Tribunals: Divergence and Loss

DOI10.22145/flr.29.3.5
Date01 September 2001
Published date01 September 2001
Subject MatterArticle
TRIBUNALS: DIVERGENCE AND LOSS
Robin Creyke*
It is clear that tribunals are a permanent feature of the administrative law landscape.
The concept of merit review of administrative decisions by bodies other than courts1
has survived initial resistance from the executive,2 distrust by the courts,3 the
managerialist pressures of the 1980s, and the downsizing, outsourcing movements of
the 1990s.4 As Pearce commented,5 the recommendation in the Better Decisions report
in 19956—the most comprehensive examination of the Commonwealth's merit review
system since the 1970s—that merits review tribunals should be retained, albeit in a
more integrated structure, is evidence of that acceptance. The Coalition Government,
not without some struggle,7 broadly accepted that recommendation and the results, in
the Administrative Review Tribunal Bill 2000 (ART Bill) and the Administrative
Review Tribunal (Consequential and Transitional Provisions) Bill 2000 (ART (CTP)
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* Reader in Law, Law Faculty, Australian National University, Special Counsel to Phillips
Fox Lawyers.
1 There is no agreed definition of a tribunal. The term 'tribunal' is not a term of art. For
discussion of the definitional difficulties see L Curtis, 'Agenda for Reform: Lessons from
the States and Territories' in R Creyke (ed) Administrative Tribunals: Taking Stock (CIPL,
1992) 34; ALRC Review of the adversarial system of litigation: Federal tribunal proceedings IP 24
(1998) paras 2.2-2.9. For the purposes of this paper, tribunals refers to those bodies other
than courts which make or revie w administrative decisions.
2 H Whitmore, 'Administrative Law in the Commonwealth: Some Proposals for Reform'
(1972) 5 FLRev, 7.
3 Despite earlier antipathy in Victoria (P Bayne, 'Dispute about tribunals' (1990) 64 ALJ 494)
the then Victorian Attorney-General, the Hon Jan Wade said in the Second Reading Speech
for the Victorian Civil and Administrative Tribunal Bill that tribunals 'are now considered
to be an integral part of the Victorian justice system' (Parliament of Victoria, Legislative
Assembly Hansard Debates 9 April 1998, 972).
4 There were apparently proposals to abolish the AAT altogether (M Neave, 'Bureaucratic
Rationality Versus Individualised Justice—New Developments in Australian Federal
Administrative Review Tribunals' paper presented at the Conference on Best Practices in
Administrative Justice, Canadian Council of Administrative Tribunals, Vancouver, October
1999, n 4).
5 Emeritus DC Pearce, unpublished address at Parliament House, Canberra, 1996.
6 Administrative Review Council Report No 39 Better Decisions: review of Commonwealth
merits review tribunals (1995).
7 R Creyke, 'Whither the Review System?' in R Creyke and M Sassella Targeting,
Accountability and Review: Current Issues in Income Support Law (1998) CIPL, fn 12.
404 Federal Law Review Volume 29
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Bill) attest to that response.8 Such a development shows how far we have come in
twenty five years.9 In the States and Territories, there has been the same process of
slow acceptance followed by expanded use of tribunals, many of them dealing with
work previously done by courts.10
What has led to this position? Tribunals have certain characteristics, which often
given them advantages over the courts. As the Franks Committee in the United
Kingdom noted in the 1950s, these include 'cheapness, accessibility, freedom from
technicality, expedition and expert knowledge of their particular subject'.11 To that list
should be added tribunals' flexibility–a feature illustrated by the disparate variety of
tribunals, generically described, in Australian society,12as well as those features
described in the following passage:
The arguments for establishing tribunals to deal with certain categories of dispute
rather than giving jurisdiction to the ordinary courts have variously been based on
constitutional arguments, lack of resources of the court system to deal with new and
potentially huge case loads, claims of class bias in the courts, and the positive benefits
of tribunals over ordinary courts in terms of their speed, economy, informality and
expertise.13
Macauley lists the reasons for the growth of administrative bodies as:
the volume of government intervention in the private and public sector;
the complexity of government programs and initiatives;
the need to ensure flexibility in the daily administration of government operations;
the ability to relieve ministers of sensitive political decision-making by placing
issues in a non-political setting;
the need to create a readily accessible, informal public hearing forum.
the chance to provide a specialized, highly detailed, technical response on a case
by case basis; and
the impracticality of adding routine administrative matters to the heavy caseload
of the courts.14
Tribunals have been set up for one or more of those reasons in every Australian
jurisdiction. This paper will not explore the rationale for tribunals, but instead will
focus solely on the style and operation of these decision-making and adjudicative
bodies. The first part of the paper assesses whether differences are emerging between
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8 The Bills were defeated in the Senate on 24 February 2001. That defeat does not mean that
the Coalition Government will not persevere with its attempt to reform the
Commonwealth review tribunal system. However, that renewed effort may rely on use of
executive rather than legislative power.
9 Emeritus DC Pearce, unpublished address at Parliament House, Canberra, 1996.
10 P Sallman, Richard T Wright Going to Court: A Discussion Paper on Civil Justice in Victoria
April 2000, 36.
11 Franks Committee Report of the Committee on Administrative Tribunals and Inquiries (1957)
Cmnd 218, 9.
12 ALRC Review of the adversarial system of litigation: Federal tribunal proceedings IP 24 (1998) 19-
20.
13 H Genn, 'Tribunals and Informal Justice' (1993) 56 The Modern Law Review 395.
14 R W Macauley, Practice and Procedure Before Administrative Tribunals Vol 1 Toronto,
Carswell, 1997, 1-2.

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