Current Issues Brief 8 1999-2000

Robin Creyke
Consultant, Law and Bills Digest Group
19 October 1999

Contents

Introduction

Restructuring the AAT

The Proposal and the Present Position

What happens next?

Proposed ART legislation

ART's review function

ART and policy

Implementing changes to ART by non-legislative means

Impact on AAT of Federal Magistrates Court

What will the introduction of the Federal Magistrates Court mean for the ART?

AAT's Expedited Procedures-Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998

Recent Cases on Procedure and Statutory Interpretation of Significance for AAT and other Determining Authorities

1. Model Litigant Doctrine: Government Agencies

2. 'Reasons' requirements: Tribunals

3. Meaning of 'substantial justice' and similar expressions: Tribunals, other decision-makers and applicants

Principles of interpretation for exhortatory expressions

Conclusion

Endnotes

Appendix

Introduction

The Commonwealth Administrative Appeals Tribunal (AAT/Tribunal) was the centrepiece of the reforms to Australian administrative law in the 1970s.(1) At the quarter century mark, however, a reappraisal of the structure and model of operation of the Tribunal is being undertaken. This paper examines first the proposed change to that structure both directly and as a consequence of the introduction of a Federal Magistracy. That discussion is followed by an examination of the impact of recent legislation which affects the AAT's current operations, the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 which came into force on 1 June 1999. Next, the paper considers some recent cases which have given guidance on how the Tribunal should operate and equally how those appearing before it should conduct their litigation. Finally, the paper considers the effect of the High Court decision in Minister for Multicultural Affairs v Eshetu(2) on the interpretation of certain common legislative provisions, an interpretation which has implications for many litigants before the AAT.

Restructuring the AAT

The Proposal and the Present Position

In 1995 the Administrative Review Council, in its Better Decisions report, recommended a restructuring of the major Commonwealth merits review tribunals.(3) That recommendation was made against a broad term of reference, namely that the '[a]dministrative law system should be simple, affordable, timely and fair'.(4)

On 20 March 1997 in response to that recommendation the Attorney-General, the Hon. Daryl Williams QC, announced the Government's intention to amalgamate into a single tribunal the Administrative Appeals Tribunal (AAT), the Social Security Appeals Tribunal (SSAT), the Veterans' Review Board (VRB), the Immigration Review Tribunal (IRT) and the Refugee Review Tribunal (RRT).(5) The new body would be called the Administrative Review Tribunal (ART).(6) Implementation of the Administrative Review Council's recommendation to restructure the tribunal system represented a fundamental change to the tribunal arm of public administration. The initial announcement was not welcomed in many quarters where it was feared that it could herald a significant loss of independence for the external review bodies.(7) In the face of sustained media and other pressure, a second announcement on 13 July 1997 from the Attorney-General affirmed that the Government was resolved not to compromise the independence of the tribunal system.(8)

Further details emerged in February 1998.(9) The most significant was the omission of the VRB from the ART umbrella. The VRB is to remain an independent specialist review tribunal, its only link to the new ART being the right to appeal to that body. The move was a result of pressure from the veterans' community. Although the omission was represented as responding to 'the special needs of veterans',(10) the exception casts doubts on the Government's ability to achieve the more streamlined and less costly system of review.

The first tier of the ART will comprise six divisions: an Income Support Division;(11) an Immigration and Refugee Division (comprising the existing Migration Review Tribunal and the Refugee Review Tribunal); a Taxation Division (including the Small Taxation Claims Tribunal); the Workers' Compensation Division; the Commercial and General Division; and the Veterans' Appeals Division (to handle appeals from the Veterans' Review Board).(12) There is a second review tier to which appeal will be available but only with leave. Second tier review will be permitted for cases raising principles or issues of general significance, or where a manifest error has occurred. The limited second tier review right is not available to applicants to the Immigration and Refugee Division. The reason for this restriction, according to the Minister, is that he is anxious to reduce avenues for appeal to prevent use of the system to delay deportation.(13)

The by-leave-only review right removes the current appeal as of right for income support applicants. The limitation is significant since social security applicants currently comprise around twenty-five percent of applications to the AAT.(14) Balanced against this loss is an additional right of external review for tax matters, workers' compensation, and for those using the Commercial and General Division. This is a new right, not previously available and will affect the likely workload of the ART since together these jurisdictions comprise nearly half the AAT's present caseload.(15)

Other features of the proposal are that general control of the ART is to be located in the Commonwealth Attorney-General's Department, although funding for the high volume jurisdictions is to come from portfolio departments; Executive Members are to head each of the specialist divisions, appointed on the recommendation of the relevant portfolio Minister; flexible, non legalistic procedures are to be adopted; and the new ART President is to be an independent, statutory position, hence not necessarily a Federal Court judge.(16)

At the same time, following reports into the migration and social security appeals tribunals, changes were foreshadowed to the operation of both tribunals to precede the more ambitious developments. These have already begun to be implemented. The Migration Review Tribunal, which has replaced the Migration Internal Review Office and the Immigration Review Tribunal, commenced operation on 1 June 1999.(17) Within the SSAT, recommendations of the Guilfoyle Report to change the modes of operation of the SSAT are also being put into place.(18)

What happens next?

Proposed ART legislation

The next phase-the merging of the specialist tribunals with the existing jurisdiction of the AAT as first tier divisions of the Administrative Review Tribunal-is now not expected to eventuate before at least 2001. It was proposed to introduce the changes in two stages; the first was legislation to formalise the broad shape of the new administrative tribunal; the second was to encompass its decision-making powers, that is, the nature of the review function of the ART and whether the ART will be subject to government policy. It was hoped that at least the first of these Bills would be introduced in the Spring 1999 session of the federal Parliament. At present that does not look likely, but for reasons which are unclear. Portfolio agencies were to be responsible for legislation for their funded and subject specific tribunals, but it is reported that 'the departments approached to fund the ART had refused, leaving it in the hands of the Attorney-General's Department'.(19) That may be a partial explanation. Although the Attorney-General maintains that the Government is still pursuing the reforms, it appears that the impetus for change has reduced significantly amongst key departments.

ART's review function

There are objections to any proposed changes. To limit or restrict the ART's decision-making powers would undermine that integrated, coherent Australian administrative law system which has evolved since the 1970s. Specifically it blurs the distinction between the court and the tribunal system creating the risk of duplication of functions and also of possible constitutional complications. Under the scheme devised by the founders of modern Australian administrative law, the courts exercising judicial review are strictly limited to deciding whether a decision complies with principles of law; they cannot rule upon whether a decision is actually wrong on the facts, that is, with the merits of the decision.(20) By contrast, tribunals exercising de novo merits review are designed to do just that. That has been their strength and it is that capacity which has given Australia its enviable reputation for tribunal review. If tribunals' functions are made more akin to those of courts, for example, in only having limited review powers, it becomes questionable whether there is value in having tribunals at all. It is only if tribunals exercise a distinctive and alternative function-complete merits review-that they can be justified. The Government needs to tread warily before tampering with the package of administrative reforms so carefully crafted over 25 years ago.

The second Bill to limit the ART's review powers may also be affected by constitutional difficulties. At present, the powers of the AAT and the specialist tribunals are described as de novo merits review, that is, the review body reconsiders all aspects of the original decision-the facts, law and policy-and a new decision affirming, varying or setting aside the original decision is made. Merits review in this sense is characterised by the ability of the review body to substitute its decision for that of the agency.(21) The standard against which the facts, law and policy is judged is presently the 'correct or preferable' standard.(22) A change to this standard could raise concerns about constitutional validity. The media suggested that Government proposed to restrict ART review to deciding whether a decision is 'reasonable or defensible',(23) or that ART might only be able to overturn or vary a decision if the 'correct procedure had not been followed'.(24) In other words, there was to be a more limited right of merits review.

The first of these proposed formulae has potential difficulties. That form of words was similar to the review powers of another Commonwealth tribunal-the Superannuation Complaints Tribunal (SCT). The SCT could only overturn a decision on a superannuation matter if it was not 'fair and reasonable'. This description was one of the reasons the SCT's operations were challenged as being unconstitutional.(25) Although the High Court in Attorney-General of the Commonwealth v Breckler(26) upheld the constitutionality of the Superannuation Complaints Tribunal, the reasoning on this element of the High Court challenge was limited and has little to offer by way of guidance to those seeking to limit the ART's powers.(27) There is a significant distinction between public sector federal tribunals and the SCT, which operates in both the public and the private sphere, and which arguably is less subject to arguments based on the separation of powers.(28) No mention was made of the fact that a tribunal reviewing administrative decisions solely on grounds of reasonableness is using a criterion which hitherto has been confined to the courts exercising judicial power.(29) Nor was reference made to another factor which has traditionally been one of the indices of non-judicial power, namely, that the review body should have all the powers of the original decision-maker.(30) These omissions indicate serious constitutional concerns if there are moves to abandon the 'correct or preferable' merits review standard in favour of an alternative formulation.(31)

ART and policy

Alongside its review powers, the Government is considering whether the ART will be required in specific circumstances to comply with government policy. In the first place, both the President of the ART and the Executive Members heading each Division will have power to issue directions. These directions are designed to promote consistency and best practice across the ART and appear to be confined to matters of procedure, not to relate to outcomes in any particular case.(32) Nonetheless, directions of this kind are a form of policy. Given that the second tier of ART is to hear matters of precedential significance, one way to promote consistency is a direction that where a second tier tribunal has dealt with a matter, the second tier decision should be followed in first tier cases. As the absence of consistency of decisions of the AAT is one of the principal criticisms made of that body,(33) such a move would enhance the standing of ART decisions and could avoid further appeals. A use of policy directions for that purpose would probably be uncontroversial, although there may be constitutional problem, on separation of powers grounds, in requiring any Federal Court judges appointed to ART to comply with government policy.(34)

Whether the legislation will go further is speculative. However, in that context it is notable that the Victorian Civil and Administrative Tribunal (Victoria's generalist merits review tribunal) is obliged to apply a valid policy in reviewing a decision if a Minister has certified the authenticity of the policy, the policy was relied upon by the primary decision-maker, and the policy was gazetted or known to the applicant for review.(35) The New South Wales generalist merits review body, the Administrative Decisions Tribunal, must also give effect to a valid policy that has been certified by a Minister as government policy, unless the policy produces an unjust decision in the circumstances of the case.(36) These two Tribunals are, therefore, subject to policy on matters of substance, not just procedure. The Commonwealth Government could well follow suit. If the Government is minded to adopt a similar approach, it should note the qualified way in which both provisions are couched.(37)

Implementing changes to ART by non-legislative means

In the meantime, Justice Deirdre O'Connor has resumed the Presidency of the AAT, and she has presumably been charged with the task of implementing the proposed changes. Given the vagaries of obtaining passage of legislation through the Senate, it would be sensible if she sought to achieve by executive means as many as possible of the recommendations of the Better Decisions report.(38) These could include at least the collocation of premises, devising directions for the operations of the body, synthesising IT systems, common documentation, publicity and so on. Arranging for the ART to be located in the same buildings as the Federal Magistrates Service may be one such option. Although all these developments could be achieved administratively, the really significant issues of the structure and powers of the new body can only be implemented with parliamentary approval. If the Government wishes to achieve its fundamental restructuring of the Commonwealth merits review tribunal system, a legislative imprimatur is imperative.

Impact on AAT of Federal Magistrates Court

Although the developments discussed-with the exception of legislative change-are relatively certain, what is less certain is the relationship of the AAT to the Federal Magistrates Court, the Bills for which were introduced on 24 June 1999.(39) The justification for the introduction of a new Chapter III Court was 'to help ease the workload of both the Federal Court and the Family Court and provide a quicker, lower cost alternative for less complex matters arising under Commonwealth civil law'.(40) That justification has less force since the High Court's decision demolishing the cross-vesting scheme, which has considerably reduced the workload of the Federal Court.(41)

Nonetheless, the scheme is likely to be introduced.

The significance for the AAT is twofold. In the first place the jurisdiction of the magistracy is to include applications under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) except for citizenship or migration matters.(42) Applications for judicial review under the ADJR Act are made in relation to decisions of the AAT. The number is small(43) but these will go to the Magistrates Court, unless the issue is a significant one.(44) It is questionable whether this is appropriate. These ADJR Act applications commonly deal with procedural matters and are likely to raise technical points of law. Such issues frequently require detailed legal argument, and are not necessarily suitable for a body which is only intended to handle 'less complex matters'.(45)

The more substantial impact on the AAT comes from the diversion of its appeal jurisdiction.(46) Appeals to the Federal Court from the AAT on a question of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) numbered 247 in 1997/98.(47) Even as late as May 1999, there was no indication that AAT appeals were to be deflected to the Court.(48) However, as the jurisdiction of the Magistrates Court has evolved, it has presumably been seen as appropriate to treat in similar fashion the judicial review and the appeal route from the AAT to the Federal Court. That reflects the similarity of the legal issues involved, the commonality of applicants over matters which are often repetitive and hence less challenging.(49) As with ADJR Act applications, a matter may be transferred to the Federal Court at the initiative of the Magistrates Court or of a party to a proceeding.(50) Excepted are migration and citizenship appeals,(51) and appeals from a decision made by an AAT panel which included a Presidential Member, that is, a Federal Court judge.(52)

The impact of this diversion of the AAT's appeal jurisdiction to the Magistrates Court will be felt keenly by the veterans' community, those on income support, and those seeking compensation. Together these groups comprise one-third of applications from the AAT to the Federal Court.(53) Although the impact is not likely to be immediate since the number of magistrates appointed in the first instance is to be small, a maximum of 16, and initially their workload will be predominantly in the family law jurisdiction, progressively a high proportion of AAT appeals will be to the Magistrates Court rather than the Federal Court.(54) What that will mean for the AAT will be akin to its likely effect on the ART.

What will the introduction of the Federal Magistrates Court mean for the ART?

The procedure in the Federal Magistrates Court is to be informal, streamlined and, wherever possible, to eschew 'formal judicial culture'.(55) To that end, the Magistrates Court is to practise what is rather clumsily called in the Bill 'primary dispute resolution processes'-counselling, mediation, arbitration, neutral evaluation, case appraisal and conciliation.(56) Although the Federal Magistrates Bill 1999 does not explicitly provide that the full panoply of primary dispute resolution processes is only available for family law matters, that is the implication from the Bill since for cases outside the family law area, only mediation and arbitration are available.(57)

The emphasis on informality and mediation in the Magistrates Court may not be as appropriate as it would at first seem. Many applicants in the administrative law system will already have been offered preliminary conferences and, where appropriate, mediation before the ART. A second alternative dispute resolution process is otiose. For those who have had a speedy and informal adjudication at the ART's first tier, there is no need to replicate it before the magistracy. Given the by-leave requirements for second tier review, these are likely to be the majority of claimants. Issues such as these suggest that more thought may need to be given to whether the right of appeal for most applicants should be from the ART to the Magistrates Court or, as at present, to the Federal Court.

If the appeal comes from the ART's second tier, the ART is likely to have had a quite formal hearing at that level. Adding value to that process-and that should be what is provided by each successive layer of the review process-requires more than a second informal hearing before a single magistrate. A magistrate lacks that breadth of expertise, which comes from hearings before a full ART panel comprising members who have specialist knowledge in the areas of dispute. Further, since the Federal Magistrates Bill 1999 gives a magistrate a discretion as to whether to give reasons for a decision, and if reasons are given, that they need not comply with standard reasons obligations,(58) the limited reasons obligation is unlikely to provide that formal and convincing exposition of the law which the applicant is seeking at this phase of the process.(59) Although the Bills provide that an appeal from a decision made by a Presidential Member of the AAT goes direct to the Federal Court-and this is likely to be replicated for the ART-not every second tier panel will include a judicial member.(60) On balance, it appears that all appeals from the ART's second tier should go direct to a Full Court of the Federal Court.

This leads to an even stronger reason for doubting whether the extra appeal layer is needed. What an agency or a litigant is seeking at the stage beyond merits review is an authoritative ruling. That is not likely to be available from a Magistrates Court, which is to operate in the informal manner proposed.(61) Further, the additional tier of adjudication is likely to produce even greater litigation fatigue than at present, leading more people to abandon pursuit of their rights in the face of the costs, the time and the expense involved in the process.(62) These issues cast doubt on the wisdom of this deflection of both the AAT's ADJR Act and appellate jurisdiction to the Magistrates Court. However, if those elements of the Bills are immutable, at the very least the factors outlined need to be taken into account in devising the rules of court which will determine whether a matter should go to the Magistrates Court or direct to the Federal Court.(63) Otherwise, there are likely to be some unhappy litigants on the administrative law side of the Magistrates Court's jurisdiction.

AAT's Expedited Procedures-Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998

There are a number of disturbing elements of the revised and expedited procedures for criminal deportation in the Migration Legislation (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth).(64) In the first place, the amendments to the Migration Act 1958 provide that if the AAT hearing has not been concluded within 84 days after the applicant is notified of the decision to deport, the decision will be deemed to be affirmed.(65) Since the median time to conclusion of AAT decisions is 8.13 months or about 245 days (for the criminal deportation jurisdiction, about 180 days), this is a demanding timeline.(66) The Act requires that a presidential member should hear the expedited migration cases.(67) That will mean rescheduling non-migration matters, resulting in increased delays for other applicants to the Tribunal. If it proves impossible to meet the tight time schedule, the decision to deport is deemed to be affirmed by the AAT and the person will be deported.(68)

For the individual applicant, the timelines are equally harsh. Once the applicant is personally notified of the decision, the person is given seven working days (in effect nine days) in which to apply to the AAT for review (sixteen days if the notice is sent).(69) That application must include a copy of the decision and one set of the documents explaining the decision given to the person. If the person is in detention, it is hard to see that person meeting the deadline, particularly if the person is unrepresented or has language difficulties. If the person is not in detention the person may also have difficulty paying the application fee or seeking to have the fee waived in the short time available. In either case, language difficulties or lack of representation will create barriers.

Following the application, the AAT is given an unspecified time to notify the Minister that an application has been received. In addition. At least two business days before the hearing the Tribunal must provide the Minister's office with a written statement, translated if necessary, of any oral evidence in support of the applicant's case.(70) If the applicant does not do so, the Tribunal may not have regard to any such evidence.(71)

Although the numbers involved in this part of the AAT's jurisdiction are relatively small-around five per cent of its applications-the pressures these legislative changes will create, particularly when detainees are not represented, are likely to be disproportionate and may impact on the timeliness and effectiveness of the AAT's administrative review function in other areas.(72) The burden on Legal Aid, already stretched because of cutbacks in funding,(73) community legal centres, and lawyers' professional associations operating pro bono schemes, will further erode the ability of these bodies to service other clients.

The difficulties for the AAT and for legal aid schemes may necessitate creative solutions. As some judicial commentators have noted, albeit in the context of judicial review of migration matters, one way to alleviate the problem may be to put more resources into translation and migrant advice services at the pre-hearing stage so that only those applicants with a real chance of success will pursue their claims.(74) This will not provide an answer to the problems of the Tribunal itself. These will need to be monitored to see if they cause the difficulties predicted.

Recent Cases on Procedure and Statutory Interpretation of Significance for AAT and other Determining Authorities

1. Model Litigant Doctrine: Government Agencies

The decision of the Full Court of the Federal Court in Scott v Handley(75) has added its chorus to those calling for the Commonwealth and its agencies to behave as a 'model litigant'. That call is intended to be heard in all agencies, and to operate with respect to courts and tribunals. The exhortation is the stronger given that Spender, Finn and Weinberg JJ noted in their joint judgment that the claims by the applicants give 'the strong impression that to some extent this is all a delightful forensic game which the appellants have enjoyed playing'.(76) The model litigant principle requires that government parties and their lawyers adhere to high standards of fairness, candour, competence and courtesy.(77)

The applicants in Scott v Handley, a husband and wife, sought judicial review of decisions of the Department of Social Security and of the Senior Member at the AAT who had reviewed their applications concerning pension entitlements. The litigation history was confused by the two separate themes which emerged. One theme involved the applicants' substantive rights to the pensions they were seeking. The other theme had to do with a procedural dispute as to whether a document prepared by the applicant should be amended.

The case was set down for hearing on 15 October 1998. The applicants believed that the hearing on that date was solely to consider the procedural dispute. The agency discovered from the Federal Court Registry that it was to do with both matters. In preparation for the hearing, the agency served lengthy affidavits on the applicants on 9 October 1998, a Friday, and less than a week before the hearing. This it should be noted was three months later than the Court had earlier required. The solicitor for the agency advised the applicants to notify the Registry that they were not ready to proceed on the substantive matter, which they did. However, at the hearing the judge rejected the explanation by the applicants that they were not expecting the final hearing on that day and dismissed both applications.

The issue before the Full Court was whether the refusal to grant the adjournment resulted in a miscarriage of justice. The Full Court found that it did, but excused the judge from blame since he did not know of the matters which lead to their finding. The Full Court noted that serving the affidavits, two containing annexures of roughly 30 and 20 pages respectively, a mere six days before the hearing, after a default of three months, and when the affidavits contained new material [author's emphasis], meant that injustice was done.

In coming to its conclusion that the applicants had been denied procedural fairness, the Full Court found that the key issues were that the Scotts were unrepresented litigants, and that the respondent was an officer of the Commonwealth. The Court placed greater emphasis on the second of these matters. As the Court noted, the Commonwealth was required properly:

In the course of its reasons the Court defined the model litigant doctrine in these terms:

As the Court pointed out, insistence upon that standard is a recurrent theme in judicial decisions in this country in relation to the conduct of litigation by all three tiers of government, Commonwealth, State/Territory and local.(80)

The cases cited by the Court indicate that the duties of a model litigant require a public body to adhere to a number of principles. The body must conscientiously comply with the procedures designed to minimise cost and delay;(81) must assist 'the court to arrive at the proper and just result';(82) must not take purely technical points of practice and procedure;(83) must 'not unfairly [impair] the other party's capacity to defend itself';(84) and must not take advantage of its own default.(85)

In Scott v Handley, breaches of the model litigant standard arose from the following:

• the Department was in a position of obvious advantage in relation to unrepresented litigants
• the Department was significantly in default in not complying with procedures designed to secure the fair and orderly preparation of the matter for hearing
• an official of the Department served the Centrelink affidavits on the appellants at an extremely late date with the consequential likely impairment of their capacity to prepare properly for a final hearing
• at the hearing the Departmental representative did not inform the presiding judge of the default and of its possible consequences, and
• the Department took advantage of the inability of the appellants to articulate properly the basis for, and to secure, an adjournment.(86)

These breaches of the model litigant principle were found to amount to a miscarriage of justice.(87)

The Court acknowledged that these rules were developed in days when courts were not so congested and there was no case management and that today the claims of other litigants and the public interest in securing the most efficient use of court resources would also need to be considered. At the same time, the Court imposed a sanction, namely, that the Department pay the appellants' costs of the appeals. The message was clear. The model litigant doctrine should be adhered to by government.

The most significant implication of the case arises in the context of the untying, since 1 September 1999, of Commonwealth litigation work.(88) Anticipating these moves, the Minister for Aged Care, the Hon. Bronwyn Bishop noted in the federal Parliament in February 1999:

The sentiment was echoed by the Australian Law Reform Commission in the Discussion Paper, the Review of the federal civil justice system.(90) Whether or not government lawyers heed this advice, the test will be whether private legal firms, increasingly undertaking government representation, will comply with the exhortation. That seems unlikely given the highly competitive private legal market. The difficulty is exacerbated by the significant increase in the number of applicants who are self-represented.(91) Although the Australian Government Solicitor has added his voice to those extolling the model litigant policy, and adherence would undoubtedly benefit unrepresented litigants, the doctrine may well be a casualty of government outsourcing of legal services.(92)

2. 'Reasons' requirements: Tribunals

The AAT is required to include in any written reasons 'its findings on material questions of fact and a reference to the evidence or other material on which those findings were based'.(93) That obligation has been interpreted to mean that there must be findings on the substantial issues raised by the case in sufficiently clear terms for the parties to understand why the decision went the way it did.(94)

At the same time, the High Court has also affirmed that a reviewing court must not be concerned with mere looseness of language or unhappy phrasing in a tribunal's reasons. Hence in the Minister for Immigration and Ethnic Affairs v Wu Shan Liang,(95) the majority of the High Court (Brennan CJ, Toohey, McHugh and Gummow JJ) stated:

Despite these warnings that the Federal Court should not take too parsimonious a view of reasons statements, the Federal Court continues to criticise the reasons of tribunals. Hence, in Dixon v Repatriation Commission(97) Wilcox J noted that to quote extensively from the Veterans' Review Board findings and then simply to adopt them would have been an error of law since the Tribunal must reach its own conclusion on the facts. In the result, that did not affect the Tribunal's decision. Nonetheless, as the Court noted, even to quote from the VRB's findings was not the best way to express the tribunal's findings on an issue. As Wilcox J noted sagely:

Similarly in Paramananthan v Minister for Immigration and Multicultural Affairs(99) in relation to a decision by the Refugee Review Tribunal, Wilcox, Lindgren and Merkel JJ found that the Tribunal had erred because it failed to make factual findings in respect of all the issues on which its decision turned. As Wilcox J noted of the reasons provision in the Migration Act 1958 (Cth) s 430:

The RRT had found that two young Tamil men who had been detained and mistreated on several occasions had suffered 'indiscriminate cruelty' rather than persecution for a Convention reason, one of the requirements to be met to establish entitlement to refugee status.

The reason the RRT did not meet the standard for statement of reasons, the Court noted, was that it failed to make findings on whether:

• this treatment amounted to persecution for reasons of race, membership of a particular social group or political opinion and was different from 'indiscriminate cruelty' to young Tamil men
• the cruelty was something the Sri Lankan Government tolerated or was unable to control
• each of the two applicants had a well-founded fear of being detained by the authorities by reason of being a young Tamil man from a Tamil separatist-controlled area of the country and, if so, of suffering mistreatment while in detention, and
• there was a real chance of the recurrence of such mistreatment should the applicants be returned to Sri Lanka.

Even granted the complexity of the issues involved in refugee cases, there are lessons to be learned from the very careful reasons provided by the Full Court in Paramananthan.

Other reasons cases have established:

• reasons must establish that there is evidence of matters which are central to the case. Hence, in Australian Trade Commission v Underwood Exports Pty Ltd the Tribunal failed to make findings on whether the respondent was an exporter, or simply acting as agent for the sale in the United States of goods manufactured by another company.(101) (The issue was critical since if the respondent was not an exporter the respondent was not entitled to an export development grant under the Export Market Development Grants Act 1974 (Cth))
• the process of reasoning must be ascertainable even if at times it is ambiguous or even internally inconsistent on a particular issue(102)
• the reasons must set out the reasoning on any critical issues(103)
• if the applicant's account is to be rejected, findings on credit or the plausibility of the applicants account of events must be made(104)
• in cases in which the issue of a visa depends on establishing that the applicant is of good character for the purposes of the Migration Act 1958 (Cth), there must be a finding on this issue, albeit as French J remarked wryly, 'character may be a little like the Curate's egg'(105)
• a decision must not be affirmed without a finding being made on the statutory criteria which are the basis for the decision and that finding must be based on the material as at the date of the application(106)
• Where there is conflicting evidence, reasons must indicate why the tribunal prefers one view over another,(107) and
• the reasons must also indicate which evidence the tribunal accepts and which it rejects. Without that information the parties will only have an incomplete understanding of the tribunal's reasoning process.(108)

Ultimately, the touchstone was eloquently expressed as follows:

It is clear that despite the attempt by the High Court to rein in the Federal Court's critical approach to reasons statements by tribunals, the demands on tribunals remain high. It is no accident that many of these cases are in the migration area where inadequate reasons has come to substitute for grounds of review excluded from Part 8 of the Migration Act 1958(Cth). It would be misleading, however, to consider that to be the only reason for the development. There are sufficient cases from non-migration areas to deny such a suggestion. The result, however, is that with the Federal Court looking over the shoulder of tribunals to ensure they meet the 'adequate reasons' standard, there is an inevitable tendency for a greater degree of formality in AAT hearings and outcomes. That in turn fosters the legalism which the Government is anxious to reduce. There are implications from this stream of cases which the Government should heed when it is seeking to draft the legislation which will enshrine its desire to make the ART less formalistic.

3. Meaning of 'substantial justice' and similar expressions: Tribunals, other decision-makers and applicants

Principles of interpretation for exhortatory expressions

In May 1999 the Full Court of the High Court in Minister for Immigration and Multicultural Affairs v Eshetu(110) established important principles for the interpretation of exhortatory expressions in legislation. The issue in Eshetu was whether the Migration Act 1958 (Cth) s 420, which provides that the RRT is not bound by technicalities, legal forms or rules of evidence and 'must act according to substantial justice and the merits of the case', could be a source of fair process rules for migration tribunals. The High Court, seven to nil, dismissed the suggestion on the basis that 'substantial justice' is concerned with the substantive issues in the case rather than the process of deciding them. The meaning of the terms became critical because several cases at the Federal Court had found that s 420 imported into migration review hearings a legal obligation to conform to some form of procedural fairness.(111) These conclusions arose in the context of Part 8 of the Migration Act 1958 (Cth) which limits the grounds for review of migration decision. In particular, procedural fairness (apart from actual bias) was specifically excluded as a ground of review.(112)

The High Court in Eshetu found that neither arm of s 420-the 'no rules of evidence' arm, nor the 'substantial justice' arm-had any substantive effect. The statutory expressions did not create private rights of action. They were simply statements which indicated the nature of the review proceedings and required the Tribunal to operate as an administrative body with flexible procedures and not as a body with technical rules of the kind that have sometimes been adopted by quasi-judicial tribunals.(113)

That does not mean that such expressions are devoid of impact and can safely be ignored by tribunals. The High Court also noted that such expressions must be interpreted in their statutory context. Hence, in the Migration Act 1958 (Cth) which excludes procedural fairness as such and only requires adherence to the specific procedures mentioned in the Act, Eshetu has had the effect that 'substantial justice' cannot be interpreted to incorporate all the tenets of procedural fairness. However, in an Act like the Veterans' Entitlements Act 1986 (Cth), the requirement that the Repatriation Commission and the Veterans' Review Board act according to 'substantial justice' must take its colour from the well established beneficial interpretation accorded to provisions of that Act.(114) That beneficial construction specifically requires decision-makers to make allowance for difficulties of proof caused by the length of time since service and the paucity of records often kept in times of conflict.(115) That means when there are alternative constructions of events, or of the legislation, to act according to 'substantial justice' requires that the more beneficial alternative should be adopted.(116) Hence, in the context of the Veterans' Entitlements Act 1986 (Cth) the expression is capable of effecting substantive outcomes, rather than matters of procedure only, as had been argued in Eshetu in relation to the Migration Act 1958 (Cth).

The outcome in the Eshetu case, must however, give cause for some concern to those who are pinning their hopes on the ART achieving an informal and non-judicial mode of operation. If the ART Act requires the ART to be bound to act in a manner which is 'fair, just, economical, informal and quick'-the other list of adjectives at issue in Eshetu, the High Court's findings suggest that the exhortation is likely to have limited effect. In context, aspirational statements may colour the interpretation of provisions but do not govern or control them. They may be useful starting points for performance indicators, but little else. Certainly, if the ART Act, like the federal magistracy legislation, is replete with references to parties, oaths, affidavits, interrogatories, discovery, witnesses, evidence, orders and judgments,(117) the desired outcome is unlikely to be realised. To avoid this result, if the proposed ART Act contains provisions of this kind, they will be ineffective unless they are backed up by specific procedural provisions indicating Parliament's intention that the ART act informally.

The prevalence of such statutory expressions and hence the potential significance of the Eshetu findings is indicated by the legislation containing similar provisions listed in the Appendix to this paper.

Conclusion

Contradictory themes have emerged from this survey of the proposals for the administrative review system and of the operation of the AAT. The Federal Court has clearly indicated that agencies and those representing them before tribunals should operate as a model litigant. That imposes high standards of personal and professional probity, requires care in the presentation of legal material, and demands a willingness to deal fairly with other parties before the tribunals and the courts. The indication is reinforced by the calls by the executive for similar behaviour. The Court has also signalled that tribunals' reasons will be scrutinised carefully for error or face invalidation. In sum, the pressure from the Court and the executive is for more, rather than less, formality in the way tribunals and agencies handle litigation and in the tribunal decision-making process. The impact of these developments falls most heavily on the final tier in the tribunal system.

At the same time, there is a different focus emerging from decisions of the High Court. The clear message from the Wu Shan Liang and the Eshetu decisions is that tribunals are sui generis and should not be expected to act like courts. The High Court indicated that neither in their formal decision-making output nor in their modes of adjudication are tribunals to ape their judicial counterparts. As the Court noted in Eshetu, expressions such as those found in the Migration Act 1958 (Cth) s 420:

If one accepts the High Court's view that tribunals are a distinct adjudicative species, finding an appropriate mode of operations for them is proving problematic.

The adoption by the Government of the Better Decisions report projects a vision of the new generalist merits review body, limited second tier review aside, as a quick and efficient but not authoritative body. If the powers of the body are limited and it is formally made subject to government policy we will see an even less independent, less effective body in place. It can be questioned whether that is the most appropriate model for the tribunal system.

Even if it is conceded that the vision is appropriate for some matters, for example, in the income support or compensation jurisdictions, it is manifestly not suitable, for example, for taxation, customs or other commercial cases where the amount at stake is often high and the matters are strenuously fought. Although the Government has indicated that separate divisions of the ART are able to select procedures which suit them,(119) that promise does not seem to have been taken into account in designing the review powers of the Magistrates Court and it is to be hoped that the undertaking will not be ignored when the ART is established. Nor do the prospects for the informal processes envisaged for the majority of applicants to the ART sit easily with the pressures from the Federal Court and the executive chronicled earlier.

It is tempting in these circumstances to look back to the view of the administrative review system of its founders. According to them, the generalist merits review tribunal was to be the pre-eminent merits review body, administering justice to individual applicants, while at the same time laying out the meaning of complex legislation and providing enduring and consistent principles to guide administrators. That goal is in danger of being lost. To achieve it the powers of the body must be at least as wide as those of the decision-makers whose decisions are being reviewed. The stature of the body must also be bolstered by demonstrations of confidence by government in tribunals, its personnel must be chosen with scrupulous care, and its members must strive for consistency and excellence in their decision-making. If the quality or the impartiality of the body is open to question, the value of its decisions is undermined and its ability to provide the wisdom and authoritative guidance which should be expected from the body at the pinnacle of the administrative system will be jeopardised.

In sum, it is time to look very carefully at the several proposals which are currently being canvassed. Changes to the system are needed but an element of the changes proposed should be to enhance the respect due to the tribunal system so that it can continue to be a part of the adjudicative process of which Australian citizens can be proud.

Endnotes

2. R. Creyke and J. McMillan, 'Administrative Law Assumptions ... Then and Now' in R. Creyke and J. McMillan (eds), The Kerr Vision of Australian Administrative Law-At the Twenty-Five Year Mark, ANU Centre for International and Public Law, 1998, pp.11-12.

3. [1999] HCA 21 (13 May 1999).

4. Administrative Review Council, Better Decisions: Review of Commonwealth Merits Review Tribunals (Better Decisions), Report No 39, 1995, especially Chapter 8 and recommendations pp. 87-102.

5. Better Decisions, Appendix A, p. 181.

6. The Hon. Daryl Williams AM, QC, Commonwealth Attorney-General and Minister for Justice, News Release Reform of Merits Tribunals, 20 March 1997.

7. The title for the generalist merits review body originally chosen by the Kerr Committee (Commonwealth Administrative Review Committee Report 1971 (Kerr Committee Report), Parliamentary Paper No 144 of 1971, recommendation 28, p. 117).

8. 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.

9. The Hon. Daryl Williams AM, QC, Commonwealth Attorney-General and Minister for Justice, News Release Merits Review Tribunal to Stay Independent, 13 July 1997.

10. The Hon. Daryl Williams AM, QC, Commonwealth Attorney-General, News Release Reforms of Merits Review Tribunal, 3 February 1998; Senator the Hon. Jocelyn Newman, Minister for Social Security, News Release Newman Welcomes New Merits Review Tribunal, 4 February 1998.

11. In 1997-98 8,986 cases were finalised by the VRB as compared, for example, with 12,343 at the SSAT; 6,966 at the RRT; 2,732 at the IRT; and 7,386 at the AAT (Administrative Review Council Twenty-Second Annual Report 1997-1998 pp. 43-47).

12. Senator the Hon. Jocelyn Newman, Minister for Social Security, News Release Newman Welcomes New Merits Review Tribunal, 4 February 1998.

13. Although the VRB is not to be integrated into the ART, the first division of the ART is to provide a full right of appeal on veterans' matters (Renee Leon 'Tribunal Reform: The Government's Position' in S. Kneebone ed., Administrative Law and the Rule of Law: Still Part of the Same Package? (AIAL, 1999) pp. 351-352.

14. For example, Liberal & National Party Coalition Immigration Policy 5; Explanatory Memorandum to the Migration Legislation Amendment Bill (No 4) 1997 paras 9, 10; The Hon. Philip Ruddock, Minister for Immigration and Multicultural Affairs Opening Address at conference titled 'Immigrant Justice: Courts, Tribunals, and the Rule of Law', University of Sydney, June 1997, pp. 3-4.

15. Administrative Review Council, Twenty-Second Annual Report 1997-1998, p. 44.

16. Administrative Review Council Twenty-Second Annual Report 1997-1998, p. 43-44.

17. 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, p. 129.

18. Migration Legislation Amendment Act (No 1) 1998 (Cth); The Hon. Philip Ruddock, Minister for Immigration and Multicultural Affairs, Media Release Appointments to the Migration Review Tribunal 27 July 1999; and the Hon. Philip Ruddock 'Executive Government and Improved Accountability', Opening Speech, 1999 Public Seminar Series-Democratic Governance: Improving the Institutions of Accountability, ANU Graduate Program in Public Policy, p. 14.

19. Review of the Social Security Review and Appeals System, A Report to the Minister for Social Security, August 1997 (the Guilfoyle Report).

20. E. Meryment, 'Tribunal revamp on hold', Courier Mail, 22 April 1999, p. 9.

21. As the Kerr Committee noted, 'The basic fault of the entire structure is ... that review cannot as a general rule ... be obtained "on the merits"' (Commonwealth Administrative ReviewCommittee Report, Parliamentary Paper No 144 of 1971 (Kerr Committee report), para 58.

22. Administrative Review Council, Better Decisions: Review of Commonwealth Merits Review Tribunals (1995, AGPS) (Better Decisions) para 2.2; R. Creyke 'The Criteria and Standards for Merits Review by Administrative Tribunals' (1998) Law & Policy Paper No 9, p. 2.

23. Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158; approved by the Full Court of the Federal Court in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68 per Bowen C.J. and Deane J.

24. e.g. Chris Merritt, 'Tribunals lose independence in Govt plan' The Australian Financial Review 30 June 1997, p. 3; Margo Kingston, 'Fair play legacy looks doomed' and 'Anger as government watchdogs lost teeth', Sydney Morning Herald 30 June 1997, p. 1 and 6; Jodie Brough, 'Canberra seeks to wipe out review' Sydney Morning Herald, 1 July 1997, p. 7; 'Independence is a must for review' The Australian, 2 July 1997, p. 12; Adele Horin, 'A "tidy" country means democracy in a mess', Sydney Morning Herald, 5 July 1997, p. 39.

25. Jack Waterford, The Canberra Times, 28 April 1997, p. 1.

26. Wilkinson v Clerical Administrative & Related Employees Superannuation Pty Ltd (1998) 152 ALR 332; Breckler v Leshem (1998) 57 FCA (unreported, 12 February 1998).

27. [1999] HCA 28 (17 June 1999).

28. The Court emphasised the difficulty of determining whether the role of a tribunal transgresses the constitutional limits. In the context of the Superannuation Complaints Tribunal, the Court identified three considerations: the limited nature of the functions assigned to the Tribunal; the absence of any attempt to exclude the ordinary courts from the discharge of their functions in related controversies; and the lack of direct enforceability of the Tribunal's orders (Attorney-General of the Commonwealth v Breckler [1999] HCA 28 (17 June 1999) paras 82-86). The AAT has broad-ranging functions which would not be detracted from if its power of decision-making was restricted; use of 'reasonable' or 'defensible' might be seen as an attempt to exclude the courts' judicial review jurisdiction; and the AAT lacks enforcement mechanisms.

29. R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254.

30. Kerr Committee report Chapter 4. See also R. Creyke 'Restricting Judicial Review' (1997) 15 AIAL Forum 22.

31. Shell Co of Australia v Federal Commissioner of Taxation (1930) 44 CLR 530.

32. If the ART were seen to be exercising judicial, not administrative functions, it would contravene the separation of powers doctrine embodied in the Constitution (R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254; Shell Co of Australia v Federal Commissioner of Taxation (1930) 44 CLR 530).

33. Renee Leon 'Tribunal Reform: The Government's Position' in S Kneebone ed., Administrative Law and the Rule of Law Still part of the same package? (AIAL, 1999) 351-352.

34. For example, M. Sassella 'Commentary' in J. McMillan (ed.) Administrative Law under the Coalition Government (AIAL, 1997), p. 65.

35. J. McMillan, 'Review of Government Policy by Administrative Tribunals' (1998) 9 Law and Policy Papers, p. 27.

36. Victorian Civil and Administrative Tribunal Act 1998's, p. 57.

37. Administrative Decisions Tribunal Act 1997(NSW), s 64.

38. J. McMillan, 'Review of Government Policy by Administrative Tribunals' (1998) 9 Law and Policy Papers 27.

39. See at n 20.

40. Federal Magistrates Bill 1999; Federal Magistrates (Consequential Amendments) Bill 1999. The Bills were referred on 30 September 1999 to the Senate Legal and Constitutional Committee for report. The bulk of the work of the new Service 'will be smaller matters usually heard in the Family Court' other matters such as consumer affairs, child support, workplace relations and 'other less complex Federal court matters' which will increasingly be handled by the Magistracy (The Financial Review, 14 May 1999).

41. S. Pidgeon 'Reforming the System: Proposed Reform in the Federal Arena', paper presented to the Seminar on the Management of Disputes Involving the Commonwealth, Canberra, 22 April 1999.

42. Re Wakim; Ex parte McNally [1999] HCA (17 June 1999). If the constitutional challenge to the validity of the Federal Court Act 1976 (Cth) Part IVA, which provides for 'representative proceedings' is successful, the Federal Court's jurisdiction will be further truncated (C Merritt 'A class act that's really just coincidence', The Financial Review, 1 October 1999, p. 27).

43. Federal Magistrates (Consequential Amendments) Bill 1999, cl 3, Sch 4 item 7.

44. Australian Law Reform Commission, Issues Paper 24, Review of the adversarial system of litigation: Federal tribunal proceedings, Table 8, p. 123.

45. The Federal Magistrates Court itself has a discretion to transfer proceedings, although the transfer may be made at the request of a party (Federal Magistrates Bill 1999, cll 39-40). Compulsory transfer is to be provided for by regulations (Federal Magistrates Bill 1999, cl 41).

46. Administrative Appeals Tribunal Annual Report 1997/98, Appendix 6, p. 122.

47. Federal Magistrates (Consequential Amendments) Bill 1999, cl 3, Sch 3.

48. Administrative Appeals Tribunal Annual Report 1997/98, Appendix 5, p. 117.

49. For example, S. Pidgeon at n 41 at p 4 does not list this as a matter being considered for transfer.

50. Appeals to the Federal Court from the AAT are on a 'question of law' (Administrative Appeals Tribunal Act 1975 (Cth) s 44), a jurisdiction which is not dissimilar to the judicial review jurisdiction for legal error under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

51. Federal Magistrates (Consequential Amendments) Bill 1999, cl 3, Sch 3 item 7, proposed s 44AA(3).

52. Federal Magistrates (Consequential Amendments) Bill 1999, cl 3, Sch 3 item 7, proposed s 44AA(2)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).

53. Federal Magistrates (Consequential Amendments) Bill 1999, cl 3, Sch 3 item 7, proposes s 44AA(2)(a).

54. Administrative Appeals Tribunal Annual Report 1997/98, Appendix 5, p. 117.

55. Initial appointments of between eight and sixteen magistrates have been mooted.

56. Federal Magistrates Bill 1999, cll 3(2) 42. Under clause 3(2) the Magistrates Court is to 'operate as informally as possible' using 'streamlined procedures' and 'a range of appropriate dispute resolution processes'. See also S. Pidgeon at n 41, p. 3.

57. Federal Magistrates Bill 1999 cl 21 and Part 4.

58. Federal Magistrates Bill 1999 Part 4, Div 2.

59. Acts Interpretation Act 1901 (Cth), s 25D.

60. Federal Magistrates Bill 1999, Division 6, especially cl 76.

61. Federal Magistrates (Consequential Amendments) Bill 1999 cl 3, Sch 3, inserting s 44AA(2)(a) into the Administrative Appeals Tribunal Act 1975 (Cth).

62. Federal Magistrates Bill 1999, cl 3(2)-Objects.

63. Although appeals from the Federal Magistrates Service normally go direct to the Full Court of the Federal Court, this practice will not be universal. Hence, the Magistrates Service hearing will not simply substitute in all cases for the hearing before a single judge of the Federal Court. (Federal Magistrates (Consequential Amendments) Bill 1999, cl 3, Sch 12 item 2, inserting s 24(1)(1AAA), and s 25(1)(1A and (1B) into the Federal Court of Australia Act 1976 (Cth).

64. Federal Magistrates Bill 1999, cl 40; Federal Magistrates (Consequential Amendments) Bill 1999, cl 3, Sch 3, inserting s 44AA (4)-(7) into the Administrative Appeals Tribunal Act 1975 (Cth).

65. The expedited procedures apply only to the review of decisions made under the Migration Act 1958 (Cth),s 501 where a person has been refused a visa or whose visa has been cancelled is in Australia.

66. Migration Act 1958 (Cth), s 500 (6L).

67. Australian Law Reform Commission Issues Paper 24 Review of the adversarial system of litigation: Federal tribunal proceedings 1 April 1999, Table 4, p. 113.

68. Migration Act 1958 (Cth), s 500(5).

69. Migration Act 1958 (Cth), s 500(6L).

70. Migration Amendment Regulations 1999 (No 3) Sch 1, cll 2.51, 2.52.

71. Migration Act 1958 (Cth), s 500(6H).

72. Migration Act 1958 (Cth), ss 500(6H), 500(6J).

73. Administrative Review Council Twenty-Second Annual Report 1997-1998, p. 45.

74. Burrell, 'Not providing legal aid too costly: Justice Gleeson', The Australian Financial Review, 11 Oct 1999, p. 3.

75. Australian Law Reform Commission, Review of the federal civil justice system DP 62, 1999, para 10.28.

76. [1999] FCA 404 (13 April 1999).

77. Scott v Handley [1999] FCA 404 (13 April 1999) para 10.

78. Australian Law Reform Commission, Review of the federal civil justice system DP 62, 1999, paras 8.33-8.60. In 1995, the government issued guidelines which codified what was meant by the doctrine (para 8.47).

79. Scott v Handley [1999] FCA 404 (13 April 1999) para 43.

80. Scott v Handley [1999] FCA 404 (13 April 1999) para 43, citing Melbourne Steam Ship Co Ltd v Moorehead (1912) 15 CLR 333 per Griffiths CJ at 342.

81. Citing for example, Sali v SPC Ltd (1993) 116 ALR 625 at 628-629, 631, 635; Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146; Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 at 196-197; Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537 at 558-559.

82. Kenny v State of South Australia (1987) 46 SASR 268 at 273.

83. P & C Cantarella Pty Ltd v Egg Marketing Board (NSW) [1973] 2 NSWLR 366 at 383-384.

84. Yong v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 155 at 166. In that case, the applicant sought review of a decision of the Immigration Review Tribunal under Division 2, Part 8 of the Migration Act 1958 (Cth). The applicant had named as respondent the 'IRT constituted by Ms Niki Dollis' rather than the Minister for Immigration and Multicultural Affairs. Counsel for the respondent then claimed that as a consequence the Court had no jurisdiction. The Court noted that to characterise a mere matter of form as 'jurisdictional' required very clear words. The Court concluded that it would not accede to an application to dismiss in those circumstances but would simply amend the application, even after the twenty-eight day application period.

85. Director of Public Prosecutions (Cth) v Saxon (1990) 28 NSWLR 263 at 267-268.

86. SCI Operations Pty Ltd v Commonwealth of Australia (1996) 69 FCR 346 at 368.

87. Scott v Handley [1999] FCA 404 (13 April 1999) para 49.

88. Scott v Handley [1999] FCA 404 (13 April 1999) para 47.

89. Australian Government Solicitor Legal Briefing No 48, 15 July 1999.

90. The Hon. B Bishop, House of Representatives Debates, 9 February 1999, 2156.

91. Australian Law Reform Commission, Review of the federal civil justice system DP 62, 1999, paras 8.33-8.60.

92. A.Burrell, 'Not providing legal aid too costly: Justice Gleeson' The Australian Financial Review, 11 October 1991, 3.

93. Australian Government Solicitor, Legal Briefing No 48, 15 July 1999, 2.

94. Administrative Appeals Tribunal Act 1975 (Cth), s 43(2B).

95. Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500; Dornan v Riordan (1990) 24 FCR 564; Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465.

96. (1996) 136 ALR 481.

97. See also Kirby J in Wu Shan Liang at 505-508; and the High Court in Minister for Immigration and Multicultural Affairs v Guo Wei Rong (1997) 144 ALR 56.

98. [1999] FCA 582 (7 May 1999).

99. Dixon v Repatriation Commission [1999] FCA 582 (as yet unreported) para 19.

100. (1998) 160 ALR 24.

101. Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 at 34.

102. [1997] 1060 FCA (17 October 1997), 49 ALD 411.

103. Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402.

104. Baxter Healthcare Pty Ltd v Comptroller-General of Customs (1997) 72 FCR 467.

105. Anjum v Minister for Immigration and Multicultural Affairs [1998] FCA (17 December 1998).

106. Powell v Administrative Appeals Tribunal [1998] FCA 1747 (20 November 1998), 161 ALR 15.

107. Powell v Administrative Appeals Tribunal [1998] FCA 1747 (20 November 1998), 161 ALR 15.

108. Davies v Australian Securities Commission (1995) 59 FCR 221.

109. Copperart Pty Ltd v Federal Commissioner of Taxation (1993) 26 ATR 327 (reversed on appeal but this statement was noted without adverse comment).

110. Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 at 507, quoted with approval by Wilcox J in Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) (1987) 16 FCR 465 at 483.

111. [1999] HCA 21 (13 May 1999), 162 ALR 577 at para 49 (per Gleeson CJ, McHugh J, with whom Hayne J agreed), at para 75 per Gaudron and Kirby JJ, at para 109 per Gummow J, at para 179 per Callinan J.

112. See the list of cases provided at n 36 in Minister for Immigration and Multicultural Affairs; Ex parte Eshetu (1999) 162 ALR 577.

113. Migration Act 1958 (Cth) Part 8, especially s 476.

114. Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 (13 May 1999), 162 ALR 577.

115. See also Criminal Justice Commission v Queensland Advocacy Inc [1996] 2 Qd R 118; Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26.

116. Veterans' Entitlements Act 1986 (Cth), s 119.

117. For example, Collins v Repatriation Commission (1994) 33 ALD 557; Re Orr and Repatriation Commission (1991) 25 ALD 234; Re Jansen and Repatriation Commission (1991) 25 ALD 395.

118. Federal Magistrates

119. Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALD 577 at 588 per Gleeson CJ and McHugh J (with whom Gummow, Hayne and Callinan JJ agreed).

120. Renee Leon 'Tribunal Reform: The Government's Position' in S. Kneebone ed., Administrative Law and the Rule of Law: Still Part of the Same Package? (AIAL, 1999) 356; S. Pidgeon, 'Reforming the System: Proposed Reform in the Federal Arena', paper presented to the Seminar on the Management of Disputes Involving the Commonwealth, Canberra, 22 April 1999.

Appendix

The following expressions are found in the Commonwealth Acts listed below:

'substantial justice'

• Defence Act 1903 s 61CP
• Migration Act 1958 ss 311, 353, 420
• Telecommunications Act 1991 s 159
• Veterans' Entitlements Act 1986 ss 119, 138

'substantial merits':

• Aboriginal and Torres Strait Islander Commission Act 1989 s 23
• Constitutional Convention (Election) Act 1997 s 160
• Commonwealth Electoral Act 1918 s 364
• National Health Act 1953 s 98BC
• Safety, Rehabilitation and Compensation Act 1988 ss 72, 107, 108P
• Veterans' Entitlements Act 1986 s 119
• Workplace Relations Act 1996 s 110

'fair, just, economical, informal and quick':

• Child Care Payments Act 1997 s 255
• Defence Act 1903 s 61CP
• Employment Services Act 1994 s 163
• Migration Act 1958 ss 353, 396, 420, 460
• Student and Youth Assistance Act 1973 s 310
• Social Security Act 1991 s 1246
• Telecommunications Act 1991 s 159.

Similar expressions

• AAT 'proceedings shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act .... permit' (AAT Act 1975 (Cth) s 33(1)(b) and
• AAT 'may inform itself on any matter in such manner as it thinks appropriate'
• (AAT Act 1975 (Cth) s 33(1)(c)).

State and Territory Acts:

Like expressions also appear in State and Territory legislation eg Anti-Discrimination Act 1977 (NSW) s 108.