Tribunals and Alternative Dispute Resolution

Topic 11

Review of administrative decisions

Courts: Judicial Review

Was the decision lawfully made?

Tribunals: Merits Review

Was the decision a good decision?

Courts: Judicial Review

court does not decide whether the decision was “right”, but only whether it was “lawful”

The most common grounds are: a breach of natural justice (procedural

fairness); an error of law; or failure to take into account a relevant

consideration.(See section 5 Administrative Decisions (Judicial Review) Act 1977 (Cth))

Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35-36

The duty and jurisdiction of the Court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the Court avoids administrative injustice or error, so be it; but the Court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

Tribunals: what are they?http://www.lawhandbook.org.au/handbook/ch01s02s04.php (below list extracted form this source)

“Tribunals differ from courts in a number of ways, although the differences may vary substantially from tribunal to tribunal, and in some cases are marginal (…):

1. Procedures in a tribunal are less formal, the required documentation is simpler, the rules of evidence are applied less rigidly, and the hearings are conducted in a less formal manner.

2. The member of a tribunal hearing a case takes a more active role in the proceedings than a traditional judge who, being bound by the restrictions of the adversary system, acts as a passive umpire of the issues put by the parties.A tribunal may be comprised of members who are legally qualified and members who have specialist expertise in the subject matter with which a particular tribunal deals…

3. Some tribunals encourage or require parties to appear in person, without lawyers.

4. While courts are bound by the previous decisions of superior courts, tribunals are generally not, and instead are required to determine each matter on its particular merits. In practice, however, many tribunals follow precedent for the sake of being consistent in their decision-making.”

Tribunals: Merits review What is it? What are the objectives of it? The nature of merits review:

* Recommendatory

* Stand in shoes of primary decision maker

* Hearing de novo

* Correct or/and preferable decision

Judicial review v merits review

A blurred distinction

Why have merits review and does it work?

* Accountability is fundamental to good governance in modern, open societies.

* Administrative law remedies improve the whole system of government decision making by increasing its openness and transparency and providing feedback on its performance. Confident executive government should welcome this kind of audit.

Administrative Appeals Tribunal

Unique in the common law world General tribunal for the review of

administrative decisions 87 members with the jurisdiction to review

administrative decisions made under more than 450 Acts of Parliament

Appeals lie to the Federal Court

Applying to the AAT

If you disagree with a decision of a Commonwealth Minister, a Government Department or agency, or an employee of a Department which affects you, you may be able to have it reviewed. The AAT has powers to review decisions made under certain Acts of Parliament.

The sorts of decision which can be reviewed include decisions about:• a social security pension or a benefit • a veteran's pension • Commonwealth workers' compensation • an environmental issue • taxation • visas refused or cancelled on character grounds • ABN cancellation • Disability care under the National Disability Insurance Scheme• many other Commonwealth issues .

AAT within the portfolio of the Attorney-General and Minister for the Arts Senator the Hon

George Brandis QC

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 per

Bowen CJ and Deane J:

“The question for the determination of the Tribunal is not whether the decision which the decision maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.”

Federal Judicial Review

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Federal Court Appeals from AAT – but not merits review s75(v) Constitution – High Court

jurisdiction

AAT President

The Honorable Duncan Kerr SC Chev LH, a Senior Counsel, is the ‘new’ President of the Administrative Appeals Tribunal (announced April 2012)

A super NSW tribunal

NSW Tribunals

NSW Civil and Administrative Tribunal Commenced on 1 January 2014 Replaces 22 of the State’s existing

tribunals (eg: Matters heard previously in the Consumer Trade and Tenancy Tribunal and now heard in the Consumer and Commercial Division of NCAT)

Civil and Administrative Tribunal Act 2013

President

The Hon Justice Robertson Wright

NCAT

“one-stop-shop for specialist tribunal services in NSW”

Structure

The main work of NCAT is to review specific administrative decisions made by NSW government agencies

Across all types of matters, NCAT is committed to: * timely, fair, high-quality decision-making * maintaining current levels of service retaining specialist expertise and services * continuous improvement in service delivery

Previously the ADT: Formal and informal hearing rooms (old

website)

Next website

Current AAT website

NCAT website

At common law, administrators do not have to give reasons for their decisions regardless of how significant or damaging they may be for the individual. The ADT legislation modified that rule. Administrators were now obliged to give reasons for those decisions made reviewable before the ADT.

In the second reading speech the Attorney expressed a broad view as to the administrative decisions that citizens could look forward to seeing reviewed by the ADT. As it has transpired a much narrower range of decisions has been made reviewable.

Giving affected persons a right to seek external review remains a choice, in the first instance, for the various portfolios of Government and, ultimately, Cabinet. So far as I am aware, there is no transparent discipline or policy governing the matter…..There have been some instances where the review jurisdiction has been removed or reduced by amending legislation, without any public explanation, soon after decisions have gone against an agency.

10 year anniversary of the ADT: Annual Report 2007-2008 p 5

As at the end of the current year, the average time from filing to disposal of primary applications in the Tribunal was 0.65 of a year (i.e. 7.8 months). The average time from filing to disposal in the case of an appeal was 0.55 of a year (i.e. 6.7 months). The collective average was 0.64 (i.e. 7.7 months). There has been a decline in the speed of disposal, as compared to five years ago, when the figures were 0.54 for primary applications, 0.31 for appeals, and collectively 0.52 (i.e. 6.3 months). The collective average has now been slowing incrementally each year. The Divisional Heads have been asked to suggest ways in which the turnaround time can be improved.”

ADT Annual Report 2007-2008

Alternative Dispute Resolution

Attorney-General’s Department: 2014 website

Ways to manage a dispute

There are many ways you can respond to a dispute. These can include: deciding if you can live with things staying

the way they are talking with the other people involved to

see if you can find an outcome that works for everyone (sometimes called ‘negotiating’)

getting help from an organisation or a person who is not involved in the dispute, such as: an alternative dispute resolution practitioner,

for example, a mediator a lawyer or other person who may negotiate

for you, or provide advice on your legal rights a person trusted by everyone involved in the

dispute an ombudsman a court or tribunal

When choosing the best dispute resolution process for you, it is useful to think about:

how the other people involved might want to manage the dispute

whether you want an independent person involved and, if you do, what you want them to do

how structured you want the dispute resolution process to be

what sort of relationship you want to have with the other people involved

how much you are prepared to spend—in time and money

how much control you want over the process

how much control you want over making a decision or agreement.

What is access to justice?

Wave 1: Legal aid Wave 2: Changing court procedures Wave 3: Informal justice Wave 4: Competition policy

On the verge of a fifth wave?

Number of disputes

CourtsLegal assistanceExternal merits reviewLegal servicesBetter decision-making

ADRLegal assistance – ADREDRLegal assistance – early intervention

Access to informationResilienceHandling matters personally

Formal justice

Informal justice

Everyday justice

Of the 719 legal problems where respondents took no action because they ‘didn’t know what to do’, they also indicated that it ‘would be too stressful’ to take action for about half (53.2%) of these problems, and that it ‘would cost too much’ for about two-fifths (41.8%) of these problems.

2012 Law and Justice Foundation survey

2012 Survey legal problems are widespread and often

have adverse impacts on many life circumstances

disadvantaged people, are particularly vulnerable to legal problems

•a sizeable proportion of people take no action to resolve their legal problems • most people who seek advice do not consult legal advisers and resolve their legal problems outside the formal justice system.

ADR

Litigation has been the traditional focus of dispute resolution, but often not the only appropriate form of dispute resolution

‘Alternative’ forms of dispute resolution becoming increasingly important

Both Courts (s71) and ADR methods such as conciliation and arbitration (s51(xxxv)) recognised in Constitution

ADR same as Court? Court: exercises the judicial power of the

State and a Tribunal: exercises executive (and sometimes judicial) power of the State

ADR not just a different type of court Describes a process – an umbrella term -

no one set of laws which governs this area ADR: may be voluntary/may be binding –

depends on agreement between parties ADR: often a private contractual

arrangement

Federal approach to ADRSome ADR required by legislation prior to any claim in: Federal Court (Federal Court of Australia Act 1976) and see

Civil Dispute Resolution Act 2011 Family Court of Australia (Family Law Act 1975) Federal Magistrates Court (Federal Magistrates Act 1999) Human Rights and Equal Opportunity Commission (Human

Rights and Equal Opportunity Commission Act 1986) Australian Industrial Relations Commission (Workplace

Relations Act 1996) Administrative Appeals Tribunal (Administrative Appeals

Tribunal Act 1975) National Native Title Tribunal (Native Title Act 1993) Australian Competition and Consumer Commission (Trade

Practices Act 1974), and Social Security Appeals Tribunal (Social Security Act 1991).

State approach to ADR

Similar approach at State level e.g. Supreme Court Practice Note SC Gen

6 “The Court’s power does not depend

on the consent of the parties, or of any of the parties”

ADR

“Alternative” – can convey these dispute resolution methods are of secondary importance

Additional? Litigation alternative to ‘traditional’ mortal

combat? “Dispute resolution” as a range of options

(including litigation) – select most appropriate to circumstances and client

ADR won’t suit all situations

ADR: tactics and strategy

Types of ADR

Negotiation Mediation Neutral Evaluation Conciliation Expert Referral Arbitration

Negotiation Conflict of interests between parties No established rules to resolve conflict Parties are seeking agreement May or may not involve third party

Mediation Generally involves the use of a trained,

neutral third party Process – oriented: mediator facilitates Substance – oriented: mediator offers

recommendations

Neutral evaluation Neutral evaluator seeks to identify and reduce

the issues of fact and law which are in dispute Offers opinion as to likely outcome of dispute Similar to a mini-trial

Conciliation Parties, with the assistance of neutral

conciliator, identify issues and develop options and alternatives

Conciliator advises but does not determine

Expert referral Usually established by legislation Expert panels used by State courts and

tribunals

Arbitration Formal dispute resolution process governed

by Commercial Arbitration Act 1984 (NSW) or equivalents

Binding determination Also industrial arbitration

Master of the Rolls, the Right Honourable Lord Donaldson of Lymington, Master of the Rolls - 1991 Address to the London Common Law & Commercial Bar Association, on 27 June 1991 cited by

http://www.roberthuntbarrister.com/BestADRclausev2.pdf

“ ADR is a PR mans dream. In conjures up visions of a factor ‘X’ which will do for dispute resolution what it is said to have done for washing powders and petrol. The truth is that there is no factor ‘X’. Indeed I rather doubt whether there is any such thing as ADR. It is simply an umbrella term or ‘buzz word’ covering any new procedure or modification of old procedures which anyone is able to think up.’ “

ADR - definitions

Accurate, comprehensive definitions can be difficult

National Alternative Dispute Resolution Advisory Council – NADRAC (now disbanded)

“processes, other than judicial determination, in which an impartial person assists those in a dispute to resolve the issues between them.”

Former NADRAC definitions Facilitative processes: an ADR practitioner

assists the parties to a dispute to identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement about some issues or the whole dispute. E.g. mediation, facilitation and facilitated negotiation.

Advisory processes: an ADR practitioner considers and appraises the dispute and provides advice as to the facts of the dispute, the law, and in some cases, possible or desirable outcomes and how these may be achieved. E.g. expert appraisal, case appraisal, case presentation, mini-trial and early neutral evaluation.

NADRAC definitions Determinative processes: ADR practitioner

evaluates the dispute and makes a determination. E.g. arbitration, expert determination and private judging.

Combined or hybrid processes: ADR practitioner may play multiple roles. E.g. in conciliation and in conferencing, the ADR practitioner may facilitate discussions, as well as provide advice on the merits of the dispute. In hybrid processes, such as med-arb, the practitioner first uses one process (mediation) and then a different one (arbitration).

Why ADR? Benefits for clients

Cost – usually cheaper Time – usually faster Relationships – can be preserved. Consider

the effect of litigation on relationships. Court system always adversarial.

Benefits for courts Pre-trial/case management processes reduce

workload of court Reduces costs and delays across the system

Why ADR?

Promoted by government as best practice Commonwealth Legal Services Directions

2005 ‘model litigants’ - endeavour to avoid,

prevent and limit the scope of litigation wherever possible.

Professional obligation? Should be able to advise clients about all

options and best options.

Why ADR?

Effective in achieving lasting settlement of disputes Parties actively engaged Avoids ‘winners’ and ‘losers’ ALRC report: “70.6% of the mediation

agreements with monetary settlement were reported to be paid in full, compared to 33.8% of the adjudications.”

Why ADR

BATNA An acronym described by Roger Fisher and William Ury which means Best Alternative to a Negotiated Agreement. It is the alternative action that will be taken should your proposed agreement with another party result in an unsatisfactory agreement or when an agreement fails to materialize. If the potential results of your current negotiation only offers a value that is less than your BATNA, there is no point in proceeding with the negotiation, and one should use their best available alternative option instead. Prior to the start of negotiations, each party should have ascertained their own individual BATNA.

Development of ADR in Australia

Three key events:Establishment of the Family Law

CourtEstablishment of Community Justice

Centres in NSWEstablishment of the Australian

Commercial Disputes Centre

IDR and EDR

Ombudsman

Complaint resolution schemes