Comment : Some Lessons from Australia
(July 2006)
Robert Hughes, in The Fatal Shore, his history of Australia as a penal colony, refers to the early colonists' "habit of resorting to familiar European stereotypes to deal with the unfamiliar appearance of things Australian." As with 18th century botany, so with 21st century law. A cursory look at the Australian system of justice shows us some institutions which we would classify as tribunals – but which are constructed on some rather different assumptions. That in turn helps to reveal some of our assumptions about what tribunals should be as historical choices rather than inevitable features. Paul Stockton, Director of Reviews and Legislation at the DCA talks about his experiences with Australian administrative justice.
Introduction
1. This article is based on some reading about the Australian tribunal scene, supplemented by a brief visit to Australia in April 2006. There were three components to this visit:-
- Seeing at first hand the work of the (Federal) Administrative Appeals Tribunal and the (State) Workers Compensation Commission (NSWWCC) in Sydney;
- Participation in an international conference on administrative tribunals organised by the Australian Institute of Judicial Administration and the Australian National University (see the May edition of Adjust);
- Attendance at the Council of Australasian Tribunals Annual Conference.
2. Examples are mainly drawn from the two tribunals I visited plus the Western Australian State Administrative Tribunal (SAT) which has taken many of the developments in Australia to their furthest point.
The Australian Constitutional Context
3. Australian tribunals grapple with more or less the same range of issues and jurisdictions as tribunals anywhere but in making comparisons two important differences with the UK should be noted. First, Australia is a Federal system and the constitutional position of tribunals differs in the Federal system from that in the States. In the Federal (Commonwealth) system there is a very strict distinction between the administrative and the judicial, and tribunals fall firmly on the "administrative" side. This poses some restrictions on what they can do and what powers and jurisdictions they can exercise, and it also means that the Commonwealth courts scrutinise the workings of tribunals to a degree which has largely faded away in the UK.
4. At the State level the constitutional position is different. There is no rigid dividing line between administrative and judicial and so it is possible to create hybrid tribunals which straddle the civil-administrative boundary. Most States now have some degree of unification among their tribunals but it is striking that what is brought together differs from State to State. The range of jurisdictions covered by the Victorian Civil and Administrative Tribunal (VCAT) is, for instance, different in many significant respects from the jurisdictions brought together in the Western Australian SAT.
5. In the UK tribunals are firmly on the judicial side of the judicial/administrative boundary, and have been ever since the Franks Report. But Franks and his colleagues did not have to choose the path they did. Franks's fellow-mandarin, the Permanent Secretary of the Treasury, argued strongly that tribunals were part of the administration. All the developments since then, including Tribunals for Users, Transforming Public services: Complaints, Redress and Tribunals, the consolidation of tribunal administration in the DCA and the creation of the Tribunals Service can be seen as a systematic development of the choice made by Franks.
6. The second major point to note is that judicial appointments in Australia are not wholly merit-based in the sense that we would understand them. Politics continues to play a part in appointments at various levels and various ways. This can be a weakness when Ministers appoint what are seen by the tribunals judiciary as poorly qualified tribunal members.
Unified Administration
7. In the UK we have created a unified administrative structure for tribunals, partly as a means of advancing tribunal reform generally. But a unified administration without unified jurisdictions is a unique experiment in the common-law world. In Australia unification has always taken place through statutory provisions and the unified tribunals tend to have a strong presidential system, in which the President, usually appointed from among the ranks of the court-based judiciary, is also in charge of some of the appointments, the procedural rules and the administration. A number of senior judges in both courts and tribunals in Australia have backgrounds which include political service and this can be a strength, in terms of political understanding, administrative experience and a willingness to campaign. The President of the NSWWCC, for instance, was earlier in his judicial career the Attorney General of New South Wales. The NSWWCC was set up by legislation to replace the existing and expensive processes for compensation for injury at work. It was strongly opposed by the New South Wales Bar in particular, and the President campaigns vigorously for the new arrangements, attacking the former system and its supporters as "the evil empire."
8. Where it works the legislative approach to unifying all aspects of tribunal jurisdictions and administrative can be a great success. A problem is that it can run into serious and perhaps fatal opposition. The attempt by the Commonwealth Government in Australia to unify the Federal tribunals was defeated in the Senate. Although at that time the present government did not have a majority in the Senate it has not sought to revive its legislation even though it now does have a majority.
Overhauling Procedures
9. Australian tribunals have shown a real willingness to be radical with their procedures. Unsurprisingly for a technically sophisticated and geographically dispersed country like Australia, there is extensive use of video and telephone conferencing. No one sees this as at all problematic. Even the High Court of Australia (its highest court) conducts some of its hearings by videolink.
10. The legal framework within which Australian tribunals work is very familiar to us: governing statute, procedural rules and practice directions. What is interesting, however, is the way in which rules content has been approached in some jurisdictions. In creating the SAT, for instance, the President, (Mr Justice Michael Barker) approached the question of what the forms and rules should be for the tribunal with a very radical approach. SAT brings together a large number of jurisdictions including human rights, vocational regulation, commercial and civil disputes and development and resources issues. In total more than 130 Acts confer jurisdiction on the SAT. However, from the outset the President insisted on two principles: a single application form covering all jurisdictions, and no or very few rules. The key in his view to effective management of the cases is not an elaborate structure of rules but early hands-on intervention by the tribunal judiciary in individual cases. So every case now has a directions hearing within 21 days of lodging the application.
11. There is a single application form in which an applicant or appellant has to state which Act they are bringing their case under and their general grounds of application or appeal but beyond that the contents and requirements are very loose. While Mr Justice Barker did not get his way in having no procedural rules at all the SAT rules are still very compact, just 46 general rules covering 26 pages with a further eight pages of special rules for certain jurisdictions. These rules are supplemented by regulations which govern fees and charges and by practice notes, but there are only five of these.
12. Another fascinating innovation is "concurrent expert evidence", sometimes known as "the hot tub" (possibly to stimulate interest at otherwise dull legal events). This is a technique developed in a number of Australian tribunals to get expert evidence before the tribunal in a way which is more helpful to the tribunal in making a decision. It was pioneered as an approach by the AAT but the SAT seems to have taken it further.
13. In conventional legal proceedings experts are called as part of one party's case and are examined and cross-examined. Experts for other parties take their place in proceedings according to when the party calls their evidence. Direct comparisons between the evidence of one expert and the evidence of another are not made but are meant to be brought out in the cross examination process. In cases with a multiplicity of experts this makes for a long and complicated process.
14. In the AAT they pioneered the idea of bring all the experts together at the same time and swearing them in all together. The process of examination and cross examination remains but proceedings are much more like a seminar and this has proved a highly effective method of getting all the issues thrashed out. In the SAT the rules provide specifically that the default position on expert evidence is that all evidence is concurrent with experts in the same field. In addition, the experts have to confer before the hearing, without the tribunal being present and usually without lawyers for the parties. They are required to fill in a joint proforma which sets out both areas of agreement and areas of disagreement. This is intended to enable the tribunal at the hearing to focus on the outstanding issues.
15. The SAT's view of the advantages of expert evidence used in this way is that it avoids gaps, focuses on the real issues, means immediate communication between experts and shows an appreciation of the expert's proper role. The experts who had been through this process really liked it because it fitted in much better with the way in which they normally worked. An adversarial approach was entirely alien to them. There are huge savings in cost and in tribunal time. Days of evidence could be reduced to a few hours.
16. This approach to expert evidence does require preparation on the part of the tribunal and it does have to establish clearly the approach and ethos with the experts and the parties at the outset. Training is needed to make this work effectively, including training of advocates.
Links
17. If you are looking for innovative ideas the Australian tribunals' websites are invaluable. Try:
- Administrative Appeals Tribunal
- Salaries and Allowances Tribunal (Western Australia)
- Workers Compensation Commission (New South Wales)