Tribunals and Alternative Dispute Resolution Topic 11
Slide 2
Attorney-Generals 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)
Slide 3
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
Slide 4
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
Slide 5
how much you are prepared to spendin time and money how much
control you want over the process how much control you want over
making a decision or agreement.
Slide 6
Slide 7
Number of disputes Courts Legal assistance External merits
review Legal services Better decision-making ADR Legal assistance
ADR EDR Legal assistance early intervention Access to information
Resilience Handling matters personally Formal justice Informal
justice Everyday justice
Slide 8
Slide 9
Slide 10
Slide 11
Tribunals Courts Judicial review Judicial review Was the
decision lawfully made Was the decision lawfully made Tribunals
Merits review Merits review Was the decision a good decision? Was
the decision a good decision?
Slide 12
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
Slide 13
Judicial review v merits review A blurred distinction
Slide 14
Why have merits review and does it work? * Accountability is
fundamental to good governance in modern, open societies. *
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.
Slide 15
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
Slide 16
Applying to the AAT
Slide 17
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.
Slide 18
AAT within the portfolio of the Attorney-General and Minister
for the Arts Senator the Hon George Brandis QC
Slide 19
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.
Slide 20
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
Slide 21
AAT President The Honorable Duncan Kerr SC Chev LH, a Senior
Counsel, is the new President of the Administrative Appeals
Tribunal (announced April 2012)
Slide 22
A super NSW tribunal
Slide 23
NSW Tribunals NSW Civil and Administrative Tribunal Commenced
on 1 January 2014 Replaces 22 of the States 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 Amendment Act 2013
Slide 24
President The Hon Justice Robertson Wright
Slide 25
NCAT one-stop-shop for specialist tribunal services in NSW
Slide 26
Structure
Slide 27
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 decision-
making maintaining current levels of service retaining specialist
expertise and services continuous improvement in service
delivery
Slide 28
Previously the ADT: Formal and informal hearing rooms (old
website)
Slide 29
Next website
Slide 30
Current AAT website
Slide 31
NCAT website
Slide 32
ADT Now replaced: 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
Slide 33
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
Slide 34
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
Slide 35
Alternative Dispute Resolution
Slide 36
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
Slide 37
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
Slide 38
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
Negotiation Conflict of interests between parties Conflict of
interests between parties No established rules to resolve conflict
No established rules to resolve conflict Parties are seeking
agreement Parties are seeking agreement May or may not involve
third party May or may not involve third party Mediation Generally
involves the use of a trained, neutral third party Generally
involves the use of a trained, neutral third party Process
oriented: mediator facilitates Process oriented: mediator
facilitates Substance oriented: mediator offers recommendations
Substance oriented: mediator offers recommendations
Slide 43
Neutral evaluation Neutral evaluator seeks to identify and
reduce the issues of fact and law which are in dispute 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
Offers opinion as to likely outcome of dispute Similar to a
mini-trial Similar to a mini-trial Conciliation Parties, with the
assistance of neutral conciliator, identify issues and develop
options and alternatives Parties, with the assistance of neutral
conciliator, identify issues and develop options and alternatives
Conciliator advises but does not determine Conciliator advises but
does not determine
Slide 44
Expert referral Usually established by legislation Usually
established by legislation Expert panels used by State courts and
tribunals Expert panels used by State courts and tribunals
Arbitration Formal dispute resolution process governed by
Commercial Arbitration Act 1984 (NSW) or equivalents Formal dispute
resolution process governed by Commercial Arbitration Act 1984
(NSW) or equivalents Binding determination Binding determination
Also industrial arbitration Also industrial arbitration
Slide 45
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.
Slide 46
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.
Slide 47
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).
Slide 48
Why ADR? Benefits for clients Cost usually cheaper Cost usually
cheaper Time usually faster Time usually faster Relationships can
be preserved. Consider the effect of litigation on relationships.
Court system always adversarial. 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 Pre-trial/case management
processes reduce workload of court Reduces costs and delays across
the system Reduces costs and delays across the system
Slide 49
Why ADR? Promoted by government as best practice Commonwealth
Legal Services Directions 2005 Commonwealth Legal Services
Directions 2005 model litigants - endeavour to avoid, prevent and
limit the scope of litigation wherever possible. 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. Should be able
to advise clients about all options and best options.
Slide 50
Why ADR? Effective in achieving lasting settlement of disputes
Parties actively engaged Parties actively engaged Avoids winners
and losers 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. 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.
Slide 51
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.
Slide 52
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).
Slide 53
State approach to ADR Similar approach at State level e.g.
Supreme Court Practice Note SC Gen 6 The Courts power does not
depend on the consent of the parties, or of any of the parties
Slide 54
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
Slide 55
Family Law Court Family Law Act 1975 (Cth) designed to be
informal and incorporate pre- trial processes such as counselling
and conferences 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 ADR designated
primary dispute resolution Funded community based services such as
Relationships Australia and Centacare Funded community based
services such as Relationships Australia and Centacare Broad view
of dispute and methods of resolution Broad view of dispute and
methods of resolution
Slide 56
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)
Slide 57
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
Slide 58
Family Dispute Resolution Independent practitioner assists
those separated or divorced, or considering separation or divorce
to resolve some or all of disputes 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). 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 Now required prior to seeking any Family Court
order relating to a child Ombudsmen Established in many government
departments and some private industries Established in many
government departments and some private industries
Slide 59
Youth Justice Conferencing Example of ADR in criminal context
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 NSW scheme to divert young offenders from the
courts by requiring them to meet the victim of their behaviour
Young Offenders Act 1997 (NSW) Young Offenders Act 1997 (NSW)
Circle Sentencing Current NSW trial Current NSW trial Designed to
empower the Aboriginal community in the sentencing process Designed
to empower the Aboriginal community in the sentencing process
Punishment to be a community sanction Punishment to be a community
sanction