Similar to the court

The Administrative Appeals Tribunal is responsible for hearing appeals of an administrative nature in an inquisitorial manner, as opposed to the court system of judicial review which acts as an adversarial system. The inquisitorial system to supposed to provide individuals with an informal and fair process without as many of the procedural requirements in the court. The members question parties where the tribunal conducts investigations to find the true fact unlike facts being based on the findings from the parties.

The AAT is described by Harris (1991) as containing the main elements of the General Administrative Appeal Tribunal Model: "first, a single tribunal empowered to review the merits of administrative decisions, particularly those in which discretion and, therefore, policy may be involved; secondly, a position of institutional separation from the ordinary court system; and finally, an appropriate separation if not divorce from the bureaucratic system itself".

As I have observed in my visit to the tribunal, it seems a very formal process and much similar to the court system the parties were represented by lawyers and conducted very lengthy evidential enquiries to the witnesses. Even though the minister has the power to conduct their own investigations and clarify evidence, the parties made their own arguments and opposed each other. In this sense, there is not much difference in the tribunal as it is of a court. WHAT IS THE CRITICISM? The criticism of the AAT is from its procedures sharing similarities with that of a court.

It is suggested that the Tribunal's procedures adopt a "modified" version of adversarialism, particularly in the AAT's hearing which encompasses both the applicant and respondent providing their respective cases which are in turn cross examined and reexamined. Furthermore, Tribunals appeared to be formal, although this was dependent on the presiding member. 1 On the other hand, adversarialism is the foundation of our current Court system. Parties define their own issues in dispute, with a presiding independent and passive adjudicator managing the case, being the magistrate of judge.

This system results in one outcome; one party winning and the other losing. Substantial costs are incurred in litigation and court costs which often make this system inaccessibly for financially insecure individuals. Even for individuals who can afford to proceed through the court system, this often results in a disparity in levels of representation and unfair litigation techniques employed by larger corporations that have unlimited resources. Critics of the AAT claim that the tribunal functions too much like a court, adopting an adversarial approach to proceedings.

This power is derived from the provision of the Administrative Appeals Tribunal Act 1975 that clearly define "adversarial characteristics". "Parties" to proceedings are defined in s30 whilst s39 guarantees a right to a party to present "a reasonable opportunity to present his/her case". Furthermore, s42A provides the Tribunal with the power to strike out an application for want of prosecution, with parties having the option of representation within proceedings as per s30. Prima facie, all these characteristics indicate a system that is court-like in its procedures.

However, section 33(1)(c) provides scope for the AAT to operate outside the confines of adversarialism, with the Tribunal able to "inform itself on any manner in such manner as it thinks appropriate". The attraction for parties to proceed in the AAT as opposed to entering the Court system directly is this flexibility. Legal representation is not required allowing individuals to represent themselves. This coupled with proceedings that are conducted with "little formality" and "technicality" provides greater accessibility to the general public in an environment that is conductive to mediation and conciliation.

The constitutionality of the AAT is also in question. The appointment of judges to administrative tribunals may give rise to constitutional problems as the AAT is treated for separation of powers purposes as an arm of the executive and it is arguable that the Commonwealth may not legislate to provide for judges to be members of the Tribunal. The constitutionality of the AAT was attacked in Drake v Minister for Immigration and Ethnic Affairs (1976) 46 FLR 409. in that case, the Full Federal Court held that it was not constitutionally impermissible for a Federal Court judge to be president of the AAT.

It was not a case of administrative powers being conferred on a judicial officer, but who, in exercising powers under the Act, was doing so in a personal, non-judicial capacity. In 1996, the High Court rejected the proposition that people who are judges can also be appointed to perform administrative tasks: Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1, its reasoning being that the performance of some administrative tasks would be incompatible with judicial independence, since the public might confuse the judge acting in a non-judicial capacity with the judge acting in a judicial capacity.

There was no suggestion that presidency of the AAT would be incompatible with judicial independence. However, among the government's justifications for legislation under which the president of the proposed ART would not have to be a judge was the existence of doubts as to the constitutionality of the arrangement. Given that the proposed ART appears to be subject to a greater degree to executive control than the AAT, these doubts may be well-founded.

2 HOW DOES THE TRIBUNAL ACT LIKE A COURT? In determining whether a tribunal is a judicial body the facts that it has been appointed by a non-judicial authority, that is has no power to administer an oath, that the chairman has a casting vote, and that third parties have power to intervene are immaterial, especially if the statute setting it up prescribes a penalty for making false statements; elements to be considered are:

1. The requirement for a public hearing, subject to a power to exclude the public in a proper case, and 2. A provision that a member of the tribunal shall not take any part in any decision in which he is personally interested, or unless he has been present throughout the proceedings.