Hostname: page-component-745bb68f8f-s22k5 Total loading time: 0 Render date: 2025-01-30T23:12:54.782Z Has data issue: false hasContentIssue false
  • English
  • Français

Recent Developments concerning Tribunals in Australia

Published online by Cambridge University Press:  24 January 2025

Peter Johnston
Peter Johnston*
Affiliation:
Law School, The University of Western Australia
Get access Rights & Permissions [Opens in a new window]

Extract

The primary problem in attempting a resume of recent developments concerning tribunals in Australia is one of classification and proliferation. What constitutes a “tribunal” is a much debated and fuzzy conceptual issue. Even if one settles on an acceptable definition, the problem remains of the vast variety of bodies throughout Australia that would require survey. Although this paper addresses some recent legislative proposals concerning particular tribunals, both at State and Commonwealth levels, it concentrates on conceptual developments about certain kinds of tribunals. It is concerned with the underlying pressures and intentions that are driving such proposals. It also takes into account the legal environment, namely specific judicial and executive decisions, which are shaping them.

Type
Research Article
Information
Federal Law Review , Volume 24 , Issue 2 , June 1996 , pp. 323 - 342
Copyright
Copyright © 1996 The Australian National University

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Handley, R, “Research Note: Collecting Information about Tribunals” (1995) 6 AIAL Forum 37 at 38Google Scholar.

2 (1995) 184 CLR 163.

3 Ibid at 176-177.

4 Finn, C, Case Note “Jurisdictional Error: Craig v South Australia” (1996) 3 A J Admin L 177 at 179-80Google Scholar. See also J McMillan, below at 374-377.

5 Report No 39, 1995.

6 Address to Australian Institute of Administrative Law (AIAL) Forum, Sydney, 11 April 1996.

7 These are discussed in RD Nicholson, “Judicial and Administrative Review in Westerr Australia: Blueprints for Development” in S Argument (ed), Administrative Law: Are tht States Overtaking the Commonwealth? (1996) at 69.

8 Established pursuant to the Commission on Government Act 1994 (WA).

9 Discussed by Wilson, M, QC, “Review of Administrative Decisions in Queensland”, in S Argument, above n 7 at 37Google Scholar. The recommendations of the EARC were modified in accordance with recommendations of a Queensland Parliamentary Committee.

10 Assuming there is no move in the meantime to relocate the tribunal in a court.

11 Amended by Act No 9 of 1994, Schedule 3.

12 District Court Act 1991 (SA), s 20(1) and (2).

13 Gazetted on 7 September 1995.

14 Thirty-Sixth Report of the Legislative Council Committee on Government Agencies, Appendix at 9 and 13.

15 Schwartz, B, “American Administrative Law: An Overview” (1996) Admin Rev 14 at 19Google Scholar.

16 Administrative Review Council (ARC), Better Decisions: review of Commonwealth Merits Review Tribunals (Report No 39, 1995).

17 Ibid at vvi. This is a proposition questioned by Nicholson, RD in “Better Decisions: Commonwealth Administrative Review at the Crossroads”, paper presented at the conference The AAT-Twenty Years Forward, Canberra, 1-2 July 1996Google Scholar.

18 ARC, above n 16, recommendation 3.

19 Ibid, recommendation 55.

20 Ibid.

21 Ibid, recommendation 10.

22 Ibid, recommendation 20.

23 Ibid, recommendation 28.

24 Ibid, recommendation 32.

25 Ibid, recommendation 33.

26 Ibid, recommendations 35 and 36.

27 Ibid, recommendation 71.

28 Ibid, recommendation 72.

29 Ibid, recommendation 73.

30 ARC Discussion Paper, Review of Commonwealth Merits Review Tribunals (1994) at 5.

31 Ibid (emphasis added).

32 ARC, above n 16, recommendation 97.

33 Disney, J, “The ARC's Better Decisions Report: For Better or for Worse, For Richer or for Poorer”, paper presented at the conference The AAT - Twenty Years Forward Canberra, 1- 2 July 1996Google Scholar.

34 Australian Law Reform Commission, Review of the Adversarial System of Litigation, Terms of Reference, 29 November 1995.

35 J Disney, above n 33 at 5 and 6.

36 Ibid at 7.

37 Deputy President R K Todd in Re Ganchov and Corncare (1990) 19 ALD 541 at 542, para 41.

38 J Disney, above n 33 at 9.

39 For example, Walter de Maria, , “The Administrative Appeals Tribunal in review: on remaining seated during the standing ovation” in McMillan, J (ed), Administrative Law: Does the Public Benefit? (1992) 96Google Scholar.

40 J Disney, above n 33 at 19.

41 Ibid at 21.

42 Ibid.

43 Ibid at 23.

44 Ibid at 24.

45 Committee for Review of Migration Decisions, Non-Adversarial Review of Migration Decisions' (1992).

46 RD Nicholson, above n 17, points out that courts are becoming increasingly less formal and more flexible in their procedures, particularly where unrepresented parties arc involved, so that the marked distinctions between courts and tribunals is substantially diminished. Whether the independence of courts may be compromised by engaging ir administrative review remains, however, a reason for maintaining the distinction.

47 Finn, P, “A Sovereign People, A Public Trust”in Finn, P (ed), Essays on Law and Governmen (1995) 1 at 9-14Google Scholar.

48 Commission on Government (COG), (Report No 4, 1995) at para 7.1.4.

49 Ibid at para 7.4.4. Concerning the separation of powers aspect, see Sir R Wilson, Address to Legal Aid Conference, Perth, 16 August 1996.

50 COG, above n 48 at para 7.2.1.4.

51 Ibid at para 7.2.1.5.3 at 162.

52 Ibid at para 6.2.2.5.

53 Ibid at recommendation 209. The wisdom of this recommendation is questioned below.

54 Ibid at recommendation 208.

55 Ibid at 6.1.5.

56 Ibid at para 6.2.2.5. Regarding establishing the ART as the sole tribunal for Westem Australia and abolishing all others, see paragraph 6.2.3.5. Regarding the kinds of decisions to be reviewed, see page 142 and para 6.3.5.

57 (1995) 183 CLR 245. As to the limitation imposed by Chapter III of the Constitution on ust of federal judges for inquiries, see also Wilson v Minister for Aboriginal and Torres Strail Islander Affairs (1996) 70 ALJR 743.

58 Michael v The State Housing Commission of WA, (Federal Court of Australia, Carr J, 19 July 1996, unreported).

59 Discussion Paper on Proposed Changes to Native Title Act 1993 by R S French, President of NNTT, 14 March 1995 at 3-4 (NNTT Discussion Paper). See also his paper “Native Title - Promise, Pain and Progress” at the conference Doing Business with Aboriginal Communities, Darwin, 27-29 February 1996 at 7-9.

60 NNTT Discussion Paper, above n 59, Appendix 4.

61 Ibid, Appendix 4 at 5-6.

62 (1996) 70 ALJR 344.

63 NNTT Discussion Paper, above n 59 at 10-15.

64 Parliamentary Joint Committee on Native Title (Report No 4, July 1996).

65 Ibid at 25.

66 For an analysis of how the AAT is structured to avoid Chapter III problems, see A Hall, “The Judicial Power, The Duality of Functions and the Administrative Appeals Tribunal” (1994) 22 f L Rev 13.

67 Australian Financial Review, 2 August 1996.

68 Address to Legal Aid Conference, Perth, 16 August 1996.

69 The States are not subject to such a doctrine: JD & WG Nicholas v Western Australia [1972] WAR 168; Gilbertson v South Australia (1976) 15 SASR 66 at 85; affd [1978] AC 772 at 783; (1977) 14 ALR 429; Grace Bible Church v Reedman (1984) 54 ALR 571; Collingwood v Victoria (No 2) [1994] 1 VR 652. Arguments about a more confined core of necessary judicial independence underpinning the State Supreme Courts have been advanced and rejected: S (A Child) v The Queen (1995) 12 WAR 405. See also Kable v Director of Public Prosecutions (1996) 138 ALR 577.

70 See below at 341-342.

71 Craig v South Australia (1995) 184 CLR 163.

72 Gardner, A, “The Planning Legislation Amendment Bill 1994 (WA)” (1995) 12 Environmental and Planning Law Jo 10Google Scholar. There is a proposal that Commonwealth environmental decisions be reviewable by the AAT (ARC Environmental Decisions and the Administrative Appeals Tribunal, (Report No 36, 1994); see also Pain, N, “Environmental Decision-Making Processes” in Cole, K (ed), Administrative Law and Public Administration−Form v Substance (1996) 140Google Scholar at 147). The writer of this present paper is of the view that the ARC's recommendations are based on a misunderstanding of the complex polycentric nature of environmental decision-making and should be read with caution.

73 Smith, R, “Australian Guardianship and Financial Management Boards and Tribunals: Are They Fully Accountable in their Decision-Making?” (1995) A J Admin L 23Google Scholar.

74 “Administrative Review By Other Commonwealth Tribunals” − paper presented at the Conference, “The AAT…Twenty Years Forward Canberra, 1-2 July 1996.

75 Ibid at 4 and 6.

76 Ibid at 7-8.

77 Craig v South Australia (1995) 184 CLR 163.

78 Health Insurance Act 1973 (Cth) (HI Act), s 79B (added in 1986).

79 Hl Act (Cth), s 66.

80 HI Act (Cth), s 80.

81 HI Act (Cth), ss 3D and 62.

82 HI Act (Cth), s 124E.

83 Wheelwright, K, “Controlling Pathology Expenditure under Medicare … A Failure oi Regulation” (1994) 22 F L Rev 92 at 108Google Scholar.

84 Queensland Medical Laboratory v Blewett (1984) ALR 615; Jayasuria v Vocational Registratior Appeal Committee (1994) 34 ALD 183; Tan v VRAC (1996) 41 ALD; Minister for Humar Services and Health v Haddad (1995) 137 ALR 391; Re Haddad and Medicare Participatim Committee (1996) 42 ALD 18.

85 Review by the Commonwealth AAT is, in some instances, available under the Hl Act (Cth) s 124R.

86 Kirby, M D, “Administrative Review Twenty Years Forward”, paper presented at the conference, The AAT… Twenty Years Forward Canberra, 1-2 July 1996Google Scholar, citing Todd, R, “The Structure of the Commonwealth Merits Review Tribunal System” (1995) 7 AIAL Forum 33,35Google Scholar. See also RD Nicholson, above n 17 at 12-17.

87 Commonwealth Administrative Review Committee Report (Parliamentary Paper No 144, 1971),Chapter 15.

88 Rowland, D “Getting the process right. Should it be adversarial, inquisitorial or something else? Lessons and foresights from the procedure of the Conseil d' Etat in France”, paper given at Administrative Law Forum 1996: Setting the Pace or Being Left Behind? Sydney, 11-12 April 1996 at 4-10CrossRefGoogle Scholar.

89 Brown, L N Bell, J, French Administrative Law (4th ed, 1993) at 101-3Google Scholar; Burchett, J, “Administrative Law …The French Comparison” (1995) 69 ALJ 977 at 989Google Scholar.

90 Thirty-Sixth Report of the Legislative Council Committee on Government Agencies.

91 Contrast Adams, G, “Towards a Mobilization of the Adversary Process” (1974) 12 Osgoode' Hall LJ 569CrossRefGoogle Scholar with Wexler, S, “Non-Judicial Decision-Making” (1975) 13 Osgoode Hall LJ 839Google Scholar.

92 More generally, see Nicholson, RD, “Getting the Process Right … Should it be Adversarial,Inquisitorial or Something Else?”, Administrative Law Forum 1996: Setting the Pace or Being Left Behind?, Sydney 11-12 April 1996Google Scholar and O'Neill, A, “Setting the Pace or Being Left Behind… Inquisitorial, Adversarial or Something Else”, commenting on this paperGoogle Scholar.

93 The problems are illustrated by Australian Postal Commission v Hayes (1989) 87 ALR 283.

94 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 136 ALR 481 and see J McMillan, below at 370-374.

95 Sullivan v Minister of Transport (1978) 20 ALR 323. At the other extreme, some legislative amendments now specifically exclude natural justice as a ground of review of tribunal decisions: Migration Act 1958 (Cth), s 476.

96 Creyke, R, The Procedure of the Federal Specialist Tribunals (1994)Google Scholar.

97 In Aboriginal Hostels Ltd and Shire of Swan and Others (WA Town Planning Appeal Tribunal 20 August 1980, unreported) the Tribunal awarded costs against the Shire because it ha adopted an adversarial role in the appeal

98 Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223.

99 McEvoy, T, “New Flesh on Old Bones: Recent Developments in Jurisprudence Relating to Wednesbury Unreasonableness” (1995) A J Admin L 36Google Scholar.

100 Above n 48 at para 7.2.2.4.

101 Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245.

102 NSW v The Commonwealth (1915) 20 CLR 54 (the Wheat case), in which the Court denied enforcement powers to the Interstate Commission established under s 101 of the Commonwealth Constitution.

103 Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639.

104 Above n 48 at para 6.2.2.5.

105 Minister for Health v Haddad (1995) 137 CLR 391; Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287.

106 Aboven 45

107 The basic requirement would be that such a person should not sit alone on a matte, involving her last agency.

108 Enright, C, “Regulation or Market?”, at 2Google Scholar; and Dixon, N, “Is there a Place for Administrative Law in Government Business Enterprises?” at 23-28Google Scholar; papers presented at the Administrativ Law Forum 1996: Setting the Pace or Being Left Behind?, Sydney, 11-12 April.