Key Issues
A P P L I E D C O R P O R AT E G O V E R N A N C E
Ten goes into one hundred and
fifty-four at least fifteen times
By John D. Fitzgerald, Solicitor, Sydney
• There is a lack of clarity as to what a
tribunal is and does
• Client and lawyer potentially leave
behind the comfortable perspective of
courtroom procedure and evidence at
tribunal hearing
S
hould a lawyer and their client who are
dragged before a tribunal expect much the
same caper as a court, or should they expect
something else?
To begin answering the question we’ll put
tribunals into some setting — by wiggling your
fingers and toes. Ten fingers — two hands — and
the number of generalist superior courts in
Australia. Now let’s wiggle your 10 toes. This
makes 20. Which should cover most, if not all, of
the specialist superior courts in Australia (we'll
ignore the detail that some of the appellate courts
are separate bodies).
One hundred and fifty-four. That'll take eight
people with their shoes and socks off — all
wiggling their digits. Most small law firms in this
country couldn’t rustle up that many professional
staff. It's also my best estimate of the number of
adjudicative tribunals in this country.
Some of these tribunals are generalist, like most
courts, with initiating-process-jurisdiction (a term
used here to mean the types of disputes brought to
the tribunal) ranging over both public and private
businesses and given by many laws. The State
Administrative Tribunal of Western Australia is an
example. Others are specialist, unlike most courts,
with initiating-process-jurisdiction over just one
dispute. The Shack Sites Commissioner of Tasmania
is an example (in case you’re wondering, this
tribunal adjudicates on disputes about the use of
privately owned recreational houses found in that
state's national parks).
Some tribunals proceed in a manner similar to
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the courts (for example, the Commonwealth
Administrative Appeals Tribunal); yet others
proceed differently. In some there is no oral hearing
(for example, the Takeovers Panel), or significant
rules of evidence such as the onus of proof or the
hearsay rule apply with reduced rigour (for
example, the NSW Mental Health Review Tribunal).
The numbers and examples in the preceding
paragraph summarise what is different about
tribunals: there are so many and they are so diverse.
And don't put your shoes back on, you'll need your
unshod feet for an exercise later in the paper.
The ‘T’ word is a name, not an idea
I was once a barrister — before I decided to get a
real job. One of my fellow counsel remarked one
day, knowing my professional history in tribunal
litigation, that he'd instructed our clerk never to
send him somewhere with the ‘T’ word in its title.
This sarcastic remark does carry an important
point about bodies called ‘tribunal’: the term is
just a name, not an idea. Courts apply the ‘T’
word to bodies with various initiating-process
jurisdiction, and various procedural and remedial
features. The phrase ‘tribunal of fact’ that is met
when reading cases on the law of evidence refers
to a body bearing the characteristic that it makes
findings of fact. In this usage, the phrase can refer
to both a court and a non-judicial body such as
the Ombudsman or a range of statutory
authorities carrying out investigations.
One nineteenth-century judge confessed: ‘I
doubt whether the word “tribunal” does not really
rather embarrass the matter; because that word
has not, like the word “court”, an ascertainable
meaning in English law’.1 Over one hundred years
later and half a world away, the comments from
superior courts on both sides of the Australian
continent are embarrassing failures in the search
for a clarification of the term. In the calendar
years 2001 and 2002, the four judges comprising
the Western Australian Court of Appeal and the
Victorian Supreme Court couldn’t agree much
about tribunals.2 They couldn’t agree on whether a
‘tribunal’ was a body in or outside the regular
hierarchy of courts, whether a ‘tribunal’ was a
K e y I s s u e s A P P L I E D C O R P O R AT E G O V E R N A N C E
body that did or did not have to apply the rules of
procedural fairness, or even whether a ‘tribunal’ was
a body that made a determinative decision.
The picture emerging from the use of the term
‘tribunal’ in legislation is equally confusing. Without
distracting ourselves by attention to ‘details’ such as
rules of procedure, we pay attention to the single
criterion: is the body called ‘tribunal’ autonomous
from the regular court system? If the tribunal is a unit
of a court (because of it is a collocation of registry
functions and common membership), then in truth
the tribunal is best seen as the court acting in a
slightly different manner — it is not a separate body.
Using this criterion, such tribunals as the Australian
Competition Tribunal or the Northern Territory
Motor Accidents Compensation Appeal Tribunal are
not distinct bodies. Both tribunals are another branch
of a court — respectively the Federal Court of
Australia and the Northern Territory Supreme Court.
Other tribunals, the mental health review tribunals
and the guardianship tribunals being good examples,
see us come to the opposite conclusion. These bodies
work separately from those agencies providing
disability care and mental care while working closely
with those agencies.
Finally, two states, South Australia and Tasmania,
deserve special mention. Each has a system of
administrative review tribunals incorporated into their
courts. Since 1994, South Australia has made provision
for an Administrative and Disciplinary Division of the
District Court which sits as specialised tribunals. In
Tasmania, the Motor Accidents Compensation Tribunal
and the Mining Tribunal are both divisions of the
Magistrates Court, alongside the Administrative Appeals
Division (AAD) of the Magistrates Court which has
worked since 1 July 2002, on commencement of the
Magistrates Court (Administrative Appeals Division) Act
2001 (Tas). The Act gives the AAD authority to decide
under roughly 50 separate laws.
I have no essence
Probably the quickest way to understand the nature
of the initiating-process-jurisdiction of tribunals is
the following inelegant statement: ‘The tribunal
shall have all jurisdiction which may be necessary
for the administration of justice – NOT’. NSW
lawyers will recognise that this statement borrows
from the Supreme Court Act 1970 (s 23) which
describes the jurisdiction of the Supreme Court of
NSW. The sentiments of the provision do not apply
to any tribunal. Inherent jurisdiction is foreign to
tribunals3 because all of the rights of initiating
process are statutory.4 It follows that other species of
initiating-process-jurisdiction such as accrued
jurisdiction, associated jurisdiction, or pendent
jurisdiction are equally foreign to tribunals.
A footnote to the last conclusion, worth noting,
is that tribunals, like courts, must ensure they have
initiating-process-jurisdiction:
Before entering upon the exercise of jurisdiction
and power, every court or tribunal must satisfy itself
as to the existence of such jurisdiction and power.
At least, it must do so where there is a contest or an
apparent problem.5
For an example of the prevalent approach taken
to conferral of initiating-process-jurisdiction in
tribunals, you need look no further than the
Commonwealth Administrative Appeals Tribunal.
There all cases from the highest authority down to
‘first instance’ decisions emphasise particularity in
the conferral of initiating-process-jurisdiction6, or
dismiss notions that particularity is unnecessary.7
Mapping the negative space of
procedure
Now it’s time to use your feet again. Do this exercise
with your shoes and socks back on — or you can go
barefeet.
• Step one: take a clean sheet of paper and a
marker pen with a wide tip — any colour will
do.
• Step two: place your foot on the sheet of paper—
if possible have your heel or your toe touching
the edge of the paper.
• Step three: take your marker pen and colour in
the parts of the paper not covered by your foot.
Mark the sheet as ‘A’.
• Step four: take a second clean sheet of paper.
• Step five: repeat step two.
• Step six: take your maker pen and draw the
outline of your foot.
• Step seven: fill in the outline with the marker
pen. Mark the sheet as ‘B’.
Pick up the two sheets of paper, holding one sheet
in each hand. You will see that two visual elements
comprise each image: a white area and a coloured
area. In the jargon of visual communication, the white
area of image ‘A’ and the coloured area of image ‘B’ are
called the ‘positive space’, while the coloured area of
image ‘A’ and the white area of image ‘B’ are called the
‘negative space’ or ‘white space’.
Re-examine the two images. In both images our
eyes are drawn to the solid, coloured shape of the
positive space and we pay less attention to the
negative space. However, in image ‘B’ the balance
of negative to positive space is different than in
image A so that our eyes are even less focused on
the white space. In this exercise you have in front of
you a visual metaphor for the difference between
practice, procedure and evidence in courts and in
tribunals.
Image ‘B’ is the conventional model of practice,
procedure and evidence. Here is a collection of rules
where the emphasis or focus of attention is on the
prescriptive qualities of those rules. We regard
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Key Issues
A P P L I E D C O R P O R AT E G O V E R N A N C E c o n t i n u e d
choice or discretion, as we do the negative space
in image ‘B’, as the remainder after the elaboration
of the rules.
Image ‘A’ is the model of practice, procedure
and evidence in tribunals. There is a collection of
rules where choice or discretion is, as is the
negative space in image ‘A’, equally, if not more,
important than the prescriptive rules. The
difference is not so much the quality of
prescriptive rules, but the balance between rules
and choice.
Probably the most important reason for this
reversal in emphasis between prescriptive rules
and choice in the law of practice, procedure, and
evidence is a combination of two features of the
legislation controlling tribunals. The first is the
quantity and complexity of such rules in the
legislation, which is comparatively slight. Even
the most elaborate of these rules pales beside the
Uniform Civil Procedure Rules in NSW or its
interstate counterparts. In addition, the legislation
establishing most, if not all, tribunals contains
general provisions, allowing the tribunal to depart
from rules of evidence, practice and procedure
made in courts, and/or to act ‘...in accordance
with equity and good conscience…’, and/or ‘to
inform itself in any manner it sees fit’.
Courts interpret such terms as statements
about a tribunal’s ‘way of operating’.8 The terms, it
is said are 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.9
Cases from the High Court have consistently
stressed that terms of this nature do not permit
the Tribunal to disregard the law altogether:
It is clear that words in the form of those quoted
from s 9 must be regarded as dealing only with
procedure, and not as excluding the application
of rules of substantive law.10
That requirement in s 420(1),( to act in an
‘economical, informal and quick’ way ) is
obviously subject to the express provisions of the
Act. It cannot excuse non-compliance with the
Act's explicit requirements.11
Other cases adopt the same approach: the
work done by the provision should be subject to,
at least, other substantive (as opposed to
procedural) legal requirements. This impression,
however, does not reconcile with the observed
‘liberties’ taken by tribunals in using the tools of
inquiry. I suggest the following descriptions of
procedure and evidence be regarded as ‘typical’:
The Tribunal does not in practice sit back and wait
as parties attempt to do their best. It advises; it
raises issues, asks questions and suggests
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hypotheses. Within the framework of natural
justice and conventional legal procedures it
actively intervenes in an attempt to adduce the
relevant evidence which it finds to be admissible.12
This (absence of legally trained representatives)
necessarily involves the Tribunal taking a more
active role and identifying the real issues between
the parties and directing them as to the evidence
which legally and logically bears on those issues.
It may be, too, that in a given case, the Tribunal
will itself interrogate witnesses in a manner and
to an extent which would be expected in a court.13
Also these last two quotations point to an
equally important constraint: that however
tribunals use their ‘licence-to-depart’ provisions,
their use must conform with procedural fairness.
Two further quotations, one recent one from the
State Administrative Tribunal of Western
Australia14 and the second a classic from the pen
of then High Court Justice Evatt15 make this point:
[T]hat is not to say that it can assume jurisdiction
which it does not in fact have. The requirement
to act fairly and equitably is to do so within the
bounds of the Tribunal's jurisdiction. It does not
permit the Tribunal to extend those bounds
because to do so might somehow seem ‘fair’ to
one or other party.
No Tribunal can, without grave danger of
injustice, set [the rules of evidence] on one side
and resort to methods of inquiry which
necessarily advantage one party and necessarily
disadvantage the opposing party. In other words,
although rules of evidence, as such, do not bind,
every attempt must be made to administer
‘substantial justice’.
The judiciary and senior members of tribunals
tolerate such procedures because the procedures
stay within the bounds of procedural fairness
although they stray outside the bounds of
conventional courtroom procedures.
Which brings us to a much-discussed
misconception about tribunals: that they are
‘inquisitorial’ as opposed to ‘adversarial’. Many
trees have been killed to make the paper on which
much ink has been spilt in debating the question.
I don’t intend to add to this legacy.
The debate has moved on to a more
sophisticated position. Assuming courts cleave
true to the root-stock of adversarial litigation,
tribunals not only mix adversarialism and
inquisitorial procedures, their proceedings shift
back and forth between the two models. Basten JA
of the NSW Supreme Court has said about the
Consumer Trader and Tenancy Tribunal16 that the
two models relate to each other in an overlapping
way, not in stark contrast:
By contrast (to the Refugee Review Tribunal), the
proceedings in the present case (in the Consumer
Trader and Tenancy Tribunal) are closer to a judicial
K e y I s s u e s A P P L I E D C O R P O R AT E G O V E R N A N C E
model than an inquisitorial model and do, in one
Conclusion
sense, involve the trial of issues between parties. On
the other hand, representation before the Tribunal
The conclusion is, therefore, that when a client and
is subject to leave and the Tribunal has a broad
their lawyer enter a tribunal they potentially leave
power to inquire into and inform itself on any
behind the comfortable perspective of courtroom
matter in such manner as it thinks fit, subject to
procedure and evidence. However, the difference can
the rules of procedural fairness: s 28(2). Accordingly,
be little more than one of perception rather than
the present case falls somewhere between the two
substance. My best advice is to readjust your focus
kinds of procedure identified by Hayne J in SAAP
so as to look for the negative space.
(executive and judicial) (my italics).
Further, as a Vice-President of the Victorian Civil
John Fitzgerald has practised litigation in tribunals for
and Administrative Tribunal remarked, it is possible
over 20 years. He has lectured on administrative law and
for a set of proceedings to shift its ‘position’
courtroom practice most recently at the University of
between the two models of inquisitorial and
Technology, Sydney. He is the updating author of the
adversarial from one hearing to the next:
administrative tribunals chapter in Laws of Australia
It may well be that there are situations where the
Administrative Law. He can be contacted at
manner of conducting a matter before a Tribunal
[email protected].
reviewing an administrative decision is virtually
identical to that of conducting a case pursuant to
the adversarial system…It may be that, the closer
Notes
one gets to something resembling an adversarial
1
Royal Aquarium and Summer and Winter Gardens Society
2
Re Monger; ex parte WMC Resources Ltd and anor [2002]
contest with experienced counsel representing the
parties, the closer one gets to the system applied in
Limited v Parkinson [1892] 1 QB 431 per Fry LJ at 446
the courts and the greater the reluctance on the
WASCA 129 and TXU Electricity Limited v The Office of the
part of the Tribunal to interfere and impose its own
inquisitorial directions.17
Regulator General and Ors [2001] VSC 4
3
CJ, Brennan, Deane and Toohey JJ concurring
to map the void around their rules of practice,
procedure and evidence would be the doctrine of
precedent.
Tribunals make statements which interpret the
rules of procedure and evidence found in their
4
Victorian Stevedoring & General Contracting Co Pty Ltd v
Dignan (1931) 46 CLR 73, Dixon J at 108
5
BHP Billiton Limited v Schultz [2004] HCA 61 per Kirby J. at
para.131
6
constituent legislation and they interpret the same
Repatriation Commission v O'Brien (1985) 155 CLR 422; 59
ALJR 363; 58 ALR 119, Gibbs CJ, Wilson and Dawson JJ at
types of rules falling from courts on review. To the
extent that a tribunal’s practice is not to apply stare
Grassby v The Queen (1989) 168 CLR 1; 63 ALJR 630; 41 A
Crim R 183; 87 ALR 618, Dawson J at 15-17 (CLR), Mason
Finally, one instrument that tribunals could use
429 (CLR)
7
Lees v Comcare (1999) 29 AAR 350; 56 ALD 84; [1999]
decisis or the comity principle to its own decisions,
FCA 753 (FC); the Court at [39] (the Administrative
then tribunal statements never rise above their
Appeals Tribunal’s (AAT’s) powers are ‘not powers that may
station as understandings or interpretations of rules
be exercised at large’); Re Tilley and Comcare (2002) 68
originating elsewhere. In a tribunal which does rely
ALD 626; [2002] AATA 560, Member MJ Carstairs at [37],
upon itself to guide new decisions, observers and
citing Re Parke and Repatriation Commission (1985) 2 RPD
others are obliged to consider its views in deciding
404 (‘the AAT does not have a “roving commission” into
what are authoritative statements of the law to be
applied in that tribunal, at the very least.
Conversely, in a tribunal which doesn’t rely upon
itself to guide new decisions, observers, courts, or
other tribunals shouldn’t treat its decisions as
authoritative.
Because of this variation in application of the
public administration’)
8
SAAP v Minister for Immigration and Multicultural and
9
Minister for Immigration and Multicultural Affairs v Eshetu
Indigenous Affairs [2005] HCA 24 at [1] per Gleeson CJ.
[1999] HCA 21 at [49]
10 Administration of Papua and New Guinea v Daera Guba
(1973) 130 CLR 353 at 402 per Barwick CJ. And at p 455
per Gibbs J. as he then was.
doctrine of precedent, lawyers must expect that
11 SAAP at [162] per Kirby J
reliance on earlier decisions of the tribunal can be
12 Wragg v La Mancha Caravan Park Pty Ltd [ 1996] NSWRT
misplaced. If the tribunal pays no attention to
earlier decisions then the best course is to rely
exclusively on such court decisions as have
interpreted procedural and evidential rules. If the
tribunal does pay attention to earlier cases then
careful attention to earlier decisions will pay off. The
123
13 Winn v Blueprint Instant Printing Pty Ltd [2002] VSC 295
at [9] [my italics]
14 Winter and Commissioner of Western Australian Police
Service [2006] WASAT 87 at para 38
15 The King v The War Pensions Entitlement Appeal Tribunal
and Another ex parte Bott [1933] HCA 30
trick is knowing beforehand whether the particular
16 Italiano v Carbone & Ors [[2005] NSWCA 177 at [114]]
tribunal does or does not apply the doctrine of
17 Golem v Transport Accident Commission [2002] VCAT 319
precedent.
per Judge Bowman G
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