1.1 The Victorian Council for Civil Liberties ("VCCL") is an independent non-government organisation which traces its history back to the first Australian civil liberties body established in Melbourne in 1936. The VCCL is committed to the defence and extension of human rights, civil liberties, democratic governance and the rule of law, and the independence of the judiciary. The introduction of an Administrative Review Tribunal falls squarely within the concerns of the VCCL. Administrative review processes play a central role in safeguarding the rights of members of the Australian community and ensuring that Government decisions are made according to law. The VCCL supports and believes in the maintenance of a strong system of administrative review that emulates the judicial in its independence, impartiality and skilled application of the law.

1.2 Any proposal or legislation by the Parliament to restructure or reform the judicial or tribunal system is of concern to the VCCL. Although the Administrative Appeals Tribunal ("AAT") is not a "Chapter III", it is judicial in the sense that it performs many judicial functions, the ascertainment and evaluation of facts, interpretation of the law, the calling of witnesses, questions of relevance and admissibility, and adjudication. Liberty is not opposed to the establishment of the Administrative Review Tribunal. The creation of a single Tribunal in place of several different Tribunals will hopefully simplify the system and has the potential to make it easier for individuals to understand and use the processes for reviewing Government decisions which affect them. However it is important that the new Tribunal retains the strengths of the Administrative Appeals Tribunal which it replaces, and does not undermine the goals which underpinned the establishment of that Tribunal, including:

1.3 Clause 3(b) of the Administrative Review Tribunal Bill 2000 ("ART") states that the objects of the Bill include providing for "the Tribunal to review the merits of such decisions independently of the persons or bodies who made them". However, the VCCL notes that a number of the provisions in the Bill are likely to undermine the independence of members of the Tribunal and public confidence in the fairness of the administrative review process. The VCCL finds especially problematic the intrusive and unprecedented power this Bill gives to the Executive branch of Government over the Tribunal’s review-making decisions. We believe that this will seriously undermine the Tribunal’s independence. The VCCL has a number of concerns about certain provisions in this bill these are set out below. Such provisions are inconsistent with the principle that review is, and should be seen to be, independent of the Departments whose decisions it reviews.

2. Independence of the Tribunal

2.1 The Tribunal’s adjudication process pertains exclusively to the methods and legality of government decision-making, as such it is highly important that there exists an appropriate separation from the bureaucratic system and from the influence of the government of the day, any review system must by necessity be apolitical and objective. The President of the Tribunal will play a critical role in ensuring that the Tribunal operates fairly and is trusted by the public to decide cases impartially, even where the decision involves a finding that a Government Department or Agency has made an incorrect decision. The judicial status of the President of the AAT helped to ensure that Government Departments respected AAT decisions and thus contributed to the improvement of primary decision-making. Under ART it is no longer required that the President be a Judge nor indeed that the person appointed have legal qualifications. The VCCL believes that it is vital for the President to have judicial status, this ensures that the separation of the executive and the judicial branches of Government is maintained, it further ensues an understanding of administrative law and administrative review, and of the principles of procedural fairness, In addition, as a Judge has permanent tenure the public can be guaranteed that the Tribunal is adequately independent of government and free from undue political influence. As Peter Cane points out:

2.2 The VCCL also notes that the President is responsible for the management of the Tribunal (Clause 32) but is subject to Ministerial control of the running of the Tribunal in a number of situations (see for example Clause 16, cross-assignment of Members to Divisions, and Clauses 116 and 161(6), practice and procedure directions). The VCCL believes that these provisions are inconsistent with Clause 32 and undermine the Tribunal’s independence.

2.3 The VCCL also believes that the provisions relating to the appointment of members may undermine the goal set in Clause 3(b). Clause 15 requires that the relevant Minister must be satisfied that a person has appropriate qualifications for appointment to the relevant Division. Except in the case of appointments to the Commercial and General Division, which will be overseen by the Attorney-General, the Minister of the Department whose decisions are being reviewed in a particular Division has a direct role in overseeing the appointment to that Division. This is a change from the current practice under which the Attorney-General oversees the appointments to the AAT. The VCCL is of the view that the responsibility of appointments to the Tribunal should remain with the Attorney-General. The involvement of individual Ministers in Tribunal appointments will contribute to a public perception that only persons who are politically acceptable to the particular Minister will be appointed. In effect, this makes explicit in legislative form the influence Ministers, in their respective portfolios, have over the appointment process. This is a dangerous precedent. It has the appearance of political interference and is in conflict with the principle of separation of powers. It has implications in relation to the public’s perception of the Tribunal’s independence.

2.4 Liberty believes that the Act should specify the nature of "appropriate qualifications" for the particular Divisions, rather than leaving selection criteria entirely to the discretion of the Minister. The Administrative Review Council Report No 39, Better Decisions, (1995) provides useful proposals relating to qualifications and appointment processes for Tribunal members. The VCCL believes that the recommendations in Chapter 4 of that Report are preferable to the approach adopted in the Bill and should be implemented.

2.5 Compounding the concerns in 2.3, Clause 18 which specifies a maximum but not a minimum term of appointment could result in political pressure in relation to the outcome of decisions, particularly in areas perceived to be politically contentious such as immigration. Appointing members for short periods will undermine confidence in the Tribunal and contribute to the perception that only Tribunal members who do the Government’s bidding are likely to be re-appointed. The VCCL believes that Tribunal members appointed for one year terms are unlikely to be seen as bringing significant independence to their decision-making. We propose that there should be a minimum appointment of at least three years for members.

2.6 Clause 24 requires members to enter performance agreements. Clause 26 specifies the consequences of failure to enter or comply with an agreement. In addition, there is also a code of conduct which applies to members in the performance of their duties. Under the Administrative Appeals Tribunal Act 1975 members can only be removed on specific grounds outlined in section 13, these include proved misconduct, physical or mental incapacity, unapproved absence, bankruptcy or some pecuniary conflict of interest. Those grounds of removal are similar to the grounds of removal for the judiciary. Under ART the grounds of removal distance members from the judiciary putting them on similar footing as high level bureaucrats or departmental heads. This once again, has the potential to undermine Tribunal independence and the quality of decision-making. The VCCL believes these provisions could be used inappropriately to control decision-making.

2.7 Furthermore, section 24(3) provides that the agreement cannot deal with the substance of particular decisions. However the terms of a performance agreement related to "productivity" could have substantial impact on decisions in individual cases. For example if members were required to meet time requirements which made it impossible to review complex cases properly, the review process could become meaningless. The VCCL believes this provision should be removed. However if the provision for performance agreements is retained in the legislation, the VCCL suggests that the legislation should provide that Clause 24 is subject to the object set out in Clause 3(b) and that a decision to remove a member for breach of an agreement under Clause 28(d) should be a reviewable one.

2.8 Clause 71 appears to permit reconstitution of a Tribunal while a review is actually occurring. This could be open to abuse. For example, if there was a concern about a member being unduly sympathetic to a particular class of applicant they could be removed and a new, less sympathetic member could be substituted. The VCCL believes that any power to re-constitute the Tribunal should be strictly limited to a case where a member hearing the case is unable to continue to do so.

2.9 Liberty also notes that under Clause161 portfolio Ministers can issue practice and procedure directions overriding the President’s directions in the event of inconsistency potentially interfering with the Tribunal’s discretion. Such directions are not proposed to be disallowable instruments and their contents will not be subject to community or parliamentary scrutiny. These provisions give the Executive a greater degree of control over the ART than it has ever had over the AAT. The VCCL believes that such directions should be circulated for public comment and should have the status of disallowable instruments.

2.10 The Bill does not reveal the source of funding for the various Divisions. It is understood that there was an earlier proposal for the Divisions to be funded through Departments, based on a formula negotiated between the Department and the ART. If this proposal is still intended to operate it also leads to the perception that the Department or Agency has excessive control over Tribunal processes.

2.11 The above comments outline the VCCL’s concerns on a number of provisions which we believe increase the power of the Executive Government over the new Tribunal effectively undermining the new Tribunal’s independence. These are serious flaws in a legal system premised on the rule of law and the separation of powers and we believe these provisions undermine the fundamental principles of administrative review.

3. The Right to Second-Tier Review

3.1 Clause 65 limits second-tier review. At present applicants in some jurisdictions are entitled as of right to two stage review. For example a social security applicant can apply for review of a Social Security Appeals Tribunal decision. While the VCCL accepts that it may be appropriate to restrict second stage review to some extent, we believe that the grounds in Clause 65 are far too limited. Even where the President or the executive member are satisfied that a manifest error of law occurred during the first tier review, second tier review cannot occur without the agreement of the applicant and the decision-maker. The requirement of "manifest error" is likely to have the effect of increasing the number of applicants who appeal to the Federal Court under Clause 167. This is contrary to the Bill’s object of providing an accessible method of reviewing decisions (see Clause 3(c)).

3.2 The VCCL believes that the requirement that the parties agree about the existence of manifest error will rarely be satisfied, with the result that incorrect decisions will often be left uncorrected. One of the effects of this provision will be to reduce consistency in the Tribunal. Even if there are a number of different decisions on a point there will not necessarily be second tier review unless the application raises a principle or issue of "general significance". In the VCCL’s view s 65(3)(a) should be repealed. Quite apart from this objection in principle to this restriction on second tier review, difficulties may arise in the application of the provision. It is not clear whether the provision would apply where both parties agreed that there had been a "manifest error" but disagreement as to what the error was. For example, it is quite possible that the applicant might take the view there was a manifest error of law, while the Department might take the view that the Tribunal had taken a correct view of the law but had made a manifest error of fact.

3.3 Clause 5(4) prevents the President granting leave when the participants agree to forgo the right to review. It is assumed that this provision is intended to ensure continuation of the practice under which Departments "concede" an appeal in an individual case, thereby avoiding the precedential effect of a decision indicating that previous Departmental decisions have been incorrect. In VCCL’s view this is inconsistent with Clause 3(f) which indicates that one object of the Act is to improve the quality and consistency of administrative decisions. The VCCL believes that the relevant Department should seek a legislative amendment where it believes a decision to be wrong or should appeal the decision, rather than conceding in the particular case and continuing to apply its view of the law. However, the VCCL notes that the proposed requirement of agreement between the applicant and the Department that a manifest error has occurred (see 3.2) may make it more difficult for Departments to have errors corrected.

3.4 The VCCL notes that s 65(6) creates a presumption against appearance by the applicant when an application for a grant of leave for second tier review is being made. We consider that this provision unfairly deprives applicants of the opportunity to put their case.

3.5 Although not apparent from the Act, the VCCL understands that there will be no provision for second tier review of immigration or refugee cases and sees no reason for treating these decisions differently from other administrative decisions.

4. Structure of Review Panels

4.1 In the past Tribunals such as the Social Security Appeals Tribunal have often used panels of members to hear cases. This has significant advantages in terms of training members, bringing a range of expertise to bear on particular problems and producing consistency in fact finding. The section now creates a presumption against panel review except in limited situations (see clause 69(2)). In the view of the VCCL this matter should be left entirely to the discretion of the President, who may take the view that Panel review is appropriate in certain categories of cases.

5. Meeting the Needs of Applicants and Legal Representation

5.1 Provision for administrative review will only ensure Government accountability if the applicants understand the reasons for Government decisions and are able to use the Tribunal effectively. The VCCL suggests that a number of amendments are required in order to achieve this objective.

5.2 Clause 57 requires the provision of a statement of reasons. This provision should be amended to require the decision-maker to take steps as are reasonable in the circumstances to provide reasons in a form which is understandable by the person whose interests are affected by the decision. Such a provision, would for example, prevent Departments providing reasons in English to a person known to be illiterate in English. This requirement would be an important safeguard if applicants have to represent themselves before the Tribunal. In addition the VCCL draws attention to the recommendations of the Administrative Review Council relating to standards for notification of reviewable decisions. The VCCL supports the implementation of Recommendations 52-54 of Better Decisions.

5.3 Clause 96 removes the right of appearance by participants, permitting a decision to be made entirely on the papers. This provision appears to be inconsistent with the objective of providing informal review (see Clause 3(c)). It could severely disadvantage persons who are not adept at expressing themselves in writing. It seems singularly inappropriate for some categories of applicants, for example social security recipients, who may need Tribunal assistance in making their case. If decisions are made on the papers alone, the existence of such disadvantage may not even be apparent to the Tribunal. The right of appearance gives applicants the opportunity to "to tell their stories" thus contributing to acceptance of a decision which is adverse to the applicant. Its denial may lead to an increase in applications to the Federal Court by dissatisfied applicants. The VCCL submits that a hearing on the papers alone should only occur with the informed consent of the applicant, as was recommended by the Administrative Review Council in Better Decisions Recommendation 19.

5.4 Clause 105 deals with representation, it provides that a person may choose someone to represent him or her before the Tribunal if the Tribunal agrees and if the practice and procedure directions do not prohibit it. Clause 106 appears to permit legal representation (and other forms of representation) only with the permission of the Tribunal, after written application by a person who is given permission to appear personally. The Government is of the view that the removal of legal representation will make the Tribunal procedure less adversarial, On the Law Report, Tuesday, 3 October 2000, the Attorney-General, Darryl Williams stated:

5.5 The provision and the Attorney-General’s view reflects the false assumption that applications for review usually deal with simple issues of fact. Any examination of AAT decisions reveals that the opposite is the case. Cases taken to the AAT frequently raise complex questions of legislative interpretation which unrepresented litigants will have difficulty identifying. Denial of representation could make review less accessible for people who are unable to express themselves clearly in writing or speech, or understand complex legislation and make representations about it. Research undertaken by the Australian Law Reform Commission has shown that represented applicants have a higher chance of success before the AAT than those who are unrepresented. The unintended consequence of these provisions may be to make proceedings in some cases lengthier. The VCCL acknowledges that legal representation may sometimes prolong proceedings unnecessarily. However, we consider that the solution is not to limit representation, but rather to give members the discretion to control proceedings in order to prevent them being excessively adversarial. Practice directions could also play a useful part in this process.

5.6 A further dimension not addressed nor recognised by the Government or the Attorney-General, despite the Government’s Model Litigant Policy, is the fact that the Commonwealth is often an extremely aggressive litigant represented frequently by barristers and Queens Counsel. As Melbourne lawyer, Greg Isolani, illustrated the aggressiveness of the Commonwealth as a litigator on the same edition of the Law Report:

5.7 The Government’s desire for a more accessible and less adversarial system is also dependent on Government Department’s behaving with integrity and fairness in the review of administrative decisions. Unfortunately, as highlighted above the opposite is often the case. This will be compounded in Social Security cases where often the applicant is not very well educated, has little financial resources and is faced with legislation every bit as complex and lengthy as corporations law. In addition, even where the Government Department does not have legal representation, the Government representative has recourse to in-house legal advice prior to appearance. Either way, the Government Departments have extensive resources available to them that is not available to unrepresented applicants. It is totally idealistic to assume that the system can be made more accessible to applicants by denying them legal representation. The Tribunal may be a merit review system but the reality is that the merits are reviewed within the confines of the legislative parameters which more often than not require legal interpretation. The VCCL believes that should legal representation be denied to applicants then it is incumbent upon the Government to make the same level of resources available to the applicant as available to a "well-resourced and cashed up" Government Department. To do otherwise is a denial of justice.

5.8 The VCCL also believes that Clause 124 will disadvantage applicants by introducing unnecessarily complex processes. Currently the AAT can take account of new information and make a decision on that basis. It is inappropriate and unnecessary to require the Tribunal to decide whether to refer the new information to the decision-maker or to proceed itself. This is particularly the case if people are not legally represented, as the significance of particular information may not become apparent to them until a relatively late stage in the review process.

6. Conclusion

6.1 In conclusion, the VCCL believes that the objects of the Administrative Review Tribunal Bill are appropriate. However, we are also of the view that some of the provisions discussed in this submission are seriously flawed, they allow the Executive to encroach on the Tribunal’s independence in ways which seriously undermine that independence. Furthermore, some of the provisions will hinder rather than enhance access to justice. We hope the Government has the foresight to consider these provisions with a view to improving some of the more contentious aspects of the new legislation as outlined in our submission.