by Gigi Lockhart, Solicitor, DLA Piper and Mri Shankarla, Graduate, DLA Piper
Introduction
Despite lacking a precise or agreed definition[1] (beyond that it is not a court) tribunals have long maintained their status as significant and unique institutions in the Australian legal landscape.
In Australia, tribunals exist dichotomously at both the Commonwealth and State or Territory levels and as such, hold varied powers and functions. For instance, Commonwealth tribunals such as the Administrative Appeals Tribunal (AAT) can review administrative decisions or the executive decisions of Government through an exercise of executive power prescribed by the Australian Constitution. State tribunals such as the Civil and Administrative Tribunal of New South Wales (NCAT) are similarly able to undertake merits review of administrative decisions but can additionally exercise judicial power by resolving disputes in areas such as consumer trading and tenancy.
While courts no doubt continue to play the primary role in the exercise of judicial power in Australia, the costs and delays incurred by parties in the court system has increased the necessity for a lower cost and more efficient alternative. For the most part, tribunals appear to satisfy these criteria and function as a satisfactory alternative for small claims, particularly in their effective use of alternative dispute resolution (ADR) processes, accessibility for unrepresented litigants and procedural flexibility. Still, the structure and processes of tribunals and their ability to satisfy the objectives of the statute under which they were constituted has come under increasing scrutiny.
This article examines Australian tribunals and their ability to satisfy their statutory objectives by first, setting out the structure and processes of the AAT and NCAT, and then, examining their efficiency including their prevalent use of ADR processes throughout the lifecycle of a matter. It is these attributes that uniquely position tribunals in the Australian legal landscape, by offering significant cost savings and increased efficiency, particularly when dealing with smaller claims.
Typical structure of tribunals
Generally, tribunals such as the AAT and NCAT are led by the President of the Tribunal and comprise Deputy Presidents, Senior Members and Members. Applications before the tribunal are managed within divisions that each deal with different types of matters.[2] All members and the Registrar of the AAT are appointed by the Governor-General and in the case of NCAT, by the Governor-General or the Attorney-General.
The AAT consists of 9 divisions, comprising:[3]
- the Freedom of Information Division;
- the General Division;
- the Migration and Refugee Division which also hosts the Immigration Assessment Authority;
- the National Disability Insurance Scheme Division;
- the Security Division;
- the Social Services and Child Support Division;
- the Taxation and Commercial Division; and
- the Veterans’ Appeals Division.
NCAT consists of 4 divisions, comprising:[4]
- the Administrative and Equal Opportunity Division;
- the Consumer and Commercial Division;
- the Guardianship Division; and
- the Occupational Division.
While tribunals have many structural similarities, NCAT (unlike the AAT) is not constrained by any Constitutional requirements and therefore, is able to review administrative decisions by exercising judicial power as well as performing functions in the jurisdiction of the State in the Guardianship Division.[5] NCAT also has an additional internal appeal function in relation to merits review of administrative decisions, through its Appeal Panel which can hear and determine appeals of most but not all decisions made by the Tribunal at first instance.[6]
AAT
Generally, the AAT Act, the Migration Act and other applicable social services legislation dictate the processes applicable to the conduct of reviews conducted by the AAT.[7] Consequently, the review processes of the AAT differ based on the type of decision being reviewed.
Upon receiving an application, the AAT will typically notify the original decision-maker who is obliged to provide the AAT with a copy of the decision and the relevant documents in relation to the review. Apart from the Migration and Refugee Division, the decision-maker is also required to provide a copy of these documents to the applicant and other related parties. In the merits review, the applicant and any other party is given the opportunity to provide the Tribunal with new information to be considered in their review. The AAT may also invite or require a party to provide them with relevant information to the proceedings at various stages of the review process and is empowered to direct non-parties to provide documents relevant to the review or attend and provide evidence to the tribunal.[8] This is a valuable power for the Tribunal, and one which aligns with the coercive powers we typically see accorded to the courts.
Role of ADR
Depending on the type of review, the AAT usually begins with the use of an ADR process, so that matters can (cost-effectively) be resolved by agreement without proceeding to a hearing. The AAT, similar to other tribunals, generally takes a “sequential and iterative”[9] approach to ADR processes. This starts with parties attending an advisory dispute resolution process such as one or more conferences or directions hearings held by the AAT[10] to discuss the issues as between the parties and provide directions on what must be done and by when, for the case to progress further. After this, where appropriate, parties are directed to use another advisory dispute resolution process such as a case appraisal or neutral evaluation. Finally, parties may be directed to a facilitative process such as a conciliation or mediation. Should the dispute either partly or wholly persist, it will be listed for a hearing before the Tribunal, which constitutes a determinative dispute resolution process.[11]
The AAT adheres to its published guidelines to determine which ADR process, if any, is best suited for the type of matter at hand. [12] However, for reviews where such processes are not appropriate, the case will directly be listed for a hearing where the applicant and other parties can provide evidence and make submissions regarding the decision under review.
NCAT
NCAT has the power to review administrative decisions made by NSW government agencies in a broad and diverse range of matters. It also has specialist divisions such as the Consumer and Commercial division, which hears matters relating to home building, motor vehicles and social housing, and a Guardianship division, which hears matters relating to the review of enduring guardianship, power of attorney and the appointment of a financial manager. [13]
Preliminary Steps – Internal Review
Specifically, an NCAT application for the review of an administratively reviewable decision, can only be made by an “interested person”, as defined by s 4(1) of the Administrative Decisions Review Act 1997 (NSW) (ADR Act).[14] An interested person can only apply for a decision to be reviewed by the Tribunal after they have duly applied for an internal review and that review is deemed finalised under s 53(9) of the ADR Act (unless the exceptions set out in s 55(3) – (6) apply). The internal review is treated as finalised if the interested person is notified of the outcome or if no such notice has been provided within 21 days of the application being lodged.[15]
Before a decision is reviewed by the Tribunal, the administrator is required to take reasonable steps to provide any interested person with a written notice of the decision and the right to have it reviewed.[16] Upon written request from an interested person, the administrator must provide a written statement of reasons for the decision unless exempted by legislation.[17] After the decision has been internally reviewed, the reviewer must inform the interested person of the outcome, the reasons for the decision, and the applicant’s right to seek further review of the decision by the Tribunal.[18]
Review by the Tribunal
An interested person who is entitled to a review by the Tribunal under legislation must lodge their application to NCAT within 28 days from the date on which they were notified of the internal review decision. Within 28 days after receiving notice of the application, the administrator must lodge with the Tribunal any statement of reasons given to the applicant for the original decision and the outcome of any internal review.[19]
Role of ADR
NCAT holds directions hearings, which constitute an advisory dispute resolution process, after which it offers conciliation and mediation depending on the division in which the matter is listed. Typically, conciliation is offered for cases in the Consumer and Commercial Division and mediation is offered for cases in the Administrative and Equal Opportunity Division and Occupational Division. While conciliation is a voluntary process that may be strongly recommended by NCAT but not mandated, mediation is a compulsory pre-requisite for a matter to be heard before a tribunal in certain matters such as in the case of strata scheme disputes.
Generally, the following applies in relation to the processes of both Tribunals:
- A decision made by the administrator continues to operate while being reviewed by the Tribunal but an applicant wishing to suspend the decision can apply for a stay. The Tribunal can stay the operation of a decision although there are legislative limits on when the Tribunal can grant a stay.
- In the hearing, the Tribunal is required to determine the “correct and preferable decision”[20] by considering the material before it and not before the administrator and the law at the time of the review and can exercise all the functions conferred on the administrator who made the decision under review. In doing so, Tribunals may affirm or vary the decision, set aside the decision, and substitute a new one, or remit the decision to the administrator to be reconsidered.[21] In all cases, the Tribunal must provide reasons for its decision.
- The Tribunal is not bound by the rules of the evidence.[22]
Efficiency of Tribunals
The ‘objects’ provisions of the statutes which establish tribunals consistently use terms such as efficiency, accessibility, fairness and flexibility. For instance, the AAT Act requires the AAT to provide “a mechanism of review that is fair, just, economical, informal and quick.”[23] In general, tribunals offer a lower-cost experience for users as compared to courts, through shorter wait times before being listed for hearings, lower filing fees, simple forms and less formal and more flexible processes which restrict the scope of hearings and where appropriate, even dispensing with hearings that require ‘in-person’ attendance.[24]
The costs and barriers to participation in ADR continue to decrease as tribunals increasingly embrace online dispute resolution (‘ODR’) through solutions such as e-Mediation, which relies upon audio visual links to set up a virtual mediation meeting and the growing development and adoption of Artificial Intelligence tools containing tailored content to facilitate parties reaching settlement.[25]
However, the efficiency and cost savings of having a less formal hearing and pre-hearing process is limited by the delays and costs arising from using the same key elements of an adversarial system for hearings before a tribunal, instead of taking a more inquisitorial role.[26] Additionally, mandating certain ADR processes has made tribunal proceedings more inefficient in certain contexts, as set out further below.
Relevantly, in December 2022, Attorney-General Mark Dreyfus announced the Australian Government’s intention to abolish the AAT and replace it with a new administrative review body that would include a transparent, merit-based system of appointments.[27] While this remains to be seen, political statements and foreshadowed actions like these, bring into question the ongoing role of tribunals (in their current manifestation) in Australia’s legal system.
Is the use of ADR processes by tribunals effective?
In a bid to reduce costs, delays and the caseload burden on tribunals, the use of ADR has long been institutionalised in the practice of many tribunals[28] including the AAT and NCAT.[29] Therefore, in evaluating the efficacy of the use of ADR by tribunals, factors such as the rate of resolution through the process, the time taken for the matter to reach a facilitative process and/or be heard before a tribunal and relatedly, costs incurred or saved, must be considered. Notably, facilitative processes offer benefits such as streamlining or decreasing the number of issues in dispute before a tribunal which can reduce costs and delays if the matter does proceed to hearing. However, it remains challenging to quantify these successes.
Further, the use of facilitative processes by tribunals is likely to vary in their effectiveness due to differences in approach,[30] and the data available on the outcomes of such processes for different tribunals varies widely. From a quantitative perspective, the figures from some tribunals suggest that facilitative processes have been used effectively. For example, as early as 1994, only a few years after the introduction of mediation at the AAT, 81% of the 621 cases referred to a mediation conference at the AAT were resolved without a hearing.[31] More recently, the 2021-2022 Annual Report of the AAT recorded that 67% of validly lodged applications were finalised in the period in which at least one ADR process was held. [32] State tribunals have also demonstrated similar success in their use of ADR processes. For example, in the former development and resources stream of the State Tribunal of Western Australia, 70% of the finalised applications had been referred to mediation and 79% of the applications had been resolved by facilitative processes, with a further 6% being partially resolved by facilitative processes.[33]
While there are limited figures available in this regard for NCAT its use of facilitative processes has, in fact, been criticised for its adoption of mandatory mediation. For example, in July 2023, the average wait time for parties to a strata scheme dispute to meet with a mediator was three months, and parties seeking their matter to be heard before the Tribunal would have to wait another four months.[34] The use of mandatory mediation is particularly counterintuitive where matters concerned serious defects for which ‘time was of the essence’. The gravity of such inefficiencies was further highlighted by a 2021 Strata Defects Survey which determined that 39% of all residential buildings built between 2014 and 2020 alone had serious defects.[35] With nearly 50% of residents of Greater Sydney anticipated to live in strata schemes by 2040,[36] unless the dispute resolution procedure is made less onerous and more flexible (as tribunals were intended to be) NCAT’s use of ADR may act as a barrier to justice.
Conclusion
Tribunals in Australia continue to hold a unique position in the Australian legal landscape in their ability to offer greater cost savings and efficiency over courts, particularly for smaller claims and unrepresented litigants. When accounting for the potentially excessive costs of a sequential dispute resolution procedure (i.e., multiple ADR processes), it is arguable that the benefits offered by tribunals may be eroded, as suggested by recent political calls for reform. Ultimately however, Australia’s tribunals do appear to satisfy the need for a lower cost and more efficient alternative to the courts, particularly in their effective use of ADR processes, coercive powers of a court when necessary, and overall accessibility and flexibility.
Endnotes
[1] Justice Garry Downes AM, ‘Australian Tribunal Reforms’ (Conference Paper, 16th Commonwealth Law Conference 2009, 8 April 2009).
[2] Administrative Appeals Tribunal (AAT), Annual Report 2021 -22 (Annual Report, 23 September 2022), ch 2 (‘Annual Report’); Robertson Wright, ‘An overview of the NSW Civil and Administrative Tribunal’ (Paper, The College of Law Litigation Breakfast Series, 3 March 2015), 5 and 12.
[3] AAT, Annual Report, p. 10.
[4] Civil and Administrative Tribunal Act 2013 (NSW) (‘NCAT Act’), s 16(1).
[5] Roberson Wright, ‘Administrative Review Proceedings in NCAT’ (Paper, NSW Bar Association, 21 March 2017) 2 – 3.
[6] NCAT Act, s 32.
[7] AAT, Annual Report, p. 15 – 16.
[8] Ibid, ss 16 – 17.
[9] Brian J Preston, ‘The use of alternative dispute resolution in administrative disputes’ (Paper, Symposium on “Guarantee of the Right to Access to the Administrative Jurisdiction, 9 March 2011) 8.
[10] Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’) s 34A.
[11] Pamela O’Connor, Ian Freckelton and Peter Sallmann (2020) Practice Manual for Tribunals. (Council of Australasian Tribunals (COAT), 5th ed, 2020) 85.
[12] AAT, ‘Alternative Dispute Resolution (ADR) Guidelines’ (Guidelines, June 2006).
[13] Civil and Administrative Tribunal Act 2013 (NSW), s 7(1). Under s 7(1), the Tribunal may be called ‘NCAT’.
[14] Administrative Decisions Review Act 1997 (NSW) (‘ADR Act’), s 4(1) defines “interested person” as “a person who is entitled under enabling legislation to make an application to the Tribunal for an administrative review under this Act of an administratively reviewable decision.”
[15] Ibid, s 53(9).
[16] Ibid, s 48.
[17] Ibid, s 49.
[18] Ibid, s 53(6).
[19] Ibid, s 58(2).
[20] Ibid, s 63; Justice Duncan Kerr Chev LH, ‘Keeping the AAT from Becoming a Court’ (Seminar Paper, AIAL (NSW) Seminar, 27 August 2013).
[21] Ibid, s 63(3).
[22] Note that it remains subject to the rules of natural justice and NCAT may also grant certificates under s 128 of the Evidence Act where requiring witnesses to answer when they otherwise may incriminate themselves or expose themselves to a penalty.
[23] AAT Act, s 2A.
[24] Bernard McCabe, ‘Perspectives on Economy and Efficiency in Tribunal Decision-Making’ (Paper presented to the Australian Institute of Administrative Law National Conference, Brisbane, 22 July 2016) 40.
[25] O’Connor et. Al, (n 11) 91.
[26] McCabe, (n 24) 48.
[27] Nick Pearson, ‘Administrative Appeals Tribunal abolished, replaced: Dreyfus’ Nine News (online, 16 December 2022) <https://www.9news.com.au/national/aat-administration-appeals-tribunal-abolished-overhaul-mark-dreyfus-auspol-politics-news/03b60c45-27fb-46e2-a61f-c5898ac519f8>.
[28] O’Connor et. Al, (n 11) 84.
[29] NCAT Act, s 37.
[30] McCabe, (n 24) 48.
[31] John Hendley, ‘Mediation in Administrative Law – The Commonwealth AAT Experience’ (Paper, AIAL Seminar, Mediation in Administrative Law Dispute Resolution, 22 June 1994).
[32] AAT, Annual Report.
[33] State Administrative Tribunal (SAT), State Administrative Tribunal Annual Report 2013-2014, p. 12.
[34] Amber Schultz, ‘The ‘extra obstacle’ for owners clashing with body corporates over building defects’ The Sydney Morning Herald (online, 16 July 2023) < https://www.smh.com.au/national/nsw/the-extra-obstacle-for-owners-clashing-with-body-corporates-over-building-defects-20230713-p5do1u.html>.
[35] Ibid.
[36] Ibid.