Tribunals and Alternative
Dispute Resolution
Topic 11
The majority of courts handle matters that
are criminal or civil in nature, while tribunals
provide a less costly alternative for
progressing some civil and administrative
matters outside the formality of a court.
A criminal matter generally arises where a charge has been
laid either by police or some other prosecuting authority on
the basis of a breach of criminal law. A civil matter occurs
where there is a dispute between two or more individuals or
organisations, where one party seeks legal remedy for an
injury or loss from the other party who is alleged to be
liable.
See: http://www.swtafe.vic.edu.au/lrc/abs/publication/content/wcd00002/wcd00206.htm
Review of administrative
decisions
Courts: Judicial Review

Was the decision lawfully
made?
Tribunals: Merits Review

Was the decision a good
decision?
Courts: Judicial Review
 court
does not decide whether the
decision was “right”, but only whether it
was “lawful”
 The most common grounds are:
 a breach of natural justice (procedural
fairness);
 an error of law; or
 failure to take into account a relevant
consideration.
(See section 5 Administrative Decisions (Judicial Review) Act 1977 (Cth))
Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35-36
The duty and jurisdiction of the Court to
review administrative action do not go beyond
the declaration and enforcing of the law which
determines the limits and governs the
exercise of the repository's power. If, in so
doing, the Court avoids administrative
injustice or error, so be it; but the Court has
no jurisdiction simply to cure administrative
injustice or error. The merits of administrative
action, to the extent that they can be
distinguished from legality, are for the
repository of the relevant power and, subject
to political control, for the repository alone.
Tribunals: what are they?
http://www.lawhandbook.org.au/handbook/ch01s02s04.php (below list extracted form this source)
 “Tribunals
differ from courts in a number of
ways, although the differences may vary
substantially from tribunal to tribunal, and
in some cases are marginal (…):
1. Procedures in a tribunal are less formal,
the required documentation is simpler, the
rules of evidence are applied less rigidly,
and the hearings are conducted in a less
formal manner.
2. The member of a tribunal hearing a case takes a more
active role in the proceedings than a traditional judge who,
being bound by the restrictions of the adversary system, acts
as a passive umpire of the issues put by the parties.
A tribunal may be comprised of members who are legally
qualified and members who have specialist expertise in the
subject matter with which a particular tribunal deals…
3. Some tribunals encourage or require parties to appear in
person, without lawyers.
4. While courts are bound by the previous decisions of
superior courts, tribunals are generally not, and instead are
required to determine each matter on its particular merits. In
practice, however, many tribunals follow precedent for the
sake of being consistent in their decision-making.”
Tribunals: 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
Judicial review v merits
review
A blurred distinction
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.
Administrative Appeals Tribunal
 Unique
in the common law world
 General tribunal for the review of
administrative decisions
 87 members with the jurisdiction to review
administrative decisions made under more
than 450 Acts of Parliament
 Appeals lie to the Federal Court
Applying to the AAT
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
•Disability care under the National Disability Insurance Scheme
•many other Commonwealth issues
AAT within the portfolio of the
Attorney-General and Minister
for the Arts Senator the Hon
George Brandis QC
Drake v Minister for Immigration
and 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.”
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
AAT President
The Honorable Duncan Kerr SC Chev LH,
a Senior Counsel, is the ‘new’ President of
the Administrative Appeals Tribunal
(announced April 2012)
A super NSW tribunal
NSW Tribunals
NSW Civil and Administrative Tribunal
 Commenced on 1 January 2014
 Replaces 22 of the State’s existing
tribunals (eg: Matters heard previously in
the Consumer Trade and Tenancy
Tribunal and now heard in the Consumer
and Commercial Division of NCAT)
 Civil and Administrative Tribunal Act
2013
President
 The
Hon Justice Robertson Wright
NCAT
 “one-stop-shop
for specialist tribunal
services in NSW”
Structure
The main work of NCAT is to review
specific administrative decisions made
by NSW government agencies
Across all types of matters, NCAT is
committed to:
* timely, fair, high-quality decisionmaking
* maintaining current levels of service
retaining specialist expertise and
services
* continuous improvement in service
delivery
Previously the ADT: Formal and
informal hearing rooms (old
website)
Next website
Current AAT website
NCAT website
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
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
Alternative Dispute
Resolution
Attorney-General’s Department:
2014 website
Ways to manage a dispute
There are many ways you can respond to a
dispute. These can include:
 deciding if you can live with things staying
the way they are
 talking with the other people involved to
see if you can find an outcome that works
for everyone (sometimes called
‘negotiating’)
 getting
help from an organisation or a
person who is not involved in the dispute,
such as:





an alternative dispute resolution practitioner,
for example, a mediator
a lawyer or other person who may negotiate
for you, or provide advice on your legal rights
a person trusted by everyone involved in the
dispute
an ombudsman
a court or tribunal
When choosing the best dispute resolution
process for you, it is useful to think about:

how the other people involved might want to
manage the dispute
 whether you want an independent person
involved and, if you do, what you want them to
do
 how structured you want the dispute resolution
process to be
 what sort of relationship you want to have with
the other people involved
 how
much you are prepared to spend—in
time and money
 how much control you want over the
process
 how much control you want over making a
decision or agreement.
What is access to justice?
 Wave
1: Legal aid
 Wave 2: Changing court procedures
 Wave 3: Informal justice
 Wave 4: Competition policy
 On
the verge of a fifth wave?
Courts
Legal assistance
External merits review
Legal services
Better decision-making
Formal
justice
ADR
Legal assistance – ADR
EDR
Legal assistance – early
intervention
Informal
justice
Access to information
Resilience
Handling matters
personally
Everyday
justice
Number of
disputes
Of the 719 legal problems where
respondents took no action
because they ‘didn’t know what to
do’, they also indicated that it
‘would be too stressful’ to take
action for about half (53.2%) of
these problems, and that it ‘would
cost too much’ for about two-fifths
(41.8%) of these problems.
2012 Law and Justice Foundation
survey
2012 Survey
 legal
problems are widespread and often
have adverse impacts on many life
circumstances
 disadvantaged people, are particularly
vulnerable to legal problems
 •a sizeable proportion of people take no
action to resolve their legal problems •
most people who seek advice do not
consult legal advisers and resolve their
legal problems outside the formal justice
system.
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
ADR same as Court?
 Court:
exercises the judicial power of the
State and a Tribunal: exercises executive
(and sometimes judicial) power of the
State
 ADR not just a different type of court
 Describes a process – an umbrella term no one set of laws which governs this area
 ADR: may be voluntary/may be binding –
depends on agreement between parties
 ADR: often a private contractual
arrangement
Federal approach to ADR
Some ADR required by legislation prior to any claim in:
 Federal Court (Federal Court of Australia Act 1976) and see
Civil Dispute Resolution Act 2011
 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).
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”
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
ADR won’t suit all situations
ADR: tactics and strategy
Types of ADR
 Negotiation
 Mediation
 Neutral
Evaluation
 Conciliation
 Expert Referral
 Arbitration
 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
 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
 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
Master of the Rolls, the Right Honourable Lord Donaldson of Lymington, Master of the Rolls - 1991
Address to the London Common Law & Commercial Bar Association, on 27 June 1991 cited by
http://www.roberthuntbarrister.com/BestADRclausev2.pdf
“ ADR is a PR mans dream. In conjures up
visions of a factor ‘X’ which will do for
dispute resolution what it is said to have
done for washing powders and petrol. The
truth is that there is no factor ‘X’. Indeed I
rather doubt whether there is any such thing
as ADR. It is simply an umbrella term or
‘buzz word’ covering any new procedure or
modification of old procedures which anyone
is able to think up.’ “
ADR - definitions
 Accurate,
comprehensive definitions can
be difficult
 National Alternative Dispute Resolution
Advisory Council – NADRAC (now
disbanded)
 “processes, other than judicial
determination, in which an impartial
person assists those in a dispute to
resolve the issues between them.”
Former 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.
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).
Why ADR?
 Benefits



Cost – usually cheaper
Time – usually faster
Relationships – can be preserved. Consider
the effect of litigation on relationships. Court
system always adversarial.
 Benefits


for clients
for courts
Pre-trial/case management processes reduce
workload of court
Reduces costs and delays across the system
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.
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.”
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.
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
IDR and EDR
 Ombudsman
 Complaint
resolution schemes