Administrative Tribunals and Adjudication

Peter Cane

• Publisher: Hart Publishing
• Year: 2009
• Print ISBN: 9781849460910
• eBook ISBN: 9781847317520
• Edition: 1
• Topic: Jura
• Subtopic: Verwaltungsrecht

Among the many constitutional developments of the past century or so, one of the most significant has been the creation and proliferation of institutions that perform functions similar to those performed by courts but which are considered to be, and in some ways are, different and distinct from courts as traditionally conceived. In much of the common law world, such institutions are called 'administrative tribunals'. Their main function is to adjudicate disputes between citizens and the state by reviewing decisions of government agencies - a function also performed by courts in 'judicial review' proceedings and appeals. Although tribunals in aggregate adjudicate many more such disputes than courts, tribunals and their role as dispensers of 'administrative justice' receive relatively little scholarly attention.

This wide-ranging book-length treatment of the subject compares tribunals in three major jurisdictions: Australia the UK and the US. It analyses and offers an account of the concept of 'administrative adjudication', and traces its historical development from the earliest periods of the common law to the twenty-first century. There are chapters dealing with the design of tribunals and tribunal systems and with what tribunals do, what they are for and how they interact with their users. The book ends with a discussion of the place of tribunals in the 'administrative justice system' and speculation about possible future developments.

Administrative Tribunals and Adjudication fills a significant gap in the literature and will be of great value to public lawyers and others interested in government accountability.

1

Survey

1.1 The Project

ONE OF THE most significant, large-scale and enduring constitutional developments of the past 150 years has been the creation of a set of governmental institutions known, in major common law jurisdictions outside the United States, as ‘tribunals’. This book is about a subset of that set of institutions. It is the main fruit¹ of a project that started out as a theoretically and temporally contextualised study of the Australian Administrative Appeals Tribunal (AAT). As the project developed, I came to the conclusion that it in order properly to understand the AAT and its place in the governmental system it would be necessary to broaden the study in three directions: first, institutionally – to cover not only the AAT but a larger set of institutions that I will refer to as ‘administrative tribunals’; secondly, comparatively – to take in the United Kingdom² and the United States of America (and, to a lesser extent, France) in addition to Australia; and thirdly, historically – attempting to dig more deeply than I had originally intended into the antecedents of the ‘modern’ administrative tribunal. The choice of the UK and the US as the main comparator jurisdictions was made easy by the fact that the Australian federal constitutional system³ (as we will see in more detail later) has a dual heritage, partly British and partly American.

An important aim of the project is to increase knowledge and understanding of the AAT outside Australia. This explains why – despite the broadening of focus I have just described – the AAT plays a more prominent part in the analysis than any other single institution. The AAT deserves this special position for various reasons. First, in terms of subject matter, its jurisdiction is very wide; secondly, it reviews decisions at both first-instance (‘first tier’) and appellate (‘second tier’) levels; thirdly, it has generated (and continues to generate) a large body of reported case law; fourthly, it occupies a markedly distinctive niche in the constitutional structure of Australian federal government; fifthly, its characteristic function is to engage in ‘merits review’ – a concept which, in the Australian context, has acquired a technical meaning that deserves careful analysis for the light it can throw on the functions of tribunals more generally; sixthly, the creation and operation of the AAT have led to important further developments in the design of institutions of governance at both state and federal levels in Australia; and finally, Australian practice in this area has significantly influenced recent and ongoing re-organisation of the tribunal system in the UK.⁴

1.2 Administrative Tribunals and Administrative Adjudication

Whereas I originally intended the AAT to be the centre and main subject of attention, broadening the project in the way I have described led me to think of it instead as a sort of lens that could be used to sharpen analysis and refine understanding of a particular set of governmental institutions. A common feature of contributions to the literature on ‘tribunals’ is an initial, somewhat despairing observation that the term ‘tribunal’ is used to refer to many different types of institutions, followed by a discussion that fails to realise the implicit promise of definitional sensitivity. One way of dealing with this unsatisfactory situation would be to attempt a mapping exercise designed to develop a taxonomy of the various agencies to which the term ‘tribunal’ is applied. However, such an approach is unlikely to be particularly interesting or illuminating. Instead, the strategy of this book is to focus on institutions – ‘administrative tribunals’ – that share certain basic characteristics with the AAT and to sideline other types of institution to which the term ‘tribunal’ is applied.

For this purpose, three distinctive features of the AAT may be singled out: its institutional nature, its characteristic function and its jurisdiction.

1.2.1 The AAT is not a court

First, the AAT is not a court. This statement can be explained quite precisely because in Australian federal law, the word ‘court’ has a technical constitutional meaning, namely a body established under Chapter III of the Constitution, the judges of which are appointed in accordance with section 72 of the Constitution (with security of tenure and salary protection) and the predominant function of which is the exercise of federal judicial power. Under Australian federal constitutional law, non-judicial functions may not be conferred on federal courts unless they are incidental to the exercise of judicial power. As will be explained in much more detail later, the characteristic function of the AAT – ‘merits review’ – is non-judicial and so cannot be conferred on a federal court. For this reason, the AAT was deliberately created as a non-court. In terms of the formal separation of powers embodied in the first three Chapters of the Australian Constitution – which respectively confer legislative power on the legislature (Chapter I), executive power on the executive (Chapter II) and judicial power on the judiciary (Chapter III) – the AAT belongs to the executive branch of government, not the judicial. Being a non-court, the AAT is staffed by ‘members’, not ‘judges’ or ‘justices’.

In constitutional systems, such as those of the UK and the Australian states, which do not embody a formal separation of powers, the terminological distinction between ‘tribunals’ and ‘courts’ lacks the constitutional significance it has in the Australian federal system. In Australian federal constitutional law, all judges of federal courts must be appointed in accordance with the provisions of section 72 of the Constitution. By contrast, in systems such as those of the UK and the Australian states, while judges of superior courts typically enjoy security of tenure and salary protection similar to that conferred on judges of Australian federal courts by section 72 of the Constitution, judges of inferior courts may not. Furthermore, in such systems there is no formal constitutional distinction between judicial and non-judicial power and no prohibition of the conferral on courts of functions that would be classified as non-judicial in Australian federal law. As a result, in such systems, agencies of the type that provide the focus of this study may not be called ‘tribunals’. For instance, the New South Wales Land and Environment Court has the power, in some areas of its jurisdiction, to engage in merits review; but it also exercises functions that in federal law would be classified as judicial. By reason of the constitutional prohibitions of conferring non-judicial power on a court and of conferring both judicial and non-judicial power on the same body (whether a court or a non-court), the federal Parliament could not create such a body. Again, just as in such systems bodies called ‘courts’ may function as tribunals, so bodies called ‘tribunals’ may be courts. For instance, the Upper Tribunal established by the Tribunals, Courts and Enforcement Act 2007 (UK) (‘TCE Act’) is a ‘superior court of record’.

Because the distinction between courts and tribunals is less formally and sharply drawn in the law of the UK and the Australian states than in Australian federal law, the meaning of the statement, that a tribunal is not a court, is less clear in such systems than it is in the Australian federal system. Nevertheless, the distinction between tribunals and courts is recognised and clearly drawn even in systems that lack formal separation of powers; and in such contexts, discussion of the differences between and the relative strengths of ‘tribunals’ and ‘courts’ is a staple of the literature on ‘tribunals’. As we will see in 2.2, this may be explicable historically: at least since Montesquieu’s exposition in the 18th century, in accounts of the concept of separation of powers the judicial branch has typically been identified with superior central courts, which can be most easily contrasted with tribunals, largely ignoring inferior and local courts which may bear more similarity to tribunals than to superior courts. Moreover, in the UK at least, an important strand in the history of the development of tribunals was dissatisfaction with and a desire to create alternatives to the superior central courts. Thus, whereas, in Australian federal law, the contrast between tribunals and courts has constitutional significance, in systems that lack formal separation of powers its significance comes, partly at least, from a relatively narrow understanding of the institution of a court that conceals the diversity amongst entities referred to by that name.

The situation is different again in the US. As in the case of Australia, the analysis will focus on US federal law and the federal governmental system. In the US, the term ‘tribunal’ is rarely used to describe institutions of the type on which this book concentrates or, indeed, to describe any of the types of agency that are commonly referred to as tribunals in other major common law jurisdictions. In an early article in the Harvard Law Review WH Pillsbury used the term ‘administrative tribunal’ in a sense reasonably close to that adopted here.⁵ But in his famous book, The Administrative Process,⁶ JM Landis used the phrase to refer to multi-functional regulatory agencies, and to the extent that the term is used in the US literature, this is the meaning it typically bears. There is a tendency, especially in the older English and Australian literature, to use the term to refer both to administrative tribunals in the sense adopted in this book and to bodies that perform regulatory functions, such as licensing;⁷ and this is one reason why (as noted earlier) many discussions of tribunals begin with an expression of definitional despair.

Like the first three Chapters of the Australian Constitution, the first three Articles of the US Constitution embody a formal separation of powers: Article I deals with the legislature and legislative power, Article II with the executive and executive power and Article III with the judiciary and judicial power. However, as will be explained in more detail in 3.2, the US Supreme Court has not interpreted the US Constitution as requiring such a sharp distinction between courts and non-courts as the Australian High Court has read out of (or into) the Australian Constitution. Put crudely, the Supreme Court has recognised that Congress may confer judicial power on bodies that are not Article III courts provided that in doing so, it does not undermine the values protected by separation of powers (namely prevention of undue concentrations of power and conflicts of interest, and protection of individual rights) and provided it makes adequate provision for review by a Chapter III court of the exercise of judicial power by such bodies. There are two categories of such bodies: so-called ‘Article I courts’ and agencies that belong to the executive branch. Within agencies, judicial power is exercised by officials called ‘administrative law judges’ (ALJs, who are appointed under the provisions of the Administrative Procedure Act 1946) and ‘administrative judges’ (AJs, who are not so appointed).⁸ ALJs and AJs are the closest US equivalents to administrative tribunals in the sense adopted in this book, and unless the context indicates otherwise, the term ‘tribunal’ will generally be used to include such officials. A significant difference between Article I courts and ALJs/AJs is that the latter are typically embedded within government agencies whereas the former are not.

In the US, therefore, the term ‘court’ is not confined to bodies established under Article III of the Constitution; but the word is not used to describe officials within agencies that perform judicial functions even though such officials are called ‘judges’. Nor is the term ‘tribunal’ normally applied to them. Nevertheless, debates that are conducted in Australia and the UK in terms of tribunals on the one hand and courts on the other are also carried on in the US. For instance, the modus operandi of ALJs and AJs is often compared and contrasted with that of ‘courts’ understood in terms of a relatively narrow, traditional paradigm of the superior central court; and since the 1930s in the US proposals have often been made for the establishment of an administrative ‘court’ in the sense of a free-standing agency that would employ ALJs and AJs, who would cease to be embedded within agencies.

In summary, although the word ‘court’ is understood in various ways and with varying degrees of precision in different jurisdictions, tribunals are recognised in our three main comparator jurisdictions as being, in some sense, not courts.

1.2.2 The AAT reviews decisions

The second noteworthy feature of the AAT is its characteristic function, namely that of reviewing decisions. Although the AAT’s name suggests that it conducts ‘appeals’, the Administrative Appeals Tribunal Act 1975 – the AAT’s constitutive legislation – gives it the function of ‘reviewing’ decisions. Indeed, a replacement for the AAT, proposed in the late 1990s but never brought into existence, was to be called the ‘Administrative Review Tribunal’. As we have already noted, this characteristic function of the AAT is commonly described as ‘merits review’, a non-judicial task that cannot be conferred on a federal court. Merits review can be contrasted with ‘judicial review’, an analogous but significantly different judicial function that cannot be conferred on a federal tribunal. For present purposes, we can ignore the distinction between these two forms of review (it is discussed in detail in Chapter 5) and concentrate on the concept of ‘review’ itself.

The linguistic instability in descriptions of the AAT (‘appeal’ or ‘review’?) is significant. There is a well-recognised distinction in administrative law theory between ‘appeal’ and ‘review’. This distinction has two dimensions, one concerned with the powers of the court or tribunal (in particular whether the court of tribunal can make a substitute decision) and the other concerned with available grounds for adjudicatory intervention (for instance, error of law, error of fact and so on). In the term ‘judicial review’, the word ‘review’ indicates that the court may upset decisions only on relatively narrow grounds and that it lacks the power to make substitute decisions. Conversely, use of the term ‘appeal’ in relation to the AAT reflects the fact that it has the power (amongst others) to make substitute decisions and that the basis on which it can make such a decision – that the primary decision was not the ‘correct or preferable’ one – is broad. On the other hand, use of the term ‘review’ in relation to the AAT serves to emphasise the fact that although the AAT’s characteristic function of merits review approximates to a de novo rehearing and that the AAT has power to make decisions, the AAT is not a primary decision-maker but a maker of ‘substitute’ decisions. The AAT, we might say, has power to supervise the making of decisions by reviewing and, in appropriate cases, by re-making decisions.

For the sake of clarity, it is important at this point to say a word about the use throughout this book of the word ‘review’ (and the cognate term ‘reviewer’). In particular, the word ‘review’ is not used in contrast to the word ‘appeal’. So, for instance, UK readers should not read the word ‘review’ as a shorthand for ‘judicial review’ (as opposed to an appeal). Rather, (unless the context indicates otherwise), the word ‘review’, without any adjective, is used to refer to what administrative tribunals characteristically do (however that may be understood). Review by courts will normally be referred to as ‘judicial review’. For clarity’s sake, what tribunals do will sometimes be referred to as ‘non-judicial review’, and this term should be understood as synonymous with ‘review’ without any adjectival qualification. The term ‘merits review’ will be used (only) to refer to the Australian concept elaborated in Chapter 5, which is a mode of ‘review’. In the UK, the term typically used to describe what tribunals do is ‘appeal’, and this may be contrasted with ‘judicial review’. In my terms, ‘appeal’ used in this way is a mode of ‘review’ (without adjectival qualification), and an ‘appellate tribunal’ is a species of ‘reviewer’. An aim of Chapter 5 is to compare and contrast the various understandings of what tribunals do in our comparator jurisdictions with the Australian concept of merits review. One of the issues for consideration will concern similarities and differences between the UK concept of ‘appeal’ (understood as a mode of ‘review’) and the Australian concept of ‘merits review’.

How should we understand the AAT’s characteristic function of reviewing primary decision-making?⁹ First, note that the word ‘review’ is used not only in the terms ‘judicial review’ and ‘merits review’ but also in the term ‘internal review’. Internal review can be distinguished from ‘external’ review. This distinction is partly a function of institutional structure. Adopting a spatial metaphor, review is internal if it takes place within the institution in which the original decision-maker was located at the time the decision was made, but external if it takes place within a different institution. For instance, a primary decision to refuse a social security benefit to a claimant, made by an officer of a social security agency, may be internally reviewed by a more senior official within the agency and externally reviewed by an administrative tribunal institutionally separate from the agency. In terms of this distinction, the AAT reviews decisions externally. Adopting a different metaphor, the distinction between internal and external review concerns the ‘distance’ between the decision-maker and the reviewer. In these terms, the distinction may be understood as a matter of degree depending on various aspects of the relationship between the decision-maker and the reviewer, including their respective institutional locations. This latter way of thinking about the internal/external distinction may be particularly useful in understanding bodies, such as the Refugee Review Tribunal (RRT) and the Migration Review Tribunal (MRT) in Australia,¹⁰ and officials such as ALJs and AJs in the US, that occupy a somewhat equivocal position vis-à-vis the relevant decision-making agency.

Internal review may be contrasted not only with external review but also with ‘reconsideration’ of a decision. Reconsideration and internal review are typically similar processes,...

Table of contents

• Cover Page
• Title Page
• Copyright
• Dedication
• Contents
• Preface
• Abbreviations
• Table of Cases
• Table of Legislation
• 1 Survey
• 2 History
• 3 Models
• 4 Form
• 5 Function
• 6 Purpose
• 7 Landscape
• Index