Tribunals and Alternative Tribunals and Alternative Dispute ResolutionDispute Resolution

Topic 11Topic 11

TribunalsTribunals

Courts Courts Judicial reviewJudicial review Was the decision lawfully madeWas the decision lawfully made

TribunalsTribunals Merits reviewMerits review Was the decision a good decision?Was the decision a good decision?

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

* Recommendatory* Recommendatory

* Stand in shoes of primary * Stand in shoes of primary decision makerdecision maker

* Hearing de novo * Hearing de novo

* Correct or/and preferable * Correct or/and preferable decisiondecision

Judicial review v merits Judicial review v merits reviewreview

A blurred distinctionA blurred distinction

Why have merits review and Why have merits review and does it work?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 TribunalAdministrative Appeals Tribunal

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

administrative decisionsadministrative decisions Over 90 members with the jurisdiction to Over 90 members with the jurisdiction to

review administrative decisions made review administrative decisions made under more than 400 Acts of Parliamentunder more than 400 Acts of Parliament

Appeals lie to the Federal CourtAppeals lie to the Federal Court

Applying to the AATApplying 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 •many other Commonwealth issues .

AAT within the portfolio of the AAT within the portfolio of the Attorney-General Robert Attorney-General Robert

McClellandMcClelland

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

Bowen CJ and Deane J:Bowen CJ and Deane J:

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

Federal Judicial ReviewFederal Judicial Review

Administrative Decisions (Judicial Review) Administrative Decisions (Judicial Review) Act 1977 Act 1977 (Cth)(Cth)

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

jurisdictionjurisdiction

AAT PresidentAAT President

Honourable Justice Garry Keith Downes AM, a Judge of the Federal Court of Australia, is the President of the Administrative Appeals Tribunal.

NSW TribunalsNSW Tribunals

Administrative Decisions TribunalAdministrative Decisions Tribunal Administrative Decisions Tribunal Act Administrative Decisions Tribunal Act

1997 1997 (NSW) s3 includes:(NSW) s3 includes: make decisions at first instancemake decisions at first instance Review decisions made by administratorsReview decisions made by administrators Ensure accessibility, efficiency, effectiveness Ensure accessibility, efficiency, effectiveness

and fairnessand fairness Proceedings to be informal and expeditiousProceedings to be informal and expeditious

Administrative Decisions TribunalAdministrative Decisions Tribunal

General DivisionGeneral Division Community Services DivisionCommunity Services Division Revenue DivisionRevenue Division Legal Services DivisionLegal Services Division Equal Opportunity DivisionEqual Opportunity Division Retail Leases DivisionRetail Leases Division

Administrative Decisions TribunalAdministrative Decisions Tribunal

Two jurisdictions:Two jurisdictions: Reviewable decisionsReviewable decisions Original decisions – analogous to civil Original decisions – analogous to civil

suitssuits

Formal and informal hearing Formal and informal hearing roomsrooms

The creation of the ADT made it the first tribunal in New South Wales with a divergent, multijurisdictional character….

While some existing State tribunals were merged into the new ADT, the Attorney noted that as many as 21 State tribunals remained outside its structure. He referred to the values served by consolidation: greater coherence for the public, greater transparency and professionalism, greater ability to introduce good procedures and practices, better use of public resources, avoidance of duplication of similar structures, and the avoidance of perception of conflict of interest where the portfolio department has a substantial involvement in proceedings in a portfolio tribunal.

Annual Report, 2007-2008, p6

President Kevin O’ConnorPresident Kevin O’Connor

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 Alternative Dispute ResolutionResolution

ADRADR

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

‘‘Alternative’ forms of dispute resolution Alternative’ forms of dispute resolution becoming increasingly importantbecoming increasingly important

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

ADR same as Court?ADR same as Court?

ADR not just a different type of courtADR not just a different type of court Court: exercises the judicial power of the Court: exercises the judicial power of the

StateState Tribunal: exercises executive (and Tribunal: exercises executive (and

sometimes judicial) power of the Statesometimes judicial) power of the State ADR: may be voluntary/may be binding – ADR: may be voluntary/may be binding –

depends on agreement between partiesdepends on agreement between parties ADR: often a private contractual ADR: often a private contractual

arrangementarrangement

ADRADR

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

Additional? Additional? Litigation alternative to ‘traditional’ mortal Litigation alternative to ‘traditional’ mortal

combat?combat? ““Dispute resolution” as a range of options Dispute resolution” as a range of options

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

ADR won’t suit all situationsADR won’t suit all situations

Development of ADR in AustraliaDevelopment of ADR in Australia

Three key events:Three key events: Establishment of the Family Law Establishment of the Family Law

CourtCourt Establishment of Community Justice Establishment of Community Justice

Centres in NSWCentres in NSW Establishment of the Australian Establishment of the Australian

Commercial Disputes CentreCommercial Disputes Centre

Family Law CourtFamily Law Court

Family Law Act 1975 Family Law Act 1975 (Cth)(Cth) designed to be informal and incorporate pre-designed to be informal and incorporate pre-

trial processes such as counselling and trial processes such as counselling and conferencesconferences

Family Law Reform Act 1995 Family Law Reform Act 1995 (Cth)(Cth) ADR designated “primary dispute resolutionADR designated “primary dispute resolution”” Funded community based services such as Funded community based services such as

Relationships Australia and CentacareRelationships Australia and Centacare Broad view of dispute and methods of Broad view of dispute and methods of

resolutionresolution

Community Justice Centres - NSWCommunity Justice Centres - NSW

Community Justice Centres (NSW Pilot Community Justice Centres (NSW Pilot Project) Act 1980 Project) Act 1980 (NSW)(NSW)

pioneered use of mediation in public issue pioneered use of mediation in public issue disputes, victim offender mediation disputes, victim offender mediation (conferencing) and family mediation.(conferencing) and family mediation.

resolve disputes through mediation, free of resolve disputes through mediation, free of charge to members of the publiccharge to members of the public

Spurred development of Lawyers Engaged Spurred development of Lawyers Engaged in ADR (LEADR) in ADR (LEADR)

Australian Commercial Disputes Australian Commercial Disputes CentreCentre

Company established with government Company established with government assistanceassistance

Successful in fostering use of ADR Successful in fostering use of ADR techniques, especially mediation, in techniques, especially mediation, in commercial disputescommercial disputes

Government response to ADR now largely Government response to ADR now largely seen in legislative ADR schemesseen in legislative ADR schemes

ADR - definitionsADR - definitions

Accurate, comprehensive definitions can Accurate, comprehensive definitions can be difficultbe difficult

National Alternative Dispute Resolution National Alternative Dispute Resolution Advisory Council – NADRACAdvisory Council – NADRAC

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

NADRAC definitionsNADRAC definitions Facilitative processes:Facilitative processes: an ADR practitioner an ADR practitioner

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

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

NADRAC definitionsNADRAC definitions Determinative processes:Determinative processes: ADR practitioner ADR practitioner

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

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

Why ADR?Why ADR? Benefits for clientsBenefits for clients

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

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

Benefits for courtsBenefits for courts Pre-trial/case management processes reduce Pre-trial/case management processes reduce

workload of courtworkload of court Reduces costs and delays across the systemReduces costs and delays across the system

Why ADR?Why ADR?

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

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

Why ADRWhy 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.

Why ADR?Why ADR?

Promoted by government as best practicePromoted by government as best practice Commonwealth Commonwealth Legal Services Directions Legal Services Directions

20052005 ‘‘model litigants’ - model litigants’ - endeavour to endeavour to avoid, avoid,

prevent and limit the scope of litigation prevent and limit the scope of litigation wherever possiblewherever possible. .

Professional obligation?Professional obligation? Should be able to advise clients about all Should be able to advise clients about all

options and best options.options and best options.

Federal approach to ADRFederal approach to ADRSome ADR Some ADR required by legislationrequired by legislation prior to any claim in: prior to any claim in: Federal Court (Federal Court (Federal Court of Australia Act 1976Federal Court of Australia Act 1976) ) Family Court of Australia (Family Court of Australia (Family Law Act 1975Family Law Act 1975)) Federal Magistrates Court (Federal Magistrates Court (Federal Magistrates Act 1999Federal Magistrates Act 1999)) Human Rights and Equal Opportunity Commission (Human Rights and Equal Opportunity Commission (Human Human

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

Relations Act 1996Relations Act 1996)) Administrative Appeals Tribunal (Administrative Appeals Tribunal (Administrative Appeals Administrative Appeals

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

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

State approach to ADRState approach to ADR

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

66 ““The Court’s power does not depend The Court’s power does not depend

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

Types of ADRTypes of ADR NegotiationNegotiation MediationMediation Neutral EvaluationNeutral Evaluation ConciliationConciliation Expert ReferralExpert Referral ArbitrationArbitration Family Dispute ResolutionFamily Dispute Resolution OmbudsmenOmbudsmen Youth Justice ConferencingYouth Justice Conferencing Circle SentencingCircle Sentencing

NegotiationNegotiation Conflict of interests between partiesConflict of interests between parties No established rules to resolve conflictNo established rules to resolve conflict Parties are seeking agreementParties are seeking agreement May or may not involve third partyMay or may not involve third party

MediationMediation Generally involves the use of a trained, Generally involves the use of a trained,

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

recommendationsrecommendations

Neutral evaluationNeutral evaluation Neutral evaluator seeks to identify and reduce Neutral evaluator seeks to identify and reduce

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

ConciliationConciliation Parties, with the assistance of neutral Parties, with the assistance of neutral

conciliator, identify issues and develop conciliator, identify issues and develop options and alternativesoptions and alternatives

Conciliator advises but does not determineConciliator advises but does not determine

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

tribunalstribunals

ArbitrationArbitration Formal dispute resolution process governed Formal dispute resolution process governed

by by Commercial Arbitration Act 1984Commercial Arbitration Act 1984 (NSW) or (NSW) or equivalentsequivalents

Binding determinationBinding determination Also industrial arbitrationAlso industrial arbitration

Family Dispute ResolutionFamily Dispute Resolution Independent practitioner assists those Independent practitioner assists those

separated or divorced, or considering separated or divorced, or considering separation or divorce to resolve some or all of separation or divorce to resolve some or all of disputesdisputes

Operates in Family Law context and designed Operates in Family Law context and designed to avoid Court altogether (where possible).to avoid Court altogether (where possible).

Now required prior to seeking any Family Now required prior to seeking any Family Court order relating to a childCourt order relating to a child

OmbudsmenOmbudsmen Established in many government departments Established in many government departments

and some private industriesand some private industries

Youth Justice ConferencingYouth Justice Conferencing Example of ADR in criminal contextExample of ADR in criminal context NSW scheme to divert young offenders from NSW scheme to divert young offenders from

the courts by requiring them to meet the the courts by requiring them to meet the victim of their behaviourvictim of their behaviour

Young Offenders Act 1997Young Offenders Act 1997 (NSW) (NSW)

Circle SentencingCircle Sentencing Current NSW trialCurrent NSW trial Designed to empower the Aboriginal Designed to empower the Aboriginal

community in the sentencing processcommunity in the sentencing process Punishment to be a community sanctionPunishment to be a community sanction