ADMINISTRATIVE REVIEW COUNCIL

 

 

 

 

 

 

 

REPORT ON THE
COUNCIL OF AUSTRALASIAN TRIBUNALS

 

 

 

 

 

 

 

 

 

 

 

 

 

October 2002

 

 



 

Administrative Review Council Information Officer

 

 

Executive Director

Administrative Review Council

Robert Garran Offices

National Circuit

BARTON  ACT  2600

 

 

 

              Telephone:            (02) 6250 5800

              Facsimile:              (02) 6250 5980

              e-mail:                  arc.can@ag.gov.au

              Internet:                law.gov.au/arc

 

 

 

 

 

The offices of the Administrative Review Council are located in the Robert Garran Offices, National Circuit, Barton ACT.

 

 

 

 

 

 

 

 

Cover designed by the Attorney-General’s Department.

 

 

 

© Commonwealth of Australia 2002

 

 

 

ISBN 0 642 21071 3

 

 

 

This work is copyright.  Apart from any use permitted under the Copyright Act 1968, no part may be reproduced by any process without written permission.

 


 

 

Administrative Review Council

 

The members of the Administrative Review Council at the date of the publication of this Report were:

 

Wayne Martin QC (President)

Justice Garry Downes AM

Ron McLeod AM

Professor David Weisbrot

Bill Blick PSM

Christine Charles

Robert Cornall

Professor Robin Creyke

Stephen Gageler SC

Patricia Ridley

 

 

The Council acknowledges the contribution to this project of the Council Secretariat.

 

 

 


 

Administrative Review Council

                                                                                                                                         

 

29 October 2002

 

 

 

The Hon Daryl Williams AM QC MP

Attorney-General

Parliament House

CANBERRA  ACT  2600

 

Dear Attorney-General

 

The Administrative Review Council (the “ARC”) is pleased to present its report on the establishment of the Council of Australasian Tribunals (the “COAT”).

On 12 June 2001 the ARC wrote to you outlining options for the establishment of a Council of Australian Tribunals.  We are pleased to report that the ARC’s proposals were adopted at a meeting of Commonwealth, State and Territory tribunals in Melbourne on 6 June 2002.  As you are aware, the concept was expanded at that meeting to a Council of Australasian Tribunals to include tribunals from
New Zealand.  The COAT commenced operation on that date.

In progressing its proposals the ARC consulted extensively with Commonwealth, State and Territory tribunals.  The ARC convened a meeting of tribunal heads in Sydney on 3 October 2001 which was attended by you and presiding officers of tribunals from a number of Australian jurisdictions.

 

 

Wayne Martin QC                                                                                                                    Justice Garry Downes AM

Ron McLeod AM                                                                                                                      Professor David Weisbrot

Bill Blick PSM                                                                                                                          Christine Charles

Robert Cornall                                                                                                                          Professor Robin Creyke

Stephen Gageler SC                                                                                                                   Patricia Ridley

 

Robert Garran Offices, National Circuit, Barton ACT 2600

Telephone: (02) 6250 5800   Facsimile: (02) 6250 5980   e-mail: arc.can@ag.gov.au 

Internet: law.gov.au/arc


 

The wide interest in and support for the COAT by tribunals should ensure that it will prove to be an effective network for improving tribunal operations, training and the continued development of a strong tribunal culture.  This, in turn, will assist in improving the standard of administrative justice in all jurisdictions.

The ARC played an ongoing role in the establishment of the COAT and the Executive Officer of the Council Secretariat acted as Secretary to a Steering Group of tribunal heads convened to implement the ARC proposals.

The ARC will continue to have a role in the COAT, as I will be an ex officio member of the COAT, with the capacity to contribute to, as well as learn from, its activities and meetings in the years ahead.

In providing this report to you, the ARC acknowledges the contribution of
the Hon Deirdre O’Connor who was President of the Administrative Appeals Tribunal at the time the current proposals were developed by the ARC.
Ms O’Connor was a strong supporter of the concept of the COAT while a member of the ARC.


Yours sincerely

Wayne Martin QC
President

 


 

 

CONTENTS

 

 

                                                                                                                                    Page No

1.      Letter of Transmittal

5

2.      Abbreviations

9

3.      Report on the Establishment of the Council of Australasian Tribunals

11

4.      Constitution of the Council of Australasian Tribunals

21

5.      Council of Australasian Tribunals Memorandum of Objects of State and Territory Chapters

29

6.      Council of Australasian Tribunals Minutes of Inaugural Meeting -6 June 2002

33

7.      Attorney-General’s Speech Presented at the Conference Dinner

43

APPENDIX 1 - Letter from Administrative Review Council to Attorney-General 12 June 2001

49

 



 

2.      Abbreviations

 

AAT...................................................................................Administrative Appeals Tribunal

ADT....................................................................Administrative Decisions Tribunal (NSW)

AIAL.................................................................Australian Institute of Administrative Law

AIJA............................................................Australian Institute of Judicial Administration

ARC......................................................................................Administrative Review Council

ART.....................................................................................Administrative Review Tribunal

CCAT.........................................................Council of Canadian Administrative Tribunals

CEO.....................................................................................................Chief Executive Officer

COAT...............................................................................Council of Australasian Tribunals

NJCA.........................................................................National Judicial College of Australia

SCAG................................................................Standing Committee of Attorneys-General

SSAT...................................................................................Social Security Appeals Tribunal

VCAT.............................................................Victorian and Civil Administrative Tribunal

 

 



 

3.      Report on the Establishment of the
Council of Australasian Tribunals

Establishment of the Council of Australasian Tribunals

The Council of Australasian Tribunals (the “COAT”) was established in Melbourne on 6 June 2002 at a meeting of Commonwealth, State, Territory and New Zealand tribunal presiding officers.  At that meeting, presiding officers adopted the COAT Constitution and elected office holders to serve on the Interim Executive.

Genesis of a Council of Australasian Tribunals

The lack of support and guidance available for tribunals was recognised by both the Administrative Review Council (the “ARC”) and the Australian Law Reform Commission (the “ALRC”).  In its Better Decisions report, the ARC proposed a “Tribunals Executive” to promote greater support and liaison between review tribunals.[1]  The ARC envisaged that the Tribunals Executive would include principal members of tribunals from all Australian jurisdictions and possibly registrars.

The ALRC’s Managing Justice report expanded on the ARC proposal and suggested a “Council on Tribunals”.  The ALRC anticipated that this Council would be a national forum for tribunal leadership to develop policies, secure research and promote education on matters of common interest for tribunals.[2]  The ALRC recommended that membership should include the heads of Commonwealth and State tribunals involved in administrative review, and the President of the ARC.

At its meeting on 1-2 March 2001, the ARC agreed that it would be timely to revisit the proposal to establish such a Council.  It committed itself to facilitating the creation of such a body, through consultation with appropriate tribunal leaders.  On
20 April 2001, the ARC endorsed a proposal for the COAT that could be taken forward.

Summary of the ARC Proposal

In short, the model proposed by the ARC comprised the following elements:

·      the proposed COAT would be an informal body, operating largely by consensus.  Its objectives would be broadly expressed, to enhance its appeal to a diverse membership of State, Territory and Commonwealth tribunals;

·      membership would be open to all Commonwealth, State and Territory tribunals.  Apart from readily identifiable candidate tribunals, membership would be determined by “guided” self-selection based on key indicia and a clear statement of objectives and functions of the COAT, rather than strict eligibility criteria;

·      the presiding member of a participating tribunal would be elected/appointed chair for a one-two year period, with the opportunity to incorporate a deputy chair and executive committee.  The chair would also appoint the secretary (it was anticipated that secretariat functions would be predominantly performed by the registrar of the Chair’s tribunal);

·      the COAT would operate nationally, as well as establishing State and Territory chapters; and

·      each tribunal would bear its own costs, but the COAT could make the case for funding in light of its experience when established, if necessary.

For convenience, and want of a better term, the ARC proposed that the title “Council of Australian Tribunals”, or “COAT”, be adopted, although this would ultimately be a matter for decision by the Council’s membership.

In progressing its proposed model, the ARC consulted extensively with Commonwealth, State and Territory tribunals.  The ARC convened a meeting in the NSW Parliament House in Sydney on 3 October 2001.  The meeting was attended by presiding officers of tribunals from a number of Australian jurisdictions.  That meeting endorsed the ARC’s proposed model and convened a Steering Group to further consider the proposal. The Steering Group comprised:

·      The Hon Justice Murray Kellam (Chair of the Steering Group)
President, Victorian Civil and Administrative Tribunal;

·      Mr Keith Chapman
President, Guardianship and Administration Board (WA);

·      Mr Barry Cotterell
Chair, Property Agents and Motor Dealers Tribunal (QLD);

·      Mrs Wendy Cull
Chair,
Queensland Building Tribunal;

·      Judge Kevin O’Connor[3]
President, Administrative Decisions Tribunal (NSW);

·      The Hon Justice Deirdre O’Connor[4]
President, Administrative Appeals Tribunal (AAT); and

·      Mr Matt Minogue (Secretary to the Steering Group)
Executive Officer, Administrative Review Council Secretariat.

The ARC proposal, which was further developed in conjunction with the Steering Group, was then accepted at an inaugural meeting of Commonwealth, State, Territory and New Zealand presiding officers on 6 June 2002 in Melbourne.  At that meeting the proposal was expanded to include New Zealand tribunals in the membership of the COAT.  The COAT then became known as the “Council of Australasian Tribunals”.

Structure of the COAT

When deciding on a structure for the COAT, the ARC looked at the models of the Council of Chief Justices of Australia and New Zealand, the Council of Chief Magistrates, the Council of Canadian Administrative Tribunals (the “CCAT”) and the United Kingdom Council on Tribunals.[5]  After looking at the structures of these bodies, the ARC considered that the COAT would operate effectively through an informal federal-like structure.  This would involve a National Council, comprising all member tribunals and State and Territory chapters.  The ARC considered that this model would allow tribunals to gain broader support networks and provide an opportunity for smaller tribunals to better participate in the activities of the COAT.

At the National Council level, participation would be limited to presiding officers or their delegates because participants would need to have the authority to speak for their respective tribunals.  It was envisaged that participants at the national level could instigate the development of tribunal networks amongst Commonwealth, State and Territory tribunals.  In this way, support could be given for tribunal member activities at local levels, training initiatives could be shared and initiatives developed at the national level could be utilised by tribunal members generally.

 

Objectives of the COAT

The ARC proposed a number of objects for the COAT.  At its meeting of
14 November 2001, the COAT Steering Group endorsed the following objects for inclusion in the COAT’s Constitution:

(a)     to establish a national network of tribunals and a national register of Tribunal members;

(b)     to establish a national network for members of tribunals to consult and discuss areas of concern or interest and common experiences;

(c)     to provide training and support for members of tribunals, particularly smaller tribunals which may not have the resources to undertake such activities alone;

(d)     to provide a forum for the exchange of information and opinions on aspects of tribunals and tribunal practices and procedures;

(e)     to develop best practice or model procedural rules based on collective experience of what works;

(f)      to develop standards of behaviour and conduct for members of tribunals;

(g)           to develop performance standards for tribunals;

(h)           to develop support systems for tribunals, including case management and information technology systems;

(i)      to provide advice to governments on tribunal requirements;

(j)      to publish and encourage the publication of papers, articles and commentaries about tribunals and tribunal practices and procedures;

(k)          to promote lectures, seminars and conferences about tribunals and tribunal practices and procedures;

(l)             to make and disseminate reports, commentaries and submissions on aspects of tribunals and tribunal practices and procedures; and

(m)         to co-operate with institutions of academic learning, and with other persons having an interest in tribunals and tribunal practices and procedures in promoting the objects referred to in paragraphs (a) to (l).


 

What is an eligible tribunal?

As noted above, an important principle was that the COAT should include Commonwealth, State and Territory tribunals.

This raised the central issue of what a tribunal is and what kinds of tribunals should be eligible to participate in the COAT.  Tribunals have an array of different functions and powers.  For example, some tribunals are primary decision-makers, while others are strictly review bodies.

While a definition of a tribunal would readily capture some tribunals, it would be likely to exclude others.  A definition had to be broad enough to include tribunals exercising purely executive power and those tribunals that exercise a mixture of judicial and executive power, and which often operate in the States and Territories.  It was also difficult to estimate how many relevant tribunals there might be.[6]

Initially, the ARC proposed that membership be open to as many Commonwealth, State and Territory tribunals (however described) as possible.  Rather than defining eligible bodies in any detail, it was considered that the better option was to rely on “guided” self-selection.  The development of a clear statement of objectives and functions of the COAT would allow other bodies to determine for themselves if they might appropriately become COAT members.[7]

According to these principles, the ARC sought to develop an inclusive definition of a tribunal as:

“any Commonwealth, State or Territory body whose primary function involves the determination of disputes, including administrative review, party/party disputes and disciplinary applications but which in carrying out this function is not acting as a court.”

This would include tribunals such as the Administrative Appeals Court of South Australia and the Administrative Appeals Division of the Magistrates’ Court in Tasmania.  This broad definition was subsequently incorporated into clause 2(1) of the COAT Constitution.


 

Funding

The ARC considered that flexibility was critical during the early stages of the COAT.  The concern was that more formal funding arrangements would require agreement at ministerial level, which would become more complicated if the COAT were jointly funded by the Commonwealth, States and Territories.  Funding by appropriation would also impose expensive accountability requirements on the COAT.

The option proposed to tribunals by the ARC was for a self-funding model where each tribunal would bear its own costs, but would be free to negotiate resources with its respective government.  When established, the COAT would have the capacity to make the case for alternative funding arrangements, if necessary.

Management of the COAT

In the tribunal context there is no supreme national tribunal.  Each State tribunal has its own jurisdiction and is not subordinate to the Commonwealth.  Equally, while New South Wales and Victoria have large generalist tribunals comprising several divisions (and Western Australia is progressing reforms aimed at developing a Western Australian Civil and Administrative Review Tribunal), the other States and Territories do not.

The ARC was therefore concerned that the COAT should not be dominated by tribunals from a particular jurisdiction.  In addressing this problem, the Council of Chief Magistrates rotates the Council Chair for each meeting. However, it was thought that rotating the Chair of the COAT (and the secretariat) for each meeting would result in:

·      a lack of continuity - as each meeting would be handled by a different office, experience and corporate memory would be low; and

·      reduced outcomes - as different registries might service only one meeting every few years, the focus would be on hosting the meeting, not taking resolutions forward.  This would increase the likelihood of the same issues being revisited over several years without real progress.

The ARC’s preferred option was for periodic chairing, that is, the election of a presiding tribunal officer as Chair for a one-two year period.  This would provide continuity and ensure against domination by one or more tribunals.

The ARC proposal also recognised that participation by a greater range of member tribunals could be encouraged by providing for a deputy Chair and executive committee (comprising the heads of each State and Territory chapter).  It was considered that this would assist the Chair in carrying out their role, while also achieving a balance of Commonwealth, State and Territory office holders.

Given the approach to self-funding, a standing secretariat was not recommended, unless a tribunal with sufficient resources offered to take on the role.[8]  As with the position with the Chair, the ARC was concerned that rotating the secretariat for each meeting would not be effective.

Ultimately, the ARC considered that if the proposal for a one-two year Chair was accepted, secretariat functions would be most effectively undertaken for that period by the registrar of that Chair’s tribunal.  This would provide continuity without unduly drawing on the resources of the Chair and their registry.  Participation from a broader range of tribunals would be also encouraged.

On the basis of the above considerations, the following offices were suggested:

       1.  Chair of the COAT

·      the Chair would preside at a general meeting; and

·      one of the functions of the Chair would be to appoint the senior registrar or chief executive officer of a member tribunal as the secretary of the COAT.  It was anticipated that the Chair would appoint the CEO or registrar of their tribunal as the secretary.

       2.  Deputy Chair

·      the deputy Chair would assist the Chair in carrying out his or her role; and

·      in the Chair’s absence, the deputy Chair would preside at a general meeting.

       3.  Executive

·      the Executive would comprise the Chair, the deputy Chair and the convenors of the State and Territory chapters of the Council; and


 

       4.  Interim Executive

·      the Interim Executive would oversee implementation of the COAT in the year immediately following its establishment; and

·      would comprise the members of the Steering Group and such other members as are nominated up to eight members in total.

COAT Constitution

Some of the features of the Constitution endorsed by the meeting of tribunal heads on 6 June 2002, are set out below.

Under clause 4 of the Constitution, the COAT is constituted by:

·      the National Council (comprising the Executive and member tribunals); and

·      State and Territory chapters of the Council, headed by a convenor for each State and Territory.

Under clause 5(5), tribunals whose presiding officers were present at the meeting on
6 June 2002 and who supported the adoption of the Constitution became members of the COAT.  Generally, a tribunal would participate through its presiding officer
(clause 5(4)).  However, the constitution also provides that at a meeting of the COAT, a member tribunal may be represented:

“by the presiding officer of that Tribunal or another member of that Tribunal appointed by the presiding officer to represent the Tribunal at the Council (clause 16(4)).”

State, Territory and New Zealand Chapters

Consistent with the model adopted by tribunal heads on 6 June 2002, the Convenor of a State and Territory chapter will host the meetings of the particular State or Territory chapter and will have some information dissemination functions.

As participation in State and Territory chapters does not require the authority to speak for a tribunal, membership is not limited to presiding officers, but is open to any member of a tribunal that is a member of the Council.  Practitioners, academics and other interested persons are also eligible to become members of a chapter
(clause 7).


 

COAT Interim Executive Office-Holders

Following nominations by tribunal heads, the following office holders were elected on 6 June 2002:

Chair: The Hon Justice Murray Kellam, President, Victorian Civil and Administrative Tribunal;

Deputy Chair: Mr Steve Karas OAM, Principal Member, Migration Review Tribunal and Refugee Review Tribunal;

Members:

Mr Grant Aislabie, Principal Disputes Referee (NZ);

Mr Keith Chapman, President, Guardianship and Administration Board (WA);

Mr Barry Cotterell, Chairperson, Property Agents and Motor Dealers Tribunal (Qld);

Mrs Wendy Cull, Chair, Queensland Building Tribunal;

The Hon Justice Garry Downes AM, Acting President, Administrative Appeals Tribunal;

Judge Kevin O’Connor AM, President, Administrative Decisions Tribunal (NSW);

Mr Nicholas O’Neill, President, Guardianship Tribunal (NSW);

Ms Pat Patrick, Presiding Member, Residential Tenancies Tribunal (SA);

Ms Debra Rigby, President, Mental Health Tribunal of Tasmania;

The Hon Justice Terry Sheahan AO, President, Workers Compensation Commission (NSW); and

Ms Maureen Shelly, Convenor Classification Review Board, Office of Film and Literature Classification.

 



 

4.      Constitution of the Council of Australasian Tribunals[9]

Part 1 – General

Name

1.      There is established in accordance with this Constitution an organisation by the name "The Council of Australasian Tribunals.” 

Interpretation

2.(1)    In this Constitution, unless the context otherwise requires:

"Executive" means the Executive of the Council referred to in clause 8;

"Council" means the organisation established in accordance with this Constitution;

"member" means a Tribunal that is a member of the Council;

"Tribunal" means any Commonwealth, State, Territory or New Zealand body whose primary function involves the determination of disputes, including administrative review, party/party disputes and disciplinary applications but which in carrying out this function is not acting as a court;

Example: the Administrative Appeals Court of South Australia and the Administrative Appeals Division of the Magistrates’ Court in Tasmania are eligible.

(2)   In this Constitution, unless the context otherwise requires:

(a)           where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;

(b)          words importing a gender include each other gender; and

(c)           words in the singular number include the plural and words in the plural number include the singular.

(3)     A power conferred by this Constitution may be exercised from time to time as the occasion requires.

Objects

3.       The objects of the Council are:

(a)     to establish a national network of Tribunals and a national register of Tribunal members;

(b)     to establish a national network for members of Tribunals to consult and discuss areas of concern or interest and common experiences;

(c)     to provide training and support for members of Tribunals, particularly of smaller Tribunals which may not have the resources to undertake such activities alone;

(d)     to provide a forum for the exchange of information and opinions on aspects of Tribunals and Tribunal practices and procedures;

(e)     to develop best practice or model procedural rules based on collective experience of what works;

(f)      to develop standards of behaviour and conduct for members of Tribunals;

(g)     to develop performance standards for Tribunals;

(h)     to develop support systems for Tribunals, including case management and IT systems;

(i)      to provide advice to governments on Tribunal requirements;

(j)      to publish and encourage the publication of papers, articles and commentaries about Tribunals and Tribunal practices and procedures;

(k)     to promote lectures, seminars and conferences about Tribunals and Tribunal practices and procedures;

(l)      to make and disseminate reports, commentaries and submissions on aspects of Tribunals and Tribunal practices and procedures; and

(m)         to co-operate with institutions of academic learning, and with other persons having an interest in Tribunals and Tribunal practices and procedures, in promoting the objects referred to in paragraphs (a) to (l).


 

Part 2 – Structure of the Council

4.       The Council shall comprise:

(a)     the National Council, comprising the Executive and member Tribunals; and

(b)     State and Territory chapters of the Council, headed by a Convenor for each State or Territory.

Part 3 - Membership

Membership of the Council

5.  (1)   Any Tribunal that is supportive of the objects of the Council is eligible for membership of the Council.

(2)   A Tribunal that wishes to become a member may lodge with the Secretary a written application.

(3)   The Executive may, in their discretion, admit the applicant to membership or refuse the application.

(4)   A Tribunal that is a member is entitled to participate through its presiding officer. 

     (5)   Subject to this Constitution:

(a)           Tribunals whose presiding officers were present at the meeting, or a person authorised by them to represent the Tribunal at the Council, that adopted this Constitution and voted in favour of the adoption; and

(b)          the President of the Administrative Review Council;

            are members of the Council.

(6)   The Chair is to keep a membership register in which the names and addresses of member Tribunals and office holders are to be recorded.

Resignation

6.             A member may resign from membership by written notice to the Secretary.


 

Membership of State and Territory Chapters

7.       Any member of a Tribunal that is a member of the Council is entitled to be a member of a State and Territory chapter of the Council.  In addition, membership of State and Territory chapters shall also be open to practitioners, academics and other interested persons.

Part 4 - Management

Executive

8.  (1)   The management and control of the affairs of the Council are vested in the Executive.

(2)   The following officers comprise the Executive:

(a)   the Chair;

(b)   the Deputy Chair; and

(c)   the Convenors of the State and Territory chapters of the Council.

(3)   The presiding officer of a Tribunal that is, or proposes to become, a member of the Council shall be eligible to stand for election to an office of the Executive.

(4)   The Secretary of the Council shall be the senior registrar or Chief Executive Officer of a member of the Council, appointed by the Chair in consultation with the Executive.

Interim Executive

8A. (1)   Notwithstanding anything in this Constitution, a meeting of tribunal presiding officers adopting this Constitution may authorise the Chair to appoint an Interim Executive to oversee implementation of the Council in the period immediately following its establishment.  The Interim Executive shall not exceed 8 officers, who shall hold office until the next annual general meeting after the date of their appointment.

(2)      This clause shall be automatically deleted from this Constitution at the time the Interim Executive ceases to hold office under subclause 8A(1) without requiring any resolution for amendment under clause 24.


 

Term of Office

9.  (1)   The Executive are to be elected at each annual general meeting and hold office, subject to this Constitution, until the next annual general meeting.

(2)       An officer who is eligible to hold the office concerned may be re-elected.

Powers of Executive

10.     The Executive may, on behalf of the Council, do any act or thing that they consider necessary or convenient for the purpose of carrying out the objects of the Council.

Casual Vacancies

11.  (1)   The Executive may appoint a member who is eligible to hold the office to any office that is or becomes vacant before the next annual general meeting.

(2)   The Executive continues to function despite a vacancy in any office.

Meetings of Executive

12.  (1)   The Executive is to hold such meetings as are necessary for the efficient performance of their functions.

       (2)   A meeting may be convened by the Chair, or on the receipt by the Chair of a written request signed by at least 2 other office holders.

       (3)   At a meeting 3 officers form a quorum.

Part 5 –Meetings of the Council

General Meetings

13.  (1)   The Executive may, at any time, convene a general meeting of members.

       (2)   Except as otherwise provided in this Constitution, the Secretary must give at least 21 days written notice of a general meeting to each member.

       (3)   The Executive are to hold at least one general meeting of the Council per financial year, at such date, time and place as the Executive determine.

       (4)   The Chair must convene a special general meeting upon the receipt of a written request from not fewer than 10 members specifying the particular matter that they wish to have considered at the meeting.

Annual General Meeting

14.     If only one general meeting is held in a financial year, that meeting is the annual general meeting.  If more than one general meeting is held in a financial year, the meeting that is closest to the anniversary of the last annual general meeting is the annual general meeting for that financial year.

Notices

15.     A notice of a general meeting must contain the date, time and place of meeting and a list of matters (including the text of any motion of which the Secretary has received notice before the notice of the meeting is given) to be considered at the meeting.

Quorum and Proxies

16.  (1)   The quorum at a general meeting is 10 members.

       (2)   If a quorum is not present, the meeting shall be held 14 days after the date fixed for the original meeting at the time and place identified in the notice given for the original meeting.

       (3)   Proxies shall be permitted.

       (4)   A member Tribunal may only be represented by the presiding officer of that Tribunal, or another member of that Tribunal appointed by the presiding officer to represent the Tribunal at the Council.

Presiding Officer

17.     The Chair, or in the Chair’s absence the Deputy Chair, is to preside at a general meeting.

Method of Voting at Annual General Meetings

18.  (1)   At a general meeting:

(a)     each member present in person has one vote; and

(b)     each member present by proxy has one vote when a poll is taken.

(2)     Subject to this clause, voting on a motion moved at a general meeting is to be by a show of hands.

(3)     If a member present in person or by proxy so requests, whether before or after the declaration of the result of the show of hands, voting is to be by poll.

(4)     A request for a poll may be withdrawn.

(5)     This clause does not apply in relation to an election.

Decisions at General Meetings

19.  (1)   Except as otherwise provided in this Constitution, questions at a general meeting shall be decided by a majority of the members present and voting.

       (2)   The member presiding has a deliberative vote only and, if the votes on a question are equal, the question shall be decided in the negative.

Effect of Resolutions

20.     Resolutions passed at a general meeting are binding on all members whether or not present at the meeting.

Minutes

21.     The Secretary shall keep minutes of general meetings.

Notices of Motion

22.     A member may give to the Secretary, not less than 7 days before the date fixed for the annual general meeting, written notice of a motion that the member intends to move at that meeting.

Election of Officers

23.  (1)   The Secretary must call for nominations for election to the Executive by written notice sent to all members at least 14 days before the day on which the annual general meeting is to be held.

       (2)   A nomination for any office is invalid unless it is in writing, specifies the office to which the nomination relates and is signed by a proposer and the nominee (if different from the proposer).

       (3)   If the number of nominations received for a category of office is equal to the number of vacancies in that category of office, the persons nominated are elected.

       (4)   If the number of nominations received for a category of office exceeds the number of vacancies in that category of office, a secret ballot must be held in such manner as the member presiding directs.

       (5)   Each member present, in person or by proxy, has one vote in respect of each office that is to be filled.

       (6)   If there is only one vacancy in a category of office, the candidate who received the highest number of votes is elected but, if 2 or more candidates received the highest number of votes, the Returning Officer is to decide by lot which of them is elected.

Part 6 - Amendment

Amendment

24.     This Constitution may be amended by resolution of the Council at a meeting.

 


 

5.      Council of Australasian Tribunals Memorandum of
Objects of State and Territory Chapters[10]


WHEREAS:

A.      The Council of Australasian Tribunals was established as a national network of tribunals on 6 June 2002; and

B.      The Council’s Constitution provides for the establishment of State and Territory chapters to further the objects of the Council and provide members with the opportunity to share information, experiences and views about developments and trends in administrative decision making

the […insert relevant State or Territory…] Chapter of the Council is hereby established.

Interpretation

1.       In this memorandum, unless the context otherwise requires:

"Council" means the Council of Australasian Tribunals established in at a meeting of tribunals on 6 June 2002;

"Constitution" means the constitution of the Council adopted at a meeting of tribunals on 6 June 2002 as amended from time to time;

"member" means a Tribunal that is a member of the Council;

"Tribunal" means any Commonwealth, State, Territory or New Zealand body whose primary function involves the determination of disputes, including administrative review, party/party disputes and disciplinary applications but which in carrying out this function is not acting as a court;

Example: the Administrative Appeals Court of South Australia and the Administrative Appeals Division of the Magistrates’ Court in Tasmania are eligible.

Objects

2.       This Chapter supports the objects of the Council identified in clause 3 of the Constitution, as follows:

(a)     to establish a national network of Tribunals and a national register of Tribunal members;

(b)     to establish a national network for members of Tribunals to consult and discuss areas of concern or interest and common experiences;

(c)     to provide training and support for members of Tribunals, particularly of smaller Tribunals which may not have the resources to undertake such activities alone;

(d)     to provide a forum for the exchange of information and opinions on aspects of Tribunals and Tribunal practices and procedures;

(e)     to develop best practice or model procedural rules based on collective experience of what works;

(f)      to develop standards of behaviour and conduct for members of Tribunals;

(g)     to develop performance standards for Tribunals;

(h)     to develop support systems for Tribunals, including case management and IT systems;

(i)      to provide advice to governments on Tribunal requirements;

(j)      to publish and encourage the publication of papers, articles and commentaries about Tribunals and Tribunal practices and procedures;

(k)     to promote lectures, seminars and conferences about Tribunals and Tribunal practices and procedures;

(l)      to make and disseminate reports, commentaries and submissions on aspects of Tribunals and Tribunal practices and procedures; and

(m)    to co-operate with institutions of academic learning and with other persons having an interest in Tribunals and Tribunal practices and procedures in promoting the objects referred to in paragraphs (a) to (l).

Membership

3.       Membership of this Chapter shall be open to any person ordinarily resident in […insert relevant State or Territory…]  who is:

(a)     a member of a Tribunal that is a member of the Council; or

(b)     a practitioner, academic, student or other person interested in the work of the Council.

Management

4.    (1)     The members of the chapter shall elect or appoint the presiding officer of a Tribunal operating within […insert relevant State or Territory…] that is, or proposes to become, a member of the Council as the Convenor for that State or Territory.

       (2)     In accordance with clause 8 of the Council’s Constitution, the Convenor shall be entitled to participate as a member of the Executive of the National Council.

Meetings of Chapter

5.       Meetings of Chapter shall be held from time to time as considered necessary or appropriate to further the objects of the Council and provide members with the opportunity to share information, experiences and views about developments and trends in administrative decision making.

Adopted at a meeting of interested persons whose signatures appear below at […insert date, time and place of meeting…]

 

Signatures:

 



 

6.      Council of Australasian Tribunals Minutes of
Inaugural Meeting –
6 June 2002

The Inaugural Meeting of the Council of Australasian Tribunals (COAT) was convened at the Chifley on Flemington Hotel in Melbourne.  The meeting was held in conjunction with the Australian Institute of Judicial Administration (AIJA) Tribunals Conference.

The meeting was opened by Justice Murray Kellam, President of Victorian Civil and Administration Tribunal (VCAT).

1.       Establishment of a Council of Australian Tribunals

The text of Justice Kellam’s opening address to the meeting is at Attachment A.[11]

The issue was raised whether New Zealand tribunals should be able to participate in the COAT.  Following discussion on the floor, it was agreed that participation of New Zealand tribunals would be a positive move.  In that event, a New Zealand chapter of the COAT could be convened, along the lines of the State and Territory chapters already envisaged.  This would also necessitate a change from the original proposal that it be a council of Australian tribunals, to a council of Australasian tribunals.

Other issues raised during plenary discussion included:

·      should the COAT be an incorporated body, or left unincorporated as is presently proposed? and

·      should the COAT attempt to include as many tribunals as possible?

Justice Kellam noted that while incorporation and a more informal approach both have advantages, the view was taken by the Steering Group that leaving the COAT unincorporated at this stage provided the greater flexibility.  After the COAT had been in existence and operating for some time, its membership could then determine the model it should adopt.  Barry Cotterell (member of the Steering Group) supported this view and noted that the definition in the proposed constitution was intended to be as broad and inclusive as possible.

This is consistent with the original ARC proposal that tribunals be encouraged to join by a process of “guided self selection”.  Under this model tribunals or bodies who found the COAT's activities not relevant to them would not continue to participate.  Justice Kellam added that one of the big issues in the whole process has been identifying what tribunals currently exist in Australia.  The coverage at the moment is incomplete, and that is why a broad definition is also an advantage.

Justice Garry Downes (A/g President, AAT) queried whether there should be a Commonwealth chapter, as well as State and Territory chapters?

Judge Kevin O’Connor (President, ADT, NSW) responded that the benefit of State and Territory chapters was in not separating tribunal members according to jurisdiction, but rather to provide a forum for tribunal members of Commonwealth, State and Territory tribunals in the one geographic location.  This would provide a mechanism for a good cross-fertilisation of ideas.  It was also noted that many part time tribunal members hold office in both Commonwealth and State tribunals, and hence the distinction became less important.

The issue of whether the COAT would only apply to review tribunals was raised.  The example of the Victims of Crime Tribunal was given, which essentially makes primary decisions.  Justice Kellam commented that it was intended that the definition be broad enough to include these bodies, who act in a tribunal-like way in determining issues, and not be limited to review bodies or bodies arbitrating disputes between parties.

2.       Meeting of Presiding Officers

Following the plenary discussion presiding officers of tribunals met separately to consider the following issues:

·      adoption of the COAT constitution;

·      members of the COAT;

·      appointment of office bearers.

Adoption of Constitution

Justice Kellam proposed that the constitution as circulated to delegates at the conference, amended as necessary to accommodate the inclusion of New Zealand tribunals, be adopted.  This motion was carried on the voices.

Membership of the COAT

Clause 5(5) of the Constitution provides that:

(a)    Tribunals whose presiding officers, or a person authorised by them to represent the Tribunal at the Council, who were present at the meeting that adopted this Constitution and voted in favour of the adoption; and

       (b) the President of the Administrative Review Council;

are members of the Council.

A schedule of tribunals qualifying for membership under clause 5(5) and their presiding officers at the meeting is at Attachment B.[12]

Appointment of Office Holders

Chair: The Hon Justice Kellam was nominated as chair of COAT.  There being no other nomination, this was carried.

Deputy Chair: Steve Karas OAM (President, Refugee Review Tribunal/Migration Review Tribunal) was nominated as Deputy Chair of COAT.  There being no other nomination, this was carried.

Interim Executive – nominations were received from:

            Mr Grant Aislabie (Principal Disputes Referee, New Zealand);

Mr Keith Chapman (President, Guardianship and Administration Board,
WA);

The Hon Justice Garry Downes AM (A/g President, Administrative Appeals Tribunal);

Mr Barry Cotterell (Chair, Property Agents and Motor Dealers Tribunal, Retirement Villages Tribunal, QLD);

Mrs Wendy Cull (Chair, Queensland Building Tribunal);

Judge Kevin O’Connor AM (President, Administrative Decisions Tribunal, NSW);

Mr Nicholas O’Neill (President, Guardianship Tribunal, NSW);

Ms Patricia Patrick (Presiding Member, Residential Tenancies Tribunal, SA);

Ms Debra Rigby (President, Mental Health Tribunal, Tas);

The Hon Justice Terry Sheahan AO (President, Workers Compensation Commission, NSW); and

Ms Maureen Shelley (Convenor, Classification Review Board, Office of Film and Literature Classification).

It was agreed that all those nominated be appointed to the Interim Executive, and the COAT Constitution be amended to reflect that the number of the Interim Executive is more than the eight originally proposed.

3.       Plenary Discussion – Priorities of COAT

Justice Kellam reported to the plenary session that the COAT constitution had been adopted and the Interim Executive appointed.

Discussion was then opened up as to what the priorities of the COAT should be.  This discussion was led by Professor Greg Reinhardt, Executive Director, AIJA.  The subjects raised during plenary discussion included:

·      priorities of the COAT should include information sharing, and the Register of Tribunals;

·      the continuing relationship of the COAT and the AIJA was raised.
Justice Kellam indicated that there should be good opportunities for a close relationship between the two bodies without either taking over.  He also proposed that, as in the present occasion, a full meeting of the COAT might be held in conjunction with an AIJA Tribunals Conference in the future;

·      tribunal conditions, including remuneration;

·      particular issues faced by sessional and part-time tribunal members, and managers of tribunals with a large proportion of such members;

·      tenure of members;

·      performance evaluation;

·      legal education of non-legal members;

·      specialist members, and in particular continuing education within their profession;

·      the COAT acting as a clearing house and a resource bank for tribunals, alerting tribunals to resources that tribunals already have, so that others may take advantage of them if possible or at least not reinvent the wheel.  For example, the President of the National Native Title Tribunal noted that in relation to the internal operations of tribunals, his tribunal has prepared policies and manuals as to how its members should conduct various activities.  This was the type of resource that other tribunals might find useful;

·      the possibility of tribunal visits or an exchange program between tribunals was also raised;

·      concern was raised that with the increasing volume of work tribunals handle, members need support in both time management and case management, and this might be an area where COAT could contribute;

·      increasing use of appropriate IT, to overcome the isolation of members. 
Justice Kellam noted the COAT website was operational, and the AAT’s support in hosting the site;

·      non adjudicative dispute resolution in the tribunal context;

·      it was proposed that COAT might adopt an advocacy role to ensure that tribunals are not the poor relations of the judicial system.  This could be a two way function, both enabling tribunals and their members to better perform their role, but also an important public education function;

·      identification of the core characteristics of good tribunal management and membership, as a basis for recruitment according to the needs of particular tribunals;

·      an evaluation of what clients think of tribunals (including users, applicants and witnesses);

·      COAT has the potential to provide public comment on matters of government policy or action;

·      in relation to performance standards it was proposed that this could be addressed by research rather than bureaucratically imposed.  The thinking was that while performance standards in the public context are quite entrenched, in the tribunal context unless tribunals actually put some thinking into the development of appropriate performance standards for themselves, inappropriate standards may be imposed on them.  The COAT might provide a useful mechanism for tribunals to develop and compare performance standards that might be appropriate in their context; and

·      tribunal efficiency.  COAT could investigate the question of whether public service efficiency is necessarily the same as tribunal efficiency.

 

4.       Meeting of Presiding Officers

Following the plenary discussion presiding officers convened again to consider the next steps.

It was agreed that Barry Cotterell would redraft the COAT Constitution to amend references to New Zealand participation.  Other matters raised included:

·      clause 9(2) – should there be a limit on membership of the executive?  It was proposed that five years would be an appropriate limit.  This would be long enough to allow natural movement and changes in membership over time, while preventing any one person from monopolising COAT and its direction;

·      clause 7 – the proposal that State and Territory chapters be opened to “interested persons” was seen as possibly too broad.  There was a concern that disgruntled tribunal clients could become members of chapters, leading to disruption and a waste of time and resources.  It was suggested that self nomination could be sufficient or a mechanism could be put in place whereby persons are nominated by a member of the COAT;

·      it was queried whether the objects of State and Territory chapters, which presently pick up the national objects verbatim, should be amended.  It was discussed in the context that the State and Territory chapters are expressed to support the COAT whose objects are as set out in the constitution, but it is not envisaged that chapters would comment on matters of public interest, whereas the COAT might;

·      all members of the Interim Executive were concerned to broaden the membership of COAT as much as possible.  It was proposed that the ARC would provide details of participating members so that they could make arrangements to meet with members in their area; and

·      other suggestions to identify relevant tribunals for membership were proposed, including the Commonwealth Remuneration Tribunal which determines the terms and conditions of members of Commonwealth tribunals, and the Monash University Tribunal Members Course would have information about relevant tribunals.

Discussion then focussed on establishment of a comprehensive Register of Tribunals.  It was proposed that the register, include the name of the tribunal, the name of the presiding officer and CEO or registrar, weblink and e-mail addresses and a short summary of their activities be provided in respect of as many tribunals as possible.  On an interim basis, the ARC agreed to instigate the compilation of such a register based on its initial consultations during the early COAT processes.  As part of the process, the ARC also undertook to write to all tribunals represented at the AIJA/COAT meeting seeking relevant details to include in the Register.

It was also considered whether the letter to tribunals could begin the process of a “survey” or “stocktake” of the terms and conditions of tribunal members, the selection and recruitment processes for tribunals and educational and professional development resources each tribunal has.  However, it was decided that such a stocktake of resources, while valuable, needs to be carefully considered, and that basic particulars for inclusion on the register be sought at this stage.  The COAT itself could resolve to use the Register (and the mailing list derived from it) to conduct such a survey at an early opportunity.

The meeting was closed on the motion of Justice Kellam.

 



 

Schedule of Member Tribunals and Presiding Officers

Tribunal

Presiding Officer

1.      Administrative Appeals Tribunal, Cth

The Hon Justice Garry Downes,
A/g President

2.      Administrative Decisions Tribunal, NSW

The Hon Judge Kevin O’Connor

3.      Anti-Discrimination Tribunal, Tas

Ms Helen Wood, Chair

4.      Australian Competition Tribunal, Cth

The Hon Justice John von Doussa, President

5.      Children’s Services Tribunal, Qld

Ms Beverley Fitzgerald, President

6.      Classification Review Board, Office of Film & Literature Classification, Cth

Ms Maureen Shelley, Convenor

7.      Consumer, Trader & Tenancy Tribunal, NSW

Mr Nick Vrabac, Deputy Chair

8.      Copyright Tribunal, Cth

The Hon Justice Ray Finkelstein, President

9.      Disputes Tribunal, NZ

Mr Grant Aislabie, Principal Disputes Referee

10.  Guardianship & Administration Board, WA

Mr Keith Chapman, President

11.  Guardianship & Administration Tribunal, Qld

Ms Ann Lyons, President

12.  Guardianship Tribunal, NSW

Mr Nicholas O’Neill, President

13.  Legal Profession Tribunal, Vic

Mr Gerard Butcher, Deputy Registrar

14.  Medical Assessment Services, Motor Accident Authority, NSW

Ms Belinda Cassidy, Manager

15.  Mental Health Review Board, Vic

Mr John Lesser, President

16.  Mental Health Review Tribunal, NSW

Ms Diane Robinson, Deputy President

17.  Mental Health Tribunal, Tas

Ms Debra Rigby, President

18.  National Native Title Tribunal, Cth

Mr Graeme Neate, President

19.  Property Agents & Motor Dealers Tribunal, Retirement Villages Tribunal, Qld

Mr Barry Cotterell, Chair

20.  Queensland Building Tribunal

Ms Wendy Cull, Chair

21.  Refugee Review Tribunal & Migration Review Tribunal, Cth

Mr Steve Karas, Principal Member


 

22.  Residential Tenancies Tribunal, SA

Ms Pat Patrick, Presiding Member

23.  Social Security Appeal Authority, NZ

Ms Marilyn Wallace, Chair

24.   Social Security Appeals Tribunal, Cth

Mr Les Blacklow, Executive Director

25.  Superannuation Complaints Tribunal, Cth

Ms Nicole Cullen, Deputy Chair

26.  Tenancy Tribunal, NZ

Ms Trish McConnell, Principal Tenancy Adjudicator

27.  Veterans’ Review Board, Cth

Brigadier Bill Rolfe, Principal Member

28.  Victorian Civil & Administrative Tribunal, Vic

The Hon Justice Murray Kellam, President

29.  Workers Rehabilitation & Compensation Tribunal, Tas

Mr Rod Chandler, Commissioner

30.  Workers Compensation Commission, NSW

The Hon Justice Terry Sheahan, President

 

 

 


ATTORNEY-GENERAL
THE HON. DARYL WILLIAMS AM QC MP

 

7.       Australian Institute of Judicial Administration Tribunals Conference Dinner

Kelvin Club, Melbourne Place, Melbourne

8.30pm, Thursday, 6 June 2002X

Introduction

1.      It is a pleasure to be here this evening to mark the establishment of the Council of Australasian Tribunals.

I would like to congratulate the inaugural Chair of COAT, Justice Murray Kellam.

2.      I have strongly supported the establishment of the Council and am pleased that this worthwhile measure has now been realised.

3.      The Government’s overall objective for the civil justice system is that the delivery of justice is timely, efficient and cost-effective.

We want the community to have faith in the system.
And, above all, we want the system to produce fair and just outcomes.

4.      We also have a continuing commitment to improving the quality and responsiveness of the civil justice system.

5.      The establishment of the Council of Australasian Tribunals is an important step towards achieving these objectives.

Development of the Council of Australasian Tribunals

6.      A Council of Tribunals is not a new idea.
It has been recommended by both the Administrative Review Council and the Australian Law Reform Commission.

7.      In its Better Decisions report, the Administrative Review Council proposed a ‘Tribunals Executive’ as part of formal arrangements for promoting and coordinating greater liaison between review tribunals[13].

8.      The ALRC’s Managing Justice report included a proposal for a ‘Council on Tribunals’, which would be a national forum for tribunal leadership to develop policies, secure research and promote education on matters of common interest[14].

9.      In 2001, the proposal for a COAT was developed further by the Administrative Review Council, in consultation with a number of tribunals. 

10.  The ARC convened a meeting of Commonwealth, State and Territory tribunal heads on 3 October 2001 at the NSW Parliament House. 
Many of you attended that meeting. 
And you will be aware that the model you are adopting today is consistent with the proposal supported by tribunal heads at that meeting. 

11.  I was pleased to give my backing to that model when it was first proposed.
And I had no hesitation in recommending it to my Ministerial colleagues and to State and Territory Attorneys-General.

12.  Today, following further developments by the Steering Group, you have adopted the COAT’s constitution. 

You have chosen your executive and considered the priorities of COAT.

I am pleased to see that you have come so far.

13.  I have every confidence that the structures and principles adopted today will ensure that the Council makes a very real and practical contribution to Australia’s tribunal system.

14.  It is particularly pleasing to see tribunals working together across State and Territory boundaries.

Such a collaborative structure has worked well with the Council of Chief Justices and I am sure that it can be equally as effective for tribunals.

15.  I am also pleased to learn that New Zealand tribunals will also be participating in the COAT, to give it a Trans-Tasman perspective.

 

The Importance of Tribunals

16.  As a member of the Executive, I am mindful of the enormous impact of Government decision-making on the community.

Virtually every facet of our daily lives is influenced in some way by the decisions of Government.
Commonwealth, State and Territory Governments make millions of reviewable decisions each year that determine people’s benefits, rights and obligations[15]

17.  These decisions are almost invariably made in the best faith, but not everyone will be happy with the rulings that are made.
People who are adversely affected by such decisions must have access to a reliable and affordable review process.
Tribunals provide a mechanism for this review.
For this reason they are critical to the delivery of administrative justice and equity.

Growing Role of Tribunals

18.  Courts play an important role in holding governments to account for the lawfulness of their actions. 
However, as you would be aware, courts have a limited capacity to rectify administrative injustice[16].
They are restricted to declaring and enforcing the law.
To remedy administrative injustice, people most often look to tribunals.

19.  Tribunals are often better able to deal with the real issues of concern to applicants - and indeed primary decision-makers.
Because of this, tribunals offer a more immediate tool for “normative” improvements in administrative decision-making compared to the occasional and costly appeals to superior courts.
As a result, tribunals are generally better able to deliver judgments which satisfy our intrinsic sense of what is fair and just[17].

20.  It is easy to understand why Australian tribunals occupy an increasingly important role in the civil justice system.

Tribunals aim to be accessible to the public.
Some operate in an informal manner, legal representation is often not required, and in many tribunals the rules of evidence do not apply. 

21.  But this level of accessibility is coupled with the need to achieve efficiency, while maintaining a high commitment to transparency, fairness and justice.

Commitment to Reform

22.  It is important that Australia’s tribunals are conscious of operating in accordance with best practice principles.

23.  To deliver administrative justice efficiently and effectively, there must be a strong commitment to continuous improvement.
This commitment clearly exists among you and has led to your coming together to establish the Council of Australasian Tribunals.

24.  Your clear desire to improve the service you provide to the public is to be commended.

25.  I would particularly like to acknowledge the contribution of the Administrative Review Council and its now former director, Mr Matt Minogue, in kick-starting the COAT into existence.
The ARC did an excellent job of helping to get the COAT established in a little over twelve months, following my request that they initiate the project.

26.  I also congratulate all the tribunals for the support they have shown.
In particular, I would like to recognise the efforts of the Steering Group whose efforts have brought the COAT to this point.

27.  That Group is comprised of:

The Hon Justice Murray Kellam, who is the President of the Victorian Civil and Administrative Tribunal, and, of course, the inaugural Chair of the COAT.

Mr Keith Chapman, the President of the Guardianship and Administration Board of Western Australia.

Mr Barry Cotterell, the Chair of the Property Agents and Motor Dealers Tribunal of Queensland.

Mrs Wendy Cull, the Chair of the Queensland Building Tribunal.

And Judge Kevin O’Connor, the President of the New South Wales Administrative Decisions Tribunal.

28.  I congratulate them on their efforts, which we see today have borne valuable fruit.

Purpose and Functions of COAT

29.  It is intended that the COAT will be a body run by you, the leaders and members of Australia’s tribunals.
I expect that the COAT will perform a number of functions.

30.  It will be a national forum that will enable a broad range of tribunals to share ideas, experiences, and working methods.
And it will provide an opportunity for tribunals to develop performance standards, and standards to govern the behaviour and conduct of members. 

No doubt the ARC’s recent Guide to Standards of Conduct for Tribunal Members will be a valuable resource for the COAT in that work[18].

31.  The COAT will be able to offer guidance, training and support for members. 

32.  And I expect that the COAT will also play a significant role in helping tribunals to develop best practice or model procedural rules.
These are areas where there is considerable scope for the COAT to take the lead.

33.  Equally, if the COAT develops and matures into a strong voice for tribunals in Australia, it could be a useful source of advice to governments. 
Either directly, or through its membership, it could identify what improvements are possible, where the problems are, and what does and does not work in practice. 

34.  One important function that I see the COAT fulfilling is the establishment of a comprehensive Register of Tribunals in Australia
Simply identifying the relevant tribunals would be an achievement in itself, given the vast array of review bodies around
Australia.

35.  Another real benefit of the COAT will be the networking and information sharing opportunities it will provide.
New networking opportunities will help to overcome feelings of isolation.
Members will be able to share ideas and discuss issues with other tribunal members.
Ultimately, this interaction has the potential to lead to real improvements in the administration and performance of our tribunal system.

Conclusion

36.  Australians have keen sense of fair play.
It must also be said that Australians have a natural - and quite healthy - suspicion of Governments.

37.  People want the opportunity to have decisions with which they disagree reviewed. 

And they want it done through a fair and accessible system.

38.  I believe that the COAT has the capacity to make a valuable contribution to the quality of administrative justice in Australia.

39.  It will do this by promoting greater liaison between Commonwealth, State and Territory tribunals.
It will provide a much needed support network for tribunal members, particularly those from smaller tribunals.
And it should be well placed to promote what the immediate past President of the AAT, Justice Deirdre O’Connor, described at your last meeting in October as a distinct ‘tribunal culture’.

40.  I wish you all an enjoyable evening.
And I wish the COAT a long and successful future.

 


Appendix 1

 

 

 

Administrative Review Council

_______________________________

 

 

12 June 2001

 

The Hon. Daryl Williams AM QC MP

Attorney-General

Parliament House

CANBERRA  ACT  2600

 

 

Dear Attorney-General

 

A COUNCIL OF AUSTRALIAN TRIBUNALS

I refer to our recent discussions about the establishment of an Australian Council on Tribunals.  The Administrative Review Council (ARC) considered this issue at its meeting of 20 April, and resolved that a model along the lines outlined below would be effective, relatively simple to establish and provide good prospects for success, in light of its emphasis on engaging the tribunals themselves in the proposed Council’s processes.

For convenience, and for want of a better term, I have proposed that the title “Council of Australian Tribunals” (or COAT) be adopted, although this would ultimately be a matter for decision by the Council’s membership.

1.         Summary of the ARC Proposal

1.1.      In short, the model we propose comprises the following elements:

 

Bettie McNee                                                                                                                 Justice Deirdre O’Connor

Ron McLeod AM                                                                                                         Professor David Weisbrot

Bill Blick PSM                                                                                                                            Christine Charles

Wayne Martin QC                                                                                                                          Patricia Ridley

Robin Creyke                                                                                                                          Stephen Gageler SC

Robert Cornall


 

·      the proposed COAT would be based on the Council of Chief Justices.  Its objectives would be broadly expressed, to enhance its appeal to a diverse membership of State, Territory and Commonwealth tribunals;

·      membership would be open to all Commonwealth, State and Territory tribunals (however described) established under statute with, in part at least, some merit review functions.  Apart from readily identifiable candidates;

·      tribunal membership would be determined by “guided” self selection based on-key indicia and a clear statement of objectives and functions of the Council, rather than strict eligibility criteria;

·      the presiding member of a participating tribunal would be elected/appointed chair for a one-two year period, with the opportunity to incorporate a Deputy Chair and Executive Committee;

·      secretariat functions would be predominantly performed by the Registrar of the Chair’s tribunal for that period, with the possibility for some tasks to be shared with the registries of the Deputy Chair and Executive Committee members (if established);

·      the COAT establish and operate through, State and Territory chapters as well as nationally; and

·      no commitment for funding to be sought at this stage, with each tribunal to bear their own costs but the COAT to make a case for funding in light of its experience, if necessary.

1.2.      The ARC proposes to invite a number of tribunal heads to further discuss the proposal in Canberra on Saturday 7 July 2001.  Following that discussion, we will advance the proposal with a view to a meeting of the COAT later this year, although timing will be a matter for the tribunals themselves.

2.         Background

2.1.      In Better Decisions, the ARC proposed a “Tribunals Executive”, as part of formal arrangements for promoting and coordinating greater liaison between review tribunals[19].  The Tribunals’ Executive would include at least the principal members of tribunals and possibly registrars.

 

2.2.      The ALRC’s Managing Justice report expanded the proposal to a “Council on Tribunals”, which would be a national forum for tribunal leadership to develop policies, secure research and promote education on matters of common interest[20].  The ALRC recommended that membership should include the heads of Commonwealth and State tribunals involved in administrative review and the President of the ARC.

2.3.      It is timely to revisit the proposal now.  Establishing a Council of Tribunals would be one way to realise synergies between the individual tribunals if the Government cannot negotiate amendments to the Administrative Review Tribunal Bill 2000.  If the Bill is passed the COAT will be a valuable forum in which the new Administrative Review Tribunal could take a leadership role.

3.         Structure of the Council

3.1.      The Council of Chief Justices, the Council of Chief Magistrates, the Council of Canadian Administrative Tribunals (CCAT) and the United Kingdom Council on Tribunals all provide useful precedents in terms of objectives, functions and models.  These Councils are more fully described in Attachment A.

3.2.      In brief, the Council of Chief Justices operates on a consensus basis, no votes are taken and meetings are conducted with little formality.  The Chief Justice of the High Court is the permanent chair, and the secretariat is provided by the principal registrar of the High Court.  The Council of Chief Magistrates operates on a similar basis, but the chair is rotated for each meeting and there is no standing secretariat.  Neither council is funded, as each Court bears its own costs of participating.  The secretariat costs for the Council of Chief Justices are fully met by the High Court from within its existing budget.

3.3.      The CCAT is a corporation with a detailed formal structure, membership categories and procedural rules.  The UK Council of Tribunals is a statutory council with specific statutory objectives. It is presently under review.

Comment

3.4.      We propose that the COAT should be based on the Council of Chief Justices, rather than the more formal Canadian or UK Councils.

3.5.      We also consider that the COAT could be operate effectively through a federal structure; comprising the national body, as well as State and Territory chapters.  This would not only assist the development of networks for the dissemination of information etc, but could also provide an opportunity for smaller tribunals from jurisdictions with no natural “supreme” tribunal to combine with, to better participate nationally (for instance, by pooling resources to nominate a chairperson).  We do not envisage that the federal structure would be overly complex or formal.  Rather, the primary activities might be conducted through meetings at the national level, but supported by additional (possibly more regular contact) through relatively loose networks at the more local level.

3.6.      This structure would be sufficiently flexible to allow all relevant tribunals to participate to the extent they are able.  While it may be possible to group tribunals based on size, resources, jurisdiction etc, it is not considered appropriate to create classes of membership as in the CCAT.  Similarly, a formal legislative structure is not appropriate, and would be difficult to achieve, given the federal nature of the proposed membership.

4.         Objectives of the Council

4.1.      The objectives will depend on what the Council is intending to do.  The options range from simply providing a forum for discussion to being more proactive.

4.2.      This has implications for the model, funding and the secretariat resources required.  Both the ARC’s and ALRC’s recommendations contemplate a proactive role, involving the development of policies, management, training and education, codes of conduct, research, data collection and reporting.

Comment

4.3.      We propose that the COAT’s objectives should be broadly expressed to enhance its appeal to a diverse membership of State, Territory and Commonwealth tribunals.

4.4.      Further discussions with tribunal heads will help to identify key objectives.  When established, the COAT itself could formally adopt the agreed objectives and proceed to determine its own priorities based on the interests of its members.

4.5.      At the very least, the COAT would be a useful way to harness the results of programs for improvement that individual tribunals currently undertake and provide an opportunity for the benefits of such programs to be shared.  More positively, if an issue of importance or interest is agreed by the COAT, each presiding officer could ask a member in their jurisdiction to progress the matter with others nominated from other jurisdictions.  Similarly, technical matters could be progressed by sub-committees of Registrars.  Examples of practical outcomes the COAT might work towards include:

·      the development of best practice or model procedural rules based on collective experience of what works;

·      standards of behaviour and conduct for members;

·      increased capacity for training and support for members, particularly by smaller tribunals which might not have the resources to undertake such activities alone;

·      establishing networks for tribunal members to consult and discuss areas of concern or interest and common experiences;

·      the development of performance standards.  This would assist tribunals measuring performance against comparable bodies, which could be more meaningful than raw measures such as cost/time/decision rates etc; and

·      the development of support systems, including case management and IT.

5.         Eligibility

5.1.      The COAT should include Commonwealth, State and Territory tribunals.  Participation would be limited to presiding members, or their delegates.  However, the COAT could establish networks of tribunal members and support regular member activities.

5.2.      This raises the central issues of what is a tribunal?  How would eligibility be determined?  Is a definition required, or even possible?  For example, some tribunals are primary decision-makers, but should they be included.  It is also difficult to estimate how many relevant tribunals there might be, let alone identify them.  Attachment B is an initial (but not comprehensive) listing of Commonwealth, State and Territory tribunals.

Comment

5.3.      To confine the proposal to Commonwealth tribunals would not advance the current position where heads of Commonwealth tribunals meet regularly, and would discount the contribution that key tribunals such as Victorian Civil and Administrative Tribunal (VCAT) and the Administrative Decisions Tribunal (NSW) can make.  It would also limit opportunities to enhance administrative review nationally, by engaging the smaller tribunals, which are likely to benefit from regular involvement with larger tribunals.

5.4.      In our discussions in Council and with key tribunal heads, we have taken the view that while a definition would readily capture the key tribunals, it is likely to exclude others.  It might also prevent smaller more specialised bodies exercising review functions from participating, when these bodies might stand to benefit the most.  A definition would also have to be broad enough to include tribunals exercising purely executive power and the mixed judicial/executive bodies operating in the States and Territories.

5.5.      Similarly, while it would be possible to develop categories of membership along the lines of the CCAT, we consider that a de facto ranking would be unwelcome and unnecessary.

5.6.      At its most fundamental, we propose that membership be open to all Commonwealth, State and Territory tribunals (however described) established under statute with some (but not necessarily exclusively) merit review functions.  However, rather than defining eligible bodies in any detail, we consider that the better option is to rely on “guided” self selection.  Key tribunals could be targeted directly.  The development of a clear statement of objectives and functions of the COAT, would allow other bodies to determine for themselves if they were a relevant tribunal.  While this approach might give rise to concerns that membership could become too broad, the COAT unwieldy and its effectiveness attenuated if it attempts to cover too broad a field.  However, we consider these risks would be overcome by the progress of the COAT itself, in that as it pursues its key objectives, marginal bodies are unlikely to continue if the COAT’s objectives are not relevant to their needs.  Similarly, it is unlikely that marginal bodies would be able to exert much influence over the direction of the COAT if this was not supported by the body of clearly relevant merits review bodies.

5.7.      Indeed, as one of its projects, the COAT itself could work to identify the key indicia of a tribunal.

5.8.      Consistently with the ALRC’s recommendations in Managing Justice, we agree that the ARC should be a member of the Council.

6.         Funding

6.1.      Is funding required, if so, how funded?  Options include membership fees or appropriation of funds through the Attorney-General’s Department.

6.2.      The Council of Chief Justices is not separately funded, each Court bears its own costs.  There is some flexibility, as there is an agreement that the High Court can call for contributions from other courts if needed, but to date no calls have been made.  Where specific funding is required for a project (for example, commissioning of research etc) that is achieved by agreement that one court would actually commission the project and would be reimbursed at agreed levels by other courts.  We consider that such flexibility would lend itself well to the tribunal context.

Comment

6.3.      Funding by governments would require agreement at ministerial level (at least through the Standing Committee of Attorneys-General).  However, while your support and that of your State and Territory colleagues will be critical, a predominantly Attorney led process could limit the scope of the COAT, particularly as we expect that a number of relevant tribunals are not within Attorneys’ portfolios.  In any event, given that no provision has been made in the 2001/2002 budget, decisions on funding arrangements would be deferred until the 2002/2003 financial year.  We are also concerned that funding by appropriation would impose expensive accountability requirements on the COAT.  Such arrangements would become more complicated if the COAT were jointly funded by the Commonwealth and the States.

6.4.      Funding may not be a crucial issue in light of the experience of the Council of Chief Justices.  The main funding requirement will be the provision of secretariat services, which for the reasons discussed below, we consider can be addressed without a standing secretariat.

6.5.      As funding is not an issue that can be resolved early, the better option would be to progress a self-funding model.  Each tribunal would be free to negotiate their resources with their respective governments.  When established, the COAT would have the capacity to make the case for alternative funding arrangements, if necessary.

7.         Chair of the Council

7.1.      As noted above, as the High Court is the apex of the judicial system, its Chief Justice is the permanent chair of that Council.  However, this does not translate easily to the tribunal context.  There is no national supreme tribunal and each State tribunal has its own jurisdiction and is not subordinate to the Commonwealth.  Equally, while New South Wales and Victoria have large generalist tribunals which lead merits review in those jurisdictions, the other States and Territories do not.

7.2.      This is similar to the position of the Council of Chief Magistrates, where the separate Magistrates’ Courts are equal.  That Council is particularly careful not to be seen to encroach on each Chief Magistrate’s authority in their jurisdiction.  The chair of the Council is rotated for each meeting.

Comment

7.3.      Similar considerations to the Magistrates’ Council would apply to tribunals.  However, rotating the chair of the Council for each meeting could work against realising outcomes, which continuity of leadership is more likely to achieve.  Our preferred option is for periodic chairing, that is, a tribunal head is elected/appointed chair for a one-two year period.  This would provide continuity while ensuring no one tribunal is perceived as being more important than others are, or indeed is imposed upon unduly.


 

7.4.      In terms of process, at the first meeting of the COAT, the President of the ARC might formally convene the meeting until a chair is appointed as the first item of business.

7.5.      In addition, participation by a greater range of member tribunals could be encouraged by providing for a deputy chair and executive committee (comprising the heads of each State and Territory chapter).  This would assist the chair in carrying out his or her role, while also achieving a balance of Commonwealth, State and Territory office holders.

8.         Secretariat

8.1.      If the Council is to be a passive information-sharing forum, the secretariat function could be discharged by the registry of the COAT chair for the time being.  If it is to be more proactive and endeavour to achieve practical outcomes (as we consider it should), more formal arrangements may be required.  The experience of the Council of Chief Justices was that rotating the secretariat was not effective.  The major problems were:

·      lack of continuity - as each meeting was handled by a different office, experience and corporate memory were low.  This meant that registries tended to operate as post offices rather than secretariats per se; and

·      outcomes - related to continuity issues.  As different registries might service only one meeting every six years , the focus was on hosting the meeting, not taking resolutions forward.  This meant that the same issues could be revisited over several years without real progress.

8.2.      Another model is for a permanent secretariat within a particular tribunal, supporting a rotating chair, along the lines of the Standing Committee of Attorneys-General Secretariat.  The essential issue with this option is identification of a suitable tribunal with the resources to commit to such a role.  For reasons discussed below, we do not consider the ARC is in a position to perform such a role.

Comment

8.3.      If the proposal for a one-two year chair is accepted we propose that the secretariat functions would be predominantly performed by the registrar of the chair’s tribunal for that period.  This would provide continuity without unduly drawing on the resources of the chair and his or her registry, encouraging participation from a broader range of tribunals.


 

8.4.      If the COAT incorporates a Deputy Chair and an Executive Committee this would broaden the sources of secretariat support, as those office holders’ registries could contribute (effective liaison and coordination would be critical).

8.5.      I should comment on suggestions that the ARC could be the secretariat for the COAT.  This proposal was raised in the context of the Managing Justice report.  It has not been supported by the ARC in the past and was not recommended by the ALRC.  Our concerns with this approach are that:

·      funding would still be an issue;

·      if the COAT is to have a strong and continuing role, its priorities and outcomes should be chiefly driven by its tribunal membership and projects are more likely to be taken through to conclusion if they are “owned” by the tribunals themselves; and

·      there would be some question whether such a role was within the scope of the ARC’s statutory functions, given the emphasis on the Commonwealth administrative law system.  While participation in a COAT would enable the ARC to perform its statutory functions, deployment of substantial resources to servicing a Commonwealth/State body may not.  If necessary, this issue can be further explored.

8.6.      Notwithstanding our view that the ARC could not provide secretariat services on a permanent basis, it is in a good position to facilitate the development of the proposal up to the establishment of a COAT and I expect it would continue to support the COAT, particularly in the early, critical, stages.

9.         Next steps

9.1.      We have taken the opportunity to canvass our views with key tribunal heads (Commonwealth and State), who have indicated their in-principle support for the proposed approach.

9.2.      We propose to convene a meeting with tribunal heads in Canberra on Saturday 7 July (after the AIAL forum to be held in Canberra on 5 and 6 July 2002).  This meeting will be a good opportunity to identify issues for further consideration, preferred options etc.

9.3.      Following the July meeting with tribunal heads, we envisage being able to provide you with a final model, based on the initial proposal and tribunal feedback.  This would form the basis of a first meeting of the COAT before the end of 2001.


 

9.4.      Some public endorsement of the concept of a Council of Tribunals by you at an early stage might be helpful to encourage participation from key players (ie by establishing that it is a process directed to an outcome).  To this end, you might consider it appropriate to advise your Commonwealth, State and Territory ministerial colleagues of the proposal, with a view to drawing it to the attention of the various tribunals within their portfolios.

The Council would be happy to expand or clarify any aspect of this advice.

 

Yours sincerely

 

Bettie MvNee
President of the Council


I have asked the Council’s Executive Officer to sign this letter on my behalf.

 

 

 

 


 

Attachment A

1.       Council of Chief Justices of Australia and New Zealand

The Council of Chief Justices began as an informal meeting of the State Supreme Court Chief Justices.  It now includes the Chief Justices of the High Court, State Supreme Courts, the Family Court and Federal Court, and the Chief Justice of the Supreme Court of New Zealand.

General operation

The Council meets twice a year and is hosted by each Chief Justice in turn.  The Chief Justice of the High Court chairs meetings.

The Council is an information-sharing forum, it does not vote and proceeds by consensus.  It is careful not to interfere in the jurisdiction of each judge.  It is effective, for when a position is reached by the Chief Justice’s, they are able to follow matters through (if within their own power) and they have significant leverage to influence other changes (for instance, legislative amendment) if required to reach an outcome.

The Council itself does not generally execute matters through its secretariat.  If an agreed position is reached, each Chief Justice would ask a judge in their jurisdiction to progress the matter with others nominated from other jurisdictions.  Similarly, technical matters would be progressed by “sub-committees” of registrars at the initiative of Chief Justices.  Examples of practical outcomes include:

·      the development of common court rules in each jurisdiction.  This was particularly successful in relation to the Corporations Law, to overcome the different procedural rules in each jurisdiction;

·      judicial behavioural standards; and

·      the development of common IT standards - this will not only assist improvement in each jurisdiction, but should allow a single matter (if appealed) to be handled by each registry as it progresses from the State court system to the High Court.

The Council does not issue annual reports and there are no public reviews discussing the Council’s role and development.


 

Secretariat

The secretariat has been based in the High Court for the last two years, and the principal registrar of the High Court acts as secretary.  Prior to that, the particular registry of the court hosting the meeting acted as the Secretariat for that meeting.

The principal registrar of the High Court was strongly of the view that the “rotating” secretariat did not work.  The major problems were:

·      lack of continuity - as each meeting was handled by a different office, experience and corporate memory were low.  This meant that registries tended to be little more than letterboxes; and

·      outcomes - related to continuity issues.  As different registries might service only one meeting every six years, the focus was on hosting the meeting, not taking the issues/resolutions coming out of the Chief Justices’ considerations forward.  This meant that the same issues could be revisited over several years without real progress.

Funding

The Council is not funded.  Each Chief Justice meets their own costs.  The Secretariat costs are fully met by the High Court from within its existing budget.  There is an agreement for contributions to the cost of the Secretariat, but to date no calls for contributions have been made.

2.       Council of Chief Magistrates

The Chief Magistrates have been meeting informally, twice a year, for nearly ten years.  It was decided to formally convene these meetings as a Council of Chief Magistrates recently, and there has been one meeting of the Council.

The Council is an information-sharing forum; it does not seek to bind its members and does not vote.  It is based on the Council of Chief Justices.

The main advantage members saw in a Council of Chief Magistrates, apart from information-sharing, was the ability to speak with strength as a Council.

Unlike the Council of Chief Justices, the chair rotates for each meeting.  There is no standing secretariat, and this function is performed by the registry of the Chief Magistrates hosting the meeting.  Mr Ron Cahill, Chief Magistrate of the ACT has performed the “secretary” function of the Council of Chief Magistrates to date.


 

3.       Council of Canadian Administrative Tribunals

The CCAT is established as a formal corporation.  The Council provides a forum and acts as a catalyst for discussion, educational opportunities, policy development and research in order to meet the needs of tribunals, members and the public involved in the administrative justice system.

The CCAT mission statement identifies the following key themes:

 

1.        Enhancing and expanding national contact between tribunals and members:

·      the Council responds to the needs of tribunals and members by improving communication and regional contact; and

·      the Council continues to act as a national forum through the annual conference.

 

2.      Raising awareness of tribunals, members, governments and the public of the role of administrative justice in Canadian life:

·      the Council works with organizations and governments in the development and promotion of administrative justice; and

·      the Council works with local chapters to raise awareness of tribunals, members and the public of issues in the field of administrative justice.

 

3.      Representations to government on issues concerning tribunals and members:

·      the Council acts as an advocate on issues of appointments, tenure, independence and education of members;

·      the Council is involved in research and policy development on issues having an impact on administrative justice, tribunals, members and the public; and

·      the Council proposes initiatives and makes representations on matters of legislative and policy reforms having an impact on administrative justice, tribunals, members and the public.

 

4.      Supports tribunals and members through the provision of services:

·      the Council ensures educational opportunities are provided to tribunals and members; and

·      the Council works in partnership with tribunals and members of issues of service to the public and improved service delivery.

 

The CCAT has formalised meeting procedure as with any corporation, covering matters such as quorum, chair and voting procedures.

The corporation’s by-laws provide for classes of membership:

(a)        Category A: Membership is limited to individuals who are members of an administrative board, commission or tribunal in Canada.

(b)        Category B: Membership is limited to individuals who are staff or legal counsel of an administrative board, commission or tribunal in Canada.

(c)        Category C: Membership is limited to individuals or lawyers who have an interest in the field of administrative law and tribunals.

4.       UK Council on Tribunals

The Council is established under the Tribunals and Inquiries Act 1992 following the recommendations of the 1957 “Franks Report on Administrative Tribunals and Enquiries”.  The Council consists of sixteen part-time members who include the chair and the Parliamentary Commissioner for Administration (the principal “Ombudsman”).  The Council is supported by a secretariat whose staff are seconded from the Lord Chancellor’s Department.  The Council’s 1999-2000 budget was approximately £650 000.

The Council’s principal functions under the Act are:

·      to keep under review the constitution and working of tribunals listed in the Act;

·      to advise government departments about the procedures which govern the running of tribunals and inquiries (such as planning inquiries); and

·      the Council must be asked for its advice before rules which concern those procedures are made or changed.

The Council’s main way of working is monthly meetings.  It also has a regular program of visits to tribunals, which it reports as being “the most effective means by which we can discharge our statutory duty to ‘keep under review the constitution and working’ of the tribunals we supervise.  The discharge of our duty in relation to inquiries is effected in the same way.”  The Council’s Annual Report notes that
152 visits to tribunals were conducted in 1999-2000.

The UK tribunal system is currently under review, and the Review Committee’s report is expected in the near future.  The Review Committee’s terms of reference include:

“To review the delivery of justice through tribunals ... constituted under an Act of Parliament by a Minister of the Crown or for purposes of a Minister’s functions; in resolving disputes, whether between citizens and the state, or between other parties, so as to ensure that:

·      there are fair, timely, proportionate and effective arrangements for handling those disputes, within an effective framework for decision-making which encourages the systematic development of the area of law concerned, and which forms a coherent structure, together with the superior courts, for the delivery of administrative justice;

·      the ... arrangements for supporting those decision-making procedures meet the requirements of the European Convention on Human Rights...;

·      there are adequate arrangements for improving people’s knowledge and understanding of their rights and responsibilities in relation to such disputes, and that tribunals and other bodies function in a way which makes those rights and responsibilities a reality;

·      the arrangements for the funding and management of tribunals and other bodies by Government departments are efficient, effective and economical; and pay due regard both to judicial independence, and to ministerial responsibility for the administration of public funds;

·      performance standards for tribunals are coherent, consistent, and public; and effective measures for monitoring and enforcing those standards are established; and

·      tribunals overall constitute a coherent structure for the delivery of administrative justice.”

 



 

Attachment B

Commonwealth Tribunals

Administrative Appeals Tribunal - Administrative Appeals Tribunal Act 1975

Australian Competition Tribunal - Trade Practices Act 1974
Australian Designs Office - Designs Act 1906
Australian Industrial Relations Commission - Industrial Relations Act 1988
Australian Patents Office - Patents Act 1990
Australian Trade Marks Office - Trade Marks Act 1995
Classification Review Board - Classification Act 1996

Copyright Tribunal - Copyright Act 1968

Defence Force Discipline Appeal Tribunal - Defence Force Discipline Appeals Act 1955

Federal Police Disciplinary Tribunal - Complaints (Australian Federal Police) Act 1981

General Practice Recognition Appeal Committee - Health Insurance (Vocational Registration of General Practitioners) Regulations

Human Rights and Equal Opportunity Commission - Human Rights and Equal Opportunity Act 1986

Medicare Participation Review Tribunal - Health Insurance Act 1973

Migration Review Tribunal - Migration Act 1958

Native Title Tribunal - Native Title Act 1993

Refugee Review Tribunal - Migration Act 1958

Social Security Appeals Tribunal - Social Security Act 1991

Specialist Medical Review Council - Veterans’ Entitlements Act 1986

Specialist Recognition Appeal Committee - Health Insurance Act 1973

Superannuation Complaints Tribunal - Superannuation (Resolution of Complaints)
Act 1993

Veterans’ Review Board - established by the Repatriation Act 1920 and continued by Veterans’ Entitlements Act 1986

 


 

State and Territory Tribunals

Aboriginal Land Tribunal & Torres Strait Islander Land Tribunal (QLD)

Administrative Decisions Tribunal (NSW)

Commercial Tribunal (NSW)

Commercial Tribunal (WA)

Commissioner for Body Corporate and Community Management (QLD)

Consumer Claims Tribunal (NSW)

Criminal Injuries Compensation Tribunal (WA)

Discrimination Tribunal (ACT)

Dust Diseases Tribunal (NSW)

Government & Related Employees Appeals Tribunal (NSW)

Guardianship & Administration Board (WA)

Guardianship Board (SA)

Guardianship and Management of Property Tribunal (ACT)

Mental Health Review Board (NSW)

Mental Health Tribunal (ACT)

Queensland Building Tribunal

Residential Tenancy Tribunal (ACT)

Residential Tribunal (NSW)

Residential Tenancies Tribunal (SA)

Resource Management & Planning Appeal Tribunal (TAS)

SA Equal Opportunity Commission

Small Claims Tribunal (QLD)

Small Claims Tribunal (WA)

Tasmanian Industrial Commission

Victims Compensation Tribunal (NSW)

Victorian Civil & Administrative Tribunal

Workers Compensation Appeal Tribunal (SA)

Workers Rehabilitation and Compensation Tribunal (TAS)


 

Publications of the Administrative Review Council

DP =          Discussion paper published by the Council

IP =            Issues paper

G =             Guidelines for use by agencies, decision makers, tribunals and legislators

 

Report No.

 

 

1

Administrative Decisions (Judicial Review) Act 1977 - Exclusions under Section 19 - 1978

 

2

Repatriation Appeals - 1979

 

3

Review of Import Control and Customs By-Law Decisions - 1979

 

4

Administrative Appeals Tribunal Act 1975 - Amendments - 1979

 

5

Defence Force Ombudsman - 1979

 

6

Entry to Cocos (Keeling) Islands and Christmas Island - 1979

 

7

Citizenship Review and Appeals System - 1980

 

8

Social Security Appeals - 1980

 

9

Administrative Decisions (Judicial Review) Amendment Bill 1980 - 1980

 

10

Shipping Registration Bill - 1980

 

11

Student Assistance Review Tribunals - 1981

 

12

Australian Broadcasting Tribunal Procedures - 1981

 

13

Commonwealth Employees’ Compensation Tribunal - 1981

 

14

Land Use in the A.C.T. - 1981

 

15

Australian Federal Police Act 1979: Sections 38 & 39 - 1982

DP

16

Review of Decisions under the Broadcasting and Television Act 1942 - 1982

DP

17

Review of Taxation Decisions by Boards of Review - 1983

 

18

Compensation (Commonwealth Government Employees) Act 1971 Amendments - 1983

IP

19

Rights of Review under the Migration Act 1958 and Related Legislation: Interim Report on the Constitution of the Administrative Appeals Tribunal - 1983

 

20

Review of Pension Decisions under Repatriation Legislation - 1983

 

21

The Structure and Form of Social Security Appeals - 1984

DP

22

The Relationship between the Ombudsman and the Administrative Appeals
Tribunal - 1985

DP

23

Review of Customs and Excise Decisions: Stage Two - 1985

 

24

Review of Customs and Excise Decisions: Stage Four: Censorship - 1985

 

25

Review of Migration Decisions - 1985

DP

26

Review of Administrative Decisions (Judicial Review) Act: Stage One - 1986

 

27

Access to Administrative Review: Stage One Notification of Decisions and Rights
of Review - 1986


 

DP

28

Review of Customs and Excise Decisions: Stage Three Anti-Dumping and Countervailing Duty Decisions - 1987

 

29

Constitution of the Administrative Appeals Tribunal - 1987

 

30

Access to Administrative Review: Provision of Legal and Financial Assistance in Administrative Law Matters - 1988

 

31

Review of Decisions under Industry Research and Development Legislation - 1988

 

32

Review of the Administrative Decisions (Judicial Review) Act: The Ambit
of the Act - 1989

DP

33

Review of the Administrative Decisions (Judicial Review) Act: Statements of
Reasons for Decisions - 1991

 

34

Access to Administrative Review by Members of Australia’s Ethnic Communities - 1991

IP

35

Rule Making by Commonwealth Agencies - 1992

DP

36

Environmental Decisions and the Administrative Appeals Tribunal - 1994

IP

37

Administrative Review and Funding Decisions (A Case Study of Community
Services Programs) - 1994

DP

38

Government Business Enterprises and Commonwealth Administrative Law - 1995

DP

39

Better Decisions: Review of Commonwealth Merits Review Tribunals - 1995

DP

IP

40

Open Government: A Review of the Federal Freedom of Information Act 1982 - 1995

DP

41

Appeals from the Administrative Appeals Tribunal to the Federal Court - 1997

DP

IP

42

The Contracting Out of Government Services – 1998

IP

43

Administrative Review of Patents Decisions – 1999

G

 

What Decisions Should be Subject to Merits Review - 1999

G

 

Practical Guidelines for Preparing Statements of Reasons - 2000

G

 

Commentary on the Practical Guidelines for Preparing Statements of Reasons - 2000

 

44

Internal Review of Agency Decision Making (Internal Review of Agency Decision Making - A Best Practise Guide) - 2000

DP

 

Exposure Draft Principles of Conduct for Members of Merit Review Tribunals - 2000

G

 

A Guide to Standards of Conduct for Tribunal Members - 2001

 

 

Record of the 25th Anniversary Proceedings - 2002

 

 



[1] Better Decisions: Review of Commonwealth Merits Review Tribunals, 1995, Report No. 39, paragraph 7.48, Recommendation 85.

[2] Managing Justice : A Review of the Federal Civil Justice System, 2000, Report No. 89, paragraph 2.230, Recommendation 10.

[3] Mr Gary Byron, Executive Director of the Social Security Appeals Tribunal (SSAT), was nominated for membership of the Steering Group at the 3 October meeting.  Mr Byron subsequently withdrew from the Steering Group on his resignation from the SSAT.  Judge Kevin O’Connor joined the Steering Group after being nominated by Justice Murray Kellam at a Steering Group meeting on
14 November 2001.

[4] Justice Deirdre O’Connor withdrew from the Steering Group when she retired as President of the AAT on 5 March 2002.

[5] The Council of Chief Justices operates on a consensus basis, no votes are taken and meetings are conducted with little formality.  The Chief Justice of the High Court is the permanent chair, and the Principal Registrar of the High Court is the secretary.  The Council of Chief Magistrates operates on a similar basis, but the chair is rotated for each meeting, and there is no standing secretariat.  Neither Council is funded and each court bears its own costs of participating.  The CCAT is a corporation with a detailed formal structure, membership categories and procedural rules.  The United Kingdom Council of Tribunals is a statutory council with specific statutory objectives.

[6] One important function of the COAT is to establish a comprehensive Register of Tribunals in Australia.  In furtherance of this function, the ARC wrote to tribunals requesting details of presiding officers and registrars, contact details and a summary of the tribunal’s activities.  This information now forms the basis of the Register, maintained by the COAT and posted on the COAT website.

[7] The ARC was mindful that the COAT’s potential effectiveness might be reduced if it attempted to cater to too broad a membership.  However, the ARC considered this would be overcome by the progress of the COAT itself, as bodies are unlikely to continue if the COAT’s objectives are not relevant to their needs.  Similarly, it is unlikely that such bodies would be able to exert much influence over the direction of the COAT if they were not supported by the body of the member tribunals.

[8] The ARC considered suggestions that it could be the Secretariat for the COAT.  This proposal was raised in the context of the Managing Justice report, although it had not been supported by the ARC in the past and was not recommended by the ALRC.  The concerns with this approach were that if the COAT were to have a strong and continuing role, its priorities and outcomes should be driven by its tribunal membership.  It was considered by the ARC that projects would be more likely to be taken through to conclusion if they were “owned” by the tribunals themselves.

[9] The Constitution was amended and adopted by the Interim Executive on 25 July 2002.

[10] The Memorandum of Objects was amended and adopted by the Interim Executive on 25 July 2002.

[11] Attachment A has not been included in this report.

[12] The schedule of tribunals in Attachment B immediately follows these minutes.

X The speech was delivered on behalf of the Attorney-General by Matt Minogue, Executive Officer of the Administrative Review Council (2000-2002).

[13] Better Decisions: Review of Commonwealth Merits Review Tribunals, Report No. 39 (1995),
paragraph 7.48, Recommendation 85.

[14] Managing Justice: A Review of the Federal Civil Justice System, Report No. 89 (2000), paragraph 2.230, Recommendation 10.

[15] In its Managing Justice report (paragraph 9.3) the ALRC noted that the following general numbers of reviewable decisions were made in 1997-1998:

·         36 million reviewable decisions in the social security jurisdiction;

·         58,463 claims for veterans’ entitlements;

·         just under 11 million reviewable taxation assessments; and

·         over 3 million migration decisions.

[16] Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 where Brennan, J stated “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 powers.  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.”

[17] Bettie McNee, 2001 Blackburn Lecture, ‘Administrative Review: Observations and Reflections’, Admin Review, Report No. 54, September 2001, p. 12.

[18] A Guide to Standards of Conduct for Tribunal Members, September 2001.

[19] Better Decisions: Review of Commonwealth Merits Review Tribunals, Report No. 39, paragraph 7.48, Recommendation 85.

[20] Managing Justice: A Review of the Federal Civil Justice System, Report No. 89, paragraph 2.230,
Recommendation 10.