Tribunals and Alternative Dispute Resolution

1. Tribunals and Alternative Dispute Resolution Topic 11

2. Tribunals • Courts • Judicial review • Was the decision lawfully made • Tribunals • Merits review • Was the decision a good decision?

3. Merits review • What is it? • What are the objectives of it? • The nature of merits review: * Recommendatory * Stand in shoes of primary decision maker * Hearing de novo * Correct or/and preferable decision

4. Judicial review v merits review A blurred distinction

5. Why have merits review and does it work? • * Administrative law remedies improve the whole system of government decision making by increasing its openness and transparency and providing feedback on its performance. Confident executive government should welcome this kind of audit. * Accountability is fundamental to good governance in modern, open societies.

6. Administrative Appeals Tribunal • Unique in the common law world • General tribunal for the review of administrative decisions • Over 90 members with the jurisdiction to review administrative decisions made under more than 400 Acts of Parliament • Appeals lie to the Federal Court

7. Applying to the AAT

8. If you disagree with a decision of a Commonwealth Minister, a • Government Department or agency, or an employee of a Department which affects you, • you may be able to have it reviewed. The AAT has powers to review decisions • made under certain Acts of Parliament. • The sorts of decision which can be reviewed include decisions about: • a social security pension or a benefit • a veteran's pension • Commonwealth workers' compensation • an environmental issue • taxation • visas refused or cancelled on character grounds • ABN cancellation • many other Commonwealth issues • .

9. AAT within the portfolio of the Attorney-General Robert McClelland

10. Drake v Minister for Immigrationand Ethnic Affairs(1979) 24 ALR 577 at 589 per Bowen CJ and Deane J: “The question for the determination of the Tribunal is not whether the decision which the decision maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.”

11. Federal Judicial Review • Administrative Decisions (Judicial Review) Act 1977 (Cth) • Federal Court • Appeals from AAT – but not merits review • s75(v) Constitution – High Court jurisdiction

12. AAT President Honourable Justice Garry Keith Downes AM, a Judge of the Federal Court of Australia, is the President of the Administrative Appeals Tribunal.

13. NSW Tribunals Administrative Decisions Tribunal • Administrative Decisions Tribunal Act 1997 (NSW) s3 includes: • make decisions at first instance • Review decisions made by administrators • Ensure accessibility, efficiency, effectiveness and fairness • Proceedings to be informal and expeditious

14. Administrative Decisions Tribunal • General Division • Community Services Division • Revenue Division • Legal Services Division • Equal Opportunity Division • Retail Leases Division

15. Administrative Decisions Tribunal • Two jurisdictions: • Reviewable decisions • Original decisions – analogous to civil suits

16. Formal and informal hearing rooms

17. The creation of the ADT made it the first tribunal in New South Wales with a divergent, multijurisdictional character…. While some existing State tribunals were merged into the new ADT, the Attorney noted that as many as 21 State tribunals remained outside its structure. He referred to the values served by consolidation: greater coherence for the public, greater transparency and professionalism, greater ability to introduce good procedures and practices, better use of public resources, avoidance of duplication of similar structures, and the avoidance of perception of conflict of interest where the portfolio department has a substantial involvement in proceedings in a portfolio tribunal. Annual Report, 2007-2008, p6

18. President Kevin O’Connor

19. At common law, administrators do not have to give reasons for their decisions regardless of how significant or damaging they may be for the individual. The ADT legislation modified that rule. Administrators were now obliged to give reasons for those decisions made reviewable before the ADT. In the second reading speech the Attorney expressed a broad view as to the administrative decisions that citizens could look forward to seeing reviewed by the ADT. As it has transpired a much narrower range of decisions has been made reviewable. Giving affected persons a right to seek external review remains a choice, in the first instance, for the various portfolios of Government and, ultimately, Cabinet. So far as I am aware, there is no transparent discipline or policy governing the matter…..There have been some instances where the review jurisdiction has been removed or reduced by amending legislation, without any public explanation, soon after decisions have gone against an agency. 10 year anniversary of the ADT: Annual Report 2007-2008 p 5

20. As at the end of the current year, the average time from filing to disposal of primary applications in the Tribunal was 0.65 of a year (i.e. 7.8 months). The average time from filing to disposal in the case of an appeal was 0.55 of a year (i.e. 6.7 months). The collective average was 0.64 (i.e. 7.7 months). There has been a decline in the speed of disposal, as compared to five years ago, when the figures were 0.54 for primary applications, 0.31 for appeals, and collectively 0.52 (i.e. 6.3 months). The collective average has now been slowing incrementally each year. The Divisional Heads have been asked to suggest ways in which the turnaround time can be improved.” ADT Annual Report 2007-2008

21. Alternative Dispute Resolution

22. ADR • Litigation has been the traditional focus of dispute resolution, but often not the only appropriate form of dispute resolution • ‘Alternative’ forms of dispute resolution becoming increasingly important • Both Courts (s71) and ADR methods such as conciliation and arbitration (s51(xxxv)) recognised in Constitution

23. ADR same as Court? • ADR not just a different type of court • Court: exercises the judicial power of the State • Tribunal: exercises executive (and sometimes judicial) power of the State • ADR: may be voluntary/may be binding – depends on agreement between parties • ADR: often a private contractual arrangement

24. ADR • “Alternative” – can convey these dispute resolution methods are of secondary importance • Additional? • Litigation alternative to ‘traditional’ mortal combat? • “Dispute resolution” as a range of options (including litigation) – select most appropriate to circumstances and client

25. ADR won’t suit all situations

26. Development of ADR in Australia Three key events: • Establishment of the Family Law Court • Establishment of Community Justice Centres in NSW • Establishment of the Australian Commercial Disputes Centre

27. Family Law Court • Family Law Act 1975 (Cth) • designed to be informal and incorporate pre-trial processes such as counselling and conferences • Family Law Reform Act 1995 (Cth) • ADR designated “primary dispute resolution” • Funded community based services such as Relationships Australia and Centacare • Broad view of dispute and methods of resolution

28. Community Justice Centres - NSW • Community Justice Centres (NSW Pilot Project) Act 1980 (NSW) • pioneered use of mediation in public issue disputes, victim offender mediation (conferencing) and family mediation. • resolve disputes through mediation, free of charge to members of the public • Spurred development of Lawyers Engaged in ADR (LEADR)

29. Australian Commercial Disputes Centre • Company established with government assistance • Successful in fostering use of ADR techniques, especially mediation, in commercial disputes • Government response to ADR now largely seen in legislative ADR schemes

30. ADR - definitions • Accurate, comprehensive definitions can be difficult • National Alternative Dispute Resolution Advisory Council – NADRAC • “processes, other than judicial determination, in which an impartial person assists those in a dispute to resolve the issues between them.”

31. NADRAC definitions • Facilitative processes: an ADR practitioner assists the parties to a dispute to identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement about some issues or the whole dispute. E.g. mediation, facilitation and facilitated negotiation. • Advisory processes: an ADR practitioner considers and appraises the dispute and provides advice as to the facts of the dispute, the law, and in some cases, possible or desirable outcomes and how these may be achieved. E.g. expert appraisal, case appraisal, case presentation, mini-trial and early neutral evaluation.

32. NADRAC definitions • Determinative processes: ADR practitioner evaluates the dispute and makes a determination. E.g. arbitration, expert determination and private judging. • Combined or hybrid processes: ADR practitioner may play multiple roles. E.g. in conciliation and in conferencing, the ADR practitioner may facilitate discussions, as well as provide advice on the merits of the dispute. In hybrid processes, such as med-arb, the practitioner first uses one process (mediation) and then a different one (arbitration).

33. Why ADR? • Benefits for clients • Cost – usually cheaper • Time – usually faster • Relationships – can be preserved. Consider the effect of litigation on relationships. Court system always adversarial. • Benefits for courts • Pre-trial/case management processes reduce workload of court • Reduces costs and delays across the system

34. Why ADR? • Effective in achieving lasting settlement of disputes • Parties actively engaged • Avoids ‘winners’ and ‘losers’ • ALRC report: “70.6% of the mediation agreements with monetary settlement were reported to be paid in full, compared to 33.8% of the adjudications.”

35. Why ADR BATNA An acronym described by Roger Fisher and William Ury which means Best Alternative to a Negotiated Agreement. It is the alternative action that will be taken should your proposed agreement with another party result in an unsatisfactory agreement or when an agreement fails to materialize. If the potential results of your current negotiation only offers a value that is less than your BATNA, there is no point in proceeding with the negotiation, and one should use their best available alternative option instead. Prior to the start of negotiations, each party should have ascertained their own individual BATNA.

36. Why ADR? • Promoted by government as best practice • Commonwealth Legal Services Directions 2005 • ‘model litigants’ - endeavour to avoid, prevent and limit the scope of litigation wherever possible. • Professional obligation? • Should be able to advise clients about all options and best options.

37. Federal approach to ADR Some ADR required by legislation prior to any claim in: • Federal Court (Federal Court of Australia Act 1976) • Family Court of Australia (Family Law Act 1975) • Federal Magistrates Court (Federal Magistrates Act 1999) • Human Rights and Equal Opportunity Commission (Human Rights and Equal Opportunity Commission Act 1986) • Australian Industrial Relations Commission (Workplace Relations Act 1996) • Administrative Appeals Tribunal (Administrative Appeals Tribunal Act 1975) • National Native Title Tribunal (Native Title Act 1993) • Australian Competition and Consumer Commission (Trade Practices Act 1974), and • Social Security Appeals Tribunal (Social Security Act 1991).

38. State approach to ADR • Similar approach at State level • e.g. Supreme Court Practice Note SC Gen 6 • “The Court’s power does not depend on the consent of the parties, or of any of the parties”

39. Types of ADR • Negotiation • Mediation • Neutral Evaluation • Conciliation • Expert Referral • Arbitration • Family Dispute Resolution • Ombudsmen • Youth Justice Conferencing • Circle Sentencing

40. Negotiation • Conflict of interests between parties • No established rules to resolve conflict • Parties are seeking agreement • May or may not involve third party • Mediation • Generally involves the use of a trained, neutral third party • Process – oriented: mediator facilitates • Substance – oriented: mediator offers recommendations

41. Neutral evaluation • Neutral evaluator seeks to identify and reduce the issues of fact and law which are in dispute • Offers opinion as to likely outcome of dispute • Similar to a mini-trial • Conciliation • Parties, with the assistance of neutral conciliator, identify issues and develop options and alternatives • Conciliator advises but does not determine

42. Expert referral • Usually established by legislation • Expert panels used by State courts and tribunals • Arbitration • Formal dispute resolution process governed by Commercial Arbitration Act 1984 (NSW) or equivalents • Binding determination • Also industrial arbitration

43. Family Dispute Resolution • Independent practitioner assists those separated or divorced, or considering separation or divorce to resolve some or all of disputes • Operates in Family Law context and designed to avoid Court altogether (where possible). • Now required prior to seeking any Family Court order relating to a child • Ombudsmen • Established in many government departments and some private industries

44. Youth Justice Conferencing • Example of ADR in criminal context • NSW scheme to divert young offenders from the courts by requiring them to meet the victim of their behaviour • Young Offenders Act 1997 (NSW) • Circle Sentencing • Current NSW trial • Designed to empower the Aboriginal community in the sentencing process • Punishment to be a community sanction