INQUISITORIAL PROCESSES IN AUSTRALIAN TRIBUNALS Narelle Bedford Robin Creyke Orders for this publication should be sent to: The AIJA Level 1, 472 Bourke Street MELBOURNE VIC 3000 Australia Telephone: (61 3) 9600 1311 Facsimile: (61 3) 9606 0366 Website:www.aija.org.au Published 2006 by the Australian Institute of Judicial Administration Incorporated ISBN 1-875527-47-8 ii Preface As the result of a presentation by Ms Robin Creyke, then Reader in Law at the Centre of International and Public Law, Faculty of Law, the Australian National University, at the AIJA Annual Conference held in Hobart in September 2001 entitled “Courts, Tribunals and Government”, the AIJA Project and Research Committee resolved to explore with Ms Creyke the possibility of a project further focusing upon the work of tribunals. Consequent upon discussion between Ms Creyke, Mr Stephen Skehill, a Life Member of the Institute and then an AIJA Councillor and Professor Greg Reinhardt, AIJA Executive Director, Ms Creyke put forward a proposal for a research project on Inquisitorial Processes in Australian Tribunals. A detailed proposal was submitted to the AIJA Project and Research Committee which formally recommended to Council a project focusing upon an analysis of what it means for a tribunal to operate in an inquisitorial rather than an adversarial fashion and an empirical study of relevant legislation in practices and procedures of tribunals described as inquisitorial. The way in which tribunals operate and the practices and procedures they adopt are relevant not only to their work but can also inform the way in which courts manage litigation. The AIJA is pleased to have worked cooperatively with tribunals and tribunal members over a number of years and to have conducted an annual conference for tribunal members. It has been particularly pleased to be associated financially and otherwise with the development of the COAT Practice Manual which is shortly to be launched. The Institute’s thanks are extended to Professor Creyke and Ms Narelle Bedford for a work which will greatly enhance knowledge of the way in which tribunals work. The Institute is also grateful to the Advisory Committee for the project which consisted of: Mrs Anne Coghlan, the Hon Justice Michael Barker, the Hon Justice Garry Downes AM, Dr Robin Handley, the Hon Justice Murray Kellam AO, Professor Greg Reinhardt, Mr Stephen Skehill, and Her Honour Judge Christine Trenorden. Mrs Kathy Jarrett was responsible for formatting and desktop publishing and I am grateful to her for her work in this regard. The Hon Justice John Byrne President, AIJA March 2006 iii iv TABLE OF CONTENTS Page PREFACE .......................................................................................................... iii I INQUISITORIAL CONCEPTS – AN ANTIPODEAN RESPONSE .......... 1 (a) Definitional issues................................................................................ 2 (b) European model of inquisitorial process compared with its adversarial counterpart ......................................................................... 4 (c) Does the Australian model for inquisitorial bodies match key elements of the European model? ........................................................ 5 (d) Should Australian tribunals be labelled 'inquisitorial'? ........................ 9 II RESEARCH METHODOLOGY ............................................................... 10 (a) Tribunal selection and research design .............................................. 11 (b) The Tribunals: A Snapshot ................................................................ 12 III ANALYSIS OF OPERATION OF TRIBUNALS ..................................... 13 (a) Self-Perception of Tribunals .............................................................. 13 (b) Factors indicating processes are inquisitorial .................................... 14 (c) Legislative indicators for tribunals studied ........................................ 16 (d) Inquisitorial practices of tribunals...................................................... 18 IV HEARINGS OBSERVATIONS ................................................................ 20 (a) Key factors for taking an investigative approach ............................... 20 (b) Principal areas in which additional material is sought ....................... 22 (c) Material obtained from sources other than the parties ....................... 22 (d) Absence of rules of evidence ............................................................. 23 (e) Constitution of panels ........................................................................ 23 (f) Level of formality at hearings ............................................................ 24 V INTERVIEWS WITH TRIBUNAL STAFF AND MEMBERS ................ 24 (a) The gap between the existence of legislatively conferred powers and their actual use ................................................................................... 24 (b) Constraints on the adoption of investigatory practices ...................... 25 (c) Expertise in investigative techniques ................................................. 25 (d) Resourcing issues for investigative hearings ..................................... 27 VI JUDICIAL OBSERVATIONS ON ‘INQUISITORIAL’ ........................... 27 (a) Impact of statutory framework for inquisitorial tribunals .................. 28 (b) Natural justice .................................................................................... 35 (c) Duty of inquiry .................................................................................. 38 VII TRIBUNAL OBSERVATIONS ON ‘INQUISITORIAL’ ......................... 44 Considerations affecting extent of obligation ............................................. 44 (a) Statutory evidential role of tribunal members .................................... 45 (b) Duty of inquiry .................................................................................. 47 (c) Management of proceedings including rules of evidence .................. 50 (d) Role of parties vis-a-vis the tribunal .................................................. 55 (e) Onus of proof ............................................................................................. 57 v (f) Rights and interests of parties including the right to natural justice ........... 58 (g) Pragmatic considerations ............................................................................ 60 CONCLUSIONS .............................................................................................. 64 ATTACHMENTS ............................................................................................. 67 vi INQUISITORIAL PROCESSES IN AUSTRALIAN TRIBUNALS NARELLE BEDFORD AND ROBIN CREYKE* The terms ‘adversarial’ and ‘inquisitorial’ have no precise or simple meaning and to a significant extent reflect particular historical developments rather than the practices of modern legal systems. No country now operates strictly within the prototype models of an adversarial or inquisitorial system. The originators of those systems, England, France and Germany, have modified and exported different versions of their respective systems.1 I INQUISITORIAL CONCEPTS – AN ANTIPODEAN RESPONSE We are accustomed to describing hearing processes as either adversarial or inquisitorial. Despite frequent references to this dichotomy, the meaning of ‘inquisitorial’ is less well understood than ‘adversarial’. A consequence is that the description ‘inquisitorial’ may have been allocated inappropriately to the procedures of Australian tribunals, at least if the term is taken to imply that non-adversary bodies in Australia operate in accordance with the traditional concept of civil law process. This paper explores the meaning of ‘inquisitorial’ in civil law jurisdictions, and assesses whether the European model has been faithfully adopted in the context of Australian tribunals. In light of the negative answer to that question, the paper next considers what descriptor should be used for Australian tribunals not operating in an adversary mode and what flows from the allocation of the label ‘inquisitorial’. The views of Australian federal courts and key tribunals are examined to give practical content to what is meant in Australia in describing a tribunal’s procedures as ‘inquisitorial’. There are several reasons these questions should be addressed in this country. The perceptions of parliamentarians about the mode of operation of tribunals colour their views of the procedures that tribunals should be given. If that perception is inappropriately influenced by legislators’ understanding of ‘inquisitorial’, tribunal legislation may be ill-fitted for the inquisitorial role. An appreciation of the meaning of ‘inquisitorial’ also contributes to the standards and processes courts expect of tribunals. If judges have not understood the impact of their non-adversarial role, tribunals may be found unfairly to breach standards set by the courts. For example, to judges trained in adversarial methods the level of questioning required in an inquisitorial process may indicate bias. The public's perception, too, of tribunal *Narelle Bedford is a former Executive Officer of the Migration Review Tribunal and the Refugee Review Tribunal, Melbourne and is on leave from Commonwealth Attorney-General’s Department. Robin Creyke holds the Alumni Chair of Administrative Law, Australian National University. She is a Special Counsel with Phillips Fox Lawyers, a member of the Administrative Review Council,