Tribunals rather than the courts

There may, for example, be disadvantages in leaving powers of decision about particular cases to Ministers, unless decision have to be taken in the light of considerations of local and national policy (as with many town planning decisions), or unless the maintenance of uniformity in decision is thought to be of paramount importance, or unless departmental decision-making has given general satisfaction to those concerned.

Where these considerations do not apply a tribunal may be established instead: the decision of a tribunal is more likely to be determined by the weight of the evidence adduced at the hearing, and justice is manifestly seen to be done. 5 A tribunal may be preferred to an ordinary court because its members will have specialized knowledge of the subject-matter, because it will be more informal in its trappings and procedure, because it may be better at finding facts, applying flexible standards and exercising discretionary powers, and because it may be cheaper, more accessible and more expeditious than the High Court.

Many of the decisions given to tribunals concern the merits of cases with relatively little legal content, and in such cases a tribunal, usually consisting of a legally qualified chair and two experts, may be preferred to a court. It is, however, unrealistic to imagine that technicalities and difficult legal issues can somehow be avoided by entrusting the administration of complex legislation to tribunals rather than the courts.  

The Franks Committeee considered that "tribunals should properly be regarded as machinery provided by Parliament for adjudication rather than as part of the machinery of administration", and it made a number of detailed recommendations (most of which have been implemented to achieve that object and to improve the procedure at statutory inquiries that preceded a ministerial decision. The Franks Committee sought the qualities of "openness, fairness and impartiality" in tribunals.

Since then there have been added the quests for efficiency, expedition and economy. 7 Tribunals have not been forced into a strait-jacket of uniformity, but their essentially adjudicatory role has been emphasized by rules underlining their independent status, ending undue informality, regularizing procedures, requiring them to give reasons when requested and, in general, providing for appeals to the High Court on points of law from tribunals of last resort. 

Procedure inquiry rules lay down a number of procedural safeguards for participants at inquiries, incuding the right to know the opposing case in advance; the publication with reasons of the inspectors' reports (and reasons given for the Minister's disagreement in such cases); the right of representation; and provision for the appearance at the inquiry of third parties. As we shall see, the requirements of a fair hearing in common law may at times supplement these statutory requirements.  

In most cases such decision-makers draw upon expertise gained prior to their appointment but, in Muin v Refugee Review Tribunal, Hayne J noted that decision-makers might develop expertise through the performance of their duties which, in that case, included assessments of the social and political conditions in nations from which applicants had fled or might face again if returned. According to Hayne J: "members were obviously expected to develop and rely on knowledge of affairs in the countries from which claimants come.

It may very well be, therefore, that, as individual tribunal members heard accounts given to them by a series of applicants for protection visas who came from a particular country, and as those tribunal members read more widely about the country concerned, they developed a body of knowledge upon which their views about the country were formed. " Hayne J made these comments in support of his dissenting view that Mr Muin had received a sufficient opportunity to address adverse material.

The majority's conclusion to the contrary was not inconsistent with the above comments, but highlights the close connection of this issue with the treatment of adverse material/conclusions and the manner in which adversarial/inquisitorial ideal types are used to justify an aspect of procedure. Hayne J emphasized that the proceedings were not adversarial, and that the tribunal was not to be cast in the role of contradictor. We suggest below that the caracterisation of procedure as adversarial or inquisitorial bears mainly on the timing and manner of the requiremtn to disclose.

Arguably, inquisitorial process requires more extensive disclosure, albeit at a later stage, in order to compensate for lack of prior notice of the issues to be addressed. Without that, there may be considerable scope for the "dangerous freedom" noted by the United States Court of Appeals (9th cir) (and quoted with approval by McHugh J): "A case before an administrative agency, unlike one before a court, 'is rarely an isolated phenomenon, but it is rather merely one unit in a mass of related cases… [which] often involve fact questions which have frequently been explored by the same tribunal'…

But the administrative desirability of [official] notice as a substitute for evidence cannot be allowed to outweigh fairness to individual litigants. Unregulated notice, even of legislative facts, gives finders of fact 'a dangerous freedom'. 10 IS THE TRIBUNAL TRULY INQUISITORIAL? Criticisms of the AAT's excessive use of adversarial procedures lose some of their strength in light of the Tribunal's statutory directions contained in s33(1)(b) and (c) of the AAT Act. In exercising these statutory directions, the AAT attempts to implement an "inquisitorial", rather than an "adversarial" approach, to finding the truth behind matters.

The use of these inquisitorial powers are based on the assumption that "the Tribunal should never permit parties to place it in the position of deciding a case on an artificial or inadequate factual basis". These powers presuppose the non-conflicting nature of the parties whilst the Tribunal acts as an objective investigator in discovering the facts. In this context, the Tribunal and the parties are seen as co-operative fact-finders. 11 The AAT has recognized and applied its powers under s33 of the AAT Act in a variety of situations where its intervention is needed in order to ascertain the truth.

Among many other examples given, Dwyer illustrates this point by citing Re O'Maley and Comcare. Here, the AAT's abandonment of passive traditions for a more inquisitive role was demonstrated by its conduction of investigations outside the hearing. This was done to investigate discrepancies between both party's expert witnesses concerning the appropriate dosage of medicine to be given to the applicant. The powers conferred by s33 clearly enabled the AAT to "conduct inquisitorial proceedings… in order to arrive at the truth". 12

Notwithstanding the above, there are reasons why the AAT on the whole has failed to fully utilize its inquisitorial powers. According the Dwyer, there are four explanations for this failure. 1. Despite the granting of inquisitorial powers under s33, other provisions in the AAT Act appear more consistent with a legislative intent for the AAT to retain adversarial type proceedings. This unequivocal intent of the AAT Act has therefore restricted the Tribunal's intervention. 2. Certain views of the Federal Court have expressed reservations about the Tribunal taking an active role in adducing evidence.

3. The prevailing legal culture considers the change in nature of the trial from adversarial to inquisitorial as unjust because taking the matter out of the hands of the parties would be against their expectations Sir Anthony Mason comments that wholesale changes to our current adversarial system, whether in a court or tribunal, would be "an extraordinary act of faith. It would be contrary to our traditions and culture; it would generate massive opposition; and it would call for expertise that we do not presently possess. "