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COMMENTARY
The Hon Justice Murray Kellam[*]
I have been asked to provide you with an update on the developments in administrative tribunals during the past two years. I will refer briefly to the developments in the Commonwealth sphere and in greater depth to the developments of judicially led amalgams in New South Wales and Victoria. I will discuss the question of what, if any, benefits have been derived in Victoria from the new approach taken there. I propose then to discuss some of the ways in which tribunals can improve their performance within the structure provided to them.
Over the last 25 years there has been significant growth in the number and variety of tribunals servicing the community both in Victoria and throughout Australia. Tribunals were established during this period as specialist bodies to deal with a variety of issues as particular needs arose. It has always been the intention of Parliaments that such Tribunals be relatively informal, cost effective, efficient and by comparison with Courts would have the ability to apply specialist knowledge to the issues before the Tribunal.
However, at least in Victoria and New South Wales, the development of a large number of Tribunals was piecemeal and responsive to ad hoc issues seen by Parliament to be relevant at the time of the commencement of such Tribunals. It was argued in both States that an undisciplined proliferation of tribunals led to a number of undesirable consequences including duplication of administrative infrastructure, inconsistency of approach and unduly narrow specialization by some tribunals. In particular, it was argued that tribunal members were insufficiently independent of the Executive.
A discussion paper entitled Tribunals in the Department of Justice: A Principled Approach was distributed widely throughout Victoria in October 1996 and numerous submissions were made to it. The paper in question proposed an improvement to the tribunal system by the creation of a large judicially-led amalgamation of tribunals. It was argued that small tribunals dealing with specialist areas were not sufficiently accessible, efficient or cost-effective. It was argued that a large tribunal would:
It should be noted that the amalgamation of Commonwealth Tribunals is said by the explanatory memorandum to the Administrative Review Tribunal Bill 2000 to be for similar reasons.
It was argued, too, that tribunals had been insufficiently independent and inconsistent. I can speak only for Victoria in this regard but many of the criticisms of the proliferation of tribunals in Victoria were justified. This is not a criticism of the membership of those tribunals but a criticism of the structure and a criticism of the way in which governments treated such tribunals. In the years leading up to the creation of Victorian Civil and Administrative Tribunal (VCAT) it was not uncommon for there to be a perception of political interference with tribunals by the appointment of members who were known by the government of the day to have a viewpoint of a particular type. Tribunals were perceived as an appropriate dumping ground for unwanted public servants or as places where some friend of the government of the day might be appointed. For example, it was not unknown in Victoria for a parliamentarian who had lost a seat in an election to be soon afterwards appointed to a tribunal. It was not uncommon for the terms of membership of tribunals not to be renewed for reasons which were not explained but which were clearly not perceived to be related to issues of merit.
Another matter of concern has been the insidious depreciation of the value of remuneration paid to tribunal members. In Victoria only one increase in remuneration has occurred in the last nine years.
The discussion Paper suggested that longer terms of appointment for tribunal members and senior judicial leadership would improve these areas of tribunal concern.
It is interesting to note that arguably the two most significant reforms which have taken place in recent years, the tribunals systems of Victoria and New South Wales, are judicially led amalgams. This process commenced in Victoria with the creation of a judicially led administrative review tribunal, the former Victorian AAT, in 1984. In many ways the Victorian AAT at the time of its creation was a copy of the Commonwealth Administrative Appeals Tribunal. That model of the judicially-led administrative review tribunal has been taken a step further in both New South Wales and Victoria by the inclusion of jurisdictions other than those of administrative review. A variation on the theme exists in South Australia where administrative review is carried out under the auspices of the District Court.
In October 1998 the Administrative Decisions Tribunal (ADT) commenced operation in New South Wales. That Tribunal incorporates the functions of the former Legal Services Tribunal, the former Equal Opportunity Tribunal, the former Community Services Appeals Tribunal and in addition has a substantial administrative review jurisdiction including the hearing and determination of Freedom of Information Act 1982 (Vic)appeals. Formerly these appeals were heard in the District Court. The ADT continues to accrue jurisdiction with its Community Services Division and Retail Leases Division which both commenced last year.
By the amalgamation of tribunals the New South Wales Government aimed to promote a more efficient and effective tribunal justice system. In the course of introducing the legislation the Attorney-General for the State of New South Wales, the Honourable J W Shaw said: 'The growth of tribunals has fragmented responsibility for determining legal rights, leading to a lack of consistency and in some cases arbitrary decision making. It may also lead to poor resource allocation in relation to decision making.'
These were the same arguments as those which led to the evolution of VCAT in Victoria. The ADT and VCAT have developed a close working relationship. Only last month two deputy presidents from VCAT went to Sydney to spend a week each working with the ADT. I believe that closer communication between Australian tribunals is most important. I am pleased to say that the Australian Institute of Judicial Administration has recently established a Tribunals Committee to further such communication.
The development, in Victoria, of the Monash University diploma course in Tribunal Procedures has been another step in improving communication between members of tribunals around Australia. The course, which is open to tribunal members Australia wide, is conducted via the internet. Feedback from participants this semester indicated that one of the greatest benefits has been the sharing of information and approaches between members of different tribunals.
I turn now to the establishment of the Victorian Civil and Administrative Tribunal, now known by the acronym VCAT, the evolution of which I, not surprisingly, have greater knowledge.
The establishment of VCAT has been described as 'without doubt, ...the most far reaching change to the operation of the Tribunal system ever undertaken in Victoria if not in Australia.'
There has always been broad bipartisan, political support for what has taken place in Victoria. It was a Labor government which established the Victorian AAT in 1984. A Liberal Party government created VCAT in 1998. The Labor opposition at the time generally supported the legislation which created VCAT.
Having had a change of government in Victoria since the establishment of VCAT it is gratifying that the present Attorney-General wholeheartedly supports the work of VCAT and its commitment to providing high quality and affordable access to justice for all Victorians.
Last financial year the Tribunal operated within a budget of approximately 20 million dollars. It determined in the order of 90,000 applications. It now does more civil business than the Magistrates' Court in Victoria. There are 42 full-time members of whom I am pleased to say 18 are women. There are 145 part-time or sessional members. In addition 9 magistrates, 6 of whom are based in rural Victoria, are sessional members of the Tribunal.
By now many of you will be aware of the structure of VCAT. For those of you who are not I will outline its structure and areas of operation.
VCAT performs the quasi judicial functions of 14 Tribunals, Boards and Authorities which operated previously within the Department of Justice. In addition it performs the disciplinary functions of a number of previously separate organisations which operated outside of the Justice Department.
More specifically, VCAT encompasses the jurisdictions of the old Victorian Administrative Appeals Tribunal, the Anti-Discrimination Tribunal, the Credit Tribunal, the Domestic Building Tribunal, the Estate Agents Disciplinary and Licensing Appeals Tribunal, the Guardianship and Administration Board, the Residential Tenancies Tribunal and the Small Claims Tribunal. VCAT assumed the licensing appeals functions and the inquiry and disciplinary functions of the Motor Car Traders Licensing Authority, the Prostitution Control Board and the Travel Agents Licensing Authority and the licensing appeals and disciplinary functions of the former Liquor Control Commission. It should be noted that for the most part these jurisdictions are exclusive to VCAT and not concurrent with court jurisdictions.
In addition, the Tribunal has a number of new jurisdictions such as jurisdiction to hear and determine disputes under the Retail Tenancies Reform Act 1998 (Vic) and under the Fair Trading Act 1999 (Vic) and to review decisions of the Psychotherapists Registration Board, the Dental Practice Board and most recently the Chinese Medicine Registration Board.
The Tribunal has judicial leadership. Its President is a Supreme Court Judge and it has two Vice-Presidents, each County Court Judges. The judicial members are, by the Act, responsible for the administration of the Tribunal. It is divided into two Divisions, a Civil Division and an Administrative Division, each headed by one of the County Court Judges. Each of the Judges and each Member of the Tribunal has a fixed 5 year term of tenure at the Tribunal. The members, many of whom are sessional, are from a wide range of disciplines. Legal members are the most numerous but there are doctors, accountants, engineers, planners, academics and the like amongst the Members. The Civil Division has a number of Lists which are each headed by a Deputy President and which might be said to hear inter-parties matters, such as Anti-Discrimination, Credit, Domestic Building, Residential Tenancies, Retail Tenancies and the like. Similarly the Administrative Division has a number of Lists, each of which is headed by a Deputy President. There are senior members and ordinary members attached to one or more Lists. The Administrative Division is basically an administrative review jurisdiction. It deals with reviews of Freedom of Information decisions, planning decisions, State tax decisions, land valuation and in addition reviews the decisions of a number of licensing and disciplinary bodies such as the Medical Board, Nurses Board and various other professional and business organisations some of whom I have mentioned already.
It is interesting to observe that the distinction between civil and administrative tribunals which existed previously in Victoria has been blurred if not removed by the creation of VCAT. The administrative review functions are now seen as a quasi-judicial rather than an administrative function in Victoria.
There were many members of previously separate tribunals who viewed the introduction of VCAT with real trepidation. Some concerns which in my view had a real basis were that the collegiality of the small tribunal would be reduced by the creation of a very large tribunal. Other concerns were that the degree of expert specialization would decrease with a large amalgamated tribunal. A further concern was that the tribunal would become increasingly legalistic and that the appointment of judicial leadership would not lend itself to informality and user-friendliness or accessibility.
It is, of course, for others to judge whether or not these concerns now have any justification. However we have endeavoured to meet each of these concerns. First, each individual list, of which there are 13, is managed by a Deputy President. In some cases that deputy president was the former head of the tribunal whose jurisdiction is now managed by a list. Substantial managerial discretion is delegated to such heads of lists. Furthermore, we have endeavoured to make the Tribunal more informal rather than less informal, particularly by the introduction of mediation and compulsory conference procedures. In addition, substantial time has been spent on professional development and training in relation to such matters as the proper conduct of a hearing, writing of reasons for decisions and issues of potential conflict and bias.
However, in other ways, and although the Tribunal is only two years old, it is apparent that there has been significant improvement. There can be no doubt that the Tribunal is more independent than many of the individual tribunals were in the past. Each member has a five-year term. Although appointments are made by the Governor-in-Council, a protocol has been reached between the Attorney-General and the President of the Tribunal as to an appropriate process of appointment. That process is based upon merit. Since the commencement of the Tribunal no political interference has been experienced in the appointment of, or the termination of employment of members and we do not anticipate that it will in the future. The political price to be paid by such interference is now a high one in that each judge has the entitlement to return to his court. Indeed all of us sit in our respective Courts as well as at the Tribunal.
The fact that the Tribunal has a substantial budget and the fact that it is led by a Supreme Court judge means that the Tribunal has instant accessibility to the Attorney-General of the day. This is a significant issue in terms of budget and other issues of principle which affect the Tribunal. I understand that many of the constituent parts of VCAT when they were individual tribunals had real difficulty in communicating with the government of the day. One example of the increased status of the Tribunal is that the President of VCAT sits on a Courts Consultative Council with the Chief Justice, the President of the Court of Appeal, the Chief Judge of the County Court, the Chief Magistrate and the Attorney-General and the Head of the Department of Justice. Access to such consultative bodies was not available to the smaller tribunals. Indeed a recent consequence has been that the Attorney-General has accepted that Tribunal members' salaries should be independently reviewed by the Judicial Review Tribunal which reviews judges' salaries annually.
The President of the Tribunal is required to report annually to the Parliament. I believe that an annual report of this nature is a powerful tool in educating both the public and Parliament as to the operations and needs of the Tribunal. Concerns expressed in such a document from the President of a tribunal of the type of VCAT are more likely to receive attention than they did in the past.
The capacity for improvement in processes and efficiency within VCAT has been substantial. For example, it was not uncommon in the past for three of the constituent tribunals to be conducting hearings in one major provincial centre at the same time. In certain circumstances, three members in three cars incurring three costs of accommodation could take place. With the amalgamation of the Tribunal a number of members now sit across jurisdictions. Now one member can go to a provincial city and deal with a number of jurisdictions which previously were the province of separate tribunals. This is obviously efficient. However, more than this, it provides significant career satisfaction for members who are now able to have a variation in the types of cases that they hear.
The VCAT Act requires, uniquely in such legislation as far as I am aware, that the judicial members have a statutory obligation for the training, education and professional development of members of the Tribunal. Immediately upon the commencement of VCAT we established a Professional Development and Training Committee. This enables each List to conduct seminars on matters of specific relevance to its List but also is an opportunity for all members to be involved in areas of common interest such as ethics, or decision-writing. In addition further list specific training is conducted throughout the year. We have obtained funding for the purposes of cross cultural training of members. A considerable amount of work has been done by our mediation committee in relation to mediation training for members.
In 1999 the issue of the need for assistance on the judicial learning curve came to prominence in the media and throughout legal circles. As you will be aware, the AIJA has been deeply involved in discussions which it is hoped will lead to the creation of a National Judicial College. The Victorian Attorney-General has appointed a Judicial Education Working Party chaired by the Chief Justice with a view to the creation of a Judicial Studies Council. He intends that it will have responsibility for continuing professional education for VCAT members as well as the Judiciary. I believe professional training and education is an area which VCAT is equipped to handle particularly well. At VCAT we have developed a New Members Handbook which provides newly appointed members with a convenient guide to practical aspects of membership. We have a mentoring programme for new members. There is also a New Members Committee which provides practical support and assistance to newly appointed members.
However, notwithstanding the work done internally by any tribunal, there must be a recognition by Government that access to justice includes access to competent and well-trained members. This year for the first time we have an actual budget figure allowed for training. We are hopeful that figure will be increased in years to come. From that, we will assist eight members to undertake the Monash University course this year, as well as conducting the many other List specific seminars (Internet Program). The issue of professional training and development is a significant one. The development and maintenance of community respect for Tribunal decisions is closely related to that issue. I believe that resources for adequate professional development are more likely to be provided in the circumstances of VCAT than to the numerous smaller tribunals which existed previously.
Many of the members of VCAT are qualified to sit in a number of jurisdictions that were previously managed by separate boards and tribunals. The flexibility to use the expertise of members across a broad range of lists increases VCAT's effectiveness. For example I hold the firm view that most reviews of decisions of the Medical Board justify the inclusion of a member with medical qualifications. This was not possible under the old AAT. We now have a number of doctors, nurses and other professional persons as members of VCAT. More than that however, it enables a cross fertilisation of management and hearing culture between Lists; broader experience for members; and enables members to accumulate new perspectives and knowledge. VCAT has found that this results in greater career flexibility and satisfaction for our members. Indeed, last week a major rotation of Deputy Presidents occurred. I believe that this will give new focus to senior members, break down further cultural differences between old tribunal jurisdictions and contribute to my vision of Deputy Presidents and Senior Members having the significant leadership and responsibility in the Tribunal. I am confident that it gives them greater career satisfaction, and a broader experience with the attendant possibilities of other judicial appointments becoming open. Already, one Deputy President has been appointed to the County Court since the commencement of VCAT.
Members are not the only people at VCAT benefiting from the amalgamation. The reorganisation of seven former registries into a single registry with three sections has produced staff efficiencies and enhanced career opportunities for registry staff.
The VCAT Act places a substantial emphasis upon mediation which is a significant factor in the conduct of proceedings before the Tribunal. In many cases now before the Tribunal, mediation is being used successfully where it was not used previously. In particular, since the commencement of VCAT, mediation has been used with considerable success in anti-discrimination matters. A Mediation Committee has been established to develop a Code of Conduct for VCAT mediators and is now conducting a study of the mediation work conducted in VCAT. We have had Monash University conduct a research project upon mediation in planning cases. However, we are yet to maximise our capacity to use mediation as a tool for dispute resolution and I plan to take steps this year to achieve this by creating a central mediation unit led by a senior member to co-ordinate all mediations and to ensure that appropriate standards are maintained.
There is increasing recognition of the benefits afforded by mediation, not only within the Tribunal. Research indicates that mediation empowers people in a way that hearings do not and that people who have been through mediation feel better about the results, even if they 'lose', than if they go through hearings. With this in mind, several of the Lists at VCAT are reviewing their approach to mediation with the aim of increasing significantly the percentage of cases which proceed to mediation.
The benefits for members of the public of the amalgamated tribunal extend beyond the ease provided by having access to a single Tribunal when making an application. In its first year of operation List members conducted hearings at 52 venues throughout Victoria including Melbourne, suburban locations and rural centres. This year hearings were conducted at 114 venues. The ability of members to sit across various Lists greatly increases the access of rural and regional Victorians, in particular, to the Tribunal. Last month we commenced VCAT Online, an internet based electronic application process which cost over $1 million to develop. It is the first interactive electronic lodging process of its type in any Australian court or tribunal. Application can be made at any time from any place and the system will issue a receipted application form with the date of hearing over the internet. At the moment this is restricted to Residential Tenancies cases but we are exploring ways of internet electronic lodging in other areas. Although this project commenced before the creation of VCAT there can be no doubt that it was given great impetus by the creation of the amalgam as was an electronic order processing system which permits many parties to receive their certified order at the hearing.
As with all processes of change, the establishment of VCAT was more a starting than a finishing point. The evolution of VCAT is ongoing. There have been substantial logistical and cultural difficulties associated with the amalgamation of so many previously separate organizations. Many of these difficulties have been surmounted. I am proud to say that with very few exceptions, the overwhelming majority of VCAT members and staff have had the strength of character to accommodate the many changes that have taken place, with enthusiasm and good grace.
However, much work remains to be completed in the evolution. For example, VCAT inherited from the various bodies that preceded it an ad hoc bundle of practice notes. Not only were practice notes in different form, but in some instances they applied different approaches to similar situations. Their language was inconsistent and, in some cases, convoluted and overly legalistic for the many people without legal representation who use VCAT. Following the introduction of several Practice Notes that cover the whole of VCAT, such as Expert Evidence, all of the Practice Notes are being rewritten. All will adopt the same format and style and all will be written in plain English so as to be accessible to non represented parties.
I am hopeful that the Tribunal will be provided with a permanent duty lawyer scheme to assist the numerous unrepresented users.
I expect that over a period of time the work undertaken by the Tribunal will expand. For instance, a number of Bills before Parliament now expand the jurisdiction of the Tribunal.
The Information Privacy Bill 2000 (Vic) which is designed to establish a regime for the responsible collection and handling of personal information in the Victorian public sector, has had its second reading. If passed in its present form, VCAT will have jurisdiction to hear complaints after a conciliation by the Privacy Commission in much the same way as it does in Equal Opportunity matters.
The Autumn session of Parliament included the Chinese Medicine Registration Act 2000 (Vic), First Home Owner Grant Act 2000 (Vic), and the Psychologists Registration Act 2000 (Vic), all of which had the consequence of expanding the jurisdiction of the tribunal.
It is interesting to note that the Commonwealth in creating the Federal AAT led the way towards the judicially-led tribunal which resulted in the creation of the large amalgams in New South Wales and Victoria. It would appear that the Commonwealth is now heading away from that model. In Victoria there was bipartisan political support for the appointment of judicial leadership as a necessary step in ensuring the independence of the tribunals which were the subject of the amalgamation. I am confident that that leadership has been a significant aspect of the public perception of the independence of the Commonwealth AAT, the former Administrative Appeals Tribunal of Victoria and now the New South Wales Administrative Decisions Tribunal and VCAT. There are of course many issues relating to tenure of members of tribunals, but I think we would all agree that the longer the term, the greater the perception of independence. Accordingly the 5 year terms of VCAT members are a significant improvement on past arrangements in Victoria.
We shall all await with interest, the developments in the Commonwealth Tribunal sphere. There are interesting developments proposed by the Administrative Reviews Tribunal Act which are clearly taking a different course. Although its structure of divisions and a four-tiered hierarchy follow the VCAT model there are significant differences. The Bill sets out no qualifications required of the President or other members. As I understand the Bill and the advertisements for the position which I have seen, The President may well not be a lawyer. The Bill provides for performance agreements to be entered into by all members other than the President. It provides for a code of conduct to be prepared. Tenure is not fixed, but cannot exceed 7 years although a member may be reappointed. We will all be interested to observe whether these arrangements enhance or detract from the independence of the Commonwealth Tribunal.
However, whatever might be happening in the Federal arena, I think it is likely that the judicially-led amalgam is here to stay in the foreseeable future in Victoria, New South Wales and in a different way in South Australia.
I am of course not submitting that a tribunal of the type created in Victoria and New South Wales is appropriate everywhere. There are advantages in discreet tribunals dealing in specialised areas. The particular disadvantages of lack of independence and inconsistency of approach which applied in Victoria may well not apply elsewhere if tribunals are given appropriate resources and are guaranteed independence. However, the creation of VCAT in the Victorian context has significantly increased the independence of the Tribunal and has enabled the Tribunal to be efficient in using the resources which are made available to it. I think it is likely that over a period of time the Tribunal will be able to negotiate more substantial resources for the professional training and professional development of its members than would have been the case with the constituent small tribunals. The Tribunal is now very well known in Victoria. Hardly a day goes past that some issue relating to the Tribunal does not appear in a major metropolitan daily newspaper. On the one hand, there are difficulties with this in the sense that a criticism made of the Tribunal has much more public force than in the past because it is now so well known to the community. Nevertheless, on balance, it appears to me that a public institution which is well known to the community is, as long as it gains the respect of the community, more likely to be understood and appreciated by the community.
The final matter I wish to deal with in terms of whether the performance of Tribunals can be improved is in relation to issues of communication. Although I have concentrated to a significant degree upon issues which have arisen in Victoria in relation to tribunals I am confident that all of us are grappling with better ways of communicating with the public and with the users of our tribunals. I commend to you the report 'Courts and the Public' which was produced by the Australian Institute of Judicial Administration in 1998 and was written by Professor Stephen Parker previously of Griffiths University. That report deals with many ways in which the needs of the public might be met.
I mentioned the Annual Report of VCAT before. We have expended considerable effort and money in producing our annual reports. My view is that these reports ought to be as transparent as possible in relation to the activities, successes, failures and difficulties of the Tribunal. Our Annual Reports are written as much to be read by the community and users of the Tribunal as they are to fulfil their statutory purpose.
However, there are other ways for tribunals to communicate with their public. An appropriate and useful web site has been set up by VCAT which is in itself an extensive legal resource because of its links. We have established user groups who meet regularly. We encourage constructive criticism of our processes and performance by such user groups. Publication of guidelines as to the operation of the Tribunal is another important way of meeting the needs of the public. We are working upon the production of some of our guidelines in a number of languages other than English. Having rules, practice notes and the like written in plain simple English is important. In my view, tribunals should have available to their public a service charter indicating what services will be provided, what standard of services will be provided and advising users as to how they might make a complaint about the operation of the Tribunal. We have such a charter and we now have electronic monitoring of complaints.
A further improvement which is called for in tribunals across Australia is improved accessibility of decisions. This can be done several ways by the use of websites, perhaps Austlii, or by publications. However, another way of communicating to the public and the method by which the Tribunal operates is to produce short summaries of significant decisions. A more detailed consideration of these issues can be found in Professor Parker's report.
The tribunal system in Australia is in my view in good hands. I believe that the tribunal system in this country is likely to expand notwithstanding whatever might be happening in the Commonwealth sphere. Tribunals provide access to a justice system which is not otherwise available to many members of our community and continual improvement of our tribunals will enhance community confidence in the decisions which are made.
[*] President of the Victorian Civil and Administrative Tribunal. This is an edited version of a paper presented at the Centre for International and Public Law, Annual Public Law Weekend, 10-11 November 2000
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