ADMINISTRATIVE REVIEW COUNCIL
REPORT TO THE ATTORNEY-GENERAL
CONSTITUTION OF THE ADMINISTRATIVE APPEALS TRIBUNAL
Report No. 29
Australian Government Publishing Service Canberra 1987 © Commonwealth of Australia 1987
ISBN 0 644 06772 1
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ii ADMINISTRATIVE REVIEW COUNCIL
G.P.O Box 9955 Canberra, A.C.T. 2601
10 September 1987
Dear Attorney-General,
Report on the constitution of the AAT
I have pleasure in submitting to you a report by the Administrative Review Council on the constitution of the AAT. A summary of the Council’s reasoning and recommendations is attached to the front of the report.
I should draw your attention to the fact that the bulk of the report was prepared without the contribution of a President of the AAT. While the former President, the Hon. Justice Davies, was a member of the Council during its early deliberations on the project, the later, formative round of consultations took place after his resignation as President. The text of the report and the recommendations effectively were finalised before the new President, the Hon. Justice Hartigan, was appointed. While Justice Hartigan in fact was a member of the Council when the Council gave final approval to the report, he took no part in the deliberations on it. No doubt he will wish to convey his views to you on the Council’s recommendations at some later stage.
Yours sincerely,
(Dr) C. A. Saunders Chairman
The Hon. Lionel Bowen, M.P. Attorney-General Parliament House, Canberra ACT 2600
iii The members of the Administrative Review Council at the date of the Council’s adoption of this report were:
Dr C. A. Saunders (Chairman) The Hon. Mr Justice T. R. Hartigan Mr G. K. Kolts, OBE, QC The Hon. Xavier Connor, A.O., QC Mr P. Brazil Mr J. H. P. Disney Mr P. J. Flood Mr W. E. Impey Mr J. F. Muir
The members of the committee responsible for overseeing the constitution of the AAT project at the date of the Council’s adoption of this report were:
Dr C. A. Saunders (Chair) Mr P. Brazil Mr J. H. P. Disney Mr G. K. Kolts, OBE, QC Mr J. F. Muir
The Council expresses its gratitude to its secretariat for the assistance given by it in preparing this report and in particular to the Director of Research (Mr Denis O’Brien) and Project Officer (Ms Bronwyn McNaughton) who had responsibility for this project.
iv CONTENTS
Paragraph Page Summary vii
List of recommendations ix
Introduction 1 1
Chapter 1: The Administrative Appeals Tribunal in concept and Practice 3 Concept of the AAT 11 3 Current organisation of the AAT 22 5 Membership 22 5 Divisions 25 5 Constituting the Tribunal for hearings 26 6 Development of informal arrangements as a guide in allocating members 34 7
Chapter 2: Single member or multi-member hearings 8 Submissions put to the Council concerning constitution of Tribunal for hearings 47 10 Discretion of President 56 12 Content of principles and guidelines relating to the exercise of the President’s discretion 64 13 Bolstering provision of expertise or experience in hearings 67 15 Use or greater use of expert witnesses 69 16
Chapter 3: Divisions of the AAT 18 Arguments in favour of divisions 80 18 Arguments against divisions 83 19 Submissions put to the Council concerning divisions 87 20 Options concerning divisions 90 21 Option 1-restructuring of present divisional arrangement 91 21 Option 2-abolition of divisions 97 22
Chapter 4: Rules in Acts other than AAT Act concerning constitution of the AAT 25 Introduction 106 25 Special AAT constitution rules 112 26 (a) Three presidential members who are judges of the Federal Court of Australia 112 26 (b) Presidential member who is a judge of the Federal Court of Australia 115 27 (c) Presidential member who is a judge of the Federal Court and 2 non- presidential members who have special knowledge or skill in relation to insurance/life insurance business and who are not directors/employees of bodies carrying on insurance/life insurance business 127 29
v Paragraph Page (d) Presidential member alone 137 31 (e) Three presidential members or a presidential member alone 146 33 (f) Presidential member and 2 non-presidential members, at least 1 of whom is an eligible employee members, at least 1 of whom is an eligible employee or pensioner and at least 1 of whom is a senior non- presidential member 151 35 Tribunal to include a person of special knowledge or skill in relation to environmental matters 153 35 Conclusion concerning legislative rules governing AAT Constitution 158 36
Chapter 5: Improvement in Tribunal operations 38 Enhancing role of ordinary members 162 38 Publication of information 168 39
Appendix 1: Persons and organisations who made written submissions to the Council 41
Appendix 2: Persons who attended public meetings 42
Appendix 3: Members of the Administrative Appeals Tribunal as at 30 June 1987 44
vi SUMMARY
This report on the constitution of the Administrative Appeals Tribunal deals with 5 principal matters, namely: the number of members appropriate for constituting the Tribunal for particular cases; the appropriate expertise and experience of members of the Tribunal in determining particular cases; the divisional structure of the Tribunal; rules in legislation apart from the Administrative Appeals Tribunal Act which specify the way the Tribunal is to be constituted to hear cases arising under that legislation; the manner in which the effectiveness of the contribution of all members to the work of the Tribunal may be enhanced.
The underlying concern of the report is to enhance the efficiency and effectiveness of the AAT. In the Council’s view, one of the impediments to efficiency and effectiveness is the Tribunal’s divisional structure, which is costly to operate and limits the Tribunal’s flexibility in disposing of its workload. Divisions cannot, however, be abolished without a tightening of the Tribunal’s constitution to ensure that appropriate expertise or experience is brought to bear within the Tribunal for the hearing of cases.
The question for examination therefore is how the AAT’s constitution might be tightened consistently with ensuring that the President of the AAT retains broad flexibility in determining its constitution for particular cases. A critical consideration in determining how the Tribunal should be constituted is, in the Council’s view, the concept of the AAT as a tribunal capable of bringing a range of experience or perspectives to the task of review. Having regard to this concept, the Council identifies in the report various factors which go to the question of the appropriate expertise or experience of members to constitute the Tribunal in particular cases and to the closely related issue of review by 3 members as against review by a single member. The Council does not, however, consider that the factors ought to be set down in legislation. Instead, it recommends that the AAT Act give formal recognition to the discretion of the President to constitute the Tribunal for hearings with 1 or 3 members, but that, because the exercise of the discretion is so important for government and community confidence in the AAT, the President ought to publish guidelines relating to its exercise from time to time. The Council accordingly recommends an amendment of the AAT Act to require publication of the guidelines. Their formulation will give the President a considerable degree of flexibility, yet will provide a framework of principle for the exercise of the discretion which will enhance government and community confidence in the Tribunal’s constitution.
Having regard to the concept of the AAT, the Council recommends that the President, in formulating guidelines, take into account that the Tribunal should commonly be constituted by 3 members, although there are a number of circumstances in which the use of only 1 member will be appropriate. A minority of the Council considers that the President should take into account that the Tribunal should continue to be constituted by 3 members or 1 member whichever the President considers appropriate. The report then sets out various factors which, in the Council’s view, indicate when either 3 members or 1 member will be appropriate. The specification of those factors is based on views expressed in the consultations which the Council conducted in preparing the report.
vii If appropriate guidelines relating to the constitution of the AAT are published and if, as the Council also recommends, the AAT Act is amended to require the President, when constituting the Tribunal for the purposes of a particular proceeding, to have regard to the expertise or experience that is appropriate for a proper consideration and determination of the application for review, the justification for a divisional structure for the AAT disappears. Accordingly, the Council recommends abolition of divisions. Similarly, it recommends that the rules presently to be found in several Acts other than the AAT Act concerning the constitution of the AAT be repealed.
The recommendations made by the Council are directed at ensuring that the AAT is effectively constituted for the hearing of matters which come before it. That object will not, however, be achieved unless all members, including the non-legal members, contribute appropriately to the operations of the Tribunal. Accordingly, in order to improve the operation of the AAT and to maximise the utilisation of its resources, the Council recommends that further information and advice be provided to all members about the aims and the conducting of preliminary conferences and hearings and that steps be taken to ensure the greater involvement of all members, including the non- legal members, in the operations of the Tribunal.
The publication by the President of guidelines relating to the exercise of his discretion in constituting the Tribunal will go some of the way towards ensuring community and government confidence in its constitution for particular cases. But, if divisions of the Tribunal are abolished, applicants and agencies may require more specific assurance about the manner in which the Tribunal is constituted in particular jurisdictions. To meet this need, the Council recommends that the AAT publish annually specific information concerning the allocation of members to hearings in particular jurisdictions. That information could be included either in the chapter on the AAT in the Council’s annual report or in a separate annual report published by the Tribunal. The Council takes the view that it would now be appropriate for the AAT to publish an annual report of its own and recommends accordingly.
viii RECOMMENDATIONS
Recommendation 1: Constitution of the Tribunal for hearings (paras 56-63) Section 21(1) of the AAT Act should be repealed and replaced with a provision along the following lines: (1) The President may, in his discretion, constitute the Tribunal for hearings with 1 or 3 members. (2) The President shall, from time to time, publish principles and guidelines, not inconsistent with the Act, relating to the exercise of his discretion to constitute the Tribunal for hearings.
Recommendation 2: Matters to be taken into account by President in formulation of principles and guidelines (paras 64-6) In formulating principles and guidelines under section 21 of the AAT Act relating to the exercise of the President’s discretion to constitute the Tribunal for hearings, the President should take into account the following matters: (a) that the Tribunal should commonly be constituted by 3 members, although there are a number of circumstances in which the use of only 1 member will be appropriate;** (b) that the following factors should generally be weighed in favour of a multi-member tribunal (which will usually consist of 1 lawyer and 2 non-legal members, but will sometimes include more than 1 lawyer): the decision under appeal involved the personal judgment of a Minister; the decision under appeal was taken at the most senior level in the public service; the decision under appeal was made by a multi-member body; the decision under appeal involves commercial interests of considerable value; the appeal involves consideration of ‘jury’ questions such as the personal circumstances of an applicant in an income maintenance area; the appeal involves issues in which conflicting views have been expressed in previous decisions of the AAT; the appeal involves a question of public importance; the appeal involves a question of law of general significance; the appeal involves issues which call for particular expertise or for a wide range of experience and perspectives such as non-legal members can supply; the appeal is in a new jurisdiction or raises a novel issue in an old jurisdiction; the parties have indicated at a preliminary conference that they would prefer a multi-member tribunal;
(c) that the following factors may indicate that the Tribunal should consist of a single member (who will usually be a lawyer): the appeal is one in which the facts are not in dispute and the only contest is on questions of law; the appeal involves only simple questions of fact and the application of settled law; the parties have indicated at a preliminary conference that they would prefer a single member tribunal; the issues involved in the appeal are not such that the spectrum of expertise or experience obtainable from a 3 member tribunal would substantially assist in their adjudication; there is a legally qualified member available who has multi-disciplinary experience and expertise equivalent to that of available non-legal members; the appeal is urgent and any unavoidable delay in assembling a multi-member tribunal would nullify the purpose of the appeal or would otherwise be unacceptable;
* A minority of the Council disagreed with this paragraph of the recommendation and considered that it should be as follows: (a) that the Tribunal should continue to be constituted by 3 members or 1 member whichever the President considers appropriate;
ix the delay likely to be occasioned by the assembly of a multi-member tribunal or its adjourned sittings or reserved decisions would place an undue financial burden on the applicant; a hearing by 3 members would involve substantial expense or substantial delay affecting any of the parties and a hearing by 1 member would not cause detriment to any of the parties.
Recommendation 3: Appointment and utilisation of persons with appropriate expertise and experience (paras 67-8) The AAT Act should be amended to provide: (a) that a matter to which the President shall have regard in constituting the Tribunal for the purposes of a particular proceeding is, in addition to the matters presently set out in section 20(3) of the AAT Act, the expertise or experience that is appropriate for a proper consideration and determination of the application for review; and (b) that, in the appointment to the Tribunal of presidential and non-presidential Members, regard shall be had to the requirements imposed on the President in relation to the constitution of the Tribunal.
Recommendation 4: Structure of the AAT (paras 90-105) (1) The AAT should not be organised on a divisional basis and no further divisions should be established. (2) If the Veterans’ Appeals Division and Taxation Appeals Division are retained, there should be a greater overlap between the membership of those divisions and the general membership of the Tribunal.
Recommendation 5: Rules in Acts other than AAT Act governing the constitution of the AAT (paras 158-61) The following rules governing the constitution of the AAT should be repealed: Commonwealth Electoral Act 1918, s.141(6) Broadcasting Act 1942, s.119A(3) Roads and Public Places Ordinance 1937, s.15G(2) Sale of Motor Vehicles Ordinance 1977, s.57(2) Insurance Act 1973, s.63(10), (11), (12) Life Insurance Act 1945, s.138(11), (12), (13) Migration Act 1958, s.66E(4) Narcotic Drugs Act 1967, s.14A(2) Freedom of Information Act 1982, s.58B(2) Archives Act 1983, s.46(2) Superannuation Act 1976, s,154(7) Wildlife Protection (Regulation of Imports and Exports) Act 1982, s.80(2).
x Recommendation 6: Enhancing contribution of ordinary members (paras 162-7) The President should give consideration to the following matters with a view to improving the operation of the AAT and maximising the utilisation of its resources: the provision of information and advice to all members about the conducting of preliminary conferences and hearings; the manner in which all members might be more fully involved in the operations of the Tribunal.
Recommendation 7: Publication of information (paras 168-72) (1) In addition to other information published by the AAT, there should be published annually- (a) where the President has drawn up a list of the members who are ordinarily allocated to hearings in particular jurisdictions-the list of those members; (b) lists of the members who have constituted the Tribunal in each of its jurisdictions during the preceding 12 months which show the numbers of times each of those members has sat in those jurisdictions; and (c) statistics which show for each major jurisdiction the percentage of hearings in which the Tribunal was constituted by 3 persons,
(2) The AAT should publish an annual report which includes the information referred to in (1).
xi INTRODUCTION
1. One of the functions of the Administrative Review Council is to make recommendations to the Attorney-General about the manner in which tribunals engaged in the review of administrative decisions should be constituted (Administrative Appeals Tribunal Act 1975, s.51(1)(e)). This report is made in accordance with that function.
2. The original purpose of the project was to advise the government on the desirability of a formal divisional structure for the Administrative Appeals Tribunal (‘AAT’) in the light both of the creation of the Veterans’ Appeals and Taxation Appeals Divisions of the AAT and of the existence of other legislative prescriptions of the constitution of the Tribunal in particular classes of cases. The Council was concerned about the possible inefficiencies in the management of the Tribunal caused by these restrictions on its composition. It was also concerned at the discriminatory nature of the present active divisional structure.
3. The principal purpose of a divisional structure is to ensure that the Tribunal is appropriately constituted for particular classes of cases. The question of divisions therefore cannot be dealt with in isolation from other aspects of the constitution of the Tribunal, particularly those which are directed to the same end, namely: the number of members who constitute the Tribunal for particular cases; the qualifications of members who constitute the Tribunal for particular cases; the effectiveness of the contribution of all members to the work of the Tribunal; the way in which decisions to constitute the Tribunal for particular cases are made.
4. This report approaches the question of the constitution of the AAT from the standpoint of the underlying concept and objectives of the Tribunal-what has it been established to do? Approaching the question from that standpoint is likely, in the Council’s view, to assist in the resolution of questions concerning its constitution.
5. It should be noted that the report deals with the constitution of the AAT for the purposes of formal hearings. The available figures show disparities as between jurisdictions in the percentage of cases which go to a full hearing, but overall the figure appears to be approximately 30% of all applications to the Tribunal. The Council understands that that proportion is likely to be less following the recommendations of the Task Force on Review of AAT Procedure. The cases which go to a formal hearing are likely to be the most difficult cases.
6. There is no doubt that the rapid expansion of the size and range of AAT jurisdiction in the 11 years since the Tribunal was established has brought pressure to bear on the manner in which it is constituted. It is therefore timely, in the Council’s view, that there now be an examination of the Tribunal’s constitution and of the legislative framework and administrative practices which bear on the issue. The Council’s project also is conducted against the background of measures taken by government to improve the efficiency and effectiveness of, and to reduce costs in, the public sector as a whole. The Council believes that the recommendations made in this report are recommendations which will enhance the effectiveness of the AAT in its hearings and in the conducting of preliminary conferences, and lead to economies in its operations.
1 7. The consultations undertaken by the Council in preparing this report were undertaken in 2 phases. First, the Council consulted all the agencies and bodies which it could identify as having an interest in various special rules concerning the constitution of the AAT which are to be found in legislation apart from the AAT Act. Those special rules are fully described in chapter 4 of this report. The names of the persons or bodies who accepted the Council’s invitation to comment on the rules are included in the list set out in appendix 1. The second consultative phase involved a series of public meetings on the constitution of the AAT which the Council conducted. In the lead up to those meetings the Council’s Secretariat prepared and circulated an issues paper and a briefer discussion paper. The issues paper explored in depth many of the issues concerning the constitution of the Tribunal, while the discussion paper was intended primarily as a framework for the discussions at the public meetings.
8. The first and largest, public meeting was held at the Australian National University on Friday 3 July 1987. The views of government departments, in particular, were well represented at this meeting. The second public meeting was held in Melbourne on Monday 6 July 1987 and the third public meeting was held in Sydney on Thursday 9 July 1987. At the latter meetings, private practitioners and representatives of classes of persons who are commonly applicants before the Tribunal were more fully represented. A range of members of the Tribunal attended all 3 meetings. The names of those who attended the meetings are set out in appendix 2.
9. Further written submissions were made to the Council by various individuals and groups during the public meeting phase of the Council’s consultations. The names of those individuals and groups are included in the list in appendix 1.
10. The Council has benefited greatly from the written submissions made to it and from the submissions and views expressed orally at the public meetings. We thank very much all those who wrote to us or who gave their time to attend the meetings and express their views.
2 CHAPTER 1 THE ADMINISTRATIVE APPEALS TRIBUNAL IN CONCEPT AND PRACTICE
Concept of the AAT 11. In concept the AAT is a general appeals tribunal capable of reviewing on their merits decisions taken under Commonwealth legislation by decision makers of almost any status. Before the AAT came into being the legislation of the Commonwealth Parliament had established over the years a considerable number of review tribunals, each limited to a particular area of decision making. There were, for example, Taxation Boards of Review to conduct review on the merits in the taxation area, the Commonwealth Employees Compensation Tribunal to review compensation determinations and, in the repatriation area, War Pensions Entitlement Appeals Tribunals and Assessment Appeal Tribunals. These tribunals had not, however, developed in a coordinated fashion. A fundamental purpose of the creation of the AAT was to centralise the review functions being performed by these tribunals in a single body, with a view both to providing effective, independent and visible review of all appropriate decisions and to ensuring consistency of review standards across all jurisdictions.
12. Also fundamental to the creation of the AAT was the notion that discretionary powers under existing and new legislation should be examined to determine whether there should be provision for appeals to the AAT against decisions made in the exercise of those powers. Underlying this notion was the fact that, at the time the AAT was created, the availability of external review on the merits was patchy. There was, as a result, potential for some inequity in the system of government.
13. The concept of the AAT was entirely novel. A general appeals tribunal such as the AAT had not been set up in any comparable English-speaking country, and the only jurisdiction to have since attempted anything like it is Victoria. Indeed, in the United Kingdom, although a plethora of specialist tribunals operate in very many areas of government activity, the emphasis particularly in recent years has been very much on judicial review of administrative action, so much so that a recent book reviewer in the United Kingdom has commented: If the stock exchange traded in administrative law, the advice would be to sell ombudsmen, tribunals and inquiries and buy judicial review. ([1987] Public Law 130)
It may not be drawing too long a bow to comment that one of the reasons for the emphasis in the United Kingdom on review by the courts is the absence of a general appeals tribunal operating across the range of government activity.
14. Tribunal review tends to exhibit fundamental differences from review by the courts. The Franks Committee in the United Kingdom in its 1957 report (Report of the Committee on Administrative Tribunals and Enquiries) made the point that tribunals are not ordinary courts, nor are they appendages of government departments. The Committee said that tribunals should properly be regarded as machinery provided by the Parliament for adjudication rather than as part of the machinery for administration. Thus, like the courts, they are independent of the administration. The advantage that they are intended to have over the courts, however, is that they are capable of providing simpler, speedier, cheaper and more accessible justice than do the ordinary courts. And, of course, they provide what the courts are unable to provide under judicial review, namely, a review of decisions on their merits.
15. A further distinguishing feature of tribunal review is that tribunals will often have special expertise in the subject matter with which they are dealing. This special expertise is provided through the involvement in the review process of both lawyers and persons with non-legal qualifications. This may be important both from the standpoint of the quality of the tribunal’s decisions and for the
3 confidence of users (government agencies and private individuals) in the review process. It may also contribute towards a more participatory and accountable system of government.
16. A problem with tribunal review on the other hand is that it tends to be characterised by a lack of unifying structure, unlike review by the courts where more or less uniform standards apply. The lack of unifying structure associated with tribunals and the lack of overall coordination of their rationale have caused much criticism over the years. The criticism was the principal reason for the enquiry of the Franks Committee referred to above.
17. In the Australian reforms of the whole area of administrative law in the 1970s the AAT was created in the tribunal, not the judicial, mould. It was, moreover, set up as a general review tribunal as a means of overcoming the criticism of lack of unifying structure which had plagued review by specialist tribunals.
18. The Bland Committee on Administrative Discretions, which examined the work of the Kerr Committee (the Commonwealth Administrative Review Committee), recommended against a proliferation of specialist tribunals and in favour of establishing a Valuation and Compensation Tribunal, a Medical Appeals Tribunal and a General Administrative Tribunal (para. 130). It was envisaged that the General Administrative Tribunal would sit in divisions (para. 133) and that members making up a division would be chosen for their knowledge, expertise and experience in the subject matter and issues that would come before the division (para. 143). The thinking of the Bland Committee was carried through when the AAT was created although, instead of the 3 tribunals recommended by the Committee, a single tribunal was created with a divisional structure corresponding with the 3 jurisdictional areas of the tribunals proposed by the Committee.
19. The divisional structure contemplated by the AAT Act as originally enacted-a General Administrative Division, a Medical Appeals Division and a Valuation and Compensation Division-has not in fact operated. Until the recent creation of the Veterans’ Appeals and Taxation Appeals Divisions, the one operative division was the General Administrative Division.
20. The above analysis of the concept of the AAT demonstrates that the achievement of the objects of the AAT depends greatly on its constitution, both generally and for individual cases. Thus: If the AAT is to assume the jurisdiction of specialist tribunals and to improve the quality of the review offered by specialist tribunals, it must have members with appropriate qualifications, at least in some jurisdictions. The use of such specialist members must not, however, detract from the expected advantages of the AAT as a general appeals tribunal. If the AAT is to provide high quality review on the merits, which involves decisions on questions of law as well as questions of fact and judgment, its composition must include legal as well as non-legal members. If the AAT is to deal with appeals from a hierarchy of decision makers, including Ministers, it may be necessary for the AAT to have a range of members with different status.
Any diminution in these qualities of the AAT could impede its ability to fulfil the role for which it was established and could detract from the benefits which it was designed to bring.
21. The notion of the appropriate qualifications of members to constitute the Tribunal requires further elaboration. What is appropriate may depend on the substance of the decision under review or the circumstances of the particular case. Thus: a lawyer is likely to be needed for cases which raise questions of law; in these and other cases a particular skill or qualification may be required (eg, doctor, actuary, social worker); in yet other cases a sound knowledge of the framework of the legislative scheme in question may be required (eg, customs, taxation);
4 in other cases again a more generalised knowledge and experience may be necessary to bring different perspectives to bear (eg, where the decision. under review requires assessment of the public interest).
For convenience, these somewhat different qualifications are described in this report as ‘expertise or experience’. The rules which govern the composition of the Tribunal must be sufficiently flexible to encompass all of them.
Current organisation of AAT Membership 22. As will be seen from the discussion in this section, the AAT Act does not at present focus on this aspect of the composition of the Tribunal. In practice, however, the difficult balance in the composition of the AAT so far has been accomplished by developing a hierarchy of AAT members, appointing members with non-legal expertise in many of its larger jurisdictions and sitting 3 member tribunals wherever practicable to enable several different perspectives to be given on the decision under review.
23. The membership of the AAT consists of the President, who is a judge of the Federal Court of Australia, and other members. The other members may be judges or experienced legal practitioners, or persons who have special knowledge or skill (eg in industry, commerce, public administration, the practice of a profession, or in relation to any class of matters that might come before the Tribunal) relevant to the duties of a member. The members other than the President may be deputy presidents, senior members or ordinary members, are appointed by the Governor-General, and may have full-time or part-time appointments. Most of the ordinary members have been appointed on a part-time basis.
24. Deputy presidents are required by the AAT Act to be legal practitioners of at least 5 years standing (s.7(1A)). Senior members are required to be legal practitioners of at least 5 years standing or to have special knowledge or skill relevant to the duties of senior members (s.7(1B)). Until the recent appointment as senior members of the former chairmen and members of the Taxation Boards of Review, all senior members of the AAT were in fact legally qualified.
Divisions 25. As was mentioned in paragraph 19 above, there are now 3 operative divisions of the AAT. Section 19 of the AAT Act requires the Tribunal to exercise the powers conferred on it in divisions. In appointing a non-presidential member (ie a senior member or an ordinary member), the Governor- General is required to assign the member to a particular division or divisions and may, with the consent of the member, vary the assignment (s.19(3)). A non-presidential member exercises, or participates in the exercise of, the powers of the AAT only in the division or divisions to which the member is assigned. Appendix 3 lists the membership of the AAT as at 30 June 1987 and shows the divisions to which the non-presidential members have been assigned.
Constituting the Tribunal for hearings 26. The AAT Act regulates the power of the President (or his delegate) to constitute the AAT in 2 ways. First, section 20(3) requires the President to have regard to the degree of public importance or complexity of a matter and the status of the position or office held by the decision maker whose decision will be under review.
27. The manner in which the President allocates judges or deputy presidents to hear particular matters is relevant to the exercise of this power. The immediate past President of the AAT advised the Chief Judge of the Federal Court that in allocating judges to constitute the Tribunal he would have regard to the following circumstances: legislative prescriptions which specify that a judge is to sit; whether the decision to be reviewed was made by a Minister and involved matters of political sensibility or the exercise of the Minister’s own personal judgment;
5 whether the decision was a significant one taken at the most senior level in the public service; whether the decision was taken by a board or tribunal of high standing; whether the subject matter of the dispute involves a commercial interest of value, such as in a state might be dealt with by a Supreme Court; whether the case involves an unusually complex or sensitive question of law or fact; and whether the case involves an issue in which conflicting views have been expressed in previous decisions of the AAT or in which there is doubt as to the validity of the views which the AAT has followed.
28. Naturally the question of resources has a bearing upon the operation of section 20(3). Increasingly, as judges have become unavailable for work on the Tribunal due to pressure of other work, these guidelines have not always been able to be followed. In recent years judicial presidential members (apart from the President) have sat infrequently on the Tribunal.
29. With the appointment of a larger number of deputy presidents, it has been possible to assign deputy presidents to review most of the decisions taken by Ministers or secretaries of departments. Deputy presidents are allocated to the more complex or difficult cases but will also sit in routine matters if it is convenient for them to do so. In some of the smaller states, deputy presidents sit in all jurisdictions.
30. In brief, if a case is known to be difficult or complex or otherwise to require particular attention, judges or deputy presidents may be specially allocated to sit. Otherwise, cases will be set down before available non-presidential members.
31. The second general provision in the AAT Act regulating the President’s power to constitute the Tribunal is section 21. That section sets out various combinations of members by which the Tribunal might be constituted, by reference to status. It provides that, subject to any other rules concerning the AAT’s constitution, the Tribunal shall, for the exercise of its powers, be constituted by-
6 a presidential member who is a judge and 2 other members (not being judges); a deputy president and 2 non-presidential members; a presidential member alone; 3 non-presidential members of whom at least one is a senior member; or a non-presidential member alone.
32. Some other sections of the AAT Act also have a bearing on the question of the constitution of the AAT. Section 25(6) provides that an enactment which enables applications to be made to the AAT may place certain restrictions on the manner in which the AAT may be constituted in order to exercise its power in relation to such applications. Enactments containing such rules are discussed in detail in chapter 4.
33. The President is empowered to give directions as to the arrangement of the business of the Tribunal and as to the persons who are to constitute the Tribunal for the purposes of particular proceedings (s.20(1)). The President is also empowered to delegate to a member all or any of his powers under the AAT Act, other than the power of delegation itself (s.10A(1)). Deputy presidents in each of the states have been delegated the listing functions for those states. They confer regularly with the President, especially when matters of particular importance are involved.
Development of informal arrangements as a guide in allocating members 34. Informal arrangements have developed within the AAT in order to guide the President and his delegates in constituting the Tribunal for each particular hearing. Until the establishment of the Veterans’ Appeals and later the Taxation Appeals Divisions, it had been the practice to assign all non- presidential members of the AAT to the General Administrative Division. However, within the General Administrative Division, it has become customary for particular members to be listed for particular kinds of matters because of their expertise, experience and capabilities. Thus, albeit in an informal way, de facto work units have come into existence within the General Administrative Division. These work units cover the following areas: freedom of information; commercial matters; customs and export grants; aviation; superannuation and defence force retirement and death benefits; compensation; rates; social security; postal matters; home savings grants and the tertiary education assistance scheme; tax agents; and deportation. Many members of the General Administrative Division hear and determine matters in more than one of these areas.
7 CHAPTER 2 SINGLE MEMBER OR MULTI-MEMBER HEARINGS.
35. It was seen in chapter 1 that the concept of the AAT as a general appeals tribunal capable of providing for appeals from as many types of administrative decisions as possible requires the appointment to the AAT of both members with legal qualifications and members with special expertise or experience in the matters which come before the Tribunal. Appointments have in fact been made-on that basis. The concept of the AAT also suggests that, where an application proceeds to a hearing (approximately 30% of all cases), it may be necessary or desirable for 3 members to sit to enable the relevant different perspectives to be obtained on the decision under review. This chapter discusses the considerations involved in constituting the Tribunal with 1 or more members.
36. Presently the AAT is sometimes constituted by 3 members and is sometimes constituted by 1 member.
37. Various factors may guide the President or his delegate in constituting the Tribunal with 3 persons. Acts other than the AAT Act may specify the number of persons to constitute the Tribunal in any particular case (see chapter 4). As described earlier, section 20 (3) of the AAT Act requires the President or his delegate to- take into account the complexity of a matter and the status of the decision maker. The nature or subject matter of many cases will also influence the President’s decision.
38. After examining this aspect of the Tribunal’s operations, however, the Council has formed the view that decisions to constitute the Tribunal with 3 members or with 1 member are not consistently based on these considerations alone. They are influenced as well by the immediate availability of resources necessary to convene the Tribunal with 3 members, organise 3 sets of papers and await the extra time for reasons for a decision to be settled by 3 members. Perhaps urgency or the necessity to convene a hearing in a place outside the capital cities may lead the President or his delegate to convene a 1 person tribunal. Or perhaps, as in the AAT’s recently acquired tax jurisdiction, the necessity for a large number of appeals to be dealt with may lead to a 1 person tribunal being convened in many of the cases.
39. Statistics furnished to the Council by the AAT for the purposes of the annual reports of the Council reveal that over the 9 years from the beginning of 1977-78 until the end of 1985-86 the average number of 3 member tribunals as a percentage of the total number of tribunals has been approximately 40%, although the annual percentages have fluctuated from 16% to 65%. The figures for 1986-87 are not available because problems with the computer facilities used by the AAT mean that the information for 1986-87 is not reliable. Factors that have contributed to the fluctuations have included acquisitions of significant new jurisdictions from time to time during the early years of the Tribunal’s operations and shortages of ordinary members from time to time.
40. The lowest percentages of 3 member hearings occurred in 1981-82 and 1982-83. Concern at the low percentages in these years led the then President of the AAT to seek to ensure that 3 members sat whenever appropriate. As a result, the numbers of 3 member cases since then have moved back to the sort of levels that existed throughout the early years of the Tribunal’s operations.
41. In the consultations conducted by the Council during the preparation of this report, a presiding member of the AAT explained that many of the 1 member hearings, in Victoria at least, are a result of the present AAT case listing system. Under that system it has been found desirable, particularly in the large jurisdictions of social security and veterans’ affairs, to multiple list cases for a particular day. This is done in order to allow the processing of greater numbers of cases and in the knowledge that many cases will not proceed to a hearing. However, when cases do not fall out of the list and on a particular day a greater than expected number are required to be heard, there is often a rearrangement
8 of the allocation of Tribunal members for the hearings, with perhaps-a deputy president, sitting alone, hearing one of the cases. Given the present listing system, it is obviously preferable for this to happen than to adjourn cases which are ready to proceed.
42. The above consideration of practice in the Tribunal concerning 3 member or 1 member hearings reveals that the Tribunal has been operating under a certain amount of difficulty in following a consistent approach. Workload increases and shortages of ordinary members from time to time have played a part in what has happened. In the Council’s view, it is highly desirable that there be a greater degree of regularity and predicability about this aspect of the constitution of the Tribunal.
43. The general question whether it is desirable for the Tribunal to be constituted by 1 or 3 persons is a vexed one which to date has not featured to a significant extent in the literature concerning administrative review. The Council, in its Report No. 21, The Structure and Form of Social Security Appeals, para. 122, considered whether the Social Security Appeals Tribunal which it recommended as a first tier review body should be constituted by multi-member panels (as the Social Security Appeals Tribunals currently are) or should be constituted by a single member. The Council said that the ‘attractions of a single person panel at the first tier of review lie in the greater expedition in decision making and the savings in costs that are likely to be achieved’. The Council was led to conclude, however, that the SSAT should be constituted by multi-member panels. This conclusion was reinforced by submissions which the Council had received indicating that public confidence in the SSATs was enhanced by their multi-member constitution and that social security appellants had a diversity of needs at the lower level of appeal which were unlikely to be satisfied by single person panels.
44. The question of multi-member as against single member panels which arose in Report No. 21 arose again in connection with the Council’s project on review of migration decisions. In its Report No. 25, Review of Migration Decisions, the Council recommended that the first tier migration review body be constituted by a single member on the basis of cost and speed. The Council further recommended that an appeal should lie to the AAT, in most cases by leave, which ordinarily should be constituted by 3 members. The issues involved in a decision to constitute a review body with 1 or 3 members are canvassed in detail in an opinion of Mr Julian Disney in the report in which he dissented from the Council’s view on the constitution of the first tier review body.
45. The following general matters favour multi-member hearings by the AAT (which could be hearings by 1 lawyer and 2 non-legal members or hearings by more than 1 lawyer): Multi-member hearings enable a range of experience or perspectives to be brought to the task of review consistently with the tribunal concept. In consequence they increase the prospect of well- informed and balanced decision making which will attract broadly-based agency and community confidence. Historically the AAT replaced a number of specialist review tribunals, most of which were multi- member bodies. Collegial decision making may be of particular benefit in cases where it is necessary to assess the character or credit of a party or witness or where an exercise of discretion or an interpretation of disputed fact or law is involved. There is no appeal within the AAT from a single member tribunal to a multi-member tribunal, and there is no appeal from the AAT to the Federal Court except on questions of law. The constitution of the AAT with 3 members who have appropriate expertise or experience may reduce the need for the establishment of specialist tribunals, thus avoiding their additional costs. The desirability of multi-member hearings is enhanced by the likelihood that a single member tribunal is likely to be constituted by a lawyer, although the Council accepts that this will not necessarily be so in all cases. If it were to occur in significant numbers of cases, it could detract from the informality and simplicity of the review. It would also detract from the ability of the
9 Tribunal to reflect non-legal points of view and to bring values other than legal values to the task of adjudication.1
46. The principal arguments against the constitution of the AAT with more than 1 member are based on the additional costs and propensity for delay involved in multi-member hearings. Additional costs lie predominantly in the sitting fees paid to the members, the provision of papers for the hearing and in some cases in travelling expenses, although it should be borne in mind that these costs represent only a small proportion of the overall costs of the Tribunal. Delay may arise if there are problems in assembling 3 members for a hearing. Furthermore, the assembling of 3 members for a particular case may reduce the availability of members to hear other cases in the list. Delay may also arise where a case is adjourned and the commitments of members make it difficult to find a suitable day for the Tribunal to reconvene. The delivery of judgments is also likely to be greater delayed in a 3 member hearing than in a single member hearing.
Submissions put to the Council concerning constitution of Tribunal for hearings 47. A range of views was put to the Council at its public meetings on the effectiveness of the constitution of the AAT by 3 members in improving the quality of review. The views are outlined below.
48. One widely held view that emerged was that, where matters of fact and of evidence were involved in a case before the AAT, the constitution of the Tribunal with 3 members was better as it enabled the Tribunal to arrive at a more correct assessment of the facts. Another view that emerged was that the constitution of the Tribunal with a single legal member was sometimes satisfactory in cases which essentially involved solely matters of legal interpretation. There was support for the view in both oral and written submissions to the Council that in the freedom of information area, in particular, 1 member with legal qualifications was frequently sufficient. On the other hand, a view was also put that in the freedom of information area where public interest questions were in issue, a broad range of community perspectives on the Tribunal was desirable.
1 A somewhat similar point is made in Report on Independent Administrative Agencies-Framework for Decision Making (Report No. 28, Law Reform Commission of Canada, March 1985) in the context of a brief discussion of the role of courts in the development of administrative procedure (p.50): Much judicial interpretation tends to be biased towards what are sometimes called ‘lawyers’ values’ . . . Yet, these are not the sole values against which administrative procedures must be assessed . . . Ours is a society with limited resources. What lawyers see as fairness may have a cost which society as a whole is not prepared to bear. The increased risk of judicialization of the administrative process must always be kept in mind . .
10 49. A further view that was put to the Council is that the constitution of the Tribunal with 3 members is helpful when a new jurisdiction is given to it or when a new issue for determination arises before it but that, after the Tribunal has had the experience of determining the first cases, subsequent cases may not require the same level of Tribunal resources and may be heard effectively by 1 member.
50. Of the private legal practitioners who put views to the Council, some, but not all, expressed the view that there was no need for ordinary members of the Tribunal to sit with a presiding member in a large number of cases. Those who made this point often argued that the ordinary members made no discernible contribution either during the hearing or to the reasons for decision. For example, the submission of the Law Council of Australia said: As to efficiency and better decision making by the Tribunal, it is conceded that there may be cases which would benefit from members sitting with a presidential or senior member, but it is submitted that those cases are a distinct minority. The general perception amongst members of the profession is that the second and third members of any tribunal are rarely necessary and appear to contribute little.
51. On the other hand, the Law Society of New South Wales stated in its submission that ‘the Society fully recognises and supports the important role which non-legal members play on the Tribunal’ and endorsed the Council’s suggestion that the Act should be amended to require the President to have regard to appropriate expertise and experience in constituting the Tribunal for hearings.
52. The Council probed these views in its consultations. It was told by both the legally qualified and non-legally qualified members of the AAT that in general the ordinary members do make an important contribution to Tribunal hearings. These members explained that in their experience a case is discussed during adjournments by the members hearing it, that reasons for decisions are also discussed amongst them and that, although the presiding member may draft the reasons, the other members will not put their names to them unless they are satisfied with them. One presiding member observed that the knowledge that the reasons for decision had been considered by a group of people with different perspectives gave the presiding member greater confidence that correct decisions had been reached. The suggestion was also made that the parties may be more inclined to accept an adverse decision on review where the decision was the decision of 3 members rather than the decision of a single member. The Council was also told that a helpful way of training members in the conducting of preliminary conferences was to have them participate in the hearing of cases as part of a tribunal of 3.
53. Another view that was put strongly to the Council was that there were some areas of the AAT’s work where the expertise or experience of non-legal members of the Tribunal was vital. Life and general insurance, social security, veterans’ affairs and taxation, amongst others, were particularly mentioned in this regard. The view was put that in these areas not only did the non-legal members have a contribution to make to the particular decision, but their presence also engendered confidence amongst the particular Tribunal user groups that in cases arising in the areas concerned the Tribunal would have understanding of the particular milieu of the applicant or would have the technical knowledge relevant to decision making in the area.
54. A further, somewhat different, view expressed was that 3 members of the Tribunal were desirable in instances where 1 of the 3 was formerly an officer in the department or agency where the decision under review was made. In these instances, 3 members were seen to be desirable so that the Tribunal would be perceived to have independence from the departmental or agency view. On the other hand, there were cases where a Tribunal member with experience in the relevant department or agency was very useful.
55. Views in favour of 3 member hearings as a general rule were also expressed in situations where the AAT was the second tier of review and where review at the first tier was by a 3 member
11 body (veterans’ affairs, social security). It was suggested that applicants may feel dissatisfied if 3 members of a Social Security Appeals Tribunal or a Veterans’ Review Board were to find in their favour at the first tier but if the AAT constituted by 1 member was to find against them. It was further suggested that sometimes departments and agencies may also be happier if their decisions were reviewed by 3 members, rather than 1.
Discretion of President 56. An overriding view expressed in oral and written submissions to the Council was that it was essential that the President or his delegates be left with a degree of flexibility as to the constitution of the Tribunal with 1 or 3 members.
57. The Council agrees with this view. It follows that the AAT Act should not be amended to prescribe the way in which the Tribunal is constituted in particular cases or particular classes of cases. In the Council’s view, it is desirable for the President to have a broad discretion in this regard, both to enable the diverse needs of the existing jurisdictions of the Tribunal to be met fairly, effectively and economically, and to enable practices to be adapted in the light of experience and changing circumstances. This view is consistent with the advice of the Council to the government about the constitution of the AAT for the review of migration decisions. Report No. 25 (para. 261) states that: The Council considers that it would ordinarily be desirable for the Tribunal to be constituted in its migration jurisdiction by a presidential or senior member and 2 other members of the AAT, but it does not wish to see a requirement of that kind formally laid down in legislation.
58. On the other hand, the Council notes that the issue is one which is fundamental to the purpose which the Tribunal is designed to serve. Further, the questions of whether the Tribunal is constituted by 3 members or by 1 member, and of what the qualifications of members should be, are critical for the consideration later in this report of the desirability of a divisional structure for the Tribunal or of legislative prescriptions for the constitution of the Tribunal in particular jurisdictions.
59. In this regard, the Council notes that the present section 21 of the AAT Act does not make express provision for the President to constitute the Tribunal with 1 or 3 members. Section 21(1) describes instead the particular combinations of members by which the Tribunal is required to be constituted, by reference to status. The Council considers that the section should be amended to clarify and simplify the discretion of the President to constitute a single or multi-member Tribunal. As the question whether the Tribunal should be constituted with more than 1 member arises only in the context of hearings, the Council considers that the discretion should be expressed to apply only to the hearing stage of the Tribunal process.
60. The Council also recognises, however, the importance of government and community confidence in the constitution of the Tribunal, especially where no divisional structure exists. Such confidence would be enhanced if the President’s discretion were structured in a suitable way. By ‘structuring’ the Council means the specification of principles and criteria relevant to the exercise of the discretionary power so that its exercise is not open-ended and without guidance. Structuring of the President’s discretion would be aimed at achieving a degree of predicability in and understanding of the way in which the discretion is exercised, if that could be done without unduly impairing the discretion itself.
61. One option would be for the AAT Act to structure the discretion. The Council concluded, however, that this would be impracticable, in view of the wide range of considerations relevant to the constitution of the Tribunal in particular cases and of the need for the President to have flexibility to respond to changing circumstances.
62. A further option would be for the Act to require the President to publish guidelines relating to the exercise of the discretion from time to time. The Council considers that this would be the most
12 satisfactory approach. It would give the President a degree of flexibility, yet would provide a framework of principle for the exercise of the discretion. Publication of the guidelines could be in the form of a practice note by the President.
63. The amendment of section 21(1) proposed by the Council would require consequential amendments to be made to section 21A and may require amendments to be made to section 22(1) to provide for the President to give a direction as to the presiding member in the event of a case arising where it was considered necessary to constitute the Tribunal with more than 1 deputy president or judge.
Recommendation 1: Constitution of the Tribunal for hearings Section 21(1) of the AAT Act should be repealed and replaced with a provision along the following lines: (1) The President may, in his discretion, constitute the Tribunal for hearings with 1 or 3 members. (2) The President shall, from time to time, publish principles and guidelines, not inconsistent with the Act, relating to the exercise of his discretion to constitute the Tribunal for hearings.
Content of principles and guidelines relating to the exercise of the President’s discretion 64. For the reasons given earlier, the Council considers that there are advantages to be gained from a general understanding of and debate on the framework within which the principles and guidelines relating to the exercise of the President’s discretion are likely to be set out. The Council believes that, as a result of the consultations it has conducted and of its deliberations in the course of this project, it is in a position to advise on those principles and guidelines. In doing so it is concerned not to fetter the discretion of the President but to assist in its exercise.
65. The general matters which in principle favour multi-member or single member tribunals have been set out above. In the Council’s view they suggest that the AAT should commonly be constituted with 3 members. In these cases it is to be expected that at least 1 member will be legally qualified and that at least 1 other member will have non-legal expertise or experience in the relevant area. Particular factors which generally are to be weighed in favour of a multi-member tribunal include the following: The decision under appeal involved the personal judgment of a Minister. The decision under appeal was taken at the most senior level in the public service. The decision under appeal was made by, a multi-member body. The decision under appeal involves commercial interests of considerable value. The appeal involves consideration of ‘jury’ questions such as the personal circumstances of an applicant in an income maintenance area. The appeal involves issues in which conflicting views have been expressed in previous decisions of the AAT. The appeal involves a question of public importance. The appeal involves a question of law of general significance. The appeal involves issues which call for particular expertise or for a wide range of experience and perspectives such as non-legal members can supply. The appeal is in a new jurisdiction or raises a novel issue in an old jurisdiction. The parties have indicated at a preliminary conference that they would prefer a multi-member tribunal.
66. The Council also notes, however, that there may be many cases in which it is appropriate and desirable for the AAT to be constituted by a single member, who will normally be legally qualified. The proportion of single member to multi-member cases is likely to vary over time, in accordance
13 with changes in the work of the Tribunal between and within jurisdictions. Particular factors which generally are to be weighed in favour of a single member tribunal include the following: The appeal is one in which the facts are not in dispute and the only contest is on questions of law. The appeal involves only simple questions of fact and the application of settled law. The parties have indicated at a preliminary conference that they would prefer a single member tribunal. The issues involved in the appeal are not such that the spectrum of expertise or experience obtainable from a 3 member tribunal would substantially assist in their adjudication. There is a legally qualified member available who has multi-disciplinary experience and expertise equivalent to that of available non-legal members. The appeal is urgent and any unavoidable delay in assembling a multi-member tribunal would nullify the purpose of the appeal or would otherwise be unacceptable. The delay likely to be occasioned by the assembly of a multi-member tribunal or its adjourned sittings or reserved decisions would place an undue financial burden on the applicant. A hearing by 3 members would involve substantial expense, or substantial delay affecting any of the parties and a hearing by 1 member would not cause detriment to any of the parties.
Recommendation 2: Matters to be taken into account by President in formulation of principles and guidelines In formulating principles and guidelines under section 21 of the AAT Act. relating to the exercise of the President’s discretion to constitute the Tribunal for hearings, the President should take into account the following matters: (a) that the Tribunal should commonly be constituted by 3 members, although there are a number of circumstances in which the use of only 1 member will be appropriate;* (b) that the following factors should generally be weighed in favour of a multi-member tribunal (which will usually consist of 1 lawyer and 2 non-legal members, but will sometimes include more than 1 lawyer/: the decision under appeal involved the personal judgment of a Minister; the decision under appeal was taken at the most senior level in the public service; the decision under appeal was made by a multi-member body; the decision under appeal involves commercial interests of considerable value; the appeal involves consideration of ‘jury’ questions such as the personal circumstances of an applicant in an income maintenance area; the appeal involves issues in which conflicting views have been expressed in previous decisions of the AAT; the appeal involves a question of public importance; the appeal involves a question of law of general significance; the appeal involves issues which call for particular expertise or for a wide range of experience and perspectives such as non-legal members can supply; the appeal is in a new jurisdiction or raises a novel issue in an old jurisdiction; the parties have indicated at a preliminary conference that they would prefer a multi- member tribunal; (c) that the following factors may indicate that the Tribunal should consist of a single member (who will usually be a lawyer): the appeal is one in which the facts are not in dispute and the only contest is on questions of law; the appeal involves only simple questions of fact and the application of settled law; the parties have indicated at a preliminary conference that they would prefer a single member tribunal; the issues involved in the appeal are not such that the spectrum of expertise or experience obtainable from a 3 member tribunal would substantially assist in their adjudication;
* "A minority of the Council disagreed with this paragraph of the recommendation and considered that it should be as follows: ‘(a) that the Tribunal should continue to be constituted by 3 members or 1 member whichever the President considers appropriate;’.
14 there is a legally qualified member available who has multi-disciplinary experience and expertise equivalent to that of available non-legal members; the appeal is urgent and any unavoidable delay in assembling a multi-member tribunal would nullify the purpose of the appeal or would otherwise be unacceptable; the delay likely to be occasioned by the assembly of a multi-member tribunal or its adjourned sittings or reserved decisions would place an undue financial burden on the applicant; a hearing by 3 members would involve substantial expense or substantial delay affecting any of the parties and a hearing by 1 member would not cause detriment to any of the parties.
Bolstering provision of expertise or experience in hearings 67. It was mentioned in paragraph 26 that section 20(3) of the AAT Act currently requires the President, in giving a direction as to the persons who are to constitute the Tribunal for the purposes of a proceeding, to have regard to the degree of public importance or complexity of the matters to which the proceeding relates and to the status of the decision maker. The section does not require the President to have regard to the expertise or experience that is appropriate for determining the matters concerned. In the Council’s view, it should do so. An amendment which required the President to turn his mind to the question of the expertise or experience appropriate for the proper determination of a matter by the Tribunal would help to guarantee that relevant expertise or experience was brought to bear.
68. If an amendment of section 20(3) of the AAT Act along these lines were to be made, it would be necessary to ensure that the President had a pool of members with appropriate expertise or experience from which the Tribunal could be constituted for the determination of matters over the broad range of its jurisdiction. Appointments to the Tribunal in the past have of course been made having regard to the particular requirements of jurisdictional areas. However, if section 20(3) were to be amended as suggested above, the Council considers that amendments to section 7(1A), (16) and (2) of the AAT Act, which presently sets out the requirements for appointment of deputy presidents, senior members and ordinary members, would be appropriate. Those amendments would require that in the appointment of members to the Tribunal, regard be had to the obligation imposed on the President to take into account appropriate expertise or experience when constituting the Tribunal.
Recommendation 3: Appointment and utilisation of persons with appropriate expertise and experience The AAT Act should be amended to provide: (a) that a matter to which the President shall have regard in constituting the Tribunal for the purposes of a particular proceeding is, in addition to the matters presently set out in section 20 (3) of the AAT Act, the expertise or experience that is appropriate for a proper consideration and determination of the application for review; and (b) that, in the appointment to the Tribunal of presidential and non-presidential members, regard shall be had to the requirements imposed on the President in relation to the constitution of the Tribunal.
Use or greater use of expert witnesses 69. In the course of the Council’s consultations, the possibility was raised of a greater use of expert witnesses or advisers by the AAT. It was argued that this would enable the Tribunal to be constituted more often with a single member, while retaining for the Tribunal access to the necessary degree of expertise.
70. The Council notes that section 33(1)(c) of the AAT Act provides that the AAT is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks fit. Thus it is open to the AAT to consult with experts beyond those called by the parties. If the AAT itself were to call expert witnesses during the course of a hearing, the expert evidence would be a matter of record
15 and subject to cross-examination by the parties. Alternatively, the AAT could have a pool of experts available to be called upon when a question within their area of expertise arose.
71. An associated point made to the Council by 1 or 2 people in the course of its consultations concerned the role of non-legal members on the Tribunal. It was suggested that the influence on decisions of specialised knowledge of non-legal members might in fact be unfair, because the parties had no opportunity to cross-examine and thus test the views of such members. In some cases the views of the non-legal members might not be known to the parties at all. It was suggested that for these reasons the use of expert witnesses by the Tribunal might be preferable.
72. There would, however, be certain problems associated with the introduction of independent expert witnesses into review by the AAT. It would be difficult for the Tribunal to choose an expert in this sense who would not be perceived to favour 1 side or the other. Further, experts would need to be paid at an appropriate rate and would not necessarily be on call to the Tribunal; the cost and delay associated with their use would be likely to be significant.
73. Most importantly, expert witnesses of this kind would be unlikely to provide an adequate substitute for non-legal members of the Tribunal. In the Council’s view, the argument misconceives the nature of the qualifications and the role of general members. The concept of experience and expertise as applied to general members of the Tribunal is described above (para. 21). It covers a broad range of qualities, but would be most unlikely to encompass detailed specialist knowledge of the matters in issue in a particular case comparable to that expected of an expert witness. The role of Tribunal members rather is to bring the perspective and general understanding of the discipline or background from which they are drawn to the decision making processes of the Tribunal.
74. For this reason the Council makes no recommendation at this time regarding the greater use of either expert witnesses or advisers by the AAT as a means of bolstering the expertise or experience brought to bear on a matter for determination. The present evidence does not establish to the Council’s satisfaction that the use of expert witnesses or advisers would provide a useful means of contributing to the expertise of the Tribunal.
75. Two further observations about the role of non-legal Tribunal members may, however, be appropriate at this stage. First, this report is based on the assumption that the Tribunal is constituted and conducts its affairs in accordance with basic principles of fairness and natural justice. Accordingly, the Council regards it as axiomatic that the President would not constitute the Tribunal with members known to be biased in the subject matter of the decision under review. It assumes also that the Tribunal will not make decisions on the basis of views which in fairness should have been made known to the parties and able to be tested by them.
76. Secondly, in the Council’s view, this perceived problem may stem from the observations recorded earlier that non-legal members frequently make no active, public contribution during the course of a hearing. In the Council’s view it would be desirable for the non-legal members to be more actively involved in the course of the hearing where appropriate, not only to dispel misconceptions about their role but also to ensure that maximum benefit is derived from their participation in the proceedings. The Council accepts that the Tribunal must tread a delicate line between intervention and preserving both its independence and perceived independence from the parties. It takes the view that nevertheless there may be room for change in the Tribunal’s practices and procedures in this regard. This matter is taken up again in chapter 5.
16 CHAPTER 3 DIVISIONS OF THE AAT
77. Section 19(1) of the AAT Act provides that the AAT is to exercise the powers conferred on it in divisions. The Act sets up 4 divisions of the AAT: a General Administrative Division, a Medical Appeals Division, a Valuation and Compensation Division and a Taxation Appeals Division (following the enactment of the Taxation Boards of Review (Transfer of Jurisdiction) Act 1986), with provision for the prescription of other divisions (s.19(2)). The Veterans’ Appeals Division was established by regulations under the AAT Act (SR 1984, No. 383).
78. As was mentioned in chapter 1, non-presidential members, unlike presidential members, are required to be assigned to a particular division. There have in fact been no appointments to the Medical Appeals Division or the Valuation and Compensation Division. Consequently, those divisions are not operative. Before the establishment of a Veterans’ Appeals Division, all non- presidential members were appointed to the General Administrative Division which exercised all jurisdictions conferred on the AAT. Accordingly, subject to any specific legislative provisions restricting the power to constitute the AAT for particular proceedings, all presidential and non- presidential members were in principle available to hear appeals in any of the AAT’s jurisdictions.
79. In the case of appointments to the Veterans’ Appeals Division and the Taxation Appeals Division, consultation with a group or person having a particular interest in the matters dealt with in the division is required. In relation to the Veterans’ Appeals Division, the Minister for Veterans’ Affairs gave an undertaking during his second reading speech on the Repatriation Legislation Amendment Bill 1984 (Senate, Hansard, 29 May 1984, p.2052) that the government would consult with veterans’ organisations in relation to appointments. In relation to the Taxation Appeals Division, the AAT Act provides that members shall not be assigned to the division unless the Attorney-General has consulted with the Treasurer in relation to that assignment (s.19(3A)). Thus the present divisional arrangement of the AAT may be seen as primarily a method of providing for ministerial consultation in connection with appointments to the AAT and ensuring that persons thus appointed constitute the Tribunal for the purpose of relevant cases.
Arguments in favour of divisions 80. Perhaps the strongest argument which has been made in favour of a divisional structure for the AAT is that it provides for specialisation within the AAT and allows for the development of expertise within divisions as a consequence of some degree of specialisation. This view accepts that the availability of expertise encourages sound decision making and assumes that it can best be achieved through a divisional structure. It assumes also that there is a greater likelihood of consistency in decision making amongst members of the Tribunal sitting in a specialist division.
81. These advantages are said in turn to enhance government and community confidence in and acceptance of the AAT as the decision making body. Litigants are entitled to expect that the decision making body to which they bring their cases is constituted by persons who, because of their expertise or experience in the particular area, will deal properly with their cases. Likewise the government must have confidence that cases will be heard and determined by persons with the appropriate expertise or experience. A divisional structure may be seen as a means of ensuring that these kinds of expectations are met, as well as providing a degree of predicability for the members of the Tribunal as to the matters they are likely to be called upon to determine.
82. Another perceived advantage of a divisional structure for the AAT is that it provides an open means of organisation-in other words, the range of persons who may be called on to hear matters in the divisional area are known. It is argued that the absence of a formal divisional structure would not
17 mean that the Tribunal would not in practice operate on a ‘divisional’ basis because it would be inevitable that some sort of informal arrangements for constituting the Tribunal for particular hearings would develop. The difference would be that the basis on which the Tribunal was constituted for cases in particular jurisdictions would not be publicly known.
Arguments against divisions 83. The argument that expertise is fostered through divisions could be said to be open to question when one considers the appointments which have been made to the Veterans’ Appeals and Taxation Appeals Divisions. In the Veterans’ Appeals Division, appointments have been made of persons with service experience but not necessarily with particular knowledge or skill relevant to the work of that division. Furthermore, in the case of doctors appointed to that division, the medical problems that arise tend to be the ordinary kinds of medical problems with which those doctors are familiar. They are also, however, the types of medical problems which could arise in other jurisdictions and with which those doctors could competently deal if called on to do so. So far as taxation matters are concerned, increasingly members of the General Administrative Division are being appointed also to the Taxation Appeals Division, apparently in recognition that special skill in taxation matters is not always required.
84. A divisional structure limits the flexibility of the AAT, particularly in view of its geographical dispersion, having bases in all capital cities but from time to time being required to conduct hearings in country centres. It may limit flexibility if a member in one area is unable to hear all matters arising in that area because the member is not part of the division within which a particular matter is to be determined. Particular problems arise if matters are required to be heard in a location other than that in which members of the appropriate division are based, as it is both costly and disruptive for members to have to travel continuously in order to conduct hearings. One obvious solution would be to base in each centre, say each capital city, personnel sufficient to deal with all local matters in whatever division they may arise, but this would increase costs very substantially and some members could have little or no work in their particular divisions.
85. Although a divisional structure may promote consistency in decision making within a division, it will also tend to isolate some areas of the Tribunal’s work from other areas and may therefore contribute to a lack of coherency of reasoning across divisions. For example, the concept of ‘incapacity for work’ occurs in many areas-veterans’ appeals, social security, superannuation, Commonwealth employees’ compensation, defence force retirement and death benefits-which are not presently all heard in the same divisions. Similarly, provisions relating to the assets test are applied in social security cases which are heard in the General Administrative Division, and precisely the same provisions relating to veterans’ pensions are dealt with in cases heard in the Veterans’ Appeals Division. Thus matters involving the same concept are being determined concurrently in different divisions by different members. This must endanger the process of developing a consistent body of principle.
86. The major argument in favour of divisions is that they allow for the development of expertise within the Tribunal. In one sense, however, a divisional structure might actively hinder the development of expertise. It was drawn to the Council’s attention in its consultations that expertise can be fostered among Tribunal members with no previous expertise in particular jurisdictions by including them on tribunals to hear appropriate cases with other experienced members. In the Council’s view this practice represents wise management of the human resources available to the Tribunal and is to be encouraged. The practice may, however, be difficult to implement if a rigid divisional structure prevented the ready movement of members between jurisdictions.
Submissions put to the Council concerning divisions 87. The overwhelming tenor of submissions to the Council, both oral and written, was to the effect that a divisional organisation is unnecessary and inappropriate. The Council also received some
18 submissions in favour of a divisional structure, however. Both the RSL and the Australian Taxation Office (ATO) strongly opposed any suggestion that the Veterans’ Appeals Division or the Taxation Appeals Division, respectively, be abolished. Each felt that a special expertise was necessary to hear the matters currently heard within those divisions. The RSL based its claim on empathy: ‘ . . . . the nature of injuries . . . . requires a knowledge and understanding of the circumstances in which the injuries were received and a knowledge of the mental, emotional and physical anguish and consequences of the receipt of those injuries . . . . .’, whereas the ATO based its claim for retention of the Taxation Appeals Division on the qualifications and experience of the primary decision makers, the high volume of the jurisdiction, the complexity of the facts and law of many cases and the need for secrecy. Mr Justice Purvis, in his submission, favoured a divisional arrangement such as the one presently in operation. He maintained that this arrangement could assist in attracting persons with specific expertise to the Tribunal.
88. The Public Interest Advocacy Centre (PIAC), while making a submission in favour of a divisional arrangement, suggested a broad divisional structure, based on groups of jurisdictions, such as a General Appeals Division, a Social Welfare Division (incorporating, for example, social security, immigration, veterans’ affairs and Commonwealth employees’ compensation) and a Commercial Division (incorporating, for example, tax, customs and other commercial matters) with cross- membership of divisions. PIAC expressed the view that this kind of broad divisional structure would strike the necessary balance between facilitating the development of areas of speciality and expertise and consequently enhancing public confidence in and acceptance of AAT decisions, and the lack of flexibility, over-specialisation of function and potential lack of uniformity in reasoning across divisions that accompany the present structure. The multi-jurisdictional nature of the divisions would minimise the dangers of over-specialisation, lack of flexibility and .development of conflicting authorities on similar issues in different jurisdictions that is presently a problem because there would be a similarity of content in the types of issues raised in each of the jurisdictions grouped within a division - for example, medical questions are likely to be central to both invalid pension and workers’ compensation appeals. This type of division, PIAC submitted, would also allow for the efficient placement of members with specialist expertise.
89. The Law Council of Australia submitted that the present divisional structure of the Tribunal owes more to history and perceived interests than to a policy having as its object the promotion of high quality and efficient decision making at relatively low cost. The Law Council drew attention to the original concept of the Tribunal as a single administrative review body and suggested that, if there were to be divisions, the general rule should be that each person appointed should be appointed to all divisions. The result, it said, would be to diminish specialisation and increase the consistency of decision making while retaining separate lists of members with the requisite expertise for the conduct of the Tribunal’s business. Such a scheme was also seen as having the benefit of flexibility as each member would sit in as many of the divisions as practicable, and there would be a discretion in the President to allocate an expert Tribunal member to a hearing where the preliminary conference demonstrated that need.
Options concerning divisions 90. The Council agrees with the majority of views put to it that the present divisional structure of the AAT is unlikely to promote high quality decision making across the range of the Tribunal’s jurisdictions and is likely to limit unduly the Tribunal’s flexibility and to increase costs. Furthermore, the present divisional arrangement under which taxation matters and veterans’ appeals are determined in their own special divisions with all other matters being determined in a general division creates a lack of balance in the Tribunal. The options that the Council has considered are – option 1- to restructure divisions within the AAT; option 2- to abolish the divisional structure.
Both of the options are considered in turn.
19 Option 1 - restructuring of present divisional arrangement
91. Arrangement of the AAT on a divisional basis involves consideration and determination of the kinds of divisions that are appropriate. Divisions may be based on jurisdictions, such as tax, social welfare, freedom of information, veterans’ affairs, etc, or they could be set up on a non-jurisdictional basis with reference to the issues likely to be relevant to particular kinds of applications for review-for example, medico-legal matters. Neither type of division can be considered ideal, however, because many matters do not fall squarely within the boundaries of particular divisions of either type but nevertheless would have to be determined within such divisions.
92. Two of the 3 original divisions of the AAT were expertise-based-the Medical Appeals Division and the Valuation and Compensation Division. Specific expertise thus appears to have been a concern when the AAT was being established, although these divisions have never become operative. The experience of a decade has emphasised that this kind of divisionalisation can be unduly restrictive and inappropriate for the range of matters now coming before the AAT.
93. Consideration of a Medical Appeals Division illustrates the problems associated with a ‘non- jurisdictional’ or expertise-based division. A Medical Appeals Division might be equipped to handle many applications concerning superannuation, aviation and invalid and service pensions. However, some applications which raised questions of a medical nature would nevertheless stand or fall upon concepts unique to the enactments pursuant to which they were brought to the AAT and somewhat removed from the medical sphere. Medical practitioners are able to make a useful contribution to the work of the AAT, but the totality of matters coming before the AAT will usually require for their resolution other disciplines and experience in conjunction with medical expertise. For example, in aviation cases involving medical issues, it would often make sense to be able to assign to the matter both an experienced pilot and a medical practitioner, but that is not to say that medical practitioners experienced in aviation medicine should not sit in other cases involving medico-legal problems, or that the experienced pilot might not have other expertise useful to the Tribunal. Likewise, a Valuation and Compensation Division may be thought useful for valuation cases, but not all valuation cases need be heard by a tribunal which includes a valuer, and valuation problems also arise in other areas of the AAT’s jurisdiction (eg in social security appeals concerning the application of the assets test). In insurance cases, actuarial expertise may be necessary, but it may also be necessary in other types of cases. In the social welfare area where the task has been to assess the annual rate of a pensioner’s income, and in other cases such as taxation, accounting members are useful, but their experience can also be useful in any area where figures need to be analysed.
94. Divisions based on jurisdictions have also been shown to have limitations. For example, in proceedings before the Veterans’ Appeals Division, an issue that may arise is whether the veteran’s incapacity is of such a nature as to render the veteran incapable of undertaking remunerative work. This is not an issue with respect to which members of that division are likely to have particular expertise, although other members of the AAT are well experienced in this field.
95. To some extent the present arrangements under which presidential members may sit in all divisions tends to reduce the lack of contact between the various areas of the Tribunal’s operations. A further step which could be taken would be the expansion of the membership of divisions of the Tribunal, so that there was a large degree of overlap among the members assigned to particular divisions. If this step were accompanied by the establishment of divisions for all high volume jurisdictions, so as to mirror for applicants in social security or migration cases, for example, the treatment of applicants in the taxation and veterans’ affairs areas, there would undoubtedly be greater rationalisation of the present divisional structure. The Council considers that expansion of the present membership of divisions of the Tribunal would bring benefits. There might be the danger, however, inherent in the present divisional arrangement in the AAT, of interest groups seeking to influence appointments to particular divisions. Furthermore there might be a perception that the Tribunal would be likely to bring to bear greater expertise or experience in determining a matter that fell within a division devoted to matters of that kind than it would bring to bear in determining a matter that fell
20 within a generic or catch all division. The rationale for divisions would, in any event, tend to disappear if memberships of the divisions were largely overlapping.
96. A further option for restructuring divisions would be a restructuring along the lines suggested in the PIAC submission. However, while such a restructuring would avoid some of the present problems, it would not entirely eliminate isolation of some areas of the Tribunal’s work from other areas. For example, a doctor may be useful in a customs classification matter regarding the importation of articles claimed to have medicinal qualities. Yet, even on a broad break-up of divisions along the lines proposed by PIAC, it would be unlikely that a doctor would be appointed to a commercial division in which customs classification matters would fall. Nor could broadly structured divisions entirely eliminate the problems referred to above (para. 84) arising from the geographical dispersion of the Tribunal’s work.
Option 2 - abolition of divisions
97. The Council considers that the potential for economies and for consistent decision making across the range of Commonwealth administration which the existence of a general appeals body brings warrant preservation of the general appeals character of the AAT, as recommended by the Commonwealth Administrative Review Committee (‘the Kerr Committee’, P.P. 144/1971). Moreover the Council is of the view that a Tribunal membership with broadly based experience that crosses the extant divisional boundaries will benefit administrative review in general.
98. It has also been the case that the existence of divisions has meant that attention tends not to be directed to other appointments to the Tribunal in areas where special expertise or experience is either required (eg in environmental matters pursuant to the Wildlife (Regulation of Exports and Imports) Act 1982, s.80) or would be appropriate (eg in customs classifications).
99. After consideration of the arguments for and against divisions, therefore, the Council concludes that the AAT should not be organised on a formal divisional basis and recommends accordingly. It considers that the AAT should continue to have appointed to it persons with special expertise or experience appropriate to the matters coming before it but that members ought not to be assigned to divisions and should be available to sit on all kinds of matters, irrespective of jurisdictions, in which their particular expertise or experience is appropriate. Implementation of recommendations 1, 2 and 3 would ensure that members with various kinds of expertise were increasingly assigned to various kinds of matters. Thus, areas of expertise within the AAT generally would continue to be fostered. Litigants and the government should have their reasonable expectations met that the Tribunal would deal properly with their cases and that appropriate expertise and experience are brought to bear in each of the Tribunal’s jurisdictions. The expectation of members as to the matters that they would be called upon to determine should also be met. Implementation of the recommendations would assist in providing an assurance to members that their special expertise and experience would be recognised in the allocation of the Tribunal’s workload, and that there would be opportunities for them to develop general expertise in the workings of the Tribunal. A non-divisional structure would maximise the flexibility of the AAT from the perspective of the President or his delegate in the task of drawing up hearing lists. Moreover, it would avoid the cost and limitations which result from the present inability to use existing expertise and experience to its fullest advantage.
100. The Council’s recommendations, by ensuring that appropriate regard is had to the expertise and experience of members both in their appointment to the Tribunal and in constituting the Tribunal to hear particular matters, aim to put the appointment and deployment of all members on the same basis. The implementation of the recommendations should result in a spread of relevant expertise and experience across all levels of the AAT and should put all the AAT’s jurisdictions, large or small, on the same footing.
101. The Council’s previous statement that, in the event of the Australian Capital Territory attaining self-government, it saw merit in the proposal that an A.C.T. Division of the AAT be created
21 to deal with matters arising under A.C.T. legislation is not inconsistent with this view. The creation of an A.C.T. Division was seen as being appropriate to the particular circumstances of A.C.T. government as it would be unlikely that an A.C.T. administration would move quickly to the establishment of its own review tribunal and an identifiable structure would need to continue to provide review on the merits under A.C.T. legislation. This is a matter to which the Council would wish to give further consideration at the appropriate time.
102. The Council’s recommendation that the AAT not be organised on a divisional basis would require the amendment of section 19 of the AAT Act. Repeal of section 19 would result in the abolition of the Veterans’ Appeals Division and Taxation Appeals Division. The Council is of the view that current members of those divisions could more usefully be deployed within a non-divisional structure as they would then be available to sit on matters to which their expertise was relevant but which currently are outside their particular division. Similarly, some members of the General Administrative Division could make useful contributions to matters now heard exclusively within the Taxation Appeals or Veterans’ Appeals Divisions. The Medical Appeals Division and Valuation and Compensation Division would also be abolished. The Council believes that the fact that these divisions have never been activated is indicative of the fact that they have not been found to be and are not useful to the operation of the AAT.
103. The recommendation for the abolition of divisions must be seen as coupled with the recommendations made in chapter 5 about publication by the Tribunal of relevant information. If the basis on which the Tribunal is constituted were not to be made public, those responsible for drawing up hearing lists might be open to criticism. The arrangements proposed by the Council in this report to replace the present system of divisionalisation, however, would also provide an open means of organisation that would similarly assist in deflecting criticism because it would be amenable to public scrutiny, in particular as a result of the publication requirements recommended by the Council (see recommendation 7). While the Council’s recommendations give to the President a discretion to be exercised in constituting the Tribunal, the periodic publication of lists of members who customarily hear certain kinds of matters and statistics covering the operation of the Tribunal during a certain period would ensure accountability for the constitution of the Tribunal and an openness in the arrangement of its business.
104. While the Council is of the opinion that all existing divisions of the AAT should be abolished, it recognises that undertakings were made by Ministers in the setting up of these divisions, and that, as a consequence, the government may not now wish to proceed with their abolition. The operation of these divisions indicates to the Council that a divisional structure is not fruitful for the AAT, that it increases the costs of operating the Tribunal and that it complicates the management of human resources within the Tribunal. However, if the government decides to retain the present divisions, the Council considers that their detrimental effects may be mitigated by a membership which overlaps, to a greater extent than at present, with the general membership of the Tribunal.
105. The resources implications of the Council’s recommendation that the AAT should not be organised on a divisional basis include a better use of part-time members as they will be able to be deployed more generally across the Tribunal’s jurisdiction depending on their experience and expertise. In general there could be expected to be an improved efficiency in the allocation of members to hearings because of their greater availability, not being restricted to a narrow divisional range of matters. If it is considered desirable that consultation occur in relation to the appointment of Tribunal members, then there is no reason why the absence of a divisional structure should preclude such consultation.
Recommendation 4: Divisional structure of the AAT (1) The AAT should not be organised on a divisional basis and no further divisions should be established.
22 (2) If the Veterans’ Appeals Division and Taxation Appeals Division are retained, then there should be a greater overlap of the membership of those divisions and the general membership of the Tribunal.
23 CHAPTER 4 RULES I N ACTS OTHER THAN AAT ACT CONCERNING CONSTITUTION OF THE AAT
Introduction 106. Section 25(6) of the AAT Act provides that where an enactment provides for applications to be made to the AAT, it may, amongst other things, modify the effect of certain of the usual provisions of the AAT Act governing the constitution of the Tribunal when exercising power in relation to those enactments. In several enactments providing for review by the AAT such modifications have been made. This chapter examines those enactments which specify that the Tribunal is to be constituted in a particular way in order to hear certain kinds of matters and examines the effect of those rules on the general operation of the AAT. In the chapter reference is made to comments on the provisions concerned made by certain persons or bodies with a particular interest in the provisions who accepted the Council’s invitation to comment.
107. Some of the rules discussed below relate to the constitution of the Tribunal by presidential members. As the discussion in this chapter indicates, the requirements relating to presidential members are often most unclear because of the effect that certain amendments made by Statute Law Amendment Acts have had. It is as well to explain the difficulty at the outset.
108. In the AAT Act as originally enacted ‘presidential member’ meant the President or a Deputy President. The Act also provided that a person would not be appointed as a presidential member unless the person was either a judge or a legal practitioner of at least 5 years’ standing. In fact, prior to 1982, only judges had been appointed as deputy presidents. But in 1982 it was decided to appoint non-judicial presidential members. The Statute Law (Miscellaneous Amendments) Act (No. 1) 1982 facilitated the appointment of non-judges as deputy presidents by reserving certain powers to presidential members who were judges. The Act altered section 6 of the AAT Act to provide that a judge who was appointed to the AAT would be appointed as a presidential member, and inserted a new definition of ‘presidential member’: ‘presidential member’ means the President, a member who is a judge or a Deputy President.
Section 40 (1) of the Act made transitional provision in relation to existing constitution requirements concerning presidential members. It provided as follows: Subject to sub-section (2), where a provision of an enactment, being a provision that is in force at the commencement of this Part, requires the Tribunal, for the purpose of the exercise of its powers in relation to any matter, to be constituted by, or to include, a presidential member, a reference in that provision to a presidential member, in relation to the constitution of the Tribunal for that purpose, has effect after that commencement as if it were a reference to a presidential member of the Tribunal who is a Judge of the Federal Court of Australia.
Section 40 (2) inter alia saved the AAT Act (other than a provision of Schedule 1 to that Act) from the effect of section 40(1).
24 109. Following the coming into force of the Miscellaneous Amendments Act, the Council in its Report No. 19, Rights of review under the Migration Act 1958 and related legislation-interim report on the constitution of the Administrative Appeals Tribunal, recommended that the AAT in its criminal deportation jurisdiction should be able to be constituted by any presidential member. Subsequently the Statute Law (Miscellaneous Provisions) Act (No.2) 1983 amended section 40 (2) of the Statute Law (Miscellaneous Amendments) Act (No. 1) 1982 to exclude deportation matters from the general rule set out in section 40(1) of the 1982 Act.
110. The result, in the Council’s view, is wholly unsatisfactory. The Council believes that the AAT Act, as the primary piece of legislation regulating the AAT, should be able to be read and accepted, on its face, with reference to other enactments being necessary only as expressly provided for in the AAT Act itself-for example, for grants of jurisdiction (s.25(1)) and certain modifications to the provisions of the AAT Act in relation thereto (s.25(6)). Section 40 of the Miscellaneous Amendments Act has the effect of presenting a bewildering array of interacting provisions to the would-be interpreter of legislation which requires the AAT to be constituted by a presidential member. He or she needs to examine whether the provision concerned was in force on 4 June 1982 and whether it is affected by section 40(2) of the Statute Law (Miscellaneous Amendments) Act (No. 1) 1982, as amended by the Statute Law (Miscellaneous Provisions) Act (No. 2) 1983, in order to determine whether ‘presidential member’ has the same meaning as it currently has in the AAT Act or whether it means a presidential member who is a judge. It is unsatisfactory for ‘hidden’ amendments affecting the AAT Act to be contained in transitional provisions of Statute Law (Miscellaneous Amendments) Acts.
111. The remainder of this chapter discusses the various AAT constitution rules appearing in Acts other than the AAT Act.
Special AAT constitution rules (a) Three presidential members who are judges of the Federal Court of Australia
Commonwealth Electoral Act 1918 (s.141) 112. Section 141(5) of the Commonwealth Electoral Act 1918 provides that application may be made to the AAT for review of certain decisions made by the Australian Electoral Commission. These include decisions to register or to refuse an application for registration of a political party, to grant or to refuse an application from a registered political party to change the register, to re-register a political party, and reviews by the Commission of such decisions made by a delegate of the Commission. Section 141(6) provides that, in order to hear such appeals, the AAT be constituted by 3 presidential members who are judges of the Federal Court of Australia.
113. The Chairman of the Australian Electoral Commission is a Federal Court judge of not less than 3 years’ standing. The other members of the Commission are the Electoral Commissioner and 1 other person with permanent head status. The Deputy Electoral Commissioner has advised the Council that in view of the status of the Chairman, it was thought inappropriate that a decision taken by the Commission might be overturned by 1 judge on appeal to the AAT. Accordingly, the special provision was made whereby the Tribunal was to be constituted by 3 Federal Court judges on these occasions. The Deputy Electoral Commissioner has also advised that he is of the opinion that the justification for this special provision remains. There have to date been no appeals to the AAT pursuant to section 141 of the Commonwealth Electoral Act.
114. The Council believes that, given the jurisdiction conferred on the AAT by section 141 of the Commonwealth Electoral Act, it is appropriate that the AAT be constituted by 3 Federal Court judges when exercising that jurisdiction because the chairman of the body from which the appeal is brought is a judge. It is furthermore understandable that the Parliament may want to ensure that, if there is to be review by the AAT of a decision of a body which includes a Federal Court
25 judge as its chairman, the AAT is constituted in an appropriately high-level way. It should be noted, however, that it would be highly unlikely that in such a matter the President, if left to his discretion under section 20(3) of the AAT Act, would constitute the Tribunal otherwise than with 3 judges, irrespective of the specific legislative requirement. That section, inter alia, requires the President to have regard to the status of the position or office held by the person who made the decision that is to be reviewed by the Tribunal in giving a direction as to the persons who are to constitute the Tribunal for the purposes of a particular proceeding. In the Council’s view, therefore, section 141(6) of the Commonwealth Electoral Act could be repealed.
(b) Presidential member who is a judge of the Federal Court of Australia
Broadcasting Act 1942 (s.119A) 115. Section 119A(1) of the Broadcasting Act 1942 sets out the jurisdiction of the AAT in relation to decisions made under that Act. Pursuant to section 119A(1), the AAT may review various decisions of the Australian Broadcasting Tribunal (‘the ABT’), including a refusal in certain circumstances to renew a supplementary licence, a refusal to consent to the admittance of another person to participate in the benefits of a licence, and a refusal to grant approval to certain ownership transactions, and directions by the Minister to install and maintain lights on station masts and to deliver a record of historical interest for safe-keeping. The effect of section 119A(2) is that, in most cases, an appeal may only be brought to the AAT by or on behalf of the licensee. Section 119A(3) provides that, for the purposes of an application under the Broadcasting Act, the AAT shall be constituted by a presidential member alone.
116. In speaking to the Broadcasting and Television Amendment Bill 1977, which inserted section 119A into the Broadcasting Act, the then Minister for Post and Telecommunications said that the Bill completed the establishment of the ABT, which had been set up in 1976, depoliticised the broadcasting system by transferring the licensing power from the Minister to the ABT and provided for industry and public involvement in licensing. The Minister referred to the introduction of public inquiries and the quasi-judicial powers of the ABT (House of Representatives, Hansard; 13 October 1977, p. 2004), and in this context it was stipulated that the AAT, in hearing appeals from the ABT, should be constituted by a presidential member. In accordance with section 40(1) of the Statute Law (Miscellaneous Amendments) Act (No. 1) 1982, the presidential member is required also to be a judge of the Federal Court of Australia.
117. The Council has previously addressed this issue and recommended the repeal of section 119A(3) of the Broadcasting Act - see Report No. 16, Review of decisions under the Broadcasting and Television Act 1942, paras 152-4 and recommendation 7. In Report No. 16, the Council noted that in some circumstances it may be desirable for the Tribunal to have available to it the expertise of people with knowledge relevant to the broadcasting industry, and that in some circumstances it would probably be appropriate for the Tribunal to have as one of its members a presidential member who was a judge of the Federal Court of Australia. However, there was no reason in principle for the Tribunal’s composition to be limited to such persons (para. 154).
118. The AAT’s jurisdiction under the Broadcasting Act is not a large one-there were no such appeals heard in 1986-87, none in 1985-86, and 1 in 1984-85 (ARC Annual Reports 1984-85 and 1985-86, Appendix 5 and 1986-87, Appendix 2).
119. The ABT, in responding to the Council’s request for its views on this matter, replied that it saw no merit in retaining section 119A(3). It stated that in the event that AAT review of ABT decisions was maintained, a position against which the ABT would argue, then it seemed axiomatic that the reviewing body have the flexibility to constitute itself in the most suitable way, according to the subject matter under review. The ABT stressed that, given AAT review, it was clearly desirable that the AAT have the benefit of members with basic experience in broadcasting issues in order to make decisions in this area. In short, the ABT expressed its agreement with the Council’s previous recommendation in Report No. 16 (see above).
26 120. The Australian Consumers’ Association agreed that the AAT would be more appropriately constituted in the range of cases which might arise under the Broadcasting Act pursuant to sections 20 and 21 of the AAT Act. However, the ACA said that it felt the public interest would be best served if the AAT were constituted by a panel rather than an individual member. The Tribunal could thus draw on persons of differing expertise and backgrounds, and in the ACA’s view, the resulting decision would be more considered and would be publicly perceived as such. The ACA also recommended that the President be required to have regard to the public interest in constituting the Tribunal. To effect this, an amendment of section 20 of the AAT Act was suggested.
121. The Department of Communications submitted that the AAT should always include a presidential member when reviewing a decision of the ABT under the Broadcasting Act. This would reflect the quasi-judicial nature of the ABT and its stature as the only Commonwealth body with specialised knowledge of broadcasting regulation, as well as ensuring that the AAT was in a position to consider complex legal argument. The Department stated that the high public profile of the ABT and public interest in its decisions lent weight to the argument that a presidential member should rule on legal and policy concerns involved in a review of ABT decisions. The Council notes that the provisions of the AAT Act enable the President to have due regard to such matters in constituting the Tribunal.
122. The Council reiterates its recommendation that section 119A(3) of the Broadcasting Act should be repealed (see recommendation 7, Report No. 16), because the section unduly restricts the discretion of the President to constitute the Tribunal appropriately. Undoubtedly there are occasions when a matter may be appropriate for determination by a Federal Court judge, but undoubtedly also there may be matters more appropriate for a 3 member tribunal, and the provisions of the Broadcasting Act do not allow for this.
Roads and Public Places Ordinance 1937 (A.C.T) (s.15G); Sale of Motor Vehicles Ordinance 1977 (A.C.T) (s.57) 123. Pursuant to section 15G(1) of the Roads and Public Places Ordinance 1937, application may be made to the AAT for review of a decision of the Minister or his delegate refusing to grant and cancelling a permit to place certain objects in a public place, and imposing a condition subject to which such a permit is granted. Section 15G(2) provides that for the purposes of such review, the AAT shall be constituted by a presidential member alone, and section 15G(3) specifies that ‘presidential member’ has the same meaning in section 15G(2) as in the AAT Act.
124. Section 57(1) of the Sale of Motor Vehicles Ordinance 1977 provides that application may be made to the AAT for review of a decision of the Registrar of Motor Vehicle Dealers refusing an application for the grant of a licence as a motor vehicle dealer, revoking such a licence or, in revoking a licence, specifying a period that shall elapse before the dealer to whom the licence was granted is eligible to apply again for the grant of a licence. Section 57(2) provides that for the purposes of such review, the AAT shall be constituted by a presidential member alone and section 57(3) specifies that ‘presidential member’ has the same meaning in section 57(2) as in the AAT Act.
125. The Council draws attention to the highly unsatisfactory state of the law concerning the interpretation of the two sections mentioned above in the light of the effect of section 40 of the Statute Law (Miscellaneous Amendments) Act (No. 1) 1982, notwithstanding that matters arising under the Ordinances do not form a large proportion of the AAT’s jurisdiction. Both section 15G and section 57 purport to incorporate the meaning of ‘presidential member’, as used in the AAT Act, into the relevant Ordinance. At the time the sections came into effect (30 December 1976 and 2 September 1977, respectively), ‘presidential member’ in the AAT Act could have included a non-judicial presidential member, although, in fact, no non-judicial presidential members had been appointed. The intention presumably was, therefore, that only judicial presidential members were to hear appeals arising under the Ordinances. This is not, however, entirely clear. In any event it would now appear, following the enactment of the Statute Law (Miscellaneous Amendments) Act (No. 1) 1982, that for the purposes of
27 AAT review of matters arising under the Ordinances, the AAT must be constituted by a presidential member who is a judge of the Federal Court.
126. This would appear to the Council to require an allocation of resources of the AAT that is not warranted by the circumstances of the decisions to be reviewed. The Council considers that the provisions are inappropriate and ought to be repealed.
(c) Presidential member who is a judge of the Federal Court and 2 non-presidential members who have special knowledge or skill in relation to insurance/life insurance business and who are not directors/employees of bodies carrying on insurance/life insurance business
Insurance Act 1973 (s.63); Life Insurance Act 1945 (s.138) 127. Section 63(7) of the Insurance Act 1973 provides for review by the AAT of certain decisions of the Treasurer and of the Insurance Commissioner at the instance of a body corporate in relation to which the relevant decision was made, a person whose appointment as auditor has been refused or revoked, or Lloyd’s or any Lloyd’s underwriter in the case of a determination that the Part of the Act authorising Lloyd’s or the underwriter to carry on insurance business is to cease to have effect. The Treasurer or Commissioner, as appropriate, is required to have first reconsidered the decision. Section 63(10) provides that for the purposes of review of matters arising pursuant to the Insurance Act, the AAT shall be constituted by a presidential member and 2 non-presidential members; section 40(1) of the Statute Law (Miscellaneous Amendments) Act (No. 1) 1982 stipulates that the presidential member required for these purposes must also be a judge of the Federal Court. In addition, section 63(11) stipulates that the President of the AAT shall ensure that each non-presidential member of the AAT as constituted to hear a matter under the Insurance Act is a person who, in the opinion of the President, has special knowledge or skill in relation to insurance business, and section 63(12) prohibits a non- presidential member from sitting as a member of the AAT for the purposes of section 63 if he is a director or employee of a company carrying on insurance business or life insurance business. Section 63(13) provides that an order under section 41(2) of the AAT Act (that is, an order to stay or otherwise affect the operation or implementation of a decision to be reviewed) shall not be made except by the Tribunal which, pursuant to section 63(10), (11) and (12), is constituted in the specified way.
128. The provisions of the Life Insurance Act 1945 regulating the constitution of the AAT for the purposes of review of decisions under that Act are not dissimilar to the provisions of the Insurance Act 1973. Reviewable decisions under the Life Insurance Act include decisions of the Life Insurance Commissioner to approve certain persons as actuaries, a refusal, with the approval of the Treasurer, to register a company to carry on life insurance business, certain directions in relation to statutory funds established and maintained by companies registered under the Act and a rejection of certain financial documents of a company. Application may be made to the AAT for review of certain decisions of the Commissioner-the Commissioner is required first to reconsider the decisions, and, in some instances, the Treasurer is required to approve the reconsideration.
129. For the purposes of review of a reviewable decision under the Life Insurance Act, or to determine whether a stay of such a decision should operate, the AAT must be constituted by a presidential member and 2 non-presidential members (Life Insurance Act, s.138(11), (14)); the presidential member must also be a judge of the Federal Court of Australia (s.40(1), Statute Law (Miscellaneous Amendments) Act (No. 1) 1982). Section 138(12) provides that the President shall ensure that each non-presidential member of the AAT constituted in order to hear a matter under the Life Insurance Act is a person who, in the opinion of the President, has special knowledge or skill in relation to life insurance business, and section 138(13) prohibits a non-presidential member from sitting on the AAT in relation to a life insurance matter if that person is a director or employee of a company, body corporate or body carrying on (in Australia or elsewhere) life insurance or insurance business.
28 130. The Council notes that the appeal provisions in the Insurance Act transfer to the AAT a jurisdiction that was formerly that of the Insurance Tribunal, and the prescription of the constitution of the AAT for matters arising under the Insurance Act approximates the conditions governing the chairmanship and membership of the Insurance Tribunal. A similar pattern was adopted for life insurance matters.
131. In the Council’s consultations, a view emerged that the insurance and life insurance industries were specialised and complex, although opinions varied as to whether the prescriptions of the Insurance and Life Insurance Acts were necessary. As the Insurance Council of Australia pointed out, such a prescription obviates the need to call and hear extensive evidence from specialist witnesses, although it was also recognised that many non-presidential members of the AAT, appointed on account of their insurance expertise, were more usually assigned to other commercial matters because of the small size of the AAT’s insurance jurisdiction. The Insurance Council expressed the view that this indicated a wide breadth of business experience which made such members useful to the AAT.
132. The Insurance Commissioner, Mr W.B. Tickle, expressed the view that in some insurance matters, it ought not to be necessary for the AAT to be constituted in the prescribed manner. An example given was an appeal pursuant to section 30 of the Insurance Act (approval of assets), where the Commissioner thought that expertise in the technicalities of insurance would be of marginal importance. On the other hand, in questions going to the ultimate viability of insurers (s.62, Insurance Act), such expertise would undoubtedly be useful to the AAT and, arguably, to the parties. While the Commissioner considered it a possibility that such cases could be accommodated through the general provisions of section 20 of the AAT Act, he stated that he preferred, at the least, that 1 or more of the parties have an option to stipulate that the AAT be constituted as presently prescribed when the circumstances of particular cases appeared to warrant such a course.
133. The Office of the Life Insurance Commissioner stated its view that insurance, and more particularly life insurance, is highly complex and that the range and complexity of new products introduced in the life insurance industry in recent years make it more than ever essential that life insurance matters only be heard by a tribunal the majority of members of which have extensive practical experience in life insurance. The Office was strongly of the opinion that the AAT, in life insurance matters, must continue to be constituted by a clear majority of members with appropriate expertise and it said it would strenuously resist any attempt to water down this provision.
134. The Life Insurance Federation expressed no strong views in regard to the prescription but thought that the disqualification of persons who are directors or employees of life insurance companies could be too strict.
135. The requirements of the insurance and Life Insurance Acts are not always easily met by the AAT. It currently has 5 members with expertise or experience in these fields - 2 in general insurance, 2 in life insurance and 1 in both. It can be difficult to call together the appropriate members if, for example, a stay order is sought, and a decision on a stay application sometimes has to be made with great urgency. However, the Tribunal’s resources mean it is not feasible to expand the insurance or life insurance membership as essentially the jurisdictions are small and there are not enough cases to occupy a greater number of members with such expertise or experience. The Council acknowledges the value of relevant expertise and experience in insurance matters but is of the opinion that the prescriptions in these Acts create unnecessary problems. In the Council’s view, implementation of recommendations 1, 2 and 3 in this report would be sufficient to guarantee the appropriate constitution of the Tribunal.
136. The Council notes that actuaries have been appointed to the Tribunal to enable it to deal with its life insurance jurisdiction, although to date there has only been one life insurance case. It might be pointed out, however, that actuaries have been successfully used in social security cases where the task has been to assess the annual rate of income of the pensioner, and in other cases which depend on the
29 analysis of statistics. This would appear to support the view that the AAT ought not to be structured in divisions (see chapter 3).
(d) Presidential member alone
Migration Act 1958 (s.66E) 137. Section 66E(1) of the Migration Act 1958 provides that applications may be made to the AAT for review of decisions of the Minister to deport a non-citizen present in Australia for less than 10 years who is convicted of a crime (s.12, Migration Act), and to direct a person not to act as a migration agent (s.48, Migration Act). Only an Australian citizen or a non-citizen (other than a prohibited non- citizen) whose continued presence in Australia is not subject to any limitation as to time imposed by law may appeal to the AAT against a decision pursuant to section 12. Section 66E(4) provides that, for the purpose of reviewing decisions under the Migration Act, the AAT shall be constituted by a presidential member alone. Section 40(2) of the Statute Law (Miscellaneous Amendments) Act (No. 1) 1982, as amended by the Statute Law (Miscellaneous Provisions) Act (No. 2) 1983, specifically exempts section 66E from the ambit of section 40(1) of the Miscellaneous Amendments Act (see para. 109). Thus, the presidential member required to constitute the AAT in order to hear migration matters is not required to be a judge of the Federal Court.
138. In its reports the Council has addressed the problem of the constitution of the AAT in its migration jurisdiction. Concern was expressed in the Council’s Third Annual Report, 1979 (para. 84) that provisions which required the AAT to be constituted by presidential members had led to such a commitment of presidential members as to affect detrimentally the ability of the President to direct that the AAT be constituted by presidential members in other jurisdictions where such a constitution might be considered necessary in the circumstances but was not prescribed. The Migration Act jurisdiction was noted particularly. The Council recommended at that time that enactments conferring jurisdiction on the AAT should not prescribe that the AAT be constituted by or include a presidential member and that existing prescriptions to this effect be repealed.
139. The Council, in its Fourth Annual Report, 1980 (paras 165-6), noted the Attorney-General’s response to its recommendation that he was not persuaded by the Council’s arguments in favour of the recommendation in so far as it applied to ministerial decisions such as those in deportation cases (Migration Act, s.12). However, the Council reiterated its recommendation and added that, if it should be necessary to retain these provisions, then the Attorney-General should proceed to appoint non- judicial presidential members. This recommendation was made purely on the basis of pragmatic considerations arising from the AAT’s deportation workload.
140. As mentioned above (para. 109), the matter was again taken up by the Council in its interim report on the constitution of the AAT in its migration jurisdiction (see ARC, Report No. 19, Rights of review under the Migration Act 1958 and related legislation - interim report on the constitution of the Administrative Appeals Tribunal. The amendments of the AAT Act made by section 40 of the Statute Law (Miscellaneous Amendments) Act (No. 1) 1982 had not reduced the difficulties of constituting the AAT in its increasingly large and time-consuming migration jurisdiction, despite the appointment in December 1982 of the first non-judicial deputy presidents of the AAT, as the operation of section 40(1) of the Act required that migration matters be heard by a presidential member who was also a judge of the Federal Court of Australia. Difficulties arose because the primary attachment of the judicial members of the AAT, except for the then President, Mr Justice J.D. Davies, was to the Federal Court and there was a resulting limited availability of judicial presidential members.
141. In its Report No. 19, as mentioned above, the Council recommended legislative amendment to enable the AAT in its migration jurisdiction to be constituted by any presidential member, judicial or non-judicial (Report No. 19, para. 26). The Statute Law (Miscellaneous Provisions) Act (No. 2) 1983 subsequently amended section 40(2) of the Statute Law (Miscellaneous Amendments) Act (No. 1) 1982 to provide that section 66E(4) of the Migration Act was an exception to the general rule stated in section 40(1) of the 1982 Act. The effect of this amendment has been that the President of the AAT is
30 able to assign both judicial and non-judicial presidential members to hear matters in the AAT’s migration jurisdiction.
142. In its Report No. 25 (Review of Migration Decisions), the Council recommended the repeal of section 66E(4) of the Migration Act (see recommendation 23). (This was the course that it had also favoured in Report No. 19.) The Council acknowledged the alleviation of some of the problems of resources experienced in the AAT’s migration jurisdiction which resulted from the amendments described above, but stated that the fetter had not been removed (para. 261). Noting the department’s reservations about the recommendation that section 66E(4) be repealed, in so far as that recommendation might affect the review of ministerial decisions, the Council stated its belief that the powers of the President to constitute the AAT, pursuant to section 20(3) of the AAT Act, would be exercised with due regard to the status of the decision maker, as required by that section (para. 262) and as was the case in other jurisdictions where the AAT was reviewing ministerial decisions (examples of which were listed in para. 263 of that report).
143. The Council reiterates its previous recommendations for the abolition of special constitution rules in relation to the existing migration jurisdiction and indeed any expanded jurisdiction under the Migration Act.
Narcotic Drugs Act 1967 (s.14A) 144. The Narcotic Drugs Act 1967 aims to control the manufacture of narcotic drugs from locally produced substances. Section 14A(1) of that Act provides for application to be made to the AAT for review of various decisions by the Minister for Health-for example, a refusal in certain circumstances to grant a licence to manufacture a particular drug at particular premises, a specification of particular conditions in a licence, and a revocation of a licence-or a direction of the Comptroller-General of Customs to a licensed manufacturer to regulate or control the entry of persons on to, or the handling of narcotic materials on, licensed premises, or a direction by the Secretary of the Department of Health with respect to operations connected with the manufacturing or labelling of drugs. Section 14A(2) provides that, for the purposes of reviewing such a decision, the AAT may be constituted by a presidential member alone. Section 40(1) of the Statute Law (Miscellaneous Amendments) Act (No. 1) 1982 does not affect this provision because it applies only to requirements in enactments relating to the constitution of the AAT by a presidential member.
145. The AAT’s jurisdiction under the Narcotic Drugs Act is not a large one. The Council furthermore notes the discretionary nature of the provision relating to the constitution of the AAT in this instance in so far as it stipulates that the AAT may be constituted in a certain way for appeals under the Narcotic Drugs Act. The Council sees no value in retaining a provision such as this-it is surplusage, as section 21(1)(b) of the AAT Act also provides that the Tribunal may be constituted by a presidential member alone.
(e) Three presidential members or a presidential member alone
Freedom of Information Act 1982 (s.58B); Archives Act 1983 (s.46) 146. Both the Freedom of Information Act 1982 and the Archives Act 1983 provide that, for the purposes of certain proceedings under those Acts, the AAT shall be constituted by either 3 presidential members or a presidential member alone (s.58B(2), FOI Act; s.46(2), Archives Act). Neither of these provisions is affected by section 40 of the Statute Law (Miscellaneous Amendments) Act 1982 - thus either judicial or non-judicial presidential members may hear matters to which section 58B or section 46 applies. Under the FOI Act, the special AAT constitution provisions apply where a request is made to the AAT to determine whether there are reasonable grounds for exemption in relation to documents claimed to be exempt on the grounds of national security, defence or international relations (s.33) or relations with the states (s.33A), or where the documents are claimed to be cabinet (s.34) or executive council documents (s.35) and where a conclusive certificate is in force in respect of the documents, or where a document is claimed to be an internal working document (s.36) and there is a conclusive certificate in force in respect of the document, or where the AAT is
31 requested to determine whether there exist reasonable grounds for the claim that disclosure of information as to the existence or non-existence of a document would, if contained in a document, cause the disclosure of that document to be contrary to the public interest for certain reasons or cause that document to be exempt because it would affect relations with the states (s.58(5A)).
147. Section 58B(3) of the FOI Act modifies the effect of section 21A(3) of the AAT Act, which provides generally for the AAT to be reconstituted in certain situations, by providing that if, after taking submissions of the parties into account, the President considers that the proceedings are of such public importance as to justify his doing so, he shall vary the constitution of the AAT, for the purposes of those proceedings, so that it is constituted by 3 presidential members. Section 22 of the AAT Act is also modified in so far as it may apply to the FOI matters set out in paragraph 146. Section 58B(4) recognises that a presidential member may or may not be a judge and provides that if the AAT is constituted by presidential members of whom at least 2 are judges and none is the President, the senior judge shall preside, and if the AAT is constituted by presidential members none of whom is a judge, 1 of those presidential members, as directed by the President, shall preside.
148. Section 43 of the Archives Act 1983 sets out the decisions under that Act review of which may be sought before the AAT. Section 46(2) provides that the AAT is to be constituted by 3 presidential members or a presidential member alone for the purposes of reviewing certain matters, namely a decision that a record is exempt because it contains information or matter the disclosure of which could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth (s.33(1)(a)), or information or matter communicated in confidence by or on behalf of a foreign government or one of its authorities, or an international organisation, to the government or an authority of the Commonwealth, being information the disclosure of which would constitute a breach of that confidence (s.33(1)(b)), where a section 34(1) certificate is in force, or where a section 34(3) certificate is in force and the AAT is requested to determine whether there exist reasonable grounds for the claim that information as to the existence or non-existence of the record would, if contained in another record, cause that other record to be exempt for the reason that it would contain information or matter of a kind referred to in section 33(1)(a) or (b) of the Archives Act (see above), Section 46(3) provides for reconstitution of the AAT in a similar manner to section 58B(3) of the FOI Act (see para. 147).
149. The Attorney-General’s Department in its submission to the Council on these provisions in the FOI and Archives Act said: Given the significance which has been attached by successive governments to the conclusive certificate mechanism to enable ministers to take final responsibility for the disclosure or withholding of sensitive documents, it is not appropriate that the constitution of the Tribunal for the purpose of reviewing such a certificate should be left to the discretion of the President of the Tribunal. It is desirable that the Parliament should provide how the Tribunal is to be constituted in such cases.
150. On the other hand, the view could be taken that the provisions of section 20(3) of the AAT Act are sufficient, since they require the President to have due regard to the status of the decision maker when constituting the Tribunal. Given the sensitivity associated with conclusive certificate cases under the FOI and Archives Acts, the Council cannot envisage that the President would constitute the Tribunal otherwise than with a member or members having legal qualifications of the kind required by the AAT Act to be possessed by deputy presidents. Accordingly, the Council does not see a need for the special constitution rules contained in the FOI and Archives Acts.
32 (f) Presidential member and 2 non-presidential members, at least 1 of whom is an eligible employee or pensioner, or 3 non-presidential members, at least 1 of whom is an eligible employee or pensioner and at least 1 of whom is a senior non-presidential member
Superannuation Act 1976 (s.154) 151. Section 154(6) of the Superannuation Act 1976 provides that application may be made to the AAT for review of certain decisions that have been reconsidered by the Commissioner for Superannuation. Section 154(7) provides that, for the purposes of the review, the AAT shall be constituted by a presidential member and 2 non-presidential members, of whom at least 1 shall be an eligible employee or a pensioner, or by 3 non-presidential members, of whom at least 1 shall be an eligible employee or a pensioner and at least 1 a senior non-presidential member. Section 40(2) of the Statute Law (Miscellaneous Amendments) Act (No. 1) 1982 specifically exempts the Superannuation Act from the requirement set out in section 40(1) that presidential members also be judges.
152. The legislative requirement of the Superannuation Act goes to neither special knowledge nor skill but to interest. Interest requirements are, in the Council’s view, inappropriate for any adjudicative tribunal as they detract from the appearance of independence of the tribunal. The provision in the Superannuation Act is inappropriate and should be repealed.
(g) Tribunal to include a person of special knowledge or skill in relation to environmental matters
Wildlife Protection (Regulation of Exports and Imports) Act 1982 (s.80) 153. Section 80(1) of the Wildlife Protection (Regulation of Exports and Imports) Act 1982 provides that an application may be made to the AAT for review of various decisions under that Act, including, for example, a declaration by the Minister that a management program is an approved management program (s.10(1)), a declaration by the Designated Authority that an institution is an approved institution (s.11(1)) or that a zoological institution is an approved zoological institution in relation to specified specimens (s.12(1)), and a requirement of the Minister in relation to an application for a permit to export or import specimens (s.25(3)). The Designated Authority is a person with qualifications and experience in connection with the conservation or management of wild animals and wild plants, and is appointed by the Minister.
154. Section 80(2) provides that, for the purposes of a review of a decision of the Designated Authority that he is satisfied or otherwise in relation to certain specified matters, the President shall ensure that the AAT is constituted by, or includes, a member who, in the opinion of the President, has special knowledge or skill in relation to environmental matters. The specified matters relate to permits to export a specimen (s.25), permits to export live animals and plants (s.27), permits to import a specimen (s.33), permits to import live animals or plants (s.34), and permits to export or import a specimen for the purposes of travelling circuses, etc (s.43(6)(b)). These sections empower the Minister to issue permits only upon the satisfaction of the Designated Authority that certain conditions are being or will be met.
155. The Director of the Australian National Parks and Wildlife Service, Professor J.D. Ovington, expressed the view that AAT review of complex matters would be more effective if the AAT included a member with special knowledge or skill in the matter involved, in this case, environmental issues. However, he recognised that once certain provisions of an enactment have been ‘tested’ by the AAT, then such a requirement may no longer contribute to the effectiveness of the Tribunal’s consideration of appeals. He felt that section 80 of the Wildlife Protection (Regulation of Exports and Imports) Act could be a provision in this category, and that there could be a view, reasonably held, that section 80(2) of that Act may no longer be appropriate.
33 156. Submissions from both the Environmental Defender’s Office and the Total Environment Centre supported the thrust of section 80(2) of the Wildlife Protection Act. They pointed out that environmental litigation may involve detailed expert evidence in a variety of fields from the natural and social sciences, and that policy issues inevitably arise. The issues are complex and often at the edge of research-thus some knowledge and appreciation of new concepts is important if the evidence is to be fairly viewed and understood. The Assistant Director of the Total Environment Centre suggested that there is a need for members of the AAT to have both formal qualifications and experience in these fields when matters arising under the Act come before it.
157. While the Council does not question the assertion that some specific expertise or experience in the AAT is desirable in its environmental jurisdiction, it points out the impracticability in view of the number of appeals of appointing a large number of members with the specific expertise or experience. The wildlife protection jurisdiction of the AAT, although diverse, is not large. In 1984-85 there was 1 case, in 1985-86 there was none and in 1986-87 there were 3 (ARC Annual Reports 1984-85, 1985-86, Appendix 5, and Annual Report 1986-87, Appendix 2). The Council has been advised that no members have been appointed to the AAT on the basis of special knowledge or skill in relation to environmental matters. Consequently, when such matters have arisen, the President has had to find the appropriate knowledge or skill amongst existing members of the AAT. In the Council’s view, implementation of recommendations 1, 2 and 3 in this report would be sufficient to guarantee the appropriate constitution of the AAT in environmental cases. Consequently, there would not appear to be need for a rule of the kind set out in section 80(2) of the Wildlife Protection (Regulation of Exports and Imports) Act.
Conclusion concerning legislative rules governing AAT constitution 158. The Council has in its reports drawn attention to what it considers the disadvantageous effects of many legislative prescriptions for the constitution of the AAT. These include a heavy commitment of presidential members in large volume jurisdictions, to the detriment of other jurisdictions (see ARC, Third Annual Report, para. 84; also see para. 138 above) and a general lack of flexibility in the President’s ability to constitute the Tribunal as he sees fit and in accordance with his duty under section 20(3) of the AAT Act. Such problems can only be compounded when the hearing of a matter by a member with special expertise is required by the enactment conferring jurisdiction yet no such members are specifically appointed to the Tribunal. In these cases, the President must utilise as effectively as possible the existing membership in attempting to meet the legislative requirements. However, in small volume jurisdictions in particular, the appointment of members with a particular expertise to meet legislative requirements is an expensive exercise if such members are so restricted in their special skills as to be unable to contribute usefully to the AAT’s general jurisdiction.
159. A common argument is that a particular jurisdiction requires a particular expertise or experience in order that it be dealt with adequately. Several submissions to this effect were received by the Council (eg see para. 133). Similarly, in a submission made to the government in February 1984 by the Australian Council of Trade Unions on Commonwealth employees’ compensation legislation and its administration, the ACTU proposed that special AAT panels should be created to hear compensation matters. Likewise the Australian Council of Social Service, in a submission to the Council in 1978 in relation to a Council project on the social security appeals system, submitted that claimant groups should be involved in nomination procedures in order to compile a list of persons from whom an appeals tribunal could be selected. The basis of this suggestion was that the existence of relevant expertise or experience could make for significant savings of both time and costs as the Tribunal would not be in the position of having to hear perhaps lengthy expert evidence in relation to a matter that was to come before it.
160. The advantages of expertise can, however, be obtained without restrictive legislative provisions. The provisions of the AAT Act, strengthened as recommended in recommendation 3, and
34 the devising of appropriate guidelines relating to the President’s discretion to constitute the Tribunal, as recommended in recommendations 1 and 2, could be relied upon to achieve the desired end.
161. Many of the special constitution rules discussed in this chapter are clearly inappropriate and ought to be repealed. The remainder may have some intrinsic merit. Some of these, however, appear to be unnecessary in the light of the present requirements of section 20(3) of the AAT Act. Others would be unnecessary if recommendations 1, 2 and 3 were to be implemented. On the assumption that those recommendations are implemented, the Council recommends the repeal of all the special AAT constitution rules discussed in this chapter.
Recommendation 5: Rules in Acts other than AAT Act governing the constitution of the AAT The following rules governing the constitution of the AAT should be repealed: Commonwealth Electoral Act 1918, s.141(6) Broadcasting Act 1942, s.119A(3) Roads and Public Places Ordinance 1937, s.15G(2) Sale of Motor Vehicles Ordinance 1977, s.57(2) Insurance Act 1973, s.63(10), (11), (12) Life Insurance Act 1945, s.138(11), (12), (13) Migration Act 1958, s.66E(4) Narcotic Drugs Act 1967, s.14A(2) Freedom of Information Act 1982, s.58B(2) Archives Act 1983, s.46(2) Superannuation Act 1976, s.154(7) Wildlife Protection (Regulation of Exports and Imports) Act 1982, s.80(2).
35 CHAPTER 5 IMPROVEMENT IN TRIBUNAL OPERATIONS
Enhancing role of ordinary members 162. In the course of its consultations regarding the constitution of the AAT, the Council received a great deal of evidence concerning the general organisation of the AAT, much of which had some bearing on the issue of the constitution of the AAT for hearings. To that extent only the Council has considered the general organisation of the AAT in this report. The Council is aware that matters generally concerned with the organisation of the AAT are included in the terms of reference of the Task Force on Review of AAT Procedure, which is expected to report shortly.
163. It has been put to the Council at its hearings that, at present, little is done to assist the ordinary members with information or advice about the practice and procedure of the AAT, with a view to them hearing a matter as a single member or participating fully in a multi-member hearing. It has also been put to the Council that there is a lack of any formal process for on-going discussion among members and no means of the ordinary members becoming directly involved in the overall operation of the Tribunal. Mention was also made earlier in this report of the perception amongst some users of the Tribunal that the ordinary members often do not appear to be fully involved.
164. A further matter raised during the course of the Council’s consultations was the conduct of preliminary conferences. The Council is aware that the Task Force on Review of AAT Procedure is examining preliminary conferences as part of its terms of reference, and therefore has considered them only to the extent that they impinge upon the issue of the constitution of the AAT.
165. At present, a matter coming before the AAT may go to 1 or more preliminary conferences. These conferences may be conducted by different Tribunal members, depending on who is available, and the members may or may not have any special expertise or continuing involvement in the matter. It has been put to the Council during its consultations that no training is provided for Tribunal members to equip them to conduct a preliminary conference satisfactorily.
166. It is important in the Council’s view that steps be taken to remedy any problems that may exist with regard to the role of the ordinary members within the AAT both in relation to hearings and in relation to preliminary conferences. So far as hearings are concerned, the rationale for 3 member tribunals depends on all members being fully involved. So far as preliminary conferences are involved, any steps that can be taken to improve the way they are conducted will facilitate a greater number of settlements and thereby reduce the number of full hearings required.
167. In the Council’s view, the range of measures that should be considered by the incoming President include: The provision of more information and advice to ordinary members’ in the conduct of preliminary conferences and hearings. Encouragement to ordinary members to participate fully in hearings where appropriate, both to get maximum benefit from their contribution and to dispel any impression of lack of full participation. Greater involvement of ordinary members in the management of the Tribunal. This might be assisted by ordinary member representation on the recently established management advisory committee in the Tribunal. The Council recognises that this may not be easy to achieve since, with 1 exception, all ordinary members are presently part-time. For this reason, it might be useful for some full-time ordinary members to be appointed in major jurisdictions.
Recommendation 6: Enhancing contribution of ordinary members
36 The President should give consideration to the following matters with a view to improving the operation of the AAT and maximising the utilisation of its resources: the provision of information and advice to all members about the conducting of preliminary conferences and hearings; the manner in which all members might be more fully involved in the operations of the Tribunal.
Publication of information 168. Central to the structure and operation of the Tribunal in the form proposed by the Council is the recommendation that more information about the operation of the AAT be published. Publication of appropriate information will ensure that, although wide discretions may be vested in the President, the organisation of the Tribunal is open to reasonable scrutiny. It will also assist to give applicants and government agencies confidence about the constitution of the Tribunal and will deter the creation of formal divisions and formal legislative rules on the constitution of the AAT, with their attendant problems.
169. Membership lists that are presently published show the names of members, their status within the AAT (member, senior member, presidential member, etc), and the state or territory in which they are based. The Council endorses this practice, but recommends that further information regarding the operation of the AAT, particularly in relation to matters dealt with in this report, also be published.
170. At paragraph 34 the Council refers to lists of members drawn up by the President which provide a guide for the allocation of members to hearings. The Council considers that these lists ought to be published annually. Other information which ought to be published annually are lists of members who have constituted the Tribunal in each of its jurisdictions during the preceding 12 months showing the numbers of times each of those members sat in those jurisdictions, and statistics which show for each major jurisdiction the percentage of hearings in which the Tribunal was constituted by 3 persons. The presentation of this kind of report would also be an appropriate occasion for the President to furnish a statement indicating any difficulties he has had in constituting the Tribunal in accordance with the AAT Act and in particular, any difficulties he has had in including in its constitution for hearings in particular areas members who have relevant expertise or experience.
171. The Council currently publishes in its annual report statistics on the AAT covering, for example, the number and type of applications lodged for review each year and the places of lodgment, the number of preliminary conferences, the venue for hearings, the range of jurisdictions, and so on. Statistics relating to the constitution of Tribunal hearings are also usually published, indicating the number of occasions on which a presidential member sat alone or with 2 other members, and similarly for senior members, and the number of occasions the Tribunal was constituted by a member alone. (Refer generally to Administrative Review Council, Annual Report 1985-86, Appendix 5.) The data for these statistics is provided by the AAT. The information outlined above (para. 170) could be published together with these and any other relevant statistics in order to facilitate public scrutiny of the operations of the Tribunal and the extent to which the membership of the AAT has made it possible for the President to meet the requirement that he have regard to the expertise or experience appropriate for determining applications for review.
172. The Council has considered the question of the appropriate means of publication of the information described above. At present 1 chapter of the Council’s annual report comments on the operation of the AAT during the relevant year, and statistical information is set out in appendices. This chapter and the appendices could accommodate the kind of information which the Council has recommended be published in relation to the operation of the AAT. On the other hand, the Council has considered the possibility of the AAT publishing its own annual report relating to the administration of the affairs of the Tribunal, which would include this information. In the Council’s view, the size of the Tribunal and the scope of its operations now makes the latter course desirable. In this connection, the Council notes that the High Court is now required under section 47 of the High
37 Court of Australia Act 1979 to publish a report relating to the administration of the affairs of the Court. The Council also notes the remarks of the Senate Standing Committee on Constitutional and Legal Affairs in relation to a recent annual report of the High Court: It is the Committee’s view that there is a clear distinction to be drawn between judicial independence (which it in no way wishes to undermine), and the accountability of institutions, be they administrative, legislative or judicial, which are funded by public monies. (P.P. 177/1986, p.5)
The view that the AAT should publish an annual report is also supported by the Law Society of New South Wales.
Recommendation 7: Publication of information (1) In addition to other information published by the AAT, there should be published annually- (a) where the President has drawn up a list of the members who are ordinarily allocated to hearings in particular jurisdictions-the list of those members; (b) lists of the members who have constituted the Tribunal in each of its jurisdictions during the preceding 12 months which show the numbers of times each of those members has sat in those jurisdictions; and (c) statistics which show for each jurisdiction the percentage of hearings in which the Tribunal was constituted by 3 persons. (2) The AAT should publish an annual report which includes the information referred to in (1).
38 APPENDIX 1
Persons and organisations who made written submissions to the Council
Attorney-General’s Department Australian Broadcasting Tribunal Australian Consumers’ Association Australian Electoral Commission Australian Insurance Institute Commissioner for Superannuation Commissioner of Taxation Department of Communications Department of Local Government and Administrative Services Environmental Defender’s Office Mr R.A. Judge, Deputy Life Insurance Commissioner Law Council of Australia Law Institute of Victoria Law Society of New South Wales Life Insurance Federation National Insurance Brokers Association of Australia Professor J.D. Ovington, Director, Australian National Parks and Wildlife Service Public Interest Advocacy Centre (PIAC) Mr Justice Purvis, presidential member, AAT. Returned Services League of Australia (RSL) Ms Loula Rodopoulos, member, AAT Mr M.B. Smith, barrister Mr R.G.A. Smith, Chief Executive, Insurance Council of Australia Mr W. B. Tickle, Insurance Commissioner Total Environment Centre Mr E.J.L. Tucker, former chairman of the Council; businessman
39 APPENDIX 2 Persons who attended meetings arranged by the Council to discuss the constitution of the AAT
Canberra, 3 July 1987 Mr Anderson Department of Arts, Heritage and Environment Ms L. Atkins Department of Aviation Mrs R. Balmford Senior Member, AAT Mr W. Blick Department of Prime Minister and Cabinet Mr J. Briggs Australian Customs Service, Legal Services Branch Mr D. Carmichael Patents Office Mr J. Dalton Department of Veterans’ Affairs Mr R. Driver Attorney-General’s Department Mr W. Everson Department of Social Security Mr P. Fergus Department of Foreign Affairs Ms S. Forgie Registrar, AAT Mrs J. Fox Department of Defence Mr I. Gollings Returned Services League (RSL) Mr M. Goonrey Department of Education Mr P. Hill Australian Customs Service, Legal Services Branch Mr D. Hoitink Department of Industry, Technology and Commerce Mr S. Holloway Australian Customs Service, Legal Services Branch Mr D. Ingwersen Assistant Registrar, AAT Mr R. Judge Deputy Life Insurance Commissioner Ms M. Kelly Department of Prime Minister and. Cabinet Ms R. Layton Deputy President, AAT Mr B. Machin Department of Immigration and Ethnic Affairs Mr G. Masri Welfare Rights Centre, Canberra Mr J. McGinness Attorney-General’s Department Mr A. Metcalfe Department of Immigration and Ethnic Affairs Mr M. Morris Department of Local Government and Administrative Services Mr P. O’Keefe Secretary, Senate Regulations and Ordinances Committee Mr R. Oldham Department of Health Mr J. Partridge Department of Housing and Construction Mr R. Patrick Department of Immigration and Ethnic Affairs Mr T. Pintori Department of Primary Industry Mr S. Ridgeway Department of Territories Mr J. Roveta Patents Office Mr R. Sinclair Member, AAT Ms I. Spedding Department of Resources and Energy Mr R. Todd Deputy President, AAT Mr R. Tomkins Australian Taxation Office Mr B. Topperwien Veterans’ Review Board
40 Melbourne, 6 July 1987 Mrs R. Balmford Senior Member, AAT Mr N. Clarke District Registrar, AAT Mr C.J. Fitzpatrick Returned Services League (RSL) Ms E. Grimm Law Institute of Victoria Mrs E. Hallowes Senior Member, AAT Mr B. Keon-Cohen Barrister Mr E.J. Kyrou Corrs Pavey Whiting and Byrne, Solicitors Mrs J. Maher Member, AAT Mr T. Pointon Clerk, AAT Mr E. Rodan Law Institute of Victoria Ms L. Rodopoulos Member, AAT Mr R. Smith Insurance Council of Australia Mr J. Stewart Senior Member, AAT Dr D.M. Sutherland Member, AAT Mr I. Thompson Deputy President, AAT Mr H.C. Trinick Member, AAT Mr E.J.L. Tucker Former chairman of the Council; businessman Mr M. Watson Transport Accident Commission Prof. R.W. Webster Member, AAT Mr G. Woodard Member, AAT
Sydney, 9 July 1987 Mr T. Barrett Legal Aid Commission Mr J. Basten Barrister Mr K. Burges Vice President, Taxation Institute of Australia Mr P. Callow Macquarie Legal Centre Mr G. Craddock Barrister Mr S. Crawshaw Member, AAT Mr G. Gill District Registrar, AAT Dr J. Griffiths Dawson Waldron, Solicitors Mr Justice Gummow Federal Court Mr A. Haesler Redfern Legal Centre Mrs M. Lewis Member, AAT Ms A. Lowe Immigration Advice Centre Mr T. Lynch Barrister Mr B.J. McMahon Member, AAT Ms N. Milne NSW Law Society Mrs D. Muirhead Macquarie Legal Centre Mr G. Nicholls Member, AAT Miss A. Reich Public Interest Advocacy Centre Mr A. Robertson Law Council of Australia Mr T. Russell Member, AAT Mr M. Smith Barrister Mr R. West Public Interest Advocacy Centre Mr D. Williams Mallesons Stephen Jaques
41 APPENDIX 3 Members of the Administrative Appeals Tribunal as at 30 June 1987 An indication of the particular divisions) a non-presidential member is assigned to is given after each name: ‘G’ indicates General Administrative Division, ‘V’ indicates Veterans’ Appeals Division ‘T’ indicates Taxation Appeals Division. As at 30 June 1987, the Tribunal had the following members: Australian Capital Territory Judges of the Federal Court The Honourable Mr Justice J.D. Davies (President) The Honourable Mr Justice J.F. Gallop The Honourable Mr Justice A.R. Neaves Deputy President Deputy President R. K. Todd Senior Member Mr J.O. Ballard (G,V) Members Dr D. B. Travers (G) Mr N. Attwood, A.O. (G,V) Dr E. Stephenson, A.O. (V) New South Wales Judges of the Federal Court The Honourable Mr Justice T.R. Morling The Honourable Mr Justice B.A. Beaumont Judge of the Family Court The Honourable Mr Justice R.N.J. Purvis Deputy Presidents Deputy President W.R. McComas Mr Justice D. G. Stewart Deputy President C.J. Bannon, Q.C. Senior Members Mr B.J. McMahon (G,V,T) Sir William Prentice, M.B.E. (G,V) Dr R.A. Hayes (G,V,T) Dr A.P. Renouf, O.B.E. (G,V) Mr P. M. Roach, (G,V,T) Members Dr D.J. Howell (G) Mr C.A. Woodley (G) Miss M.S. McLelland (G) Mrs J.H. McClintock, A.M. (G) Mr C.J. Stevens (G,T) Mr G.R. Taylor (G,T) Dr H.D. Browne (G) Mr G.P. Nicholls (G) Ms G.F. Sutton (G) Brigadier J. Hooper, C.B.E., R.L. (V) Mr T.R. Russell (V) Mr S. Crawshaw (V,T) Dr M.E.C. Thorpe (V) Ms M. T. Lewis (G,V) Victoria Judges of the Federal Court The Honourable Mr Justice J.K. Jenkinson The Honourable Mr Justice P.R.A. Gray Deputy President Deputy President I.R. Thompson Senior Members Mrs R.A. Balmford (G,V,T) Mr J.R. Dwyer (G,V,T) Mrs H.E. Hallowes (G,V,T)
42 Mr J.E. Stewart (G,V,T) Members Mr R.A. Sinclair (G,T) Dr H.W. Garlick, A.M. (G) Mr L.J. Cohn (G,T) Mr H C. Trinick (G,T) Mr G.F. Brewer (G) Mr J.H. Wilson (G) Ms L.S. Rodopoulos (G) Dr D.M. Sutherland (G) Professor R.W. Webster (G) Commodore B.G. Gibbs, A.M., R.A.N. Ret. (V) Mr A. Argent (V) Mrs J. Maher (V) Dr J.B. Morley (V) Mr C.G. Woodard (G) Queensland Judges of the Federal Court The Honourable Mr Justice C.W. Pincus The Honourable Mr Justice. J.E.J. Spender Deputy President Deputy President D.P. Breen Senior Members The Honourable J.B.K. Williams, C.B.E. (G,V) Dr P. Gerber (G,V,T) Mr K. Beddoe (G,V,T) Members Mr J.D. Horrigan (G) Dr N.C. Davis, A.O. (G) Mr W.A. De Maria (G,T) Mrs H.M. Pavlin (G) Dr J. Francis (V) Brigadier T.R. Gibson, R.L. (V) Brigadier I.R.W. Brumfield, C.B.E., D.S.O., R.L. (V) Western Australia Deputy President Deputy President R. D. Nicholson Members Mr I.A. Wilkins (G,T) Dr J.G. Billings (G) Dr N. Marinovich (G,V) Major-General K.J. Taylor, R.L. (G,V) Dr P.A. Staer (G,V) South Australia Judge of the Federal Court The Honourable Mr Justice F.R. Fisher Deputy President Deputy President R.A. Layton Senior Member Mr J.A. Kiosoglous, M.B.E. (G,V) Members Mr B.C. Lock (G,T) Dr J.T.B. Linn (G) Dr D.B. Williams (G,T) Mr R.B. Rogers (V) Dr D. Dowie (V) Mr D.J. Trowse (T) Tasmania Deputy President Deputy President R.C. Jennings, Q.C Members Dr W. McLaren Thomson (G,V) Mr D. Kearney, A.M. (G,V,T)
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