The Administrative Appeals Tribunal is being criticized for being too similar to the court. How is this the case and what can be done

The constitutionality of the AAT is also in question. The appointment of judges to administrative tribunals may give rise to constitutional problems as the AAT is treated for separation of powers purposes as an arm of the executive and it is arguable that the Commonwealth may not legislate to provide for judges to be members of the Tribunal. The constitutionality of the AAT was attacked in Drake v Minister for Immigration and Ethnic Affairs (1976) 46 FLR 409. in that case, the Full Federal Court held that it was not constitutionally impermissible for a Federal Court judge to be president of the AAT. It was not a case of administrative powers being conferred on a judicial officer, but who, in exercising powers under the Act, was doing so in a personal, non-judicial capacity. In 1996, the High Court rejected the proposition that people who are judges can also be appointed to perform administrative tasks: Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1, its reasoning being that the performance of some administrative tasks would be incompatible with judicial independence, since the public might confuse the judge acting in a non-judicial capacity with the judge acting in a judicial capacity. There was no suggestion that presidency of the AAT would be incompatible with judicial independence. However, among the government’s justifications for legislation under which the president of the proposed ART would not have to be a judge was the existence of doubts as to the constitutionality of the arrangement. Given that the proposed ART appears to be subject to a greater degree to executive control than the AAT, these doubts may be well-founded.

HOW DOES THE TRIBUNAL ACT LIKE A COURT?

In determining whether a tribunal is a judicial body the facts that it has been appointed by a non-judicial authority, that is has no power to administer an oath, that the chairman has a casting vote, and that third parties have power to intervene are immaterial, especially if the statute setting it up prescribes a penalty for making false statements; elements to be considered are:

1. The requirement for a public hearing, subject to a power to exclude the public in a proper case, and
2. A provision that a member of the tribunal shall not take any part in any decision in which he is personally interested, or unless he has been present throughout the proceedings.

A tribunal is not necessarily a court in the strict sense of exercising judicial power merely because:

1. It gives a final decision,
2. It hears witnesses on oath,
3. Two or more contending parties appear before it between whom it has to decide,
4. It gives decisions which affect the rights of subjects,
5. There is an appeal to a court, and
6. It is a body to which a matter is referred by another body.

As such, there are many powers and litigation requirements of a court which make it much more formal than the Tribunal even though it employs many of the same functions of the court.

DISADVANTAGES OF TRIBUNALS

There may, for example, be disadvantages in leaving powers of decision about particular cases to Ministers, unless decision have to be taken in the light of considerations of local and national policy (as with many town planning decisions), or unless the maintenance of uniformity in decision is thought to be of paramount importance, or unless departmental decision-making has given general satisfaction to those concerned. Where these considerations do not apply a tribunal may be established instead: the decision of a tribunal is more likely to be determined by the weight of the evidence adduced at the hearing, and justice is manifestly seen to be done.

A tribunal may be preferred to an ordinary court because its members will have specialized knowledge of the subject-matter, because it will be more informal in its trappings and procedure, because it may be better at finding facts, applying flexible standards and exercising discretionary powers, and because it may be cheaper, more accessible and more expeditious than the High Court. Many of the decisions given to tribunals concern the merits of cases with relatively little legal content, and in such cases a tribunal, usually consisting of a legally qualified chair and two experts, may be preferred to a court. It is, however, unrealistic to imagine that technicalities and difficult legal issues can somehow be avoided by entrusting the administration of complex legislation to tribunals rather than the courts. 

The Franks Committeee considered that “tribunals should properly be regarded as machinery provided by Parliament for adjudication rather than as part of the machinery of administration”, and it made a number of detailed recommendations (most of which have been implemented to achieve that object and to improve the procedure at statutory inquiries that preceded a ministerial decision. The Franks Committee sought the qualities of “openness, fairness and impartiality” in tribunals. Since then there have been added the quests for efficiency, expedition and economy.

Tribunals have not been forced into a strait-jacket of uniformity, but their essentially adjudicatory role has been emphasized by rules underlining their independent status, ending undue informality, regularizing procedures, requiring them to give reasons when requested and, in general, providing for appeals to the High Court on points of law from tribunals of last resort.

Procedure inquiry rules lay down a number of procedural safeguards for participants at inquiries, incuding the right to know the opposing case in advance; the publication with reasons of the inspectors’ reports (and reasons given for the Minister’s disagreement in such cases); the right of representation; and provision for the appearance at the inquiry of third parties. As we shall see, the requirements of a fair hearing in common law may at times supplement these statutory requirements.

ADVERSARIAL vs. INQUISITORIAL

In most cases such decision-makers draw upon expertise gained prior to their appointment but, in Muin v Refugee Review Tribunal, Hayne J noted that decision-makers might develop expertise through the performance of their duties which, in that case, included assessments of the social and political conditions in nations from which applicants had fled or might face again if returned. According to Hayne J:

“members were obviously expected to develop and rely on knowledge of affairs in the countries from which claimants come. It may very well be, therefore, that, as individual tribunal members heard accounts given to them by a series of applicants for protection visas who came from a particular country, and as those tribunal members read more widely about the country concerned, they developed a body of knowledge upon which their views about the country were formed.”

Hayne J made these comments in support of his dissenting view that Mr Muin had received a sufficient opportunity to address adverse material. The majority’s conclusion to the contrary was not inconsistent with the above comments, but highlights the close connection of this issue with the treatment of adverse material/conclusions and the manner in which adversarial/inquisitorial ideal types are used to justify an aspect of procedure. Hayne J emphasized that the proceedings were not adversarial, and that the tribunal was not to be cast in the role of contradictor. We suggest below that the caracterisation of procedure as adversarial or inquisitorial bears mainly on the timing and manner of the requiremtn to disclose. Arguably, inquisitorial process requires more extensive disclosure, albeit at a later stage, in order to compensate for lack of prior notice of the issues to be addressed. Without that, there may be considerable scope for the “dangerous freedom” noted by the United States Court of Appeals (9th cir) (and quoted with approval by McHugh J):

“A case before an administrative agency, unlike one before a court, ‘is rarely an isolated phenomenon, but it is rather merely one unit in a mass of related cases… [which] often involve fact questions which have frequently been explored by the same tribunal’…

But the administrative desirability of [official] notice as a substitute for evidence cannot be allowed to outweigh fairness to individual litigants. Unregulated notice, even of legislative facts, gives finders of fact ‘a dangerous freedom’.

IS THE TRIBUNAL TRULY INQUISITORIAL?

Criticisms of the AAT’s excessive use of adversarial procedures lose some of their strength in light of the Tribunal’s statutory directions contained in s33(1)(b) and (c) of the AAT Act. In exercising these statutory directions, the AAT attempts to implement an “inquisitorial”, rather than an “adversarial” approach, to finding the truth behind matters. The use of these inquisitorial powers are based on the assumption that “the Tribunal should never permit parties to place it in the position of deciding a case on an artificial or inadequate factual basis”. These powers presuppose the non-conflicting nature of the parties whilst the Tribunal acts as an objective investigator in discovering the facts. In this context, the Tribunal and the parties are seen as co-operative fact-finders. 

The AAT has recognized and applied its powers under s33 of the AAT Act in a variety of situations where its intervention is needed in order to ascertain the truth. Among many other examples given, Dwyer illustrates this point by citing Re O’Maley and Comcare. Here, the AAT’s abandonment of passive traditions for a more inquisitive role was demonstrated by its conduction of investigations outside the hearing. This was done to investigate discrepancies between both party’s expert witnesses concerning the appropriate dosage of medicine to be given to the applicant. The powers conferred by s33 clearly enabled the AAT to “conduct inquisitorial proceedings… in order to arrive at the truth”. 

Notwithstanding the above, there are reasons why the AAT on the whole has failed to fully utilize its inquisitorial powers. According the Dwyer, there are four explanations for this failure.

1. Despite the granting of inquisitorial powers under s33, other provisions in the AAT Act appear more consistent with a legislative intent for the AAT to retain adversarial type proceedings. This unequivocal intent of the AAT Act has therefore restricted the Tribunal’s intervention.
2. Certain views of the Federal Court have expressed reservations about the Tribunal taking an active role in adducing evidence.
3. The prevailing legal culture considers the change in nature of the trial from adversarial to inquisitorial as unjust because taking the matter out of the hands of the parties would be against their expectations Sir Anthony Mason comments that wholesale changes to our current adversarial system, whether in a court or tribunal, would be “an extraordinary act of faith. It would be contrary to our traditions and culture; it would generate massive opposition; and it would call for expertise that we do not presently possess.”
4. Another part of the resistance towards an inquisitorial system has centered on the costs involved. These costs to public revenue of increasing importance as our government adopts an economic rationalism model based on cost-cutting.

Despite the statutory powers given to the AAT, the above restrictions have resulted in the AAT moving only tentatively towards adopting inquisitorial functions, otherwise known as a “modified adversarial” system.

CHANGES

In order to address this problem with the AAT, Dwyer raises certain recommendations that aim to extend the tribunal’s use of its inquisitorial procedures:

1. Dwyer comments that ‘…the single most important move would be to start using tribunal expert medical witnesses’. This eliminates a fault of the adversarial system where each of the parties ‘choose their own medical witnesses to express polarized views’. Additionally, the financial costs involved in appointing a tribunal expert medical witness will be met by the other party if an applicant is successful in compensation matter.
2. The inquisitorial approach is likely to stretch the AAT both financially, and in the time taken to conduct its proceedings. An inquisitiorial approach will therefore add to the budget expenditure of the tribunal, and unless it is ‘properly resourced, both financially and in terms of the appropriate staff, it will not be able to be effective if it uses inquisitorial procedures’. As Dwyer indicates, there must be appropriate government finding if the AAT are to adopt an inquisitorial approach.
3. In the Australian legal system, Mahoney JA comments that ‘it is the expectation of the parties’ that an inquisitorial procedures if they are to face an inquisitorial tribunal. Similarly, tribunal members and the lawyers involved in representing parties before the tribunal require training on the inquisitorial model. Dwyer comments that the Australian legal system ‘should no longer be educated to believe that there is greater virtue in an adversarial than in an inquisitorial hearing’.

The current Administrative Appeals Tribunal has adopted a system of “modified adversarialism”. It has inquisitorial elements in terms of the informality outlined in section 33(1)(b) of the AAT Act but is run predominantly within an adversarial framework. Dwyer insists that the introduction of an inquisitorial system will “increase the likelihood of the Tribunal making the correct and preferable decision on the true facts”. The implementation of Dwyer’s recommendations is a positive step towards an improvement of the AAT system, but as Dwyer notes “there are significant costs and challenges involved in reducing the degree of adversarialism’. If the tribunals are given the necessary resources to meet these challenges, an inquisitorial system will improve the current system that forces it to behave “too much like a court”.

Therefore, even though the power and objective of the AAT is different to that of a court the inquisitorial process does predominantly behave much like that of the court adversarial system and this problem should be addressed.

References

1. Dwyer, J., Fair Play the Inquisitorial Way (1997) 5 Journal of Administrative Law 5
2. Aronson, M., Dyer, B., Groves, M., Judicial Review of Administrative Action (2004) Lawbook Co., Sydney
3. Thawley, Procedures in the Administrative Appeals Tribunal (1997) 4 AJAL 61
4. Jowell, J., Judicial Review of Administrative Action (1995) Sweet & Maxwell, London
5. Douglas, R., Administrative Law (2002) The Federation Press, Sydney
6. Enright, C., Judicial Review of Administrative Action, (1985) Branxton Press, Australia

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