ADMINISTRATIVE REVIEW COUNCIL
REPORT ON THECOUNCIL 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:
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.
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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 QCJustice Garry Downes AM
Ron McLeod AMProfessor David Weisbrot
Bill Blick PSMChristine Charles
Robert CornallProfessor Robin Creyke
Stephen Gageler SCPatricia Ridley
Robert Garran Offices, National Circuit, Barton ACT 2600
Telephone: (02) 6250 5800 Facsimile: (02) 6250 5980 e-mail:
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- Abbreviations
- Report on the Establishment of the Council of Australasian Tribunals
- Constitution of the Council of Australasian Tribunals
- Council of Australasian Tribunals Memorandum of Objects of State and Territory Chapters
- Council of Australasian Tribunals Minutes of Inaugural Meeting -6 June 2002
- Attorney-General’s Speech Presented at the Conference Dinner
APPENDIX 1 - Letter from Administrative Review Council to Attorney-General 12 June 2001 / 49
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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
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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: