Wednesday, July 18, 2012
Tribunals not courts, but if it looks like....
You may have been thinking I got to 2500 posts and dropped by the wayside.
Or off the perch. Not quite.
I've been busy with other things including representing an applicant in a Government Information (Public Access) Act review in the NSW Administrative Decisions Tribunal. That involved a few visits to John Maddison Tower in Goulburn St where the Tribunal has been located since moving south from long time digs in Elizabeth St in October last year. The former home was in an office block near Sydney's heavyweight legal precinct. The John Maddison Tower and the Downing Centre next door are court buildings in the next tier, with John Maddison home to the District Court including the civil registry and several floors of courtrooms, the Federal Magistrates Court and the Chief Industrial Magistrates Court. These days with the ADT, the Dust Diseases Tribunal, and the Medical Tribunal for company making it a mix of parts of both the executive and judicial branches of government.
Citizens jostling with barristers and solicitors passing through the security check as they enter on the ground floor, and who consult the day's tribunal listings in the foyer affixed to a notice board headed "District Court" may find this a somewhat intimidating, heavily legal environment.
The ADT has its own floor on Level 10 (as does the Dust Diseases Tribunal on 12) so there is that line between the two. Level 10 has had a makeover and includes small rooms for hearings and conferences. The presiding member sits level with the parties, there are no tipstaffs, wigs or gowns, and no-one calls "all rise' - but everyone does anyway. The presiding member in this case, and I'm sure this goes for her colleagues as well, was not overly formal or into judicial airs and graces, but those of us slugging it out piled on the "as it pleases the tribunal" and similar polite phrases. I even received a "m' friend" reference from the solicitor representing the government agency- and noticed but took no umbrage it wasn't "m' learned...."
The whole process might make the non-represented feel a little shaky, particularly as most government agencies can be expected to have called the lawyers in by this stage.
As to co- location with courts I'm sure the bean-counters in AG's and Treasury were able to demonstate cost savings and efficiencies.
Interesting nevertheless to read the following about the Commonwealth equivalent, the Administrative Appeals Tribunal in Stephen Skehill's review of the Federal courts and tribunals completed in January and published recently, including the recommendation that the AAT not be co-located with the Commonwealth Courts....(emphasis added):
7.52 Like other major Commonwealth tribunals, the AAT’s legislation contains a provision stating that: "In carrying out its functions, the Tribunal must pursue the objective of providing mechanism of review that is fair, just, economical, informal and quick.
7.53 Despite this, it was frequently commented to the Review that the AAT had adopted a culture and approach in its hearings that was “too formal”, and was markedly more formal than the approach adopted with success by other Commonwealth tribunals. The President of the AAT rejected these views in his comments to the Review. He said that such comments were based on an unfounded perception and not on reality. Whether this concern with excess formality is a matter of perception or reality, it is nevertheless an issue that needs to be dealt with.
7.54 There is no doubt that the AAT (and each other tribunal) should conduct itself with decorum and in a manner that earns respect for its expertise and, as far as possible, acceptance of its decisions. However, there is equally no doubt that the AAT (and each other tribunal) needs to be mindful of the background of those that have business before the tribunal so that it maintains its accessibility and understandability to them. In the opinion of the Review, the AAT should not seek to be “Court-like” – it should unashamedly seek to be “tribunal-like” – that is, less formal.
7.55 While a higher degree of formality may be appropriate in a major tax appeal in which all parties are represented by senior and junior counsel and a phalanx of solicitors, a far lesser degree should be exhibited in cases where self-represented or lay-represented applicants are pressing matters that may be of far lesser monetary value but of great personal significance. Further, in no case should the AAT and its members lose sight of the fact that the AAT (and each other tribunal) is a part of the Executive and not of the Judiciary. Traditional (and some would say anachronistic) features and practices of courts should have no role in the AAT (or any other tribunal)....
7.59 The Review has considered whether AAT administration functions should be merged with those of the Commonwealth Courts and whether the AAT should be located within Commonwealth Law Courts buildings (which is currently the case in Brisbane and Hobart). However, the Review is concerned that such merger or co-location would take the AAT too far “up-market”, would be likely to further entrench what is an undesirable level of formality, and would work against accessibility for many applicants. In any event, tribunal case management and judicial case management have little in common, and tribunal hearings should generally be conducted in hearing rooms quite different in size and design from court rooms – this is especially the case given the very low level of AAT applications that proceed to a contested hearing, with most applications being resolved through alternative dispute resolution processes.
7.60 Accordingly, the Review recommends that AAT administration functions should not be merged with those of the Commonwealth Courts and, unless it would be inefficient and uneconomic to do otherwise, the AAT should not be co-located with the Commonwealth Courts....