Administrative Law Essay Example

Another part of the resistance towards an inquisitorial system has centered on the costs involved. These costs to public revenue of increasing importance as our government adopts an economic rationalism model based on cost-cutting. 13 Despite the statutory powers given to the AAT, the above restrictions have resulted in the AAT moving only tentatively towards adopting inquisitorial functions, otherwise known as a "modified adversarial" system. CHANGES

In order to address this problem with the AAT, Dwyer raises certain recommendations that aim to extend the tribunal's use of its inquisitorial procedures: 1. Dwyer comments that '… the single most important move would be to start using tribunal expert medical witnesses'. This eliminates a fault of the adversarial system where each of the parties 'choose their own medical witnesses to express polarized views'. Additionally, the financial costs involved in appointing a tribunal expert medical witness will be met by the other party if an applicant is successful in compensation matter.

2. The inquisitorial approach is likely to stretch the AAT both financially, and in the time taken to conduct its proceedings. An inquisitiorial approach will therefore add to the budget expenditure of the tribunal, and unless it is 'properly resourced, both financially and in terms of the appropriate staff, it will not be able to be effective if it uses inquisitorial procedures'. As Dwyer indicates, there must be appropriate government finding if the AAT are to adopt an inquisitorial approach. 3.

In the Australian legal system, Mahoney JA comments that 'it is the expectation of the parties' that an inquisitorial procedures if they are to face an inquisitorial tribunal. Similarly, tribunal members and the lawyers involved in representing parties before the tribunal require training on the inquisitorial model. Dwyer comments that the Australian legal system 'should no longer be educated to believe that there is greater virtue in an adversarial than in an inquisitorial hearing'. 14 The current Administrative Appeals Tribunal has adopted a system of "modified adversarialism".

It has inquisitorial elements in terms of the informality outlined in section 33(1)(b) of the AAT Act but is run predominantly within an adversarial framework. Dwyer insists that the introduction of an inquisitorial system will "increase the likelihood of the Tribunal making the correct and preferable decision on the true facts". The implementation of Dwyer's recommendations is a positive step towards an improvement of the AAT system, but as Dwyer notes "there are significant costs and challenges involved in reducing the degree of adversarialism'.

If the tribunals are given the necessary resources to meet these challenges, an inquisitorial system will improve the current system that forces it to behave "too much like a court". Therefore, even though the power and objective of the AAT is different to that of a court the inquisitorial process does predominantly behave much like that of the court adversarial system and this problem should be addressed.

References

1. Dwyer, J. , Fair Play the Inquisitorial Way (1997) 5 Journal of Administrative Law 5 2. Aronson, M. , Dyer, B. , Groves, M. , Judicial Review of Administrative Action (2004) Lawbook Co. , Sydney 3. Thawley, Procedures in the Administrative Appeals Tribunal (1997) 4 AJAL 61 4. Jowell, J. , Judicial Review of Administrative Action (1995) Sweet & Maxwell, London 5. Douglas, R. , Administrative Law (2002) The Federation Press, Sydney 6. Enright, C. , Judicial Review of Administrative Action, (1985) Branxton Press, Australia