What Is COAT (NSW) About and Where Is It Going?

‘What is COAT (NSW) about and where is it going? A paper given by Nick O’Neill* at the first COAT (NSW) Conference, Friday, 28 May 2004’

By attending this conference today and paying the fee to do so, you are entitled to membership of the Council of Australasian Tribunal, New South Wales Chapter, COAT (NSW). So what are you getting for your money? (In a free society membership is optional, but the cost of today’s conference remains $100 whether or not you take up membership.)

I want to spend a few minutes with you today setting out briefly what the Committee of COAT (NSW) has already done and how we see the Chapter developing in the future. However, before I do this, I think it is worthwhile to set the context.

The 20th century saw the development of tribunals in the anglo-Australian legal system. At the commencement of the 21st century, tribunals are an established and apparently permanent part of the Australian justice system. However, tribunals are so diverse in nature that some would be seen as on the outer edge of the justice system. For example, the Independent Pricing and Regulatory Tribunal which oversees regulation in the water, gas, electricity and transport industries in New South Wales, sets maximum prices for monopoly services, administers licences and registers agreements. Others would be seen as central to the civil side of the justice system. For example, small claims tribunals of which the Consumer, Trader, Tenancy Tribunal (CTTT) in New South Wales is a prime example.

Other tribunals on the spectrum are the tribunals which conduct merits reviews of administrative actions of government instrumentalities such as the Administrative Decisions Tribunal (ADT) and those tribunals which exercise specialist jurisdiction about the status and capabilities of individuals – jurisdiction traditionally exercised by courts of unlimited jurisdiction. Examples of these are the Mental Health Review Tribunal (MHRT) and the Guardianship Tribunal (GT). In addition, there are the disciplinary tribunals of the various professions and tribunals relating to sporting industries like the Greyhound Racing Authority Appeals Tribunal. Finally, there is a new sort of tribunal of court replacing tribunal, for example, the Workers Compensation Commission designed to bring quicker and cheaper resolution of claims arising from work related injuries. That Commission was developed in response to what many saw, not often lawyers, as the too costly and too lengthy processes employed when workers compensation was court based.

While none of these tribunals are courts according to the traditional definition of a court, many of the New South Wales tribunals exercise some aspects of the judicial power of the State. This is allowable under the constitutional structure of New South Wales where there is no strict separation of powers. However, some New South Wales tribunals may be categorised as exercising only the administrative power of the State.

This brings me to the Federal tribunals operating in New South Wales, whose members are entitled to membership of COAT (NSW). The most significant of these *President of the Guardianship Tribunal of New South Wales and Convenor of COAT (NSW). 2 are the Administrative Appeals Tribunal (AAT), the Social Security Appeals Tribunal (SSAT), Veterans’ Review Board (VRB), Migration Tribunal (MT) and the Refugee Review Tribunal (RRT). Although the AAT is judicially led and operates rather like a court, it is still seen, because of the strict separation of powers in the Commonwealth, as an administrative tribunal. All the other Commonwealth tribunals too are seen as administrative in nature, regardless of how they would be seen if they were State bodies.

If the tribunals I have mentioned were analysed, and there is neither time nor need to do so today, what would be revealed would be that they are structured in a diversity of different ways to meet a diversity of different needs and interests. However, despite their difference, they have at least three things in common. They must operate in a way that is procedurally fair. They must decide the matters they are mandated to determine on the basis of credible evidence and they must operate only within the limits of their various and often very limited areas of jurisdiction.

Even as to these common matters, there are significant differences. Self-evidently, their jurisdictions are different. The kinds of evidence they need to determine the matters before them are often very different. The means employed in obtaining that evidence will vary from tribunal to tribunal. The procedures of each tribunal will be different as they will be tailored to the particular jurisdiction of each tribunal. Consequently, some things required for procedural fairness in one tribunal would be inappropriate in another. For example, the exchange of relevant documents between the two parties in a civil dispute in the CTTT will be essential for fairness, while, in most cases, the provision of medical documents required for proof in guardianship and financial management matters before the GT would constitute an unnecessary and unreasonable breach of privacy of the person the subject of the application if those documents were automatically given to the others who qualified as parties to such applications.

Given this diversity and those differences, why should we have a Council of Australasian Tribunals? As members of tribunals, we do have interests in common. Some of these interests will arise from the work we do and how we do it. For example, the work we do necessarily involves applicants and other parties who present their own cases. This is so whether the people are parties to a contract based dispute before the CTTT or are involved in a hearing about a person’s capacity and decision-making status in the MHRT or the GT.

The issue of self-represented parties in tribunals will get a thorough consideration today, but that will be only the first of many considerations of that issue under the auspices of COAT (NSW). This subject is central to our expertise. Unlike courts, we deal with people who appear before us without assistance every day. We deal with them using our duty to enquire and our inquisitorial approach. That is, we direct the parties to the key issues we have to determine and give them the opportunity to give their own evidence in their own words. However we control the length and the relevance of the evidence.

The word ‘inquisitorial’ worries some, suggesting the Spanish inquisition of historical fame (or the Mel Brooks’s film, History of the World – Part I). In a recent case in which the appellant asserted that she felt as though a tribunal member was bullying 3 her through his questions of her during the hearing and that the interpreter was against her, two Federal Court judges noted that there was no evidence to support these assertions as objective reality.1 However, they continued:2

‘It may be that the inquisitional style of the Tribunal proceedings conveyed the impression that the member was challenging the appellant. But within reasonable limits, the adoption of an inquisitorial approach does not constitute intimidatory conduct.’

The challenge for us is to perfect our inquisitorial style so that when that style is referred to, it brings nods of appreciation from tribunal users and judges alike rather than the anxious concern about relapses into inquisitional styles from earlier centuries. Perhaps a better approach would be to use different language to describe how tribunals conduct their hearings and so avoid the sterile “inquisitorial” versus “adversarial” debate.

As a number of tribunals sit in panels which are made up of lawyers and other members who bring other expertise from their professional background or life experience, the question of how the members use their own expertise and how they test and evaluate the evidence of experts appearing before them is a vital one for tribunals. It should be noted that two thirds of the members of the GT and the MHRT are people who bring expertise other than legal expertise to the hearing. The processes of the new Workers Compensation Commission involve the use of doctors as decision-makers. Today, we have a presentation, which I am looking forward to very much, but which, again, will be the first of many presentations and discussions about the use of expertise to best effect when conducting hearings and making determinations.

COAT (NSW) will be a means through which tribunals will build their confidence that they can act as fairly and justly as courts but without having to act as courts. Most tribunals are mandated to conduct their proceedings with as little formality and legal technicality and form as the circumstances of the case permit. Also, they are not bound by the rules of evidence but may inform themselves on any matter in such manner as they think fit.3 In the future we will be able to spend time exploring with each other the ways that we find work to ensure fair processes and just results, where we sometimes inform ourselves in a manner different from the courts but where we continue confidently to conduct our proceedings with much less formality and legal technicality than the courts do.

We also will be able to use COAT (NSW) as a forum to deal with questions of representation. In some tribunals the parties have a right to be represented. In some other tribunals, because of the nature of the jurisdiction and the consequences for the parties, legal representation can be seen as an entitlement arising from the obligation of those tribunals to proceed fairly. However, in a number of tribunals, representation is allowed only by leave. Consequently, issues such as when to grant leave, when to encourage representation and when to insist that no representation is needed, because

1 WABZ v Minister for Immigration and Multicultural and Indigenous Affairs [204] FCAFC 30, 204 ALR 687, [77]. 2 Ibid. 3 See for example, S55 of the Guardianship Act. 4 the issues do not require it, because it would create inequality of arms or because representation of one or more parties with other parties not being represented would impose unnecessary and unjustified anxieties on the unrepresented parties, are all aspects of this issue. So also is the fact that a number of tribunals operate most efficiently, and fairly, by directing the parties to the issues to be determined and providing them with a hearing environment in which they are able to put their own cases in their own words.

This approach which involves a much greater management of the hearing process by the hearing person or panel involves a different mindset from that of the courts where the expectation of the judicial officers is that the litigants will be represented by people trained and qualified to represent them, who will put the case for their client in all its relevant aspects and who owe a duty to the court as to the way they handle matters which limits their duty to their client to putting the client’s case honestly and fairly within the bounds of both the evidence and the law. When this difference of mindset and indeed reality between courts where representation is the norm and tribunals where representation is only by leave and usually rare, the need for these tribunals to manage their proceedings more directly than courts becomes apparent.

Another important topic is that of the giving of reasons. Most of the Federal tribunals, and some State tribunals like the GT, are required to give written reasons for every decision. This is an important discipline and an important obligation that should not be foregone through legislative amendment on cost saving grounds. But some tribunals, for example the CTTT, do not need to and, in any event, could not operate with the efficiency required in some of its jurisdictions if written reasons for every decision had to be given. How to give brief reasons either ex tempore or in writing, how to write reasons that make sense to parties, how to write reasons that go to the centre of things, yet do not deal with every point, but deal with all those points that are sufficient for the decision reached and include a consideration of all issues that would have made a real difference to the outcome of the case are important matters for us to discuss.4 In this regard we may still have something to learn from the recently retired Meagher, JA. At Meagher JA’s retirement from the NSW Court of Appeal, Spigelman CJ said5:

‘Your judgments are written concisely, accurately and with humour, encapsulating within the few pages what others take dozens to express. This is not a style fashionable amongst your judicial contemporaries, including myself.’

There will be many topics about the work tribunals do and how they do it that will benefit us all by being aired and considered in formal conferences, seminars and discussions. There will be other topics of interest to members.

What we are hoping for today, are suggestions from you, the members of COAT (NSW), as to what you would like to see dealt with under the auspices of COAT and

4 Daniel v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 21, 205 ALR 198 [32]. 5 See (2004) 78 ALJ 297, 298. 5 in what type of forum. To assist you in this process, we have supplied you with an evaluation/suggestion form which we hope to collect from you at the end of the day.

As to what we as your inaugural – interim committee have done, I wish to report, has been to provide you with an incorporated association, which limits your liability as members. It is a not for profit organisation with tax exempt status. Also, it has a bank account and an Australian Business Number. For these achievements, which require both the persistence of Sisyphus and the patience of Job, we have all the members of the Committee, but Gary Byron, Stephen Forbes and John Fitzgerald in particular, to thank.

How do we propose to proceed from here? We propose at least another event this calendar year which will be associated with our Annual General Meeting – so your opportunity to become involved in what COAT (NSW) does. We want to orientate COAT (NSW) to being run by a combination of leaders and members of tribunals, with a role for other interested parties, and with a mission to provide for the needs of members. We will need to address the performance assessment of members and develop better and more uniform practices for the appointment and re-appointment of members. These practices must be designed to ensure the best quality membership for each tribunal but in a context that encourages members to develop, then maintain and improve, their Tribunal skills. While tribunal members cannot expect job permanency, there is a need in everyone’s interests, tribunal users, tribunal members and tribunal managers, to ensure that those appointed through a process that concentrates on merit selection, serve a reasonable time with an appreciation of the likely length of their term – a length which has no relation to any decision-making where government agencies are parties. Over time these kinds of practices will be developed and then adhered to. Over time they will become part of the traditions of tribunals, traditions that will be as accepted an honoured by politicians and public alike as are the traditions associated with courts.

Your Committee sees COAT (NSW) as an evolving body, able to meet in a range of different ways, some of the training, tradition developing and other needs of the tribunals sector of the New South Wales justice system. By filling in the evaluation form today and becoming a member of COAT (NSW), you will be able to make your first contribution to that process.

Thank you.