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Bills Digest No. 54, 2004–05
Administrative Appeals Tribunal Amendment Bill 2004
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage History
Legisltative History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Administrative Appeals Tribunal Amendment Bill 2004
Date Introduced: 17 November 2004
House: Senate
Portfolio: Attorney-General's
Commencement: The formal provisions commence
on Royal Assent. The operative provisions commence on a day to be fixed
by Proclamation or, if this is not within six months of Royal Assent,
the first day after that period.
The Administrative Appeals Tribunal Amendment Bill 2004 (the Bill) was
originally introduced in the House of Representatives on 11 August 2004.
It has now been reintroduced into the Senate. No changes have been made
to the Bill.
The purpose of the Administrative Appeals Tribunal
Amendment Bill 2004 is to improve the capacity of the Administrative Appeals
Tribunal (the Tribunal) to manage its workload and to make the operation
of the Tribunal more efficient.
The Tribunal was established by the Administrative Appeals Tribunal
Act 1975 (the AAT Act) in 1976 as a general tribunal to engage in
administrative review of governmental decisions. It was largely the product
of the Report of the Commonwealth Administrative Review Committee chaired
by the Honourable Mr Justice Kerr (the Kerr Report) in October 1971.(1)
The objective was to provide a coherent and integrated system of administrative
review that was:
-
comprehensive
-
accessible to the public
-
inexpensive
-
fully focussed on substantive rather than procedural issues, and
-
committed to ensuring adequate disclosure to applicants of relevant
information and reasons for decisions.
The AAT Act provided for the establishment of the Administrative
Review Council (the ARC) to keep the merits review system under ongoing
scrutiny by conducting regular reviews of the operation of the AAT Act.
The original conception was that there should be a single
tribunal so as to avoid a proliferation of specialist tribunals. However,
over the almost 30 years since the establishment of the AAT, a number
of Commonwealth specialist tribunals have been created (such as the Social
Security Appeals Tribunal and the Immigration Review Tribunal). The breakdown
in the notion of a single general tribunal was a significant factor leading
to the Commonwealth instituting a major re-examination of the operations
of the AAT in 1995 which resulted in the ARC’s report Better
Decisions: review of Commonwealth Merits Review Tribunals (‘Better
Decisions’).(2) The report was derived from a number of terms
of reference but focussed particularly on the requirement that the ‘administrative
law system should be simple, affordable, timely and fair’.(3)
The ARC considered that the principal objective of a merits
review system should be to ensure that administrative decisions of government
are correct or, where there is discretion, preferable. It saw the need
for a statutory objective that Commonwealth tribunals should provide mechanisms
of review that were fair, just, economical, informal and quick. A significant
recommendation of the Better Decisions Report was that the various
specialist review tribunals and the AAT should be combined into a single
Tribunal, to be called the Administrative Review Tribunal (ART).(4)
Other recommendations included the promotion of the resolution of applications
through alternative dispute resolution processes.(5)
In response to the Better Decisions Report the then
Attorney-General, the Hon. Daryl Williams QC, announced in March 1997
the Government’s intention to amalgamate into a single tribunal the AAT,
the Social Security Appeals Tribunal (SSAT), the Veterans’ Review Board
(VRB), the Immigration Review Tribunal (IRT) and the Refugee Review Tribunal
(RRT).(6) The new body was to be called the Administrative
Review Tribunal. The initial announcement was not welcomed in many quarters
where it was feared that it could mean a significant loss of independence
for the external review bodies.(7)
General control of the ART was to be located in the Commonwealth
Attorney-General’s Department, but funding for the high volume jurisdictions
was to come from portfolio departments.(8) It was subsequently
reported that ‘the departments approached to fund the ART had refused,
leaving it in the hands of the Attorney-General’s Department’.(9)
Legislation to establish the ART was introduced into the
Parliament on 28 June 2000.(10) A cognate Bill, to make transitional
and consequential arrangements, was introduced on 12 October 2000.(11)
Both Bills were passed by the House of Representatives, and were referred
by the Senate to the Legal and Constitutional Legislation Committee.
That Committee reported on 14 February 2001.(12) Whilst the
majority report supported the Bills, Labor and Democrat Senators presented
a Minority Report opposing the Bills. The Second Reading of the Bills
was defeated in the Senate on 26 February 2001.
The then Attorney-General, the Hon Daryl Williams QC, indicated
in February 2003 that he would not seek to reintroduce legislation to
establish the ART during the current Parliament. However, he indicated
that the Government remained committed to ‘sensible reform of the existing
tribunals on an individual basis’ starting with the AAT. He also stated
that ‘[w]hile details of the amendments are being settled, areas of amendments
could include procedures of the tribunal, constitutional requirements
and allowing greater use of ordinary members’.(13)
The reforms proposed in this Bill have been described by
the Attorney-General as ‘modest’.(14) An exposure draft of
the Bill was released for public comment, and the Attorney-General subsequently
stated that ‘[w]e received invaluable input from stakeholders and other
interested parties which resulted in significant improvements to the Bill’.(15)
Submissions were received from a number of Commonwealth agencies and Departments,
as well as from interested bodies such as the Australian Council of Social
Services and the Law Council of Australia.(16) However, submissions
have not been made publicly available.
Five areas of reform were identified as significant in the
Attorney-General’s News Release:
-
reforms to Tribunal procedures
-
removal of restrictive constitution procedures
-
better use of ordinary members
-
reform of the role of the Federal Court, and
-
changes to the qualification requirements for appointment as President.(17)
The powers of the President of the AAT to manage the case-load of the
Tribunal will be expanded. In particular, the President will have power
to give directions regarding the operations of the Tribunal, the procedure
of the Tribunal and the conduct of reviews by the Tribunal.
The range of alternative dispute resolution (ADR) processes
available to the Tribunal will be expanded and the President will have
power to direct that a proceeding, or a class of proceedings, be referred
to an ADR process. The emphasis on an increased use of ADR to resolve
administrative disputes is possibly the most significant aspect of the
reforms to the Tribunal procedures proposed in the Bill. Issues relating
to ADR are further considered below.
Current provisions of the AAT Act impose requirements on the constitution
of the Tribunal when it is exercising powers under certain provisions
of the Act. Also, some other legislation also restricts the manner in
which the Tribunal is to be constituted when hearing matters arising under
that legislation.(18) These restrictions will generally be
removed and instead the President will have power to determine who is
to constitute the Tribunal for the purposes of a particular proceeding,
having regard to such matters as the complexity of the matters to which
the proceeding relates and the degree to which it is desirable for the
members constituting the Tribunal to have particular knowledge of the
matters to which the proceeding relates.
The President will also have power to add, remove or substitute a member
of the Tribunal during the course of a proceeding.
The President will be able to authorise ordinary members to exercise
powers that can currently only be exercised by presidential and / or senior
members.
Currently the Tribunal, as constituted for the purposes of a proceeding,
may refer a question of law arising in the proceedings to the Federal
Court. The Bill introduces a requirement that the consent of the President
be obtained before a question is referred. Under this proposed amendment,
the situation may occur where the President of the AAT is asked to consent
to a referral in a matter dealt with by the President personally.
The Bill provides for the Federal Court to make findings of fact in appeals
from decisions of the Tribunal in certain circumstances. This implements
a recommendation of the Administrative Review Council in its report Appeals
from the Administrative Appeals Tribunal to the Federal Court
.(19)
Currently only a judge of the Federal Court may be appointed as the President
of the Tribunal. The Bill removes this requirement and provides that a
current or former judge from any federal court, a former judge from any
state or territory Supreme Court, or a person who has been enrolled as
a legal practitioner for at least five years may be appointed as President
of the Tribunal.
The Bill removes provisions of the Act either conferring tenure or allowing
for appointment with tenure. Under the Bill, all future appointments
will be for fixed terms.
In light of increasing litigation costs and the enormous complexity of
legal procedures, ADR is an increasingly important aspect in access to
justice for the community.(20) The Government has stated that
it is committed to the use of ADR. For example, in a media release following
the launch of an Alternative Dispute Resolution Standard Discussion Paper,
the then Attorney-General, the Hon. Daryl Williams QC, stated that:
the Government has committed to providing alternatives
to the courts and to providing faster, cheaper and simpler means to
resolve disputes … Alternative Dispute Resolution is an integral part
of almost every aspect of Commonwealth activity in areas as diverse
as administrative law, native title, workplace relations and trade practices.(21)
Similarly, in a speech to the ADR International Conference, the then
Minister for Employment, Workplace Relations and Small Business, the Honourable
Peter Reith MP, referred to:
the benefits of alternative dispute resolution mechanisms
such as mediation, and how they can effectively be utilised to resolve
disputes in a wide range of areas, which up to now, have predominantly
been confined within the domain of courts and specialist tribunals.(22)
The Government also maintains the National Alternative Dispute Resolution
Advisory Council (NADRAC) which is a non-statutory body with members appointed
by the Attorney-General. NADRAC is the result of recommendations made
by the Access to Justice Advisory Committee in its report Access to
Justice - an Action Plan.(23) It provides independent advice
to the Attorney-General on the development of ADR and ADR processes in
Australia and comprises experts from commercial ADR, family and community
ADR, courts and tribunals, research and academia.(24)
Alternative dispute resolution (ADR) is a term that is difficult to define,
but it has been described by NADRAC as:
An umbrella term for processes, other than judicial determination,
in which an impartial person assists those in a dispute to resolve the
issues between them.(25)
The proposed amendments to the AAT Act would also stay clear of providing
a definition of this term to be used in proposed new Division
3 of the Act. Instead, Item 3 of the Bill provides a description
of the term ADR, listing various ADR processes from which the Tribunal’s
President can choose if the resolution of a dispute by means of ADR is
directed. The following are the ADR processes listed in item 3
of the Bill, complemented by a description of each process as suggested
by NADRAC in their 2003 publication Dispute
Resolution Terms—The use of terms in (alternative) dispute resolution.(26)
- conferencing
Conference/Conferencing is a general
term, which refers to meetings in which the parties and/or their advocates
and/or third parties discuss issues in dispute. Conferencing may have
a variety of goals and may combine facilitative and advisory dispute
resolution processes.(27)
- mediation
Mediation is a process in which the parties
to a dispute, with the assistance of a dispute resolution practitioner
(the mediator), identify the disputed issues, develop options, consider
alternatives and endeavour to reach an agreement. The mediator has
no advisory or determinative role in regard to the content of the
dispute or the outcome of its resolution, but may advise on or determine
the process of mediation whereby resolution is attempted. Mediation
may be undertaken voluntarily, under a court order, or subject to
an existing contractual agreement.(28)
- neutral evaluation
NADRAC has described early neutral evaluation
as:
a process in which the parties to a dispute present,
at an early stage in attempting to resolve the dispute, arguments
and evidence to a dispute resolution practitioner. That practitioner
makes a determination on the key issues in dispute, and most effective
means of resolving the dispute without determining the facts of the
dispute.(29)
Neutral evaluation, as used in the Bill, can be described
similarly, the process, however, is available at any stage of the
dispute resolution.
- case appraisal
Case appraisal is a process in which
a dispute resolution practitioner (the case appraiser) investigates
the dispute and provides advice on possible and desirable outcomes
and the means whereby these may be achieved.(30)
- conciliation
Conciliation is a process in which the
parties to a dispute, with the assistance of a dispute resolution
practitioner (the conciliator), identify the issues in dispute, develop
options, consider alternatives and endeavour to reach an agreement.
The conciliator may have an advisory role on the content of the dispute
or the outcome of its resolution, but not a determinative role. The
conciliator may advise on or determine the process of conciliation
whereby resolution is attempted, and may make suggestions for terms
of settlement, give expert advice on likely settlement terms, and
may actively encourage the participants to reach an agreement.(31)
This list of different ADR processes is not conclusive it can be easily
extended by including further or new ADR processes. To some degree, the
processes overlap and often, parties to an ADR process transgress seamlessly
from one process to another where the situation requires it.
Item 1 inserts (as new section 2A) a statutory objective
for the Tribunal: to provide ‘a mechanism of review that is fair, just,
economical, informal and quick’. This implements Recommendation 3 of the
Better Decisions Report.
Item 15 makes provision for the qualifications required for appointment
as the President or Deputy President of the Tribunal. Currently a person
cannot be appointed as the President unless he or she is a Judge of a
Federal Court. Under new subsection 7(1) a person can be appointed
as the President if he or she is or has been a judge of a Federal Court,
has been a judge of the Supreme Court of a State or Territory, or has
been enrolled as a legal practitioner of the High Court of Australia or
one or more of the States’ Supreme Courts for more than five years.
Provisions specifying the qualifications required for appointment as
a Deputy President, a senior member or a non-presidential member have
been redrafted to ensure consistency of style.
Item 21 repeals subsections 8(1) and (2) which have
the effect of providing for tenured appointments for presidential members
who are Judges and allowing for tenured appointments for a Deputy President
or a senior member who is not a judge. Based on this repeal, all future
appointments to the AAT will therefore be for a fixed term. Item
22 provides for those members who currently have tenure to retain
that status.
Item 33 repeals section 16 of the Act. This section provides
for the application of the Judges Pensions Act 1968 to a non-judicial
presidential member of the AAT who has been appointed with tenure. The
section will not be required following the abolition of tenured appointments.
Item 34 provides for those members who currently have entitlements
under the Judges Pensions Act 1968 to retain those entitlements.
Item 36 amends subsection 19(3) to provide for the assignment
of a non-presidential member to a particular division or divisions of
the AAT to be made by the Minister administering the Act (currently the
Attorney-General) rather than by the Governor-General.
Item 39 varies the responsibility of the President in subsection
20(1) from ensuring the ‘orderly and expeditious’ discharge of the
business of the Tribunal to ensuring the ‘expeditious and efficient’ discharge
of the business of the Tribunal. It is considered that an efficient discharge
of business includes an orderly discharge of business.(32)
Item 40 repeals provisions of section 20 that currently
give the President power to give directions on a range of matters and
substitutes new provisions which retain the existing powers and also add
broader powers to give directions relating to the operations of the Tribunal
and the conduct of reviews. Items 41 and 42 make transitional
provision in relation to directions that are in force at the commencement
of the items.
Item 47 repeals subsection 21(1AB) which provides that
where the Tribunal is constituted by more than one member, at least one
of the members must be a presidential member or a senior member. The repeal
of this provision will allow for a multi-member review to be constituted
wholly by ordinary members of the Tribunal. This amendment will have the
effect that the Tribunal may constituted entirely by members that hold
no legal qualification.
However, the proposed amendments will provide some guidelines setting
out what the President must have regards when constituting of reconstituting
the Tribunal for a proceeding. New section 23B (which is inserted
by item 66) sets out the matters, including, for example, the public
importance or complexity of the matters involved, the status or office
of the person who made the decision to be reviewed, the degree to which
the matters involved relate to Australia’s security, defence or international
relations, the financial importance of the matters involved and the desirability
of the members constituting the Tribunal having particular knowledge of
the matters involved.
Under new subsection 25(4A) (which is inserted by item 73)
the Tribunal will have power to determine the scope of the review of a
decision. It will be able to limit the questions of fact, the evidence
and the issues that it considers.
Item 95 inserts new subsection 29(1B) into the Act. This
section will enable the Tribunal to request a further statement of reasons
from an applicant where the statement provided with the application for
review of a decision does not assist the Tribunal to determine why the
applicant considers the relevant decision is not the correct or preferable
decision. The fact that the Tribunal requests a further statement of reasons
will not affect the validity of the initial application.
Under subsection 29(7), the Tribunal may extend the time for the
making of an application for review of a decision. Item 99 amends
subsection 29(7) to provide that the Tribunal may only extend the
time where it is satisfied that to do so is reasonable in all the circumstances.
Item 106 inserts new subsection 33(1AA), which requires
the maker of a decision that is under review to assist the Tribunal to
make its decision. The Explanatory Memorandum notes that this obligation
is consistent with the Commonwealth’s obligation to act as a model litigant.(33)
Item 110 amends section 33 to provide for the appointment
of authorised Conference Registrars. Authorised Conference Registrars
will be able to issue directions relating to procedures under subsection
33(2) and to revoke or vary such directions under subsection 33(3).
Item 112 of the Bill proposes to introduce a new Division 3—alternative
dispute resolution processes into the AAT Act. This new division will
consolidate and expand the current ADR regime under the Act. Under this
Division, ADR will generally be available to resolve disputes, except
for disputes which come within the jurisdiction of the Security Appeals
Division (proposed section 34).
The proposed amendments will confer two new powers on the President—the
power to refer matters or parts of matters to ADR and the power to make
directions in relation to the ADR process.
Proposed sections 34A and 34B are the key provisions of the new
ADR regime. Proposed section 34A deals with the referral of administrative
disputes generally, while proposed section 34B makes provisions
in relation to matters brought before the Small Taxation Claims Tribunal.
Proposed subsection 34A(1) confers on the Tribunal’s President
the power to direct the parties to a dispute to attempt resolving the
dispute through ADR processes. The President may exercise the power either
by directing the parties:
-
to participate in a conference to resolve their issues, or
-
to use a specific form of ADR process other than conferencing to
settle their dispute.
The power to make such directions will arise in relation to the ‘proceeding,
or any part of the proceeding or any matter arising out of the proceeding’.
The provision will allow the the President to direct that certain elements
of a dispute can be dealt with separately. (proposed paragraphs 34(1)(a)
and (b)). It is envisaged that the power to separate these elements
could be a very effective tool to maximise the efficiency of the Tribunal
and minimise the parties’ expenses for the dispute.
To avoid directions having to be issued in relation to every individual
application for review, proposed subsections 34A(2) and (3)
enable the President to issue directions specifying that certain categories
of disputes must be resolved through ADR. Where such a direction is
given, the referral would occur automatically. However, the President
will retain the power to issue further and different directions at any
stage of the process.
According to proposed subsection 34A(5), the parties would be
under an obligation to ‘act in good faith in relation to the conduct’
of the ADR process. However, while the Bill uses mandatory language, the
new ADR regime does not impose sanctions if a party chooses not comply
with this obligation.(34) The Explanatory
Memorandum notes that:
no sanction applies to a party who does not act in good faith
in an alternative dispute resolution process. The provision is intended
to educate parties about the importance of alternative dispute resolution
processes and encourage them to participate fully in such processes.(35)
Proposed subsection 34B(2) obliges a Registrar, a District Registrar
or a Deputy Registrar to provide the parties before the Small Taxation
Claims Tribunal (STCT) with information about the available ADR procedures.
Depending on the nature of the proceeding brought before the STCT, the
information has to be given either:
-
when an application for review is made (proposed paragraph
34B(2)(a)), or
-
at the time the applicant notifies the Tribunal of the amount of
tax in dispute (proposed paragraph 34B(2)(b)).
Proposed subsection 34B(3) confers upon the Tribunal the power
to direct the holding of a conference or the conduct of an ADR procedure
in relation to the matter or any part of the matter at any time.
Proposed subsection 34B(3) obliges the parties ‘act in good faith
in relation to the conduct’ of the ADR process, but again, while the language
is mandatory, the Bill does not propose to impose sanctions if a party
should not comply with the obligation.(36)
Proposed subsection 34C(1) confers the power to give directions
with respect to the ADR processes on the President. This power
is distinct from the powers conferred under proposed section 34A in that
it would allow the President to give directions modifying the actual ADR
process. To reflect the flexibility of ADR processes generally, this power
is not limited even though proposed subsection 34C(2) provides
three examples of areas which may be covered by the President’s directions.
Proposed subsection 34C(5) expressly limits the pool of persons
eligible to conduct ADR processes under the Act. Eligibility is limited
to:
-
a member (proposed paragraph 34C(5)(a))
-
an officer of the Tribunal (proposed paragraph 34C(5)(b)),
or
-
a person engaged under proposed section 34H (proposed
paragraph 34C(5)(c)).
Persons engaged under proposed section 34H are persons that have
been engaged by the Registrar to conduct a particular type or various
kinds of ADR processes. Before engaging a person, the registrar must be
satisfied that the particular person is sufficiently qualified and experienced
to conduct the relevant ADR process.
The ultimate aim of referring matters or parts of matters to ADR processes
is that the parties to a dispute are able to reach an agreement in relation
to one, many or even all the issues in question. Where the parties should
reach an agreement as to the terms of a decision to be made by the Tribunal,
proposed section 34D will provide that this agreement can be adopted
by the Tribunal if it thinks that the adoption of the agreement is appropriate.
Before the Tribunal can adopt the agreement, proposed subsection 34D(1)
sets out several requirements that the agreement must fulfil, including
that:
-
the agreement was reached during the course of the ADR process
-
the agreement is acceptable to the parties
-
the agreement is reduced to writing and was signed by the parties
-
the agreement was lodged with the Tribunal
-
no withdrawal from the agreement was filed in writing within a ‘cooling-off’
period,(37) and
-
the agreement is consistent with the powers of the agreement.
Should the Tribunal decide to adopt the agreement, it can do so without
conducting a hearing in relation to that issue. If this is done in relation
to the entire dispute between the parties, the Tribunal can make
a determination in relation to the entire dispute. Where an agreement
was reached in relation to a particular issue, for example costs,
then the Tribunal can adopt the agreement in relation to this issue
and decide the remaining issues of the dispute without rehearing the already
determined issue.
The amendments propose to regulate the use of evidence introduced during
an ADR process, for example in subsequent court proceedings. Proposed
section 34E would provide that the evidence used in the ADR process
is generally not admissible in:
-
any court
-
any proceedings before a person authorised by a law of the Commonwealth
or of a State or Territory to hear evidence, or
-
any proceedings before a person authorised by the consent of the
parties to hear evidence, for example an arbitrator.
The provision reflects the need for confidentiality in ADR processes
to provide the parties with a safe forum to achieve maximum outcomes.
However, the amendments will also acknowledge that it is sometimes necessary
to allow certain evidence in a subsequent proceeding. To accommodate these
situations despite the operation of proposed subsection 34E(1),
proposed subsection 34E(2) provides that evidence adduced during
an ADR procedure could be admissible if the parties reach an agreement
to that effect.
A further exception would apply to any reports prepared as a result of
a case appraisal procedure or a neutral evaluation. Unless a party formally
objects to the use of such report, it will be admissible despite the operation
of proposed subsection 34E(1) (proposed subsection 34E(3)).
The inadmissibility of evidence before a subsequent decision-maker has
a further consequence: to avoid the possibility that a member, who conducted
an ADR procedure and heard the evidence, could be influenced by that evidence
in a subsequent hearing, the proposed amendments to the Act confer on
a party the right to object to the selection of a member to the Tribunal.
This objection must be taken prior to the hearing (proposed section
34F).
Proposed section 34G stipulates that the dispute resolution practitioner
may permit a party to the ADR process to participate by utilising modern
communication forms, such as telephone or closed-circuit television. Further,
the provision already contemplates technological developments, permitting
the use of ‘any efficient means of conveying information that may become
available for use in the Tribunal’ to conduct an ADR procedure.(38)
The most obvious application of this provision will possible be in the
area of Online Dispute Resolution. In this new area of law, processes
are adapted to suit the online environment to provide disputants with
fast, easy and extremely cost-effective ways to settle their dispute.(39)
As the current legislation contains provisions allowing the use of ADR
procedures in the context of administrative review, items 113 to
120 contain proposed transitional provisions, for example to enable
the continuation of already commenced ADR processes in the changeover
period.
Item 151 substitutes a new section 42 of the Act, which
sets out how disagreements between members of the Tribunal about matters
arising in a proceeding are to be resolved. The note in the Explanatory
Memorandum in relation to this item incorrectly states that new subsection
42(1) applies if a Tribunal is constituted by two or more members; in
fact it applies only if a Tribunal is constituted by two members.(40)
Item 160 adds new subsections 42D(5), (6), (7) and (8) of
the Act. These provide that where the Tribunal exercises its power under
subsection 42D(1) to remit a matter to the original decision-maker for
reconsideration, the original decision-maker is required to reconsider
the matter within a certain period. Where the original decision-maker
fails to reconsider the matter within the applicable period, he or she
will be taken to have affirmed the decision and the proceedings in the
Tribunal will resume.
Item 173 adds new subsections 44(7), (8), (9) and (10)
of the Act. These will allow the Federal Court to make findings of fact
in appeals from decisions of the Tribunal, where these are consistent
with the findings made by the Tribunal. It is intended to allow the Court
in appropriate cases to fully deal with a matter rather than having to
remit it to the Tribunal for it to make further findings, and implements
a recommendation of the Administrative Review Council in its report Appeals
from the Administrative Appeals Tribunal to the Federal Court.(41)
New subsections 44AA (11) and (12) will ensure that where
an appeal to the Federal Court is transferred to the Federal Magistrates
Court it will be able to make findings of fact in similar circumstances.
Item 176 will insert new paragraph 45(1)(a) which provides
that a question of law can only be referred to the Federal Court with
the approval of the President. This is intended to ensure that referrals
are only made in exceptional circumstances which, it is expected, will
reduce costs and speed up decision making.(42) The Amendments
will not provide any guidance how to determine whether exceptional circumstances
are present.
Items 187 to 189 insert re-drafted versions of sections
61, 62, 62A, and 63, which establish offences. The provisions
are substantially redrafts in the style of the Criminal Code. However,
they provide for both increased monetary penalties and terms of imprisonment,
and allow a Court to impose both a monetary penalty and a term of imprisonment
(whereas currently a Court may impose either a monetary penalty or a term
of imprisonment, but not both). These increases are consistent with Commonwealth
criminal policy.(43)
The proposed amendments to the Act incorporate a number of changes to
the functioning of the Tribunal. In comparison to the changes propose
in 2000 in the context of creating the Administrative Review Tribunal,
the proposed amendments appear to be less far reaching.(44)
They are designed primarily to increase the flexibility of management
of the Tribunal and to facilitate quicker decisions in certain circumstances.
However, the following issues are worth noting:
- Changes to the ADR processes (Item 112, p 11)
The greatest potential for significant change in the operation of
the Tribunal arising out of these amendments relate to the increased
opportunity for use of ADR. The proposed amendments consolidate and
expand the use of ADR processes in the resolution of disputes arising
from or under administrative decisions in line with the Government’s
approach to furthering the use of ADR to resolve disputes. However,
the decision to make the obligation to conduct the ADR processes in
good faith unenforceable may substantially weaken the development
of ADR as it deprives the decision-makers of an opportunity to develop
comprehensively the scope and content of the principle of good faith.(45)
- Multi-member tribunals (Item 47, p.9)
The proposed amendments will abolish the requirement that multi-member
Tribunals must be chaired by a presidential or senior member holding
legal qualifications. Rather, after the amendments became effective,
the new legislation would permit a Tribunal comprised entirely of
ordinary members without a legal qualification. This new scheme will
require a thorough assessment of each matter before deciding the composition
of the Tribunal pursuant to new section 23B. Any underestimation
of the complexity of a matter can easily lead to high levels of dissatisfaction
with the new system and increased costs for the parties caused by
the delay necessary to reconstitute a more appropriate, that is better
qualified Tribunal.
- Involvement of the decision-maker in the review process (Item
106, pp.9 – 10)
Under the proposed amendments, the original decision-maker will be
required to assist the Tribunal in reviewing the original decision.
However, the Bill does not provide expressly that assistance must
be provided in a non-adversarial manner aiming at defending the decision-makers
decision. Further, it is arguable that this ‘overlap’ between original
decision process and review process lessens the independence of the
review process. This also appears to be a change in the Government’s
policy generally. The proposed legislation setting up the Administrative
Review Tribunal, the ART Bill, made it optional for a decision-maker
to participate in the review. The Bills Digest to the ART Bill noted:
A new and significant development is that a decision-maker
may decline to be a participant, or may be directed by the head of
the agency not to participate in the review before the ART (proposed
section 85).(78) This reflects a policy that in many
cases the review can be undertaken more efficiently without agency
participation. Where the decision-maker does choose to participate
in the review, he or she must not behave in an adversarial manner
and defend the decision, but must 'use his or her best endeavours
in assisting the [ART] to make its decision on the review' (proposed
section 94).(46)
- The proposed amendments may generate the potential for a conflict
of interest. (Item 176, p. 14)
Under the Bill, the President of the Tribunal must consent to the
referral of a matter to the Federal Court where a question of law
is challenged. A conflict of interest may arise where the President
is required to make such a decision pertaining to one of the President’s
own determinations.
- Referral to the Federal Court (Item 176, p. 14)
It is expected that the new requirement that a referral to the Federal
Court can only occur with the consent of the President will reduce
costs and speed up the review process generally. However, it is conceivable
that in some cases the failure to refer a question could result in
an appeal to the Court which would ultimately increase costs and lengthen
the time taken to reach a final decision.
-
Commonwealth Administrative Review Committee Report 1971 (Kerr
Report), Parliamentary Paper No. 144 of 1971.
-
Administrative Review Council, Better Decisions: Review of Commonwealth
Merits Review Tribunals, Report No 39, 1995
-
ibid., Appendix A, p. 181.
-
ibid., Chapter 8, pp. 136-160 and Recommendation 87, p.170. ‘Administrative
Review Tribunal’ was the title for the generalist merits review body
originally chosen by the Kerr Committee.
-
ibid., Chapter 3, p. 54, Recommendation 20.
-
The Hon. Daryl Williams AM, QC, Commonwealth Attorney-General and
Minister for Justice, Reform of Merits Tribunals, News release,
Canberra, 20 March 1997.
-
R. Creyke ‘Whither the Review System?’ in R. Creyke and M. Sassella
(eds), Targeting, Accountability and Review: Current Issues in
Income Support Law ANU Centre for International and Public Law,
1998, pp. 128-129.
-
Including, for example, the migration and social security jurisdictions.
K. Del Villar, ‘Administrative Review Tribunal Bill 2000’, Bills Digest,
No. 40, Parliamentary Library, Canberra 2000-2001, pp. 3-4.
-
E. Meryment, ‘Tribunal revamp on hold’, Courier Mail, 22 April
1999, p. 9.
-
Administrative Review Tribunal Bill 2000. A Digest in respect of
this Bill can be found at http://www.aph.gov.au/library/pubs/bd/2000-01/01BD040.htm,
accessed 19 November 2004.
-
Administrative Review Tribunal (Consequential and Transitional Provisions)
Bill 2000. A Digest in respect of this Bill can be found at http://www.aph.gov.au/library/pubs/bd/2000-01/01BD080.htm,
accessed 19 November 2004.
-
Inquiry into the Provisions of the Administrative Review Tribunal
Bill 2000 and the Administrative Review Tribunal (Consequential and
Transitional Provisions) Bill 2000, 14 February 2001, Parliamentary
Papers 2001 Volume 12.
-
The Hon Daryl Williams AM QC, Commonwealth Attorney-General, Improving
the Federal Merits Review Tribunal System, Archived
media release, 6 February 2003.
-
The Hon. Philip Ruddock, Commonwealth Attorney-General, Release
of AAT Amendment Bill 2004 for Public Comment, Media
Release, No 88/2004, Canberra, 8 June 2004.
-
The Hon. Philip Ruddock, Commonwealth Attorney-General, A More
Efficient Administrative Appeals Tribunal, Media
Release, No. 144/2004, Canberra, 11 August 2004.
-
Information supplied by the Commonwealth Attorney-General’s Department,
26 August 2004.
-
Senator Ian Campbell, ‘Second reading speech Administrative Appeals
Tribunal Amendment Bill 2004’, Senate, Speech, 17 November 2004, p.
2. Similar: The Hon. Philip Ruddock MP, Commonwealth Attorney-General,
‘Second reading speech: Administrative Appeals Tribunal Amendment
Bill 2004’, House of Representatives, Speech, 11 August 2004, p.2006.
-
For example, the Commonwealth Electoral Act 1918.
-
Administrative Review Council, Appeals from the Administrative
Appeals Tribunal to the Federal Court Report, No.41, Canberra,
1997
-
It also provides for an increasingly important aspect of resolving
international commercial disputes in a timely, flexible and cost-efficient
manner. The Australian Government has recognised the increasing importance
of commercial alternative dispute resolution, noting that ‘The increasing
use of alternative dispute resolution in commercial disputes in Australia
is leading to recognition internationally of the benefits of other
forms of dispute resolution, such as expert determination and mediation.’
The Hon. Philip Ruddock, Commonwealth Attorney-General, New Website
Promotes Commercial Dispute Resolution, media
release, No. 177/2004, Canberra, 3 November 2004.
-
The Hon. Daryl Williams AM QC, ‘Launch of Alternative Dispute Resolution
Standard Discussion’, speech delivered at the launch of NADRAC’s discussion
paper, archived
speech,, Sydney, 30 March 2000.
-
Speech of the Hon Peter Reith MP to the ADR International Conference,
Sydney, LEADR 2000.
-
Access to Justice Advisory Committee, Access to Justice: an Action
Plan, Canberra, National Capital Printing, 1994
-
The National Alternative Dispute Resolution Advisory Council can
be visited online at www.nadrac.gov.au.
-
National Alternative Dispute Resolution Advisory Council, Dispute
Resolution Terms—The use of terms in (alternative) dispute
resolution, Canberra, 2003, p. 4.
-
These definitions are also used in a similar manner in the Explanatory
Memorandum, Administrative Appeals Tribunal Amendment Bill 2004,
p. 5.
-
National Alternative Dispute Resolution Advisory Council, Dispute
Resolution Terms—The use of terms in (alternative) dispute
resolution, p. 6.
-
ibid., p. 9.
-
ibid., p. 6.
-
ibid., p. 4.
-
Ibid., p. 5.
-
Explanatory
Memorandum, Administrative Appeals Tribunal Amendment Bill 2004,
op. cit., note to item 39, p.12.
-
Explanatory
Memorandum, Administrative Appeals Tribunal Amendment Bill 2004,
op cit., p. 28. The Commonwealth’s model litigant obligations are
set out in Appendix B of the Legal Services Directions issues by the
Attorney-General’s Department.
-
ibid., p. 32.
-
ibid., p. 32.
-
ibid., p. 32.
-
ibid., p. 34.
-
ibid., p. 35.
-
See for example Melissa Conley-Tyler and Professor Di Brerethon,
‘Lessons for eGovernment: Online Dispute Resolution’, paper, available
at http://www.public-policy.unimelb.edu.au/egovernance/papers/10_ConleyTyler.pdf,
accessed 18 November 2004, or the Centre for Information Technology
and Dispute Resolution CITDR at www.odr.info.
-
Explanatory
Memorandum, Administrative Appeals Tribunal Amendment Bill 2004,
op cit., p.40
-
Administrative Review Council, op. cit., n.18.
-
Explanatory
Memorandum, Administrative Appeals Tribunal Amendment Bill 2004,
op cit., pp. 45-46
-
Explanatory
Memorandum, Administrative Appeals Tribunal Amendment Bill 2004,
op cit., p.48, citing guidelines issued by the Minister for Justice
and Customs (A Guide to Framing Commonwealth
Offences, Civil Penalties and Enforcement Powers)
-
The proposed legislation that aimed at creating the Administrative
Review Tribunal was the Administrative Review Tribunal Bill 2000.
For the digest in relation to this Bill, see Del Villar, op. cit.
-
This emerging trend may be discerned from the decision in Western
Australia v Taylor (1996) 134 FLR 211. Member Sumner
of the Commonwealth Native Title Tribunal considered in detail the
issue statutory good faith, distilling eighteen indicia assisting
in determining whether a negotiation has taken place in good faith.
See also Einstein J’s discussion in Aiton v Transfield (1999)
135 FLR 236. D. Spencer, ‘Complying with the Requirements to Negotiate
in Good Faith—Further Developments’, (2000)(11)(1) Australasian Dispute
Resolution Journal 5, p. 9.
-
Del Villar, op. cit., pp. 13-14.
Jennifer Nicholson and Thomas John
26 November 2004
Bills Digest Service
Information and Research Services
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using information available at the time of production. The views expressed
do not reflect an official position of the Information and Research Service,
nor do they constitute professional legal opinion.
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