1 Tribunals and Alternative Dispute ResolutionTopic 11

2 Tribunals Administrative law Abovethelaw.com:

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5 Accountability mechanisms include: Administrative law offers accountability mechanisms that apply to government decision making about individual matters. Accountability mechanisms include: *merits review—by government agencies and by tribunals * investigations—by the Commonwealth Ombudsman and the Office of the Australian Information Commissioner * internal agency practices—including codes of conduct and alternative dispute resolution judicial review—conducted by the federal courts. SEE (A-G website) https://www.ag.gov.au/LegalSystem/AdministrativeLaw/Pages/default.aspx

6 The majority of courts handle matters that are criminal or civil in nature, while tribunals provide a less costly alternative for progressing some civil and administrative matters outside the formality of a court. A criminal matter generally arises where a charge has been laid either by police or some other prosecuting authority on the basis of a breach of criminal law. A civil matter occurs where there is a dispute between two or more individuals or organisations, where one party seeks legal remedy for an injury or loss from the other party who is alleged to be liable. See:

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9 Review of administrative decisionsCourts: Judicial Review Tribunals: Merits Review Was the decision lawfully made? Was the decision a good decision?

10 Courts: Judicial Reviewcourt does not decide whether the decision was “right”, but only whether it was “lawful” The most common grounds are: a breach of natural justice (procedural fairness); an error of law; or failure to take into account a relevant consideration. (See section 5 Administrative Decisions (Judicial Review) Act 1977 (Cth))

11 Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35-36The duty and jurisdiction of the Court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the Court avoids administrative injustice or error, so be it; but the Court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

12 Tribunals: what are they. http://www. lawhandbook. orgTribunals: what are they? (below list extracted form this source) “Tribunals differ from courts in a number of ways, although the differences may vary substantially from tribunal to tribunal, and in some cases are marginal (…): 1. Procedures in a tribunal are less formal, the required documentation is simpler, the rules of evidence are applied less rigidly, and the hearings are conducted in a less formal manner.

13 2. The member of a tribunal hearing a case takes a more active role in the proceedings than a traditional judge who, being bound by the restrictions of the adversary system, acts as a passive umpire of the issues put by the parties. A tribunal may be comprised of members who are legally qualified and members who have specialist expertise in the subject matter with which a particular tribunal deals… 3. Some tribunals encourage or require parties to appear in person, without lawyers. 4. While courts are bound by the previous decisions of superior courts, tribunals are generally not, and instead are required to determine each matter on its particular merits. In practice, however, many tribunals follow precedent for the sake of being consistent in their decision-making.”

14 Tribunals: Merits reviewWhat is it? What are the objectives of it? The nature of merits review: * Recommendatory * Stand in shoes of primary decision maker * Hearing de novo * Correct or/and preferable decision

15 Judicial review v Merits ReviewLegal review of a case (judicial review) Administrative reconsideration of a case (merits review) - A merits review body makes decisions within the same legislative framework as the primary decision maker, and may exercise all the powers and discretions conferred on the primary decision maker.

16 Judicial review v merits reviewA blurred distinction

17 Why have merits review and does it work?* Administrative law remedies improve the whole system of government decision making by increasing its openness and transparency and providing feedback on its performance. Confident executive government should welcome this kind of audit. * Accountability is fundamental to good governance in modern, open societies.

18 Administrative Appeals TribunalUnique in the common law world General tribunal for the review of administrative decisions made under more than 450 Acts of Parliament 80+ members Appeals lie to the Federal Court On July 2015 the Migration Review Tribunal, Refugee Review Tribunal and Social Security Appeals Tribunal were merged with the AAT

19 Workload The AAT received 41,432 applications and finalised 38,146 applications in 2015–16. “We aim to have less than five per cent of all decisions made set aside on judicial review. The number of appeals allowed by the courts in 2015–16 amounted to 3.3 per cent of all decisions made by the amalgamating tribunals in 2014–15 that could have been appealed to the courts.”

20 Applying to the AAT

21 If you disagree with a decision of a Commonwealth Minister, aGovernment Department or agency, or an employee of a Department which affects you, you may be able to have it reviewed. The AAT has powers to review decisions made under certain Acts of Parliament. The sorts of decision which can be reviewed include decisions about: a social security pension or a benefit a veteran's pension Commonwealth workers' compensation an environmental issue taxation visas refused or cancelled on character grounds ABN cancellation Disability care under the National Disability Insurance Scheme many other Commonwealth issues .

22 AAT within the portfolio of the Attorney-General and Minister for the Arts Senator the Hon George Brandis QC

23 “George Brandis clears out 'infuriating' Administrative Appeals Tribunal” SMH June 28, 2017Attorney-General George Brandis has cleared the decks of the troublesome Administrative Appeals Tribunal, making more than 60 appointments including several people with Liberal Party links. In recent months the tribunal has been publicly lambasted by senior government ministers, who have questioned the appropriateness of its decisions, particularly on immigration and visa matters.

24 Migration and refugee casesThe AAT has been attacked over several decisions, including the Singh case and a separate matter where "fake" Iranian refugees who took holidays back to Iran were allowed to keep their protection visas. In both cases, Immigration Minister Peter Dutton later overruled the AAT, as he is allowed to do under the law. Mr Dutton has labelled some of the AAT's decisions "infuriating", and last month said tribunal members were out of line with community expectations and should be losing sleep over their rulings.

25 New AAT President Senator Brandis plucked David Thomas from the Queensland Supreme Court to take over as AAT president, and also appointed him a judge on the Federal Court.(announced June 2017)

26 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 589 per Bowen CJ and Deane J:“The question for the determination of the Tribunal is not whether the decision which the decision maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.”

27 Federal Judicial ReviewAdministrative Decisions (Judicial Review) Act 1977 (Cth) Federal Court Appeals from AAT – but not merits review s75(v) Constitution – High Court jurisdiction

28 A super NSW tribunal

29 NSW Civil and Administrative TribunalNSW Tribunals NSW Civil and Administrative Tribunal Commenced on 1 January 2014 Replaces 22 of the State’s existing tribunals (eg: Matters heard previously in the Consumer Trade and Tenancy Tribunal and now heard in the Consumer and Commercial Division of NCAT) Civil and Administrative Tribunal Act 2013

30 President The Hon Justice Robertson Wright

31 NCAT “one-stop-shop for specialist tribunal services in NSW”“NCAT’s objectives are simple – to deliver prompt, accessible civil justice.” Annual Report, 2014, p6. From 1 January June 2014, NCAT received 39,509 applications, finalised 40,873 matters and conducted more than 51,400 hearings

32 Workload In , the Tribunal has received over 69,400 applications and has finalised over 69,800 matters. “Much of the Tribunal’s work can actually be seen as involving the exercise of judicial power5 not executive power.” (President – page 4 Annual Report )

33 Structure

34 The main work of NCAT is to review specific administrative decisions made by NSW government agenciesAcross all types of matters, NCAT is committed to: * timely, fair, high-quality decision-making * maintaining current levels of service retaining specialist expertise and services * continuous improvement in service delivery

35 Previously the ADT: Formal and informal hearing rooms (old website)

36 Next website

37 Previous AAT website

38 Previous NCAT website

39 Most recent NCAT website

40 At common law, administrators do not have to give reasons for their decisions regardless of how significant or damaging they may be for the individual. The ADT legislation modified that rule. Administrators were now obliged to give reasons for those decisions made reviewable before the ADT. In the second reading speech the Attorney expressed a broad view as to the administrative decisions that citizens could look forward to seeing reviewed by the ADT. As it has transpired a much narrower range of decisions has been made reviewable. Giving affected persons a right to seek external review remains a choice, in the first instance, for the various portfolios of Government and, ultimately, Cabinet. So far as I am aware, there is no transparent discipline or policy governing the matter…..There have been some instances where the review jurisdiction has been removed or reduced by amending legislation, without any public explanation, soon after decisions have gone against an agency. 10 year anniversary of the ADT: Annual Report p 5

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

42 Alternative Dispute Resolution

43 Attorney-General’s Department: 2014 websiteWays to manage a dispute There are many ways you can respond to a dispute. These can include: deciding if you can live with things staying the way they are talking with the other people involved to see if you can find an outcome that works for everyone (sometimes called ‘negotiating’)

44 getting help from an organisation or a person who is not involved in the dispute, such as:an alternative dispute resolution practitioner, for example, a mediator a lawyer or other person who may negotiate for you, or provide advice on your legal rights a person trusted by everyone involved in the dispute an ombudsman a court or tribunal

45 When choosing the best dispute resolution process for you, it is useful to think about:how the other people involved might want to manage the dispute whether you want an independent person involved and, if you do, what you want them to do how structured you want the dispute resolution process to be what sort of relationship you want to have with the other people involved

46 how much you are prepared to spend—in time and moneyhow much control you want over the process how much control you want over making a decision or agreement.

47 What is access to justice?Wave 1: Legal aid Wave 2: Changing court procedures Wave 3: Informal justice Wave 4: Competition policy On the verge of a fifth wave?

48 2017 website Your Guide to Dispute Resolution contains basic information about common Alternative Dispute Resolution (ADR) processes, as well as some tips for using ADR and resolving disputes generally. It is a resource to help ordinary Australians understand a bit more about ADR. It will also be useful for practitioners, who can use it to inform their clients about ADR processes. Copies of the guide are available to download below: Your Guide to Dispute Resolution [PDF 356KB] Your Guide to Dispute Resolution [DOC 625KB]

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50 Number of disputes Courts Legal assistance External merits review Legal services Better decision-making ADR Legal assistance – ADR EDR Legal assistance – early intervention Access to information Resilience Handling matters personally Formal justice Informal justice Everyday justice

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52 Of the 719 legal problems where respondents took no action because they ‘didn’t know what to do’, they also indicated that it ‘would be too stressful’ to take action for about half (53.2%) of these problems, and that it ‘would cost too much’ for about two-fifths (41.8%) of these problems. 2012 Law and Justice Foundation survey

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54 2012 Survey legal problems are widespread and often have adverse impacts on many life circumstances disadvantaged people, are particularly vulnerable to legal problems •a sizeable proportion of people take no action to resolve their legal problems • most people who seek advice do not consult legal advisers and resolve their legal problems outside the formal justice system.

55 ADR Litigation has been the traditional focus of dispute resolution, but often not the only appropriate form of dispute resolution ‘Alternative’ forms of dispute resolution becoming increasingly important Both Courts (s71) and ADR methods such as conciliation and arbitration (s51(xxxv)) recognised in Constitution

56 ADR same as Court? Court: exercises the judicial power of the State and a Tribunal: exercises executive (and sometimes judicial) power of the State ADR not just a different type of court Describes a process – an umbrella term - no one set of laws which governs this area ADR: may be voluntary/may be binding – depends on agreement between parties ADR: often a private contractual arrangement

57 Federal approach to ADRSome ADR required by legislation prior to any claim in: Federal Court (Federal Court of Australia Act 1976) and see Civil Dispute Resolution Act 2011 Family Court of Australia (Family Law Act 1975) Federal Magistrates Court (Federal Magistrates Act 1999) Human Rights and Equal Opportunity Commission (Human Rights and Equal Opportunity Commission Act 1986) Australian Industrial Relations Commission (Workplace Relations Act 1996) Administrative Appeals Tribunal (Administrative Appeals Tribunal Act 1975) National Native Title Tribunal (Native Title Act 1993) Australian Competition and Consumer Commission (Trade Practices Act 1974), and Social Security Appeals Tribunal (Social Security Act 1991).

58 State approach to ADR Similar approach at State levele.g. Supreme Court Practice Note SC Gen 6 “The Court’s power does not depend on the consent of the parties, or of any of the parties”

59 ADR “Alternative” – can convey these dispute resolution methods are of secondary importance Additional? Litigation alternative to ‘traditional’ mortal combat? “Dispute resolution” as a range of options (including litigation) – select most appropriate to circumstances and client

60 ADR won’t suit all situations

61 ADR: tactics and strategy

62 Not sure…

63 Types of ADR Negotiation Mediation Neutral Evaluation ConciliationExpert Referral Arbitration

64 Negotiation Mediation Conflict of interests between partiesNo established rules to resolve conflict Parties are seeking agreement May or may not involve third party Mediation Generally involves the use of a trained, neutral third party Process – oriented: mediator facilitates Substance – oriented: mediator offers recommendations

65 Neutral evaluation ConciliationNeutral evaluator seeks to identify and reduce the issues of fact and law which are in dispute Offers opinion as to likely outcome of dispute Similar to a mini-trial Conciliation Parties, with the assistance of neutral conciliator, identify issues and develop options and alternatives Conciliator advises but does not determine

66 Expert referral Arbitration Usually established by legislationExpert panels used by State courts and tribunals Arbitration Formal dispute resolution process governed by Commercial Arbitration Act 1984 (NSW) or equivalents Binding determination Also industrial arbitration

67 Master of the Rolls, the Right Honourable Lord Donaldson of Lymington, Master of the Rolls Address to the London Common Law & Commercial Bar Association, on 27 June 1991 cited by “ ADR is a PR mans dream. In conjures up visions of a factor ‘X’ which will do for dispute resolution what it is said to have done for washing powders and petrol. The truth is that there is no factor ‘X’. Indeed I rather doubt whether there is any such thing as ADR. It is simply an umbrella term or ‘buzz word’ covering any new procedure or modification of old procedures which anyone is able to think up.’ “

68 ADR - definitions Accurate, comprehensive definitions can be difficultNational Alternative Dispute Resolution Advisory Council – NADRAC (disbanded from 2013) “processes, other than judicial determination, in which an impartial person assists those in a dispute to resolve the issues between them.”

69 Former NADRAC definitionsFacilitative processes: an ADR practitioner assists the parties to a dispute to identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement about some issues or the whole dispute. E.g. mediation, facilitation and facilitated negotiation. Advisory processes: an ADR practitioner considers and appraises the dispute and provides advice as to the facts of the dispute, the law, and in some cases, possible or desirable outcomes and how these may be achieved. E.g. expert appraisal, case appraisal, case presentation, mini-trial and early neutral evaluation.

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

71 Why ADR? Benefits for clients Benefits for courtsCost – usually cheaper Time – usually faster Relationships – can be preserved. Consider the effect of litigation on relationships. Court system always adversarial. Benefits for courts Pre-trial/case management processes reduce workload of court Reduces costs and delays across the system

72 Why ADR? Promoted by government as best practiceCommonwealth Legal Services Directions 2005 ‘model litigants’ - endeavour to avoid, prevent and limit the scope of litigation wherever possible. Professional obligation? Should be able to advise clients about all options and best options.

73 Why ADR? Effective in achieving lasting settlement of disputesParties actively engaged Avoids ‘winners’ and ‘losers’ ALRC report: “70.6% of the mediation agreements with monetary settlement were reported to be paid in full, compared to 33.8% of the adjudications.”

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

75 Development of ADR in AustraliaThree key events: Establishment of the Family Law Court Establishment of Community Justice Centres in NSW Establishment of the Australian Commercial Disputes Centre

76 IDR and EDR Ombudsman Complaint resolution schemes