) 60 CLR 336.
  45. Textbook, pp 709-24.
  46. (1979) 2 ALD 634.
  47. (1996) 42 ALD 651.
  48. (1993) 32 ALD 209.
  49. [2010] FCAFC 20.
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