Developments in Administrative Tribunals in the Last Two Years

Published date01 September 2001
DOI10.22145/flr.29.3.6
AuthorMurray Kellam
Date01 September 2001
Subject MatterCommentary
ORIGINALISM IN CONSTITUTIONAL INTERPRETATION COMMENTARY
DEVELOPMENTS IN ADMINISTRATIVE TRIBUNALS IN
THE LAST TWO YEARS
The Hon Justice Murray Kellam*
I have been asked to provide you with an update on the developments in
administrative tribunals during the past two years. I will refer briefly to the
developments in the Commonwealth sphere and in greater depth to the developments
of judicially led amalgams in New South Wales and Victoria. I will discuss the
question of what, if any, benefits have been derived in Victoria from the new approach
taken there. I propose then to discuss some of the ways in which tribunals can improve
their performance within the structure provided to them.
Over the last 25 years there has been significant growth in the number and variety
of tribunals servicing the community both in Victoria and throughout Australia.
Tribunals were established during this period as specialist bodies to deal with a variety
of issues as particular needs arose. It has always been the intention of Parliaments that
such Tribunals be relatively informal, cost effective, efficient and by comparison with
Courts would have the ability to apply specialist knowledge to the issues before the
Tribunal.
However, at least in Victoria and New South Wales, the development of a large
number of Tribunals was piecemeal and responsive to ad hoc issues seen by
Parliament to be relevant at the time of the commencement of such Tribunals. It was
argued in both States that an undisciplined proliferation of tribunals led to a number of
undesirable consequences including duplication of administrative infrastructure,
inconsistency of approach and unduly narrow specialization by some tribunals. In
particular, it was argued that tribunal members were insufficiently independent of the
Executive.
A discussion paper entitled Tribunals in the Department of Justice: A Principled
Approach was distributed widely throughout Victoria in October 1996 and numerous
submissions were made to it. The paper in question proposed an improvement to the
tribunal system by the creation of a large judicially-led amalgamation of tribunals. It
_____________________________________________________________________________________
*
President of the Victorian Civil and Administrative Tribunal. This is an edited version of a
paper presented at the Centre for International and Public Law, Annual Public Law
Weekend, 10-11 November 2000

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Volume 29
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was argued that small tribunals dealing with specialist areas were not sufficiently
accessible, efficient or cost-effective. It was argued that a large tribunal would:
• improve access to justice;
• facilitate the use of technology;
• complement measures to increase the use of alternative dispute resolution
programmes;
• streamline the administrative structures of tribunals;
• develop and maintain flexible cost-effective practices;
• introduce common procedures for all matters yet retain the flexibility to recognize
the needs of parties in specialised jurisdictions;
• achieve administrative efficiencies through the centralization of registry functions;
and
• achieve more efficient use of tribunal resources.
It should be noted that the amalgamation of Commonwealth Tribunals is said by the
explanatory memorandum to the Administrative Review Tribunal Bill 2000 to be for
similar reasons.
It was argued, too, that tribunals had been insufficiently independent and
inconsistent. I can speak only for Victoria in this regard but many of the criticisms of
the proliferation of tribunals in Victoria were justified. This is not a criticism of the
membership of those tribunals but a criticism of the structure and a criticism of the
way in which governments treated such tribunals. In the years leading up to the
creation of Victorian Civil and Administrative Tribunal (VCAT) it was not uncommon
for there to be a perception of political interference with tribunals by the appointment
of members who were known by the government of the day to have a viewpoint of a
particular type. Tribunals were perceived as an appropriate dumping ground for
unwanted public servants or as places where some friend of the government of the day
might be appointed. For example, it was not unknown in Victoria for a
parliamentarian who had lost a seat in an election to be soon afterwards appointed to a
tribunal. It was not uncommon for the terms of membership of tribunals not to be
renewed for reasons which were not explained but which were clearly not perceived to
be related to issues of merit.
Another matter of concern has been the insidious depreciation of the value of
remuneration paid to tribunal members. In Victoria only one increase in remuneration
has occurred in the last nine years.
The discussion Paper suggested that longer terms of appointment for tribunal
members and senior judicial leadership would improve these areas of tribunal concern.
THE JUDICIALLY LED AMALGAM
It is interesting to note that arguably the two most significant reforms which have
taken place in recent years, the tribunals systems of Victoria and New South Wales, are
judicially led amalgams. This process commenced in Victoria with the creation of a
judicially led administrative review tribunal, the former Victorian AAT, in 1984. In
many ways the Victorian AAT at the time of its creation was a copy of the
Commonwealth Administrative Appeals Tribunal. That model of the judicially-led
administrative review tribunal has been taken a step further in both New South Wales

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Administrative Tribunals in the last two years
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and Victoria by the inclusion of jurisdictions other than those of administrative review.
A variation on the theme exists in South Australia where administrative review is
carried out under the auspices of the District Court.
ADMINISTRATIVE DECISIONS TRIBUNAL OF NEW SOUTH WALES
In October 1998 the Administrative Decisions Tribunal (ADT) commenced operation in
New South Wales. That Tribunal incorporates the functions of the former Legal
Services Tribunal, the former Equal Opportunity Tribunal, the former Community
Services Appeals Tribunal and in addition has a substantial administrative review
jurisdiction including the hearing and determination of Freedom of Information Act 1982
(Vic)appeals. Formerly these appeals were heard in the District Court. The ADT
continues to accrue jurisdiction with its Community Services Division and Retail
Leases Division which both commenced last year.
By the amalgamation of tribunals the New South Wales Government aimed to
promote a more efficient and effective tribunal justice system. In the course of
introducing the legislation the Attorney-General for the State of New South Wales, the
Honourable J W Shaw said: 'The growth of tribunals has fragmented responsibility for
determining legal rights, leading to a lack of consistency and in some cases arbitrary
decision making. It may also lead to poor resource allocation in relation to decision
making.'
These were the same arguments as those which led...

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