<<

ńňđ. 5
(âńĺăî 19)

ŃÎÄĹĐĆŔÍČĹ

>>

of an international treaty is not merely ‘platitudinous’ but creates a ‘legitimate
expectation’ that administrative discretions will be exercised in accordance with
65
THE HUMAN RIGHTS DIMENSION


the provisions of the treaty. A further implication was that such treaties might
in future be regarded as mandatory relevant considerations prior to making a
decision.125
The decision led to accusations that the courts were introducing international
law through the back door, by-passing the Parliament and interfering in Aus-
tralia’s sovereignty. A series of legislative proposals to overturn the decision were
not adopted. Despite the profound controversy sparked by the decision, it is
notable that the decision did not entitle individuals to assert substantive human
rights claims, but merely required decision makers to take human rights into
account, remaining free to exercise their discretion contrary to human rights. In
later cases, the High Court confined the scope of the doctrine much further, sig-
nalling a deliberate departure from emerging English jurisprudence. In Minister
for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam,126 it was
held that:

. . . the failure to meet that expectation does not reasonably found a case of denial of
natural justice. The notion of legitimate expectation serves only to focus attention on
the content of the requirement of natural justice in this particular case . . . . in a case
such as this, the concern is with the fairness of the procedure adopted rather than the
fairness of the outcome.127

Similarly, in NAFF v Minister for Immigration and Multicultural and Indigenous
Affairs,128 it was said that ‘what must be demonstrated is unfairness, not merely
departure from a representation’.129 There is no wider notion of estoppel or
substantive doctrine of abuse of power in Australian administrative law.130 The
High Court has explicitly rejected developments growing out of the human rights-
based evolution of English administrative law,131 such as substantive doctrines
of legitimate expectations or proportionality.132
Political anxiety about the implications of Teoh did, however, help to encourage
constructive reform of the Australian treaty-making process. With the power to
sign and ratify treaties coming within the executive power of the Commonwealth
under s61 of the Constitution (and which ‘is of the same character as, and is no
narrower in scope than’ the same prerogative power of the Crown),133 concern
about a democratic deficit in treaty making (and the consequences of treaties for
administrative decision-making) prompted greater participation by Parliament in
treaty making. A Joint Standing Committee on Treaties (JSCOT) was established
in 1996, and empowered to inquire into and report on ‘matters arising from
treaties’ and proposed treaty actions presented to Parliament.134 The reforms
also require the relevant government department to prepare a National Interest
Analysis of the treaty, which is considered by JSCOT. While JSCOT improves the
transparency of the treaty-making process, it has no explicit mandate to consider
human rights issues, its powers are only advisory, and in practice it has seldom
recommended against ratifying particular treaties.135 It has also shown a lack
of independence from government policy on controversial treaties such as the
Rome Statute of the International Criminal Court and the Optional Protocol to
66 AUSTRALIAN ADMINISTRATIVE LAW


the 1984 Convention against Torture.136 The absence of any statutory footing for
JSCOT possibly contributes to its capacity for independence.


Customary international law
As with treaties, the Australian courts have held that customary international
law does not automatically form part of Australian law, and legislative incorpo-
ration is necessary.137 Further, no doctrine of legitimate expectations can arise
in relation to customary law since unlike the act of ratifying a treaty, customary
international law does not require any expression of consent (or representation)
by individual states that they will be bound. While the rejection of custom in
domestic law puts Australia at odds with comparable common law countries,
it means that customary human rights law struggles to find direct expression
in Australian administrative practices, other than pursuant to developing the
common law or interpreting ambiguous statutes.
The place of customary international law in Australian law has not been com-
prehensively settled by the High Court, and is ripe for reconsideration. Most
recently in Nulyarimma v Thompson,138 two judges of the full Federal Court
rejected an argument that the customary international crime of genocide was
part of Australian law. Although the majority extensively reviewed the relevant
authorities, ultimately it could not find any binding precedent compelling their
conclusion to exclude custom. Instead, the majority made a deliberate policy
choice not to recognise a criminal offence in circumstances where its elements
and penalties had not been enacted and defined by the Parliament.
While this position is understandable, it might equally be argued that there is
an overriding policy interest in prosecuting an international crime which has been
universally repudiated since 1948, hardly inducing any unfairness in an accused.
Moreover, if the extreme example of a criminal prosecution for genocide is set
aside, it is arguable that in cases concerning customary human rights there is a
compelling policy interest in recognising such rights, since their protection does
not trigger consequences as serious as criminal prosecution and imprisonment.
Parliamentary sovereignty would still be preserved, since it would always be open
to Parliament to legislate to expressly override or limit the operation of customary
rights.


‘Beneficial construction’
Complementing the principle that statutes are interpreted so as not to infringe
fundamental rights is the less well established notion that statutes should some-
times be beneficially construed in favour of individuals,139 particularly the vul-
nerable. Some judicial decisions have emphasised moral obligations or values
of compassion, humanitarianism, generosity, civility, liberalism, humanity or
citizenship140 in determining the scope of an administrative discretion, the statu-
tory purpose, or relevant considerations. Beneficial constructions have been
67
THE HUMAN RIGHTS DIMENSION


particularly prominent in refugee decisions, sometimes manifesting in more rig-
orous review of administrative decisions.141 In Abebe v Commonwealth,142 the
High Court asserted that: ‘It is necessary to bear in mind that an applicant for
refugee status is, on one view of events, engaged in an often desperate battle for
freedom, if not life itself ’.143
Criticism of a humanitarian approach in refugee decision-making centres
on the problem of identifying what the content of such an approach rationally
means,144 beyond its rhetorical assertion. One example is a generous approach
to interpreting the requirement in refugee law to show a ‘well-founded fear’ of
persecution. In Chan v Minister for Immigration and Ethnic Affairs,145 the High
Court accepted a relatively low standard of proof in refugee claims in finding that
the denial of refugee status was unreasonable where there were objective and
subjective grounds for a well-founded fear of persecution, based on the existence
of a genuine fear founded on a ‘real chance’ (including less than fifty percent) of
persecution on return to the country of nationality.146 In turn, this has informed
the approach of the courts to evaluating the sufficiency of evidence in refugee
claims. In Minister for Immigration and Multicultural Affairs v Rajalingam,147 the
Full Court of the Federal Court asserted that:

the RRT must frequently make its assessment on the basis of fragmented, incomplete
and confused information. It has to assess the plausibility of accounts given by people
who may be understandably bewildered, frightened and, perhaps, desperate and who
often do not understand either the process or the language spoken by the decision
maker/investigator. . . . Even applicants with a genuine fear of persecution may not
present as models of consistency or transparent veracity.
In this context, it is not always possible for the decision maker to be satisfied as to
whether alleged past events have occurred with certainty or even confidence. When
the RRT is uncertain as to whether an alleged event occurred, or finds that, although
the probabilities are against it, the event might have occurred, it may be necessary to
take into account the possibility that the event took place in considering the ultimate
question.148

Such an approach is consistent with international standards suggested by the
United Nations High Commissioner for Refugees, which argues that the benefit
of the doubt should be given to claimants to reflect the humanitarian purpose
underlying asylum.149 The more difficult criticism of beneficial constructions
is that other relevant policy considerations, determined by government, may
be of overriding public importance and yet conflict with approaches favouring
the individual. It is at this point that beneficial construction may impinge on
governmental priorities.


Legislative scrutiny of Bills

Moving on to an institutional level, since its establishment in 1981, the Sen-
ate Standing Committee for the Scrutiny of Bills plays an important role in
68 AUSTRALIAN ADMINISTRATIVE LAW


highlighting the human rights implications of legislation. Its terms of reference
allow it to report on whether Bills before the Senate or Acts of Parliament expressly
or impliedly ‘(i) trespass unduly on personal rights and liberties; (ii) make rights,
liberties or obligations unduly dependent upon insufficiently defined adminis-
trative powers; [or] (iii) make rights, liberties or obligations unduly dependent
upon non-reviewable decisions’.150 The lack of definition of ‘rights’ and ‘liberties’
permits a wide inquiry into potential infringements not only of common law,
statutory and constitutional rights, but also of wider human rights concerns. A
legal adviser to the Committee assists in identifying potential rights implications,
which are then outlined in the Committee’s weekly Alert Digest (also tabled in
the Senate).
On the other hand, the absence of any express articulation of human rights
may, depending on the composition and political persuasion of particular com-
mittees, result in an emphasis on more traditional rights and liberties, at the
expense of human rights analysis. The other tasks allocated to the Committee
may also divert attention from a human rights focus, since it must also consider
whether Bills: ‘(iv) inappropriately delegate legislative powers; or (v) insuffi-
ciently subject the exercise of legislative power to parliamentary scrutiny’.151 In
contrast, since the adoption of the Human Rights Act 2004 (ACT), the relevant
standing committee of the Australian Capital Territory Legislative Assembly ‘must
report to the Legislative Assembly about human rights issues raised by Bills’.152
The Victorian Scrutiny of Acts and Regulations Committee, established in 1992,
similarly ‘must report to the Parliament as to whether the Bill is incompatible
with human rights’153 after the Victorian Charter enters in force in 2007. The
same Committee is also required to review all statutory rules and report any
incompatibility with rights to Parliament.154
In practice, the Senate Standing Committee has raised concerns about the
rights impact of controversial Bills on matters such as terrorism, workplace rela-
tions, indigenous people, law enforcement and citizenship. It particularly draws
attention to Bills which would operate retrospectively. While the six-member
Committee is comprised equally of government and opposition parliamentari-
ans, its technical focus has largely avoided the overt politicisation of its work. Its
relative neutrality may enhance the acceptability of its views and thus its effec-
tiveness, although in some cases it may conversely mean that its findings are
too tepid or inconclusive. Certainly Bills have been amended in the Senate in
response to the Committee’s concerns.
Procedurally, concerns flagged in a Digest are drawn to the attention
of the responsible minister and any ministerial response (which is usually
forthcoming),155 along with the Committee’s further views, are promptly pub-
lished in a Report. While Reports are tabled in the Senate, the Committee does
not express conclusive views on the incompatibility of Bills with Rights or sug-
gest amendments, leaving such determinations to the Senate. Committee reports
may be brief and often simply draw attention to a potential rights impact, without
69
THE HUMAN RIGHTS DIMENSION


engaging in any detailed further analysis of the problem. Ultimately its views can
be ignored unless there is a political culture of respect for human rights, and time
pressures may also affect the quality of scrutiny.
Scrutiny committees also operate in other jurisdictions, as in Queensland
where, after the Fitzgerald Inquiry, a Scrutiny of Legislation Committee was
established in 1995 with a mandate which particularises in much greater
detail (than at the Commonwealth level) the rights and liberties which will be
considered.156 A Victorian committee similarly enjoys an extended mandate to
consider whether, for instance, legislation has an undue adverse effect on per-
sonal privacy or the privacy of health information.157 In 2002, however, New
South Wales deliberately chose to follow the less prescriptive Commonwealth
approach in reconstituting the mandate of its Regulation Review Committee
(established in 1987) as a Legislation Review Committee, after an inquiry dis-
tinguished the special circumstances of police corruption in Queensland.158 The
creation of the New South Wales Committee was partly motivated by concern
about the arbitrary punishment of Gregory Kable, under legislation passed to
prevent his release from prison after his sentence expired.159 Other reasons
for its establishment included that it would raise parliamentarians’ awareness
of human rights and introduce rights into political debate, encourage dialogue
rather than adversarial legalism in implementing rights, and identify repeat prob-
lems in Bills.160 The standard of scrutiny of Bills under human rights law may
be more intensive than the equivalent process in existing scrutiny committees.
Under the Human Rights Act 2004 (ACT), the Attorney-General must prepare
and present a written statement to the Legislative Assembly about whether, in
his or her opinion, each Bill is consistent with human rights, also explaining how
any inconsistent Bill is not consistent.161 In Victoria, any member of Parliament
(not just the Attorney-General) who plans to introduce a Bill into either house
‘must cause a statement of compatibility to be prepared in respect of that Bill’,162
which must be laid before the relevant house before giving a second reading
speech.163 The standard of scrutiny is higher than in the Australian Capital Ter-
ritory, since the member must not only state whether the Bill is compatible with
human rights, but also how it is compatible.164 In addition, the ‘nature and extent’
of any incompatibility must also be explained.165
In both jurisdictions, the procedure is additional to the independent considera-
tion of a Bill by the relevant scrutiny committee, and thus provides for a dialogue
between the Parliament and the executive on compatibility. To an extent, the
effectiveness of pre-scrutiny will depend on the degree of political commitment
to it, given that non-compliance with the procedure does not affect the valid-
ity, operation or enforcement of any law.166 It remains to be seen how detailed,
sophisticated and objective pre-scrutiny reports will be; those who sponsor bills
necessarily have an interest in presenting them in the best light, and both rights
and the permissible range of limitations upon them are elastic to a point and thus
ripe for lawyerly arguments.
70 AUSTRALIAN ADMINISTRATIVE LAW



Role of the Commonwealth Ombudsman

The classical focus of the office of Ombudsman was on ensuring administrative
justice and/or countering official corruption, although there has always been
great variation in the functions and powers of different national or sub-national
ombudsmen. A comparatively recent trend is the emergence of hybrid Ombuds-
men with human rights responsibilities, particularly in the Iberian countries,
Latin America and Eastern Europe, but also in the context of post-conflict tran-
sitional administrations such as Bosnia Herzegovina.167 The manner in which
such bodies consider human rights issues depends on the status of human rights
treaties in the particular domestic legal order and there is a spectrum of differ-
ent approaches. Some bodies are human rights commissions or institutions with
Ombudsman-like functions, while others are Ombudsmen with some degree of
jurisdiction over human rights issues.168 Particularly in Europe and the Ameri-
cas, there is often also a fertile relationship between the national body and the
regional human rights system.
The benefits of hybrid institutions are said to include reduced administrative
costs, a higher profile and a concomitant measure of protection from political
interference, the concentration of expertise and resources, and the ability to
adopt an integrated approach to multiple problems of administrative injustice and
human rights violations.169 Whatever their composition, the effectiveness of such
bodies depends on factors similar to those affecting more traditional ombudsmen:
their independence, breadth of jurisdiction and powers, public accessibility, and
political support for taking their recommendations seriously.170 The extent to
which they can review the activities of private actors wielding public power is a
further relevant issue.171
Commonwealth countries have tended to preserve a stricter separation
between the office of Ombudsman and national human rights institutions,172
although human rights bodies may be subject to Ombudsman oversight. On one
hand, classical Ombudsmen ‘are geared primarily towards the accountability of
“the system” rather than towards upholding the rights of the single individual’.173
The emphasis on administrative justice means human rights concerns may only
arise incidentally and not as the substantive focus of an investigation.
Yet, incidental effects are not necessarily insubstantial and the correction
of procedural errors or administrative delays can considerably improve human
rights, whether in the fields of prisoner complaints, social welfare, access to edu-
cation, or the provision of accurate information.174 Recent areas of interest to
the Commonwealth Ombudsman which have considerable implications for pro-
tecting human rights have included the management of minors in the Australian
Defence Force, inspections of the records of law enforcement agencies (to ensure
compliance with statutory requirements on telephone interception, surveil-
lance devices and controlled operations),175 and specialist Ombudsman roles
in defence, taxation, immigration, the postal industry and law enforcement.176
71
THE HUMAN RIGHTS DIMENSION


Similar trends are evident at the state level. For instance, in late 2005, following
race riots in south Sydney, the New South Wales Ombudsman was empowered to
review the exercise of new police public order powers to establish roadblocks and
cordons, to stop and search people or vehicles, to require disclosure of identity,
to seize items, and to create alcohol-free zones.177
Moreover, the philosophical foundations of Ombudsmen and human rights
discourse are substantially attuned, ‘with each sharing a common goal of protect-
ing citizens against unjust governmental actions’.178 In many cases, Ombudsmen
can function ‘to assist the disadvantaged, the underprivileged, the poor, the weak
and the frightened, who do not understand the ways of public bureaucracy’.179
In Australia, the Commonwealth Ombudsman has wide statutory powers to
form the opinion, following an investigation, that an action taken by a govern-
ment department or prescribed authority was: (i) contrary to law; (ii) unreason-
able, unjust, oppressive or improperly discriminatory; (iii) lawful but unreason-
able, unjust, oppressive or improperly discriminatory; (iv) based on a mistake
of law or of fact; or (v) otherwise, in all the circumstances, wrong.180 In addi-
tion, the Ombudsman may find that a discretionary power was exercised: for
an improper purpose or on irrelevant grounds; taking irrelevant considerations
into account or failing to take relevant considerations into account; or failing to
furnish reasons.181 The Ombudsman can thus make findings on bases far wider
than the grounds of judicial review.
The power to find that an action was unreasonable, unjust, oppressive or
improperly discriminatory plainly allows the Ombudsman to fault administrators
for breaching some human rights standards. Non-discrimination is a cardinal
principle of human rights law,182 while notions of unreasonableness, injustice
and oppression have, for example, been deployed in human rights jurisprudence
to interpret the meaning of freedom from ‘arbitrary’ detention.183 At the same
time, these standards are both wider and narrower than the scope of human
rights law. An action may be unjust or unreasonable but nonetheless comply
with human rights law; while an action may strictly violate human rights law but
may not, in the circumstances, be considered unjust, unreasonable or oppressive.
Given the breadth and indeterminacy of standards such as unreasonableness,
injustice and oppression, explicit recourse to human rights norms can provide the
Ombudsman, administrators and complainants with greater certainty in identify-
ing the range of conduct which may be impugned on these grounds. On occasion,
human rights norms may even constitute relevant considerations (with similar
relevance to judicial review) where the statutory framework so permits.
There is, however, a case for making the link between human rights and the
Ombudsman more explicit and moving closer to the hybrid models operating in
many foreign jurisdictions. An example of movement towards such a model in
Australia is related to Victoria’s adoption of a state Charter of Rights and Respon-
sibilities in 2006. A number of submissions to its community consultation process
argued in favour of a human rights Ombudsman of some sort in Victoria.184 In
response, the Human Rights Consultation Committee recommended that the
72 AUSTRALIAN ADMINISTRATIVE LAW


range of matters the Ombudsman may consider should be clarified to include
Charter rights, and this approach was endorsed by the Victorian Government.
The Charter of Human Rights and Responsibilities Act 2006 (Vic) consequentially
amends s13(1) of the Ombudsman Act 1973 (Vic) to include ‘the power to enquire
into or investigate whether any administrative action is incompatible with a
human right set out in the Charter of Human Rights and Responsibilities’.185
This power is additional to the Ombudsman’s existing power to find that an
action was ‘contrary to law’, which would include some circumstances where
rights under the Charter were unlawfully infringed. The Charter does not allow
the courts to invalidate legislation that infringes rights, instead providing only
for a weaker ‘declaration of incompatibility’ that does not affect the lawfulness
of the statutory provision. However, ‘public authorities’ are required to comply
with the Charter,186 such that a failure to comply, where not explicitly authorised
by legislation adopted under the Parliament’s power to override Charter rights,
is ‘contrary to law’.
Remedies, however, depend on satisfying the existing grounds of judicial
review and the requirements for the issue of an existing remedy (such as a
declaration),187 and the Charter establishes no freestanding cause of action or
right to damages. Grounds that may trigger judicial review include, for example,
a failure to take into account a Charter right as a relevant consideration, or to exer-
cise a power for the improper purpose of deliberately and consciously violating
a person’s Charter rights. The ‘catch all’ provision enabling the Ombudsman to
review administrative action for incompatibility with rights could cover situations
where a rights violation is not contrary to law, such as where the infringement is
explicitly authorised by statute. The Parliament’s sanction of such infringements
does not alleviate the burden of the infringement experienced by the rights-
holder, and in individual cases the Ombudsman may have an important role in
recommending ways of moderating the strict application of lawful infringements
in deserving or compassionate cases.
Empowering the Ombudsman to review human rights infringements may help
to alleviate the pressure of human rights claims in the courts and potentially
resolve a large number of human rights cases in the manner characteristic of
the Ombudsman – speedy, informal, cheap, and based on ‘cooperative compli-
ance’ rather than an adversarial approach. In Victoria, the power complements
the establishment of a Human Rights Commissioner within the Victorian Equal
Opportunity Commission, with educative and reporting functions falling short
of individual complaints handling. Thus while both the Ombudsman and the
human rights body in Victoria are charged with human rights responsibilities,
duplication is avoided and institutional separation and independence are pre-
served.
There is potential for a similar hybrid scheme to operate at the Commonwealth
level. Even in the absence of a federal Bill of Rights – unlikely to be forthcoming
any time soon – the Commonwealth Ombudsman’s power to review adminis-
trative action in s15(1) of the Ombudsman Act 1976 (Cth) could be extended
73
THE HUMAN RIGHTS DIMENSION


to encompass any action that ‘was inconsistent with the enjoyment of a human
right’. For the sake of certainty, the relevant rights could be expressly identified
as those arising under Australia’s international human rights treaty obligations,
or, at a minimum, those in the twin International Covenants on Civil and Politi-
cal Rights and on Economic, Social and Cultural Rights. Just as the Ombudsman
currently performs the role of specialist Ombudsman in a variety of areas, so too
could ‘Human Rights Ombudsman’ be added, supported by appropriate resources
and staff. There would be considerable synergies with the Ombudsman’s existing
role as the specialist Immigration Ombudsman.
The difficulty at the federal level is the risk of duplication. The Human Rights
and Equal Opportunity Commission is already empowered ‘to inquire into any
act or practice that may be inconsistent with or contrary to any human right’ and
to attempt to conciliate the matter or report it to the Minister.188 HREOC also
has specialist anti-discrimination commissioners, power to intervene in court
proceedings on rights issues, and broader powers to initiate inquiries into and
make recommendations about systemic human rights issues, and to educate the
community about rights. There are obvious resource implications in duplicating
the mandates of HREOC and the Ombudsman, and HREOC has already built up
considerable expertise in the area.
At the same time, HREOC has faced considerable political criticism and resis-
tance from successive Australian governments precisely because of its mandate
to consider violations of (often controversial) treaty rights which have not been
made binding by enactment into Australian law (the ICCPR is merely scheduled
to the legislation creating HREOC and no enforceable remedies are available for
a breach of any of its rights). While conferring a human rights mandate on the
Ombudsman may politicise government perceptions of the Ombudsman, such a
mandate could nonetheless complement and strengthen the voice of HREOC on
human rights matters, as the authority and independence of the Ombudsman is
asserted and deployed to protect human rights. Signalling such a commitment to
human rights is particularly important in the absence of any federal Bill of Rights.
Effective coordination and referral arrangements between the two bodies
could ensure that human rights complaints are dealt with by the most appro-
priate forum, depending on the subject matter, respective institutional expertise,
and resource and case load implications. Cases of administrative injustice with
incidental human rights aspects are best corrected by the Ombudsman, while
human rights complaints with incidental administrative errors should lie with
HREOC. An important advantage in empowering the Ombudsman to consider
human rights issues is that, since 2005, the office has had jurisdiction over pri-
vate service providers to government, potentially encompassing areas such as
the management of immigration detention centres, Job Network providers, and
family counselling.189 As the Ombudsman stated in 2006: ‘we have crossed the
public/private divide in a manner that other administrative law review mecha-
nisms have not’.190 In contrast, HREOC is unable to consider violations of treaty
rights by private entities or individuals.
74 AUSTRALIAN ADMINISTRATIVE LAW


The risk of duplication has not prevented the Commonwealth Ombudsman
being tasked with oversight of areas such as immigration, where specialist merits
review bodies such as the Refugee Review Tribunal are already well established.
The layering of different levels of scrutiny can improve decision-making, although
relative institutional competence and resource implications require careful man-
agement. Since 2005, the involvement of the Ombudsman in immigration matters
has assumed particular importance in the protection of the human rights of citi-
zens and non-citizens alike, following the unlawful deportation of an Australian
citizen, Vivian Alvarez, to the Philippines, and the prolonged detention of a lawful
permanent resident, Cornelia Rau.
At the request of the government, the Ombudsman took over the investiga-
tion of the Alvarez case from former Victorian Police Commissioner Neil Comrie,
and as at June 2006 had 248 cases of possible unlawful detention under investi-
gation. The Ombudsman has identified common areas of maladministration in
immigration decision-making (both on detention and visa processing) such as
delay, inactivity, data processing problems, and defective inquiries and identifi-
cation procedures.
Further, under s486 of the Migration Act 1958 (Cth), the Ombudsman was
empowered in 2005 to review the detention of any person in immigration deten-
tion for two years or more and to report to the minister as soon as practicable, who
must then table the report in Parliament within fifteen days. The Ombudsman
issues reports every six months where a person remains in detention after the
two-year period. In implementing its mandate, the Ombudsman has prioritised
the cases of those who have been in detention the longest, and where there are
mental health concerns, family separation, or children in detention. Reference
has also been made in the Ombudsman’s reports to the international human
rights standard of considering the best interests of children in decision-making.
The Ombudsman also visits detention centres (including unannounced) to moni-
tor the conditions and standard of care in detention, including access to services,
health care, and detainee well-being.
While the Ombudsman’s recommendations are not binding, in practice they
are reasonably influential in shaping administrative behaviour. Of sixty-nine
reports made by the Ombudsman in the immigration area, containing 109 rec-
ommendations, the minister addressed 105 of the recommendations, agreeing to
forty-eight (forty-six percent), disagreeing with thirty-one (twenty-nine percent)
and delaying decision on twenty-six (twenty-five percent).191 At the same time,
there are considerable limitations on the effectiveness of the Ombudsman role.
There is no jurisdiction to review ministerial action, but only to recommend that
the minister consider certain issues. While the Ombudsman is not constrained
by government practice or policy, he considers that ‘it is ordinarily more appro-
priate for major or sensitive policy issues to be debated and determined in the
parliamentary and public forum’,192 particularly on issues such as mandatory
detention and removal policies.
75
THE HUMAN RIGHTS DIMENSION


Moreover, the Ombudsman is ‘not well placed to undertake merit review of
all the issues concerning a person’s detention’ although he can ‘draw attention
to aspects of a claim that may not have been tested in earlier proceedings or that
may have changed’.193 The Ombudsman faces time and resource limitations,
and may not have the specialist expertise necessary to consider all aspects of a
claim, while tribunal or court proceedings may still be on foot. The Ombudsman
strives ‘to provide an independent but balanced comment upon issues arising in
government administration’ but avoids ‘becoming an advocate’ for individuals.194

In the absence of a national Bill of Rights, Australian administrative law remains
sequestered from the human rights influences which invigorate other common
law systems. There is a long history of unsuccessful attempts to expressly incorpo-
rate human rights into Australian law, including rights clauses during the draft-
ing of the Commonwealth Constitution, two Bills of Rights drafted by federal
Labor governments in 1973 and 1985, and referenda on incorporating key rights
into the Constitution as in 1942 (to incorporate US President Roosevelt’s ‘four
freedoms’ – freedom of speech and expression, religious freedom, and freedoms
from fear and want) and 1988 (departing from more ambitious recommenda-
tions by a Constitutional Commission of 1985–1988).195 More recently, private
member’s Bills have attempted to enliven the cause of a federal Bill of Rights, as
have community lobby groups.196 The ongoing absence of a Bill of Rights will
continue to generate pressure on administrative law to accommodate human
rights claims. Such pressure manifests itself in different ways, whether at the
level of underlying values, interpretive principles, the concept of proportionality,
the public/private distinction, or the emerging right to administrative justice. At
the same time, institutional mechanisms such as the Ombudsman and legislative
pre-scrutiny committees have also flexibly incorporated human rights concerns
to some degree. As a New Zealand court noted, ‘administrative law develops
and changes according to current perceptions of what is required of the Courts
in their distinctive judicial function . . . At times it becomes necessary to give
especial weight to human and civil rights’.197
There are, however, necessary limits to the congruence of human rights law
and administrative law, not least of which is the foremost emphasis of Australian
administrative law on lawful procedure rather than substantive rights-based out-
comes. Some commentators have warned of the danger of going ‘further down
the path of regarding human rights standards as a separate or stand-alone feature
of administrative law’, since doing so would ‘cloud the role of courts in public
law by requiring that the legality of government action be judged by reference to
standards that are inherently elastic and value-driven’.198
Even so, a rigid constitutional separation of powers does not demand that
Parliament has an exclusive role in settling normative controversies about val-
ues, including human rights. As noted earlier, the development of the grounds
of judicial review was itself a story of inevitable judicial creativity and judges
76 AUSTRALIAN ADMINISTRATIVE LAW


routinely deal with other concepts that are equally elastic and value-laden. The
federal judiciary already applies human rights standards in some contexts, such
as in exercising a discretion (under uniform evidence law) to exclude improperly
or illegally obtained evidence where the impropriety or illegality was ‘contrary
to or inconsistent with a right’ in the ICCPR.199 Lack of familiarity with human
rights standards and jurisprudence is no reason to shun them – nor to preserve the
desiccating isolation of Australian administrative law from outside influences.
5
Administrative tribunals
Robin Creyke




Australia has a developed system of administrative tribunals, a unique feature
being its generalist merit review tribunal. At the same time, Australia has exper-
imented with most forms of tribunals and tribunal process. There are various
reasons for this use of adjudicative bodies other than courts. Tribunals generally
have more speedy processes and less formal procedures than courts, including an
absence of any requirement to follow rules of evidence. Tribunals are generally
cheaper than courts and there may be limits on legal representation in tribunal
hearings. In other words, tribunals are constituted and function differently from
a court. These features have meant it is common for the merits review function to
be committed to a tribunal. A tribunal is more suited than a court to undertake the
merit review task, that is, to examine whether a decision is substantively correct,
after consideration of all relevant issues of law, fact, policy and discretion, than
is a court.
Another incentive for the Commonwealth to rely on tribunals arises from the
constitutional separation of powers doctrine. The Commonwealth Constitution
prevents the High Court and other federal courts from exercising non-judicial
power. As a consequence, there has been a necessity for the merits review func-
tion, which has non-judicial elements, to be undertaken by tribunals. The con-
stitutional impetus does not apply to state courts. Nonetheless, the advantages
of tribunal review have also seen the advent of numerous tribunals in the states
and territories.
Although there is no definitive list of state and territory tribunals, the picture
is replicated in those jurisdictions. The multiplicity of tribunals is reflected in
their names. The terms ‘board’, ‘council’, ‘commission’, ‘agency’, ‘authority’, and
‘committee’ are commonly used to denote a body with tribunal-like functions or


77
78 AUSTRALIAN ADMINISTRATIVE LAW


characteristics. The picture indicates the importance of tribunals to the relation-
ship between government and citizen.


What is a tribunal?

It is difficult to define an administrative tribunal, at least in a way that distin-
guishes a tribunal from a court or other review agency.1 A useful definition is one
which differentiates tribunals from courts.2 There have been legislative attempts
at identifying what is distinctive about tribunals. Section 2 of the Administrative
Law Act 1978 (Vic) defines a ‘tribunal’ as:

. . . a person or body of persons (not being a court of law or a tribunal constituted
or presided over by a Judge of the Supreme Court) who, in arriving at the decision
in question, is or are by law required, whether by express direction or not, to act in a
judicial manner to the extent of observing one or more of the rules of natural justice.

The Legislation Act 2001 (ACT) Sch 1 – Dictionary defines ‘tribunal’ to include ‘any
entity that is authorised to hear, receive and examine evidence’. Neither definition
is prescriptive. Both definitions are capable of applying to ministers, officials
and other public decision makers as well as Ombudsman offices and dispute
resolution bodies in the private sector. Only the Victorian definition attempts to
exclude courts.
The Council of Australasian Tribunals (COAT), which is the peak coordinating
body for tribunals in Australasia, has not taken the matter further. The COAT
Constitution defined ‘tribunal’ as:

. . . any Commonwealth, State, Territory or New Zealand body whose primary function
involves the determination of disputes, including administrative review, party/party
disputes and disciplinary applications but which in carrying out this function is not
acting as a court.

These attempts suggest that the categorisation of tribunals is unlikely to be solved
by etymological means.
If a functional approach is adopted, as L Curtis noted, the question should
be ‘what are the functions, in a free and democratic society, which require sub-
stantial independence from the executive and legislative functions of govern-
ment and how should the bodies which perform those functions be organised’.3
It is clear, however, that the range of functions performed by tribunals varies
widely.4 An attempt was made to categorise tribunals into two: ‘court substitute’
and ‘policy-oriented’ bodies.5 Court-substitute tribunals exhibit the following
features:

(a) they provide to each party appearing before them a reasonable opportunity of being
heard;
(b) they carefully weigh the evidence and material put before them;
(c) they interpret and apply the law;
79
ADMINISTRATIVE TRIBUNALS


(d) they expose their reasoning processes to the parties; and
(e) they avoid actual bias or the appearance of bias.6

Policy-oriented tribunals include the Australian Broadcasting Authority and the
Australian Securities and Investment Commission, and at the state level the Inde-
pendent Competition and Regulatory Commission of New South Wales. These
are bodies which develop policies applicable to their area of expertise and advise
government accordingly.
Such a broad classification needs further refinement to be useful. Some tri-
bunals, such as guardianship and administration bodies, are primary decision
makers; others, such as the Patent and Trade Marks Attorneys Professional Stan-
dards Board, are advisory bodies; some have quasi-legislative functions, like
the Repatriation Medical Authority; others still, including the Statutory Fishing
Rights Allocation Review Panel, are review bodies. Further categories include
investigative and law enforcement bodies such as the National Crime Author-
ity (now the Australian Crime Commission) and state anti-corruption bodies;7
mediation or conciliation bodies like the Human Rights and Equal Opportu-
nity Commission; bodies which deal with future rather than pre-existing rights
such as the National Native Title Tribunal and the Australian Industrial Arbitra-
tion Commission;8 and private sector tribunals which decide party/party dis-
putes over tenancy, employment and consumer matters, as well as disciplinary
functions for a range of occupational and professional bodies. Generally these
functions are carried out by tribunals, although they may previously have been
performed by courts.
It is apparent that it is difficult to distinguish a tribunal from a court.9 What is
clear is that, since tribunals are created by statute, there is room for great variety
and flexibility in their composition, powers and functions. For the purposes of
this chapter, ‘tribunal’ is usually a body which closely parallels the conventional
court.



Categories of administrative tribunals

Tribunals can be classified into specialist and generalist or multi-purpose tri-
bunals, into first and second tier tribunals, into public and private (or domestic)
tribunals, and into primary decision-making or review tribunals.


Specialist tribunals
These are tribunals that specialise in one or more nominated areas of activity. For
the most part, specialist tribunals have been established in high volume decision-
making areas. An example is the Australian Capital Territory’s Essential Services
Review Council, which hears complaints about gas and electricity providers and
adjudicates hardship claims for money owing to a supplier of gas or electricity.
80 AUSTRALIAN ADMINISTRATIVE LAW


Another example is the New South Wales Consumer, Trader and Tenancy Tri-
bunal. At the Commonwealth level the best-known specialist tribunals include
the Social Security Appeals Tribunal (SSAT) (income support decisions), the Vet-
erans’ Review Board (VRB) (veterans’ entitlements matters), and the eponymous
Migration Review Tribunal (MRT) and Refugee Review Tribunal (RRT). In the
states and territories, typical specialist tribunals are anti-discrimination bodies,
guardianship tribunals, and tribunals dealing with consumer matters.


Generalist and multi-purpose tribunals
Tribunals with jurisdiction across government are known as generalist or gen-
eral jurisdiction tribunals. The Commonwealth Administrative Appeals Tribunal
(AAT) is the best-known. The AAT, for example, reviews decisions under over 400
different pieces of legislation.10 Matters covered are as diverse as income support,
the pharmacy restructuring scheme, fish stock management, aviation safety, free-
dom of information, workplace compensation, diesel fuel rebates and the defence
employer support payment scheme.11 In the states, there may be a mix of pri-
vate and public sector matters heard by one tribunal. These are more accurately
described as multi-purpose rather than general jurisdiction tribunals. Typically
multi-purpose tribunals hear civil (or party-party) matters such as consumer,
tenancy and credit-related matters, alongside disputes between the citizen and
government in fields such as licensing, tax, building registration, and the envi-
ronment. The amalgam of civil and administrative disputes handling tribunals is
a ‘one-stop shop’ approach to adjudication. Advantages of having a single tribunal
are the sharing of membership, registries, administrative staff, library, computer
networks and, when appropriate, procedures. Tribunal members can also sit in
more than one division, thus reducing the likelihood of their taking a narrow
approach to legal issues, or becoming ‘captured’ by special interest groups. An
example is Western Australia’s State Administrative Tribunal (SAT).


Single/two tier tribunals
In many jurisdictions, there is only one opportunity for tribunal review. In high
volume areas, however, it is common to find two tiers of decision-making by
tribunals. The lower tier is designed either to filter out the majority of review
applications in a relatively efficient and quick manner or, in some cases, such as
guardianship matters, for primary decision-making. The final or ‘superior’ tier
offers further, more authoritative, review of the lower tier decision. The final tier
tribunal is often a general jurisdiction or multi-purpose tribunal. In the states
and territories, the picture becomes more complex. Both first and second tier
decision-making may be conducted within the one multi-purpose tribunal, akin
to a first instance and appellate structure for superior courts. An example is the
New South Wales Administrative Decisions Tribunal, which offers a second tier
of review – but only by leave.12
81
ADMINISTRATIVE TRIBUNALS


Public/private dispute tribunals
Most tribunals considered in this chapter deal with administrative disputes
between people and governmental agencies. These are bodies which carry out
a mix of judicial or quasi-judicial and administrative tasks, notably to adjudi-
cate disputes about entitlements to or infringements of pre-existing legal rights.
Tribunals of this kind have a central role in the machinery of government
in Australia. For example, the typical caseload of the major Commonwealth
tribunals – the AAT, the migration tribunals, the VRB, and the SSAT – is gen-
erally in excess of 35 000 applications a year. By comparison, the federal courts –
including the High Court, the Federal Court, and the Federal Magistrates
Court – hear only about 11 000 matters in total a year, a proportion only of which
are administrative law applications.13 However, equally common are tribunals
which hear private sector disputes about matters such as tenancy, employment,
child support, and consumer matters. Although this chapter focuses on public sec-
tor tribunals, the same issues arise for both public and private sector tribunals.
These include, for example, procedural style, independence, membership and
accessibility. Moreover, the lines between the two are increasingly blurred. For
example, superannuation claims are decided by a Superannuation Complaints
Tribunal, a partially public body, and child support disputes are to be heard by the
SSAT.


Primary decision maker/review body
Some tribunals make the initial decision in relation to disputes. The best-known
examples are the guardianship and management of property tribunals in all states
and territories. Formerly this jurisdiction was invested in courts, but since 1986
progressively the jurisdiction has been handled by tribunals. Most of the tribunals
considered in this chapter are review bodies, reconsidering initial decisions made
usually by officials.



Tribunals in the system of government

The placement of tribunals in the tri-partite system of government – legislative,
executive and judiciary – is a vexed issue. In the United Kingdom, it is firmly
established that tribunals are part of the judicial arm of government. Indeed, the
expression ‘tribunal judges’ is commonly used, and these tribunal members are
seen by those involved as part of the judiciary.14 Despite an early adherence to that
model,15 Australia has abandoned this position, but without necessarily finding
a satisfactory place for tribunals. Curtis has suggested that tribunals occupy a ‘no-
man’s land’.16 Bayne suggested they straddle both the executive arm, in that they
decide appeals against decisions of officials involving discretionary judgment,
while also operating in a judicial manner in deciding matters impartially and
82 AUSTRALIAN ADMINISTRATIVE LAW


by an adversarial process.17 Another view is that they reside in a fourth arm
of government.18 That view has recently been endorsed in a study which may
well provide the solution to this conundrum,19 since it developed a methodol-
ogy to examine the interrelationships between the institutions and processes in
government.
The significance of the study is that it posits a fourth, integrity, arm of govern-
ment which includes the tribunal system. Tribunals and the other bodies listed in
the fourth arm all sit uneasily within the tripartite model. The virtue of the theory
is that it gives due recognition to the need for impartiality and independence to
bodies included. The acceptance of the concept is not yet assured, but it provides
the most satisfactory explanation yet devised of the place within government of
these agencies.



Tribunals in Australian jurisdictions

There are a large number of administrative tribunals established in each Aus-
tralian jurisdiction. In the states and territories, tribunals often review decisions
concerning occupational licensing, land planning and liquor licensing. The fol-
lowing summary of the position in each jurisdiction refers to some unique features
of the Australian tribunal system, such as the presence of general jurisdiction or
multi-purpose tribunals, which have a special place in the study of administra-
tive law. There are significant differences between the systems operating in each
state and territory and the Commonwealth, since the constitutional restrictions
on the exercise by Commonwealth tribunals of federal judicial power20 does not
apply to the states and territories.21
The concept of a general jurisdiction merit review tribunal was the most
innovative recommendation of the report of the Commonwealth Administrative
Review Committee (the Kerr Committee report).22 The report explained:

. . . we have taken the view that at a time when there is vested in the administration a
vast range of powers and discretions the exercise of which may detrimentally affect the
citizen in his person, rights or property, justice to the individual may require that he
should have more adequate opportunities of challenging the decision which has been
made against him, not only by obtaining an authoritative judgment on whether the
decision has been made according to law but also in appropriate cases by obtaining a
review of that decision . . .
The basic fault of the entire structure is . . . that review cannot as a general rule, in the
absence of special statutory provisions, be obtained ‘on the merits’ – and this is usually
what the aggrieved citizen is seeking.23

The tribunal was to be called the ‘Administrative Review Tribunal’. The subse-
quent Bland Committee report24 recommended there be three tribunals – a Gen-
eral Administrative Tribunal, a Medical Appeals Tribunal, and a Valuation and
Compensation Tribunal. The compromise solution in the Administrative Appeals
83
ADMINISTRATIVE TRIBUNALS


Tribunal Act 1975 (Cth) was a single tribunal – the Administrative Appeals Tri-
bunal (AAT) – with three divisions but with a broad merit review jurisdiction as
the Kerr Committee had recommended.25
The states and territories have been slow to follow suit. But uninhibited by
separation of powers, they have devised a form of tribunal which differs in some
respects from the first Commonwealth AAT model in that they combine the exer-
cise of judicial, often primary decision-making functions, with administrative
review or decision-making. Examples are found in the Australian Capital Ter-
ritory (an ACT AAT), New South Wales (the Administrative Decisions Tribunal
[ADT]), South Australia (the Administrative and Disciplinary Division of the
District Court), Tasmania (an Administrative Appeals Division of the Tasmanian
Magistrates Court), Victoria (the Victorian Civil and Administrative Tribunal
[VCAT]), and Western Australia (the State Administrative Tribunal [SAT]). Only
the Northern Territory and Queensland have failed to introduce a general juris-
diction or multi-purpose tribunal.26 As the list indicates, in some states the juris-
diction is exercised by a division of a court, rather than a body called a tribunal.
However, the court when reviewing administrative decisions is required to follow
procedures which replicate those in tribunals. Each jurisdiction also has a range of
specialist tribunals which deal with matters as diverse as fisheries management,
professional disciplinary matters, the environment and mental health.


Merit review and tribunals

Features of tribunals which set them apart from most courts are that tribunals
generally make decisions on the merits, that is, taking into account law, facts and
policy. Courts, by contrast, are generally confined to reviewing for legality, or
for error of law. Merits review of administrative action is closer to the adminis-
trative than to the judicial process, particularly in its primary emphasis on the
application of the law to the facts. Indeed, such a focus is impermissible for a
court exercising judicial review. While attention is paid to the legal basis for a
decision and to compliance with legal principles and procedures, the principal
issue in merits review is whether the decision under review is substantively cor-
rect. The review will commonly extend to the factual basis for the decision in the
context of the relevant law and may also take heed of any policies that explain the
decision. Should the review body disagree with the decision that was reached,
it can ordinarily substitute a new decision. As the AAT noted in Re Staffieri and
Commonwealth27 of its powers on review: ‘Once an application for review of a
determination is before the Tribunal, it must determine whether the decision
before it was objectively the right one to be made’.28
It is notable, however, that the term ‘merits review’ does not appear in the AAT
Act. Nor was the expression elaborated in the Kerr Committee report.29 The defi-
nition of merits review has largely been undertaken by the AAT itself.30 The pow-
ers of the Tribunal which are the source of its merits review function are as follows:
84 AUSTRALIAN ADMINISTRATIVE LAW


43(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers
and discretions that are conferred by any relevant enactment on the person who made
the decision and shall make a decision in writing:
(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and:
(i) making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions or
recommendations of the Tribunal.

A similar section is found in the legislation setting up many tribunals.31
Clearly, merits review involves the capacity for substitution of the decision of
the reviewing person or body for that of the original decision maker.32 Alterna-
tively, the matter may be remitted to the original decision maker for reconsider-
ation, as the section provides, in accordance with any directions or recommen-
dations by the tribunal.
The merits review function does not mean that the Tribunal has a roving brief to
use the review process as an opportunity to consider new claims or aspects of the
application not previously taken into account. The Tribunal’s review jurisdiction
is statutorily defined and generally limited by the matters referred to in the
original claim or application for internal or first tier review. In Drake v Minister
for Immigration and Ethnic Affairs,33 for example, the Federal Court held that in
reaching this position, adherence by tribunals to government policy would be
more tenuous than is the case with first instance decision-makers.
It is also clear from s43 that the tribunal has all the powers and discretions
of the primary decision maker: the tribunal ‘stands in the shoes’ of that person.
Brennan J, when President of the AAT, said of this section:

So the question for the Tribunal is the same question as that which faces the primary
administrator: What is the correct or preferable decision in this case? The question
is answered by reference to the elements of an administrative decision: the facts of
the case, the applicable law, and (if appropriate) the exercise of a discretion. Before
the Tribunal intervenes to set aside or vary a decision under review it must come to the
view that–
• the facts are different from what they were believed to be by the primary adminis-
trator;
• the law applies differently from the way in which the primary administrator applied
it; or
• if there be a discretion, there is a way of exercising it preferable to the way in which
the primary administrator exercised it.
In order to perform its functions, the Tribunal was armed with different powers from
those possessed by the primary decision maker. The powers with which the Tribunal
was armed are the powers ordinarily vested in courts, but not ordinarily vested in
administrators. It is not surprising, then, if the same question is answered in a different
way by the Tribunal, which is differently constituted, has different powers, and may
have a different approach to the exercise of a discretion.34
85
ADMINISTRATIVE TRIBUNALS


Merit review requires the tribunal to consider what was the correct or preferable
decision on all of the evidence, not whether the findings of the primary decision
maker were open on the evidence. While the second option is the approach for
judicial review, it is not the appropriate role for the Tribunal.35


Merit review is generally de novo
The grant of the same powers and discretions as the original decision maker is
expressed in the aphorism that the tribunal ‘stands in the shoes’ of the decision
maker.36 But the ‘standing in the shoes’ metaphor may be misleading because
another common feature of merits review is that it is a review which is de novo or
afresh. That is, the tribunal may make its decision on new material which was not
before the original decision maker. In Drake v Minister for Immigration and Ethnic
Affairs37 Bowen CJ and Deane J explained that when a Tribunal was required to
make the correct or preferable decision:
The question for the determination of the Tribunal is not whether the decision which
the decision maker made was the correct or preferable one on the material before him.
The question for the determination of the Tribunal is whether that decision was the
correct or preferable one on the material before the Tribunal.

In these circumstances, the material before the review body may bear little resem-
blance to that before the original decision maker.
Not all tribunals are granted power to conduct a de novo review. Often, the
statute granting the right of review will restrict the material available to the
review body or limit the powers of reconsideration. The terms of the statute
are critical in each case. Nonetheless, unless the legislation specifies otherwise,
review will be taken to be de novo. The Full Court of the Federal Court in Re
Coldham; Ex parte Brideson38 in the course of its reasons explained:
. . . it is well settled that, when the legislature gives a court the power to review or
hear an ‘appeal’ against the decision of an administrative body, a presumption arises
that the court is to exercise original jurisdiction and to determine the matter on the
evidence and law applicable as at the date of the curial proceedings. Nevertheless,
whether the right of appeal against an administrative decision is given to a court or to
an administrative body, the nature of the appeal must ultimately depend on the terms
of the statute conferring the right.39

Justification for this position is the absence of a hearing before the original
decision maker and the powers granted to tribunals to elicit evidence under
compulsion.40


Merit review is of the decision, not the reasons for the decision
Administrative decision makers are commonly required to provide reasons for
their decisions.41 An issue arose early in the life of the AAT as to whether this
86 AUSTRALIAN ADMINISTRATIVE LAW


indicated that the review powers of the Tribunal were restricted to reviewing
those reasons. The Tribunal in Re Greenham and Minister for Capital Territory42
rejected that suggestion in the following passage:
True it is that those reasons may form an important part of the Tribunal’s consideration,
but the scope of the review function exercisable by the Tribunal is no more limited on
the one hand by the statement of reasons of the decision maker than it is on the other
by the statement of reasons lodged by an applicant. It is the decision itself which falls
for review in the light of the reasons advanced by the decision maker and the applicant,
together with any other facts, circumstances or considerations which are relevant to
the decision under review and which emerge during the Tribunal’s consideration of
that decision.43

There were several reasons for this conclusion. The function of the Tribunal
was administrative review, hence its process was not to be formalistic. That was
further indicated by the requirement that the Tribunal was to conduct its pro-
ceedings ‘with as little formality and technicality . . . as the requirements of [the
relevant legislation] and a proper consideration of the matters before the Tri-
bunal permit’.44 Nor should the Tribunal be hampered in its review powers by
inadequate statements of reasons, for example, because they have been formu-
lated by unskilled officials. Further, the Tribunal had been given extensive powers
to discover the actual reasons, to summons witnesses and, in s43, to exercise ‘all
the powers and discretions that are conferred’ on the primary decision maker.
These powers would be unnecessary if review was confined to the statement
of reasons.45 So unless the statute specifically restricts the grounds which can
be raised or considered on review, the Tribunal may consider the whole of the
evidence and every aspect of the case for the purpose of the review.
A further difficulty, in particular for federal tribunals, is that if a tribunal’s
jurisdiction is limited, the jurisdiction might more closely align with the jurisdic-
tion of the courts; for example, if the jurisdiction is limited to deciding whether
the decision or the reasons for the decision were ‘reasonable or defensible’, such
an expression comes close to deciding legality, not merit, issues. That might lead
tribunals to trespass on the courts’ domain and this could be constitutionally
impermissible.46


The jurisdiction of tribunals

The jurisdiction of a tribunal is limited to the review of decisions that are defined
by its legislation. Generally this is confined to a specific subject area, such as immi-
gration, veterans’ affairs, guardianship, land planning, or occupational licensing.
General jurisdiction or multi-purpose tribunals have broader powers, but again
their authority to act is limited to those powers granted by legislation. Accord-
ingly, a tribunal may only hear a matter if it comes within its statutory remit. The
first issue in any tribunal hearing is the extent of the tribunal’s decision-making
powers in relation to the matter before it. As the Full Court of the Federal Court
87
ADMINISTRATIVE TRIBUNALS


noted in Crompton v Repatriation Commission:47 ‘[T]here is nothing . . . that
precludes the finding that the tribunal can, and indeed must, re-decide the ques-
tion of its jurisdiction in each case before proceeding to merits review’. Ensuring
that a tribunal has kept within its jurisdictional limits, that is, has not committed
a jurisdictional error, is a prime function of the courts exercising judicial review.
As the High Court explained in Craig v South Australia:48

At least in the absence of a contrary intent in the statute or other instrument which
established it, an administrative tribunal lacks authority either to authoritatively deter-
mine questions of law or to make an order or decision otherwise than in accordance
with the law.

The task of deciding the ambit of the jurisdiction of a tribunal depends on
the nature of the decisions it can review. Legislation often defines what is a
‘reviewable decision’ with some precision.49 Such decisions are usually listed in
the referring legislation. In the absence of such a definition, the statutes setting
out the general powers of tribunals like the AAT define ‘decision’ expansively.50
As in the AAT Act, a definition which refers ‘to a litany of activities of both a
positive and negative nature culminating in “doing or refusing to do any other
act or thing”’ allocates a broad jurisdiction.51 Another element of the decision
under review is whether it is the original decision of the agency that is under
review or any decision reconsidering that decision either within the agency or by
an external review body. For example, the Social Security (Administration) Act
1999 (Cth) s179 and the Safety, Rehabilitation and Compensation Act 1988 (Cth)
ss60(1), 64 provide that it is the reconsideration decision that is reviewable
by the AAT. In others, the legislation conferring jurisdiction provides that it
is the original decision as affirmed, varied or substituted on reconsideration
that is reviewable by the AAT, as in the Veterans’ Entitlements Act 1986 (Cth)
s175.
In line with the broad definition of ‘decision’ in the AAT Act, the Full Federal
Court in Collector of Customs v Brian Lawlor Automotive Pty Ltd52 rejected an
argument that ‘decision’ in the AAT Act s25 in the context of the tribunal’s power to
‘review . . . decisions made in the exercise of powers conferred by [an] enactment’
meant a valid, not an invalid decision. As Bowen CJ reasoned:

In the Administrative Appeals Tribunal Act a wide meaning is given to the word ‘decision’
by s3(3). In s25 it appears to me that the word simply refers to a decision in fact
made, regardless of whether or not it is a legally effective decision. The difficulty lies in
interpreting the words ‘made in the exercise of powers conferred by that enactment’.
This may mean that it must be shown there was a decision made: (a) in pursuance
of a legally effective exercise of powers conferred by the enactment; or (b) in the
honest belief that it was in the exercise of powers conferred by the enactment; or
(c) in purported exercise of powers conferred by the enactment. Interpretation (c)
appears to me to be consistent with the context in the Administrative Appeals Tribunal
Act.53

Section 25 of the AAT Act provides:
88 AUSTRALIAN ADMINISTRATIVE LAW


25(1) An enactment may provide that applications may be made to the Tribunal:
(a) for review of decisions made in the exercise of powers conferred by that
enactment. . . .
(4) The Tribunal has power to review any decision in respect of which application is
made to it under any enactment.
The result has been to preclude any jurisdictional impasse on the basis that
review of decisions which may be unlawful is not permitted. Purported decisions
which are potentially invalid may be reviewed by the Tribunal. In Brian Lawlor,
that meant the Tribunal had jurisdiction to reconsider the purported revocation
of a licence which could not be revoked but only because the purported revocation
was an intended exercise of powers conferred by legislation.
When jurisdiction to review is granted to the general jurisdiction of multi-
purpose tribunals, the grant is often a combination of the broad statutory defini-
tion in the framework of legislation as modified by the subject-specific legislation
allocating the jurisdiction to review. For example, ‘decision’ was simply defined
in the Veterans’ Entitlements Act 1986 (Cth) s5Q(1) as ‘a determination and an
assessment’. Since ‘decision’ was not further defined, and there is a right of review
of veterans’ entitlements decisions by the Commonwealth AAT, the meaning of
‘decision’ in the Administrative Appeal Tribunal Act 1975 (Cth) s3(3) applies to all
reviews of veterans’ entitlement matters. In Director-General of Social Services v
Hales54 Lockhart J described this combination of sources of jurisdiction as
follows:

The Administrative Appeals Tribunal has jurisdiction to review decisions made in
the exercise of the powers conferred by particular statutes, not by the Administrative
Appeals Tribunal Act itself. Those statutes are many and diverse. They include the Social
Services Act 1947, the Migration Act 1958, the Compensation (Commonwealth Govern-
ment Employees) Act 1971, the Repatriation Act 1920, the Customs Act 1901 and the
Insurance Act 1973. Each of the statutes conferring jurisdiction on the Administrative
Appeals Tribunal covers a wide range of decisions.
The definition of ‘decision’ in s3(3) seeks to embrace them all by its ambulatory char-
acter. One cannot therefore look to the definition in s3(3) to determine definitively the
meaning of the word ‘decision’. It must take its colour and content from the enactment
which is the source of the decision itself. No narrow or pedantic approach is called for in
determining whether a decision falls within the scope of review by the Administrative
Appeals Tribunal.55



Does ‘decision’ encompass procedural as well as
substantive determinations?
A broad meaning of ‘decision’ would cover both procedural and substantive deter-
minations. At the same time, such an interpretation has the potential to fragment
and to lengthen administrative proceedings. From a systemic view, since judicial
review of ‘conduct’ – essentially matters of process – is permitted, it would seem
89
ADMINISTRATIVE TRIBUNALS


sensible that the procedural issues should also be amenable to tribunal review.56
That view has not been accepted unequivocally.57 Nonetheless, it has been com-
mon to permit review of procedural issues, at least when they can be categorised
as jurisdictional and part of the overall decision.58

Scope of de novo review jurisdiction
The standard rule is that, statutory exception aside, a tribunal reviews an appli-
cation looking at the facts, the law, and the policy at the date of the review. As
Deane J in Drake v Minister for Immigration and Ethnic Affairs59 expressed this
principle in relation to review by the AAT:
The question for the determination of the Tribunal is not whether the decision which
the decision maker made was the correct or preferable one on the material before him.
The question for determination of the Tribunals is whether that decision was the correct
or preferable one on the material before the Tribunal.60

This is referred to on occasions as contemporaneous review. Indeed, any
change to a decision is often said to be because the applicant has produced further
evidence, not available to the primary decision maker. Changes to the law, the
facts or the policy, however, are not always for the benefit of an applicant. Rules
have been developed to handle this situation.
For example, the legislation may provide expressly or by implication that the
facts are to be assessed at the date of the original decision. For example, a decision
to cancel a person’s income support payment because the person no longer qual-
ified does not depend on whether at a later date the person was again eligible.
In those circumstances, by implication the review is restricted to a consideration
of whether the person’s eligibility at the time of the initial decision had lapsed.61
The normal de novo rule applies, however, to the refusal of an income support
payment.62 The principle is subject to any contrary statutory intention.63
An intervening change in the law attracts other rules. The ordinary principle is
that the tribunal should rely on the law as at the date of the tribunal’s review deci-
sion, unless there are statutory transition rules in place.64 Should the change in
the law disadvantage the applicant, rules in statutory interpretation legislation,
echoing a common law presumption to this effect,65 are that accrued rights are not
diminished by a change in the law.66 The rules differentiate between procedural
and substantive rights, the former generally not attracting the exception, the lat-
ter doing so. Notably, however, a procedural requirement which impacts on rights
will come within the principle.67 These distinctions are not always easy to make.


Tribunal, procedure and evidence

Defining merits review is as much about the way in which disputes are settled, and
about who is to settle them, as it is about the criteria that are applied in settling
90 AUSTRALIAN ADMINISTRATIVE LAW


those disputes. In other words, the procedural features of tribunals are critical
in establishing what amounts to merits review. The more distinctive features of
the procedural and evidentiary rules applying to tribunals are as follows. These
rules do not apply universally. There is a spectrum of procedural models from an
adversarial, court-like model, to those which rely solely or heavily on alternative
dispute resolution methods such as arbitration or mediation, to those which
decide solely on the papers. In many tribunals the accent is upon flexibility and
informality in procedure. Two aspects of their procedure flow from this feature:
it is common for legislation setting up a tribunal to stipulate that the tribunal
is to operate informally and is not bound by the rules of evidence; and that the
tribunal should operate in an investigative (often called inquisitorial) rather than
adversarial manner.68


Evidence
Tribunals are generally not bound by the formal rules of evidence and their
proceedings are to be informal.69 As Gleeson CJ and McHugh J noted in Minister
for Immigration and Multicultural Affairs v Eshetu70 of the ‘no evidence’ provisions
in the Migration Act 1958 (Cth):71
They are intended to be facultative, not restrictive. Their purpose is to free tribunals,
at least to some degree, from constraints otherwise applicable to courts of law, and
regarded as inappropriate to tribunals. The extent to which they free tribunals from
obligations applicable to the courts of law may give rise to dispute in particular cases,
but that is another question.72

The consequence is that while the discretion of tribunals is not unfettered
‘it is a wide one and the tribunal will not err in law merely because it acts on
evidence which would not be admissible in a court or because there is no legally
admissible evidence to support any of its findings’.73 Nonetheless, the provisions
do not mean that any material the applicant wishes to produce can be admitted,
so that the hearing is a ‘free-for-all’. In practice, in the absence of other guidance,
tribunals tend to rely on rules of evidence as the method of inquiry ‘best calculated
to prevent error and elicit truth’.74 As Woodward J noted in McDonald v Director-
General of Social Security:
. . . a tribunal will still have to determine 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 such questions in the statutes under which it is
operating, or in consideration of natural justice or common sense, than in the technical
rules . . . developed by the courts. However, these may be of assistance in some cases
where the legislation is silent.75

The procedural freedom accorded tribunals by the ‘no evidence’ provisions is
often balanced by a requirement that the tribunals ‘shall act according to sub-
stantial justice and the merits of the case’.76 This is a standard statutory formula
which has been taken to indicate simply that a tribunal has flexible procedures.77
91
ADMINISTRATIVE TRIBUNALS


Consideration of evidence must comply with procedural fairness
Generally, the admission of evidence must meet the basic standards of fair process
imposed on tribunals by the rules of procedural fairness. As Mason J said in Kioa v
West78 of the exercise of a statutory power, it:

. . . must be exercised fairly, that is, in accordance with procedures that are fair to
the individual considered in the light of the statutory requirements, the interests of
the individual and the interests and purposes, whether public or private, which the
statute seeks to advance or protect or permits to be taken into account as legitimate
considerations.79

What are basic standards of fair process will depend on the statutory context.
Hence, in the context of the Migration Act 1958 (Cth), Part 8 of which excised
the rules of natural justice, except actual bias, as a ground of review, it is clear
that the common law rules of natural justice are excluded when applications
are based on that statute. Part 8 does not free tribunals from complying with
the procedural code contained in the Act.80 Nor, when, applications are made
under the Constitution s75(v) or the Judiciary Act 1903 (Cth) s39B do these
provisions exclude even the common law rules.81 With the passage of amending
legislation, however, review of migration decisions is now confined to the statu-
tory analogue of natural justice.82 Nonetheless, even in the majority of tribunals
which must generally comply with the common law rules, the rules of natural jus-
tice apply.83 Whether those rules are sufficiently precise to be helpful is another
question.84


Evidence must be probative
The evidence must at least be probative of the issue for which it is tendered.
To be probative, evidence must tend ‘logically (to) show the existence or non-
existence of facts relevant to the issue to be determined, or to show the likelihood
or unlikelihood of the occurrence of some future event the occurrence of which
would be relevant’.85 Whether a failure to decide on probative evidence is legally
flawed on the basis that such a decision is irrational or ‘Wednesbury unreasonable’
or amounts to another ground of review such as error of law has not definitively
been determined.86


Tribunal review is often investigative rather than adversarial
Court process in Australia is generally based on an adversarial model. That is, the
adjudicator acts as an umpire between two opposing parties and it is principally
the parties who have the responsibility of choosing what evidence to present and
how best to run their case. By contrast, investigative tribunals are expected to
take a greater role in the conduct of the proceedings and the tribunal is required
to obtain relevant information whether prior to, at, or after the hearing.87
92 AUSTRALIAN ADMINISTRATIVE LAW


Australian tribunals come within a spectrum of styles ranging from adversar-
ial to a more inquisitorial or investigative model. Rarely does the statute overtly
indicate that a tribunal is to operate in an investigative manner. Of the major
Commonwealth, state and territory tribunals, it is only the ADT Act which con-
tains such a provision.88 Even then the reference is oblique, being a requirement
that the ADT ‘ensure that all relevant material is disclosed to the Tribunal so as to
enable it to determine all of the relevant facts in issue in any proceedings’.89 The
AAT Act has no similar provision. The nearest equivalent is s33(1)(c) of the AAT
Act, which authorises the Tribunal to ‘inform itself on any matter in such manner
as it thinks appropriate’. While the Tribunal has occasionally exercised its power
to summon its own witnesses it has done so rarely and with some circumspection.
It generally relies on what is put before it by the parties to determine whether it
has sufficient information for its purposes.90
The Immigration Review Tribunal, a precursor of the Migration Review Tri-
bunal, was often described as an inquisitorial body, although this is not spelled
out in the Migration Act 1958 (Cth). The Committee for the Review of the System
for Review of Migration Decisions (CROSROMD) said of the inquisitorial style of
the IRT:

The most obvious characteristic of the IRT as a non-adversarial tribunal, when com-
pared with a more traditional tribunal such as the AAT, is that there is no direct con-
frontation at a hearing between parties and between their lawyers. In an adversarial
system, there are commonly two parties, each represented by lawyers, who argue the
issues of law and fact to be resolved, and challenge the contentions of the opposing
party. In the IRT, however, it is usually only the applicant who attends any ‘hearings’,
and he or she is often not represented by anyone else, whether a lawyer or other-
wise. Tribunal members themselves are responsible for actively assisting the appli-
cant to present his or her case, identifying all the relevant issues, thoroughly testing
the evidence and protecting the interests of both applicant and the Department or
Minister.91

The inquisitorial nature of the IRT’s process was evident in the absence of an
opposing party with the consequence that the evidence-gathering and testing
role fell on the tribunal. Other features of the non-adversarial process were the
absence of formal rules of evidence, and the adoption of procedures designed
to minimise legalistic approaches, achieved principally by the refusal of legal
representation.92 Although lawyers could accompany applicants to tribunal hear-
ings, they could only address the tribunal in exceptional circumstances and could
only contribute if information was sought from them by the tribunal. These fea-
tures have been retained by the successor of the IRT, the MRT, although there is
no equivalent provision concerning legal and other assistance before the Refugee
Review Tribunal (RRT).93 Other provisions which indicate that the process is not
to be adversarial are that the Tribunal is capable of calling witnesses or parties,
and may examine and cross-examine witnesses. Express provisions which give
the Tribunal power to control its proceedings are that it may decide that evidence
will be written or oral, and may impose time limits on parties.94
93
ADMINISTRATIVE TRIBUNALS


In Bushell v Repatriation Commission,95 Brennan J described the investigative
procedure of the AAT in terms which are frequently quoted:

Proceedings before the AAT may sometimes appear to be adversarial when the Com-
mission chooses to appear to defend its decision or to test a claimant’s case but in
substance the review is inquisitorial. Each of the Commission, the Board and the AAT
is an administrative decision maker, under a duty to arrive at the correct or preferable
decision in the case before it according to the material before it . . . The notion of onus of
proof, which plays so important a part in fact-finding in adversarial proceedings before
judicial tribunals, has no part to play in these administrative proceedings.96

When a tribunal is operating inquisitorially it is obliged not to limit its deter-
mination to the case presented by the applicant if the evidence and material
which it accepts, or does not reject, raises a case on a basis not articulated by
the applicant.97 These functions are more likely to be carried out by conference
registrars or case officers98 than by the tribunal itself. In practice, even when a
tribunal is designed to be investigative, resource limitations, time pressures, and
the need to avoid breaching fair process rules often inhibit a tribunal’s investiga-
tive activity.99 So despite their investigative role, it is more common for tribunal
members to request the parties to provide information than for the tribunal to
seek such information itself. Other inhibiting factors are the influence of the legal
culture in which a tribunal operates, the unwillingness to move from the known
and well-established rules of evidence, and the fact that tribunals are sited in an
adjudicative system the final tiers of which traditionally operate in an adversarial
fashion.100
Courts too have been slow to impose an obligation on a tribunal to undertake
independent inquiries, even given tribunals’ ostensibly inquisitorial role.101 More
recently, however, the High Court has given the ‘green light’ to the duty of inquiry,
at least in some cases. In Applicant VEAL of 2002 v Minister for Immigration and
Multicultural Affairs102 the High Court accepted that it is a breach of procedural
fairness for a tribunal not to make an inquiry in certain circumstances. As the
Court noted:

The [Refugee Review] Tribunal was not an independent arbiter charged with deciding
an issue joined between adversaries. The Tribunal was required to review a decision of
the Executive made under the Act and for that purpose the Tribunal was bound to make
its own inquiries and form its own views upon the claim which the appellant made. And
the Tribunal had to decide whether the appellant was entitled to the visa he claimed.103

Whether this concession will encourage greater resort to information-gathering
by tribunals is yet to be tested but, subject to any specific statutory provisions,
the VEAL decision has opened the way for this to occur.
There is one area in which tribunals are under such an obligation and that
relates to their own jurisdiction. A tribunal always has a duty to ensure it is legally
competent to decide a matter. If this entails making inquiries about jurisdictional
facts or other jurisdictional issues to determine that question, the tribunal must
undertake that inquiry. For example, as the AAT must be granted jurisdiction
94 AUSTRALIAN ADMINISTRATIVE LAW


under an enactment, the Tribunal has taken a careful approach to the interpre-
tation of provisions vesting it with jurisdiction.104 Where the enactment lists
decisions that can be reviewed, the failure to include a decision is construed
strictly.105 Similarly a requirement that a decision be reviewed by a lower tier tri-
bunal before seeking review by the AAT has been regularly enforced.106 The same
applies to a requirement that a decision be internally reviewed before review by
the Tribunal.107


Must be ‘fair, just, economical, informal and quick’
A major factor which impinges on the inquisitorial operation of tribunals is the
requirement that they operate in a manner which is fair, just, economical, infor-
mal and quick. Complying with this litany of adjectives has created difficulties
for tribunals, not least because they are internally inconsistent. They are among
the benchmarks of several major tribunals.108 The difficulty of how to give appro-
priate weight to these adjectives was described as follows:

First, the objectives referred to in [s] 420(1) will often be inconsistent as between
themselves. In particular, a mechanism of review that is ‘economical, informal and
quick’ may well not be ‘fair’ or ‘just’.109

In failing to indicate which should take precedence, parliaments have created
a conundrum for tribunals. Nor have the courts been helpful in assisting tribunal
members to weigh up which of these competing objectives should receive prefer-
ence in a particular case. While courts have held that it is for the decision maker
to allocate weight to particular statutory objectives,110 and that this requirement
is imperative in cases where the objectives are in competition, guidance ceases
at this point.


Burden and standards of proof
It has long been accepted that strict notions of burdens of proof, statute aside,
are inappropriate in the administrative process, including in tribunals. A burden
of proof is the obligation to prove or disprove a fact. Nonetheless, in a practical
sense, a tribunal cannot make a decision unless it has evidence before it and in turn
that requires someone to produce evidentiary material. In some circumstances,
the obligation to do so is placed on the applicant or the agency. In the absence
of any statutory injunction, there is generally a practical onus on an applicant
satisfactorily to establish their case and that requires production of evidence.111
This conclusion flows from curial statements at the highest level that the tribunal
is entitled to rely on the case the applicant presents.112 Indeed, as Gleeson CJ
said in Dranichnikov v Minister for Immigration and Multicultural Affairs,113 the
inquisitorial role of the tribunal does not ‘mean that a party before [a tribunal]
can simply present the facts and leave it to the Tribunal to search out, and find, any
available basis which theoretically the Act provides for relief ’. As a consequence,
95
ADMINISTRATIVE TRIBUNALS


a claimant cannot assume from the fact that the proceedings are inquisitorial

<<

ńňđ. 5
(âńĺăî 19)

ŃÎÄĹĐĆŔÍČĹ

>>