Speeches, papers and research

Speeches and papers

"Administrative Decision-Makers in Australia : the Search for Best Practice"
The Hon. Justice Deirdre O'Connor

Paper delivered to the 2nd International Conference on Administrative Justice, Quebec
17 - 20 June 2001

INTRODUCTION

Australia has a system of administrative review that is, in many ways, an example of world's best practice. However, there is no point having a comprehensive system of administrative review if it is not truly independent. This is particularly so at the beginning of the 21^st century, a time when citizens are demanding greater accountability from governments, when there is mass communication, greater public awareness, and less 'automatic' respect for traditional institutions. (1) The rationale for the very existence of administrative review is undermined, unless the public are confident that administrative decision-makers (2) and the institutions to which they belong are competent and independent.

The aim of this paper is to consider those elements which are essential in establishing and maintaining the independence of administrative decision-makers and, consequently, the community's trust in any system of administrative review. I begin by outlining the characteristics required in order to attain best practice in the appointment of administrative decision-makers. The key elements of an independent and high quality system of administrative review in terms of the recruitment, appointment and treatment of its decision-makers include a transparent and merit-based selection process, transparent processes for, and conditions of, appointment and reappointment, appropriate levels of remuneration and suitable working conditions.

Before discussing whether these principles are applied in the Australian context, I will give a brief overview of the development of administrative review systems in Australia. This will incorporate an examination of administrative review tribunals which operate at Federal level, and in the States of Victoria and New South Wales, both of which have significantly reformed their tribunal systems in recent years. Clearly, there has been a rise to prominence of administrative review tribunals in hearing disputes between citizen and State in Australia. As in other common law countries, the jurisdiction of administrative tribunals to review decisions made by government has increased steadily as the State has expanded the range of areas in which it makes decisions affecting citizens' lives. A consequential development has been the emergence of a group of professionals whose careers are built around tribunal membership, and who have occupied a variety of positions in a range of State and Federal administrative review bodies.

These developments, and particularly the significant role which tribunals now play in our modern system of governance, highlight the need for tribunals and their members to maintain both a perception and the reality of independence. This is an issue which inevitably focuses attention upon the recruitment, appointment, training and working conditions of administrative decision-makers. I therefore go on to examine how, in Australia, administrative law judges or decision-makers are recruited, appointed and motivated to stay. In particular, I look at whether the practices which have developed in the Australian context meet those elements of best practice identified in Part 1.

PART 1: THE REQUIREMENTS OF AN INDEPENDENT AND EFFECTIVE ADMINISTRATIVE REVIEW SYSTEM

Much has been written about the concept of judicial independence, and it is widely accepted that the independence and integrity of judicial officers is vital to the effective functioning of a democratic system of law enforcement. (3)  In an era when decisions made by government affect so many areas of our lives, and when administrative review tribunals are increasingly expected to act as a check on government power, the independence and quality of administrative decision-makers assume similar importance. As the British Columbia Council of Administrative Tribunals pointed out in a recent report:

The rationale for the independence of administrative tribunals is the same as the rationale for judicial independence, namely the belief that those whose rights and interests are being adjudicated will only be satisfied that this is being done fairly if the individuals who are sitting in judgement are free to do so based solely on the evidence that is before them and their obligations under the law. (4) 

However, while the independence of administrative decision-makers is as important as judicial independence, the means by which this can be achieved are not necessarily the same as the mechanisms used to ensure the autonomy of courts.  (5) The elements required to ensure the competence and independence of administrative decision-makers are:

• a transparent and merit-based selection process which is fair and open;
• if not tenure, then a term appointment process and transparent processes for reappointment and removal of decision-makers;
• appropriate levels, and transparent determination, of remuneration; and
• stable and suitable working conditions, which include respect for the institution of tribunal membership.

Each one of these requirements may be met in a variety of ways. I will discuss each in turn, in an endeavour to identify an overarching 'best practice' model for the recruitment, appointment, training and working conditions of administrative decision-makers.

The Recruitment Process

The objectives of a proper recruitment or selection process are, firstly, to ensure the best possible candidates are appointed as decision-makers. (6)  The second is to promote public confidence in the integrity of the recruitment process itself, thereby reinforcing the perception that administrative review bodies are free from undue influence and that its members are independently appointed. There are a number of factors to consider in designing a recruitment process which meets these objectives. These include the way in which the filling of vacant positions is initiated (for instance, by advertising), the skills, qualifications and experience required of administrative decision-makers and the way these are expressed in selection criteria, and the process of determining which candidates are the most suitable to fill available positions (for instance, an interview process). While the best possible recruitment processes won't guarantee the appointment of the highest quality decision-makers, "better appointments procedures are more likely to produce well qualified appointees than inadequate or ill-conceived appointments processes". (7) 

The key characteristics of the recruitment process must be its transparency and the determination of appointments on the basis of merit. To have a transparent system of recruitment there must be publicly available selection criteria which set out the standards required of decision-makers. These may include educational and professional qualifications, certain levels of experience, as well as certain personal qualities. While some of these criteria will inevitably be difficult to measure, some attempt should be made to identify and define the essential skills and abilities required. As stated by the Administrative Review Council (ARC) in its comprehensive review of Commonwealth merits review tribunals in 1995:

... the specification of a minimum set of core skills and abilities required of an effective tribunal member . should also be of assistance in the process of developing selection criteria for tribunal members. Core tribunal member skills and abilities is a subject which has been discussed at tribunal and administrative law conferences. A more formal exercise of agreement on some common specifications should give greater clarify and focus to the justification for particular attributes, and hopefully lead to higher overall standards. (8) 

There may be advantages in having the minimum qualifications for membership to administrative review bodies specified in legislation.  (9) This would ensure transparency, however, care would need to be taken in framing minimum criteria so as not to unduly restrict the government's flexibility in designing an administrative review system which best meets the changing needs of its users.

In addition to a core set of criteria which may be applicable to administrative decision-makers generally, differences in the nature of particular bodies should be taken into account. One commentator, talking about her experience as Presiding Member of the South Australian Residential Tenancies Tribunal, considered that "before embarking on a selection process, there must be an analysis of the nature of the work carried out by the particular tribunal".  (10) She pointed to a number of considerations which might shape the terms of selection criteria, including the nature and function of the tribunal, whether members sit alone or as part of a panel, whether written reasons and/or hearings are required, what the appeal rights are, the nature of the orders which may be made, and whether lawyers have a right of representation.

Not only will carefully framed selection criteria better enable the best quality decision-makers to be recruited, but it will also reinforce the perception that selection is conducted on the basis of merit. As defined by a representative of the Public Service and Merit Protection Commission (PSMPC):

The concept of merit, in the employment context, . refers to a relationship between a person's job-related qualities and those genuinely required for performance in particular positions or job categories.  (11) 

An obvious benefit of applying the merit principle in the recruitment of administrative decision-makers is that it removes any bias towards traditional job incumbents and ensures competent candidates are not excluded. Moreover, a consistent application of the merit principle enables an administrative review system to take advantage of the range of capacities and skills that are available in the community.  (12) Just as importantly, it demonstrates to the community that appointments are made on the basis of competence which, in turn, should increase the public's respect for administrative review institutions.

While application of the merit principle will not automatically result in the appointment of administrative decision-makers who are representative of the broader community, selection should be based on merit rather than attempts to ensure that a tribunal is 'representative' of a diversity of backgrounds, gender and ethnicities. As Sue Raymond has commented "to create diversity at the expense of [members'] suitability against selection criteria only serves to undermine the competence and credibility of the tribunal".  (13) Nonetheless, given that application of the merit principle avoids "the insidious bias for what has come before"  (14) it should, over time, result in a more diverse and reflective tribunal membership.

The perception that candidates are selected on the basis of merit is reinforced by the practice of publicly advertising to invite expressions of interest for available positions. Advertising, as opposed to personally soliciting potential candidates, makes the selection process more transparent and open, and increases the chances of finding more diverse and suitable candidates who might otherwise have been overlooked.  (15) Once expressions of interest are received, there must be a process whereby candidates are measured against the selection criteria. This can be done in a variety of ways, the most obvious of which is by interview. If an interview process is chosen, decisions need to be made regarding the composition of the interview panel, the formality of the interview, and whether the process will involve more innovative techniques such as group discussion or role plays.  (16) The type of process chosen may depend upon the nature of the body to which appointments will be made, or the size of the pool of potential candidates. In relation to the goals of independence and transparency, the most important issue is the composition of the interview panel. A panel may include officials of government offices whose decisions are regularly reviewed, portfolio Ministers, representatives from the administrative review body itself, or third parties who are independent of government. According to the ARC:

... it is in everybody's interests for the selection process to be viewed as credible, and it is desirable that any panel be seen as not unduly weighted towards any short term departmental interests. That is why it is important that the views of people with experience and strong interests in the area of government decision making involved should be sought before appointments of review tribunal members are made. This does not mean that ministerial staff or departmental officers should be precluded from participating on assessment panels, provided that the panels are sufficiently broad-based to be viewed as credible: in this regard, the Council notes that the number of participants need not be three.  (17) 

This panel should be responsible for providing a list of suitable candidates from which appointments may be made.

There will inevitably be skills or qualities which are almost impossible to measure and assess via a selection process. For instance in jurisdictions such as refugee law or social security, where the experience of administrative review may be particularly traumatic and decisions have serious consequences, the ability to be an effective, fair and efficient tribunal member may require qualities such as sensitivity, perception and interpersonal skills.  (18) However, a well thought out selection process based on defined selection criteria should generally result in the recruitment of higher quality decision-makers.

The Appointment Process

There must be fair and open processes for the appointment, reappointment and removal of administrative decision-makers. In particular, these processes should be designed to ensure that the independence of decision-makers is maintained.

The independence of judicial officers is ensured through mechanisms such as tenured appointment. However, a distinction may be drawn between judicial officers and decision-makers who sit on administrative review bodies. Administrative review bodies are different to courts - often they are established, or jurisdiction is conferred upon them, because they can resolve disputes in a way which is informal, speedier, cheaper and more accessible than the courts. They are intended to have a positive 'normative' impact upon the Departments whose decisions they review, and for this reason officers of government departments have in the past been appointed as tribunal members.  (19) Moreover at the Commonwealth level in Australia, and to a lesser degree at State level, administrative review tribunals do not exercise judicial power and are formally part of the Executive branch of government.  (20) Therefore, in order to secure the independence of tribunal members, it may be appropriate to explore ways other than those which have been adopted to secure judicial independence, such as life tenure.  (21) 

It is clear that Government in Australia no longer considers tenure appropriate for members of administrative review tribunals. This is also the view of the ARC which has stated:

The needs of the users of review tribunals change over time, and no selection process can guarantee that a person considered suitable for appointment will remain so indefinitely in the light of changing circumstances and demands. Tenured appointments reduce the flexibility of tribunals to ensure that their pool of members remains appropriate to the current set of tasks. (22) 

Tenure for administrative decision-makers, because of its association with the independence of the judiciary, is an understandable way of initially establishing the independence of members of a newly established body. However, in an environment in which tenure is seen to undermine the flexibility of administrative review bodies, the challenge is to find other ways of ensuring that tribunal members are, and are perceived to be, independent.

If members don't have tenure, there must at least be a term appointment process which is transparent and fair. The conventions for making statutory appointments no doubt differ from jurisdiction to jurisdiction. At Commonwealth level in Australia, for instance, the Governor-General has formal responsibility for making appointments. In practice the Governor-General follows recommendations from relevant portfolio Ministers after specific Cabinet consultation processes which are set out in a Cabinet Handbook.  (23) Arguably, the independence of decision-makers is enhanced if Ministers whose decisions will be reviewed are not directly responsible for appointments. Appointment by an independent panel or by a Minister at arms' length from the review process would reinforce the perception of independence established by a transparent and fair selection process.

There has been some debate in Australia about the appropriate length of term appointments for administrative decision-makers. This issue involves balancing the objectives of independence, and the flexibility to reform administrative review bodies in response to the changing needs of its users. On the one hand, governments are concerned to ensure that the membership of specialist administrative review bodies maintains relevant expertise and can respond to changes in law, policy and jurisdiction. They may also want to guard against members developing practices which eventually harden into costly formalism. (24)  Other commentators are concerned about decision-makers not being adequately protected from external influences, especially the Executive government.  (25) The Chief Justice of the High Court of Australia expressed this concern as follows:

Very few people seem to have noticed that the only independence which some of these tribunals enjoy is the freedom to do whatever the government of the day wants them to do, and that they operate in practice as a method of distancing potentially unpopular decision-making from those who should take the responsibility for it.  (26) 

The ARC has stated that terms of appointment shorter than three years "are undesirable since they do not give the members any sense of security". (27)  Short-term appointments do not allow members to develop their skills and expertise and may also discourage suitable people from applying for positions. More significantly, it has been said that appointments for short periods with the prospect of reappointment may undermine independence.  (28) As Paul Dawson has noted, the argument is that the possibility of reappointment increases the likelihood of tribunal members being more inclined to uphold government decisions than they would otherwise have considered appropriate, in order to secure reappointment.  (29) Thus, the combination of short-term appointments and the prospect of reappointment can give rise to a perception that tribunal members may be unduly influenced in their decision making. Administrative decision-makers should be appointed for a reasonable minimum period that is prescribed in statute, unless there are particular circumstances which warrant a shorter term of appointment.

The ARC recommended that decision-makers be appointed for terms of 3 to 5 years, with a possibility of reappointment. Others have argued that longer terms, for instance 10 year terms, would make reappointment unnecessary. Alternatively, decision-makers could have 5 to 7 year terms with the possibility of reappointment occurring only once or twice.  (30) More senior members could also be given longer terms in light of their leadership role or influence within the organisation. (31)  The model which strikes the appropriate balance between independence and flexibility may differ, depending on the nature of the body in question and its decision-making function. In any event, appointments to tribunals should be staggered so as to avoid appointing a significant proportion of a tribunal's membership at any one time. This would reduce any real or perceived risk that the appointments process provides specific ministers with the opportunity of influencing the composition of tribunals within their portfolios. (32) 

Like the appointment process, the reappointment process should be transparent and fair. While the criteria for reappointment may differ, the principles underlying the process should be essentially the same. The ARC has suggested that concerns about reappointment decisions can be minimised if all members seeking reappointment are assessed according to public criteria.  (33) The process need not be identical to that applying to new applicants, but should involve a selection panel assessing a member's suitability for reappointment against publicly available selection criteria. In New Zealand, different reappointment processes have been used at various times. For the first round of reappointments to the Tenancy Tribunal, for example, incumbent members seeking reappointment went through the same merit-based selection process as new applicants. The overwhelming majority were reappointed. The process then changed to one of performance evaluation, where reappointments were made on the basis of satisfactory job performance. If a performance evaluation approach is adopted, reappointments must be made once an incumbent has formally demonstrated ongoing competence, otherwise the entire process is undermined. (34) 

The reappointment process is clearly crucial to the independence of members where members are appointed for fixed terms with the possibility of reappointment. A process incorporating some form of formal reassessment of decision-makers' skills and performance ensures independence and fairness. Reappointment should also occur in a timely manner, given the pressures and potential impacts which delay and the resulting uncertainty may have upon decision-makers. The impact which a badly handled appointment and reappointment process can have is highlighted in a recent study conducted by the British Columbia Council of Administrative Tribunals. In a survey of 45 tribunals members reported that:

The most common concern, raised by 20% of participants, relates to the uncertainty and delays in the appointment and reappointment processes. This is seen as a major impediment to a board's functioning and often a serious inconvenience to the affected member. Related to this issue, but more a matter of principle, is the perceived lack of openness and transparency in the formal appointment process (13%). Most tribunals suggest that, once a recommendation reaches the Minister, they are unaware of the process undertaken. The concern here is for the transparency and integrity of the system, as well as public confidence in it.(35) 

If the processes of recruitment, appointment and reappointment are well thought out, there should be little cause to resort to procedures to remove administrative decision-makers from office. However, the reality is that issues such as underperformance may still arise in practice, even where selection processes are generally effective. The challenge is to design grounds for removal from office and a termination procedure which has minimal impact on the independence of decision-makers, and on the public's confidence in the administrative review system as a whole.

Grounds for the removal from office should be set out in legislation and may include bankruptcy, proved misbehaviour, physical or mental incapacity, failure to disclose conflicts of interest, engaging in other paid employment without approval, or unexplained absence from work. Few would argue that removal on these grounds would adversely impact upon the independence of a tribunal. On the contrary, removing members on these grounds is arguably important in maintaining the community's respect for the system as a whole. A more difficult question is whether administrative decision-makers should be removed for incompetence or unsatisfactory performance. Judicial officers are generally subject to removal only in exceptional circumstances, via a complex process involving one or both Houses of Parliament. These measures protect the independence of judges by preventing abuse of the removal system for illegitimate purposes. However, they also arguably reduce accountability. Reduced accountability may be less desirable for administrative decision-makers who, in some jurisdictions, form part of an Executive branch of government.

If there is an option to remove members for unsatisfactory performance an important question is, who determines what constitutes 'unsatisfactory performance'? It has been suggested that removal should only occur via a transparent process with reference to objective criteria.  (36) Those responsible for making such decisions should have accurate advice, preferably from the head of the body in question, and should be seen to be at arms' length from the decision-making process. At the very least, they should not have any interest in the outcome of decisions made by the decision-maker in question.

Remuneration

The issue of remuneration is an important one, firstly as it encourages people with higher-level skills to apply for and remain in administrative decision-maker positions. Secondly, appropriate levels of remuneration reinforce the respect which the community has for legal institutions and reduces the potential for conflicts of interest to develop. Differences in the nature of the work to be undertaken by administrative decision-makers will often mean it is appropriate for there to be variations in the level of remuneration for different members. However, the range of remuneration must be at a level that properly reflects the role of administrative decision-makers in providing high-level external review of administrative decisions. (37)  Moreover, the salary paid to administrative decision-makers should not be reduced during the time of their appointment. (38) 

It will often be appropriate for an independent body to determine the levels of remuneration for decision-makers, and to adjust payments in accordance with factors such as inflation. A body such as the Australian Remuneration Tribunal works well in this context. The Remuneration Tribunal is a statutory body responsible for determining remuneration for a range of public offices. It aims to put in place a Commonwealth remuneration framework that:

• supports a high performing commonwealth public sector;
• attracts and retains the best quality people;
• supports the accountability structure of the Commonwealth;
• is consistent with the Government's broader workplace relations policies; and
• has the confidence of the Government and the nation by being independent, cost effective, competitive, flexible and transparent. (39) 

The procedures of the Tribunal are transparent and consistent, and it concentrates on promoting public understanding of its independent role in determining remuneration. Public office holders may make submissions to the Tribunal, but a far wider range of factors are taken into account when making final determinations. Implementing a transparent and independent mechanism like the Remuneration Tribunal avoids a situation where decision-makers have to agitate for their own salary increases. Such a process is unlikely to attract political controversy and adverse media attention as has occurred in Australia on past occasions, before the Remuneration Tribunal took over the task of determining judicial salaries. (40) 

Working Conditions

In order to retain administrative decision-makers with high-level skills there needs to be stability within the system. If there is a rapid turnover of members due to poor levels of remuneration or uncertainty arising from continuing proposals for reform, this can discourage people from applying for positions. It may also encourage other experienced and highly trained decision-makers to leave. Stability will be reinforced if appropriate protection and immunities (for instance, from prosecution) are extended to decision-makers in the performance of their roles. As well as stability, there needs to be respect shown towards those occupying the position of administrative decision-maker, for the sake of public confidence in the system. There have been instances in Australia where portfolio Ministers have criticised individual tribunal members for decisions they have made. (41) This undermines confidence in the tribunal system as a whole; not only does it make the work of members less effective, but it encourages at least a perception that members' decisions will be swayed by such comments.

A more controversial issue is whether administrative decision-makers should be subject to some form of performance appraisal, and whether the results of appraisals should impact upon the reappointment or remuneration of individual members. Performance management is an issue which has been discussed intently in the 1990s. This can be seen as part of the "growing emphasis within government administration on the setting of performance targets and monitoring of their achievement, both for organisational units and for individuals". The ARC noted in 1994 that some tribunals at Federal level had begun to experiment with a system of performance indicators and of feedback to members on how they measure up to those standards. Standards can relate to administrative matters such as caseload and timeliness of written decisions, or a members' interpersonal skills and quality of reasoning.

Concerns have been expressed about performance appraisal in the context of the independence of administrative decision-makers. The existence of a performance management scheme can give rise to speculation about the pressure placed on members in respect of decisions in particular cases. This is so even if review outcomes are not included as one of the performance measures. A more significant issue is the reasonableness of performance standards and, in particular, those which relate to how decision-makers deal with their caseload. There is a trend to prescribe in legislation or in practice directions the way in which a review must be conducted. If standards relating to the conduct of reviews are unreasonable, the pressure to meet performance targets may negatively affect the ability of members to give adequate attention to individual cases.

Many of these concerns were raised in the context of debate over the Australian Government's recent proposals to reform the Federal system of merits review tribunals. Several commentators suggested that the power to remove decision-makers for breaches performance agreements was open to misuse. The fact that there was no requirement for performance agreements to be subject to some external scrutiny, for instance by Parliament, cast further doubt over the proposals. (42) The Attorney-General defended the reforms on the basis that "merits review involved review within the framework of the executive arm of government and not judicial decision-making". (43) However, this fails to recognise the fact that merits review tribunals make an ever-increasing range of decisions with potentially serious consequences for people's lives, and that the government's ability to place increasing numbers of matters within the jurisdiction of administrative tribunals depends upon their acceptance by the community. While it may be reasonable to expect some level of accountability from administrative decision-makers, there needs to be safeguards about the way this is done. Any evaluation system must be transparent and well-managed.

That said, one of the benefits of a formalised, transparent performance appraisal system is that it may facilitate the giving of feedback to members which would make them more effective in their work. Sue Tongue, former Principal Member of the Migration Review Tribunal, recently recounted her own experience in this regard:

A range of issues are included in assessing a member's performance, including the productivity statistics, number of appeals made against them and number of complaints. One of the most serious things I had said to me about a tribunal member was in this last week when an applicant said, 'As soon as I heard who my member was, my solicitor said to me that I was going to have problems and that he was not going to find for me.' That kind of feedback for a tribunal member is quite important. It shows that out in the community there is a view that that member is not impartial and fair. Those kinds of things are brought up [in the context of performance assessment]. (44)

Thus, one of the advantages of performance appraisal is that it enables the senior members of an administrative review body to identify areas in which other members require assistance. The ARC observed marked differences in the level of in-house training provided to members in bodies which had some form of performance appraisal. In addition, it enables issues relating to individual instances of underperformance to be identified and addressed. There are limitations, of course, to the extent to which serious and consistent underperformance can be addressed, and in rare instances it may be necessary to initiate a formalised removal process.

There are clearly advantages and disadvantages to performance appraisal of administrative decision-makers. An appropriate compromise may be to implement an appraisal system which emphasises constructive feedback and the identification of training needs, yet which does not involve penalties or rewards for individual decision-makers. In particular, the concept of performance pay should be approached with caution. Not only would it be difficult to obtain reliable indicia of quality decision-making, (45) but also there is the risk that too much pressure to conform to expected norms could affect members' willingness to make the correct decision in individual cases.  (46) Moreover, pressure to meet unreasonable performance targets would have a negative impact upon the perceived independence of decision-makers, and could have serious implications for the quality of their decision-making.

Finally, another way of improving working conditions in order to retain highly skilled decision-makers is to consider the nature and diversity of an administrative review body's workflow. Arguably, members who are required to determine large numbers of legally and factually similar cases begin to suffer from routine fatigue. This could arise if members were 'narrowly circumscribed in their jurisdictional range'.  (47)  Cross-appointment, together with effective induction processes and ongoing training programs, enhances members' professional development and job satisfaction.  (48)  While an administrative review system is not established for the benefit of its members, this may be an issue which governments can take into account when determining the way in which a system should be structured.

PART 2: AUSTRALIAN SYSTEMS OF ADMINISTRATIVE LAW

To determine whether Australia's systems of administrative law exemplify best practice in the recruitment and treatment of decision-makers, it is necessary to first set out their essential elements. Australia has a federal system of government with a large number of administrative review tribunals at Federal, State and Territory level. These bodies perform a wide range of functions including the review of administrative decisions, the adjudication of consumer claims disputes or the resolution of claims of unlawful discrimination. Tribunals have developed unique structures and unique ways of carrying out the particular adjudicative function which they have been established to undertake. Given the range of recruitment and appointment procedures which exist in each jurisdiction, and which often differ from body to body, it is convenient to focus on the procedures used at Federal level in appointing members to merits review tribunals, and in the States of Victoria and NSW which have both recently amalgamated a number of smaller, specialised bodies to form generalist administrative tribunals.

The Federal System

The genesis of the current system of administrative review tribunals at Federal level is found in the work of the two well-known committees: the Commonwealth Administrative Review Committee (otherwise known as the Kerr Committee) and the Committee on Administrative Discretions (otherwise known as the Bland Committee).

The Kerr Committee's terms of reference were to consider what jurisdiction to review administrative decisions, if any, should be exercised by courts; what procedures should be used in getting administrative review; what the substantive grounds of review should be; and the desirability of introducing legislation like the British Tribunal and Inquiries Act 1958 in Australia.  (49)  It firmly rejected the proposal that courts should be given a general administrative review jurisdiction to enable them to review decisions on their merits.  (50)  Instead, it recommended the creation of a generalist administrative review tribunal, with appropriate specialist members to deal with matters arising in specific jurisdictions. It concluded that the creation of a general review tribunal was preferable to the continuing proliferation, as occasion required, of specialised tribunals which would be monitored by a Council of Tribunals, as in the British system. It predicted that such a development would give Australia a balanced system of administrative review, using both general and specialised tribunals. (51)  The Bland Committee reported in 1973. Its terms of reference were to examine existing administrative discretions under Commonwealth legislation, and to advise which discretionary decisions should be reviewable on their merits, and how they should be reviewed.  (52) The Committee expressed concern over what it described as the "burgeoning proliferation of tribunals each with a limited jurisdiction".  (53)

The discussion and ideas generated by these Reports culminated in the creation, at Commonwealth level, of a cohesive system for the review of administrative decisions, often referred to as the 'New Administrative Law' package. Significant legislative innovations gave substance to the principles of open government and accountability. The creation of the Administrative Appeals Tribunal (AAT) in 1975, (54) the Commonwealth Ombudsman in 1976,  (55) and the Human Right Commission in 1981,  (56) and the enactment of the Freedom of Information Act 1982, opened up cheaper, more accessible avenues for the review of administrative action. Judicial review was simplified by the creation of the Federal Court in 1976,  (57) the inclusion of s 39B in the Judiciary Act 1903, and the enactment of the Administrative Decisions (Judicial Review) Act 1977. Legal aid schemes which had been set up between 1972 and 1975 facilitated use of these new means of review.  (58)

While supplemented by the Commonwealth Ombudsman, Parliament has vested the task of merits review almost exclusively on tribunals. The creation of the AAT and subsequent specialist tribunals, such as the Veterans Review Board (VRB), the Social Security Appeals Tribunal (SSAT), the Migration Review Tribunal (MRT) and the Refugee Review Tribunal (RRT), in all bulk decision-making jurisdictions involving Commonwealth legislation, demonstrates the government's confidence in the ability of administrative tribunals to deliver affordable, accessible merits review. The Administrative Appeals Tribunal, which was established in 1975, is now responsible for reviewing decisions made under over 350 statutes. In some circumstances it acts as a second-tier merits review body, reviewing decisions made by other boards or tribunals. The VRB, SSAT, MRT and RRT review decisions made under the Veterans' Entitlements Act 1986, the Social Security (Administration) Act 1999 and the Migration Act 1958 respectively. All tribunals are responsible for conducting de novo merits review and for making the correct and preferable decision in the circumstances of each case.  (59)

The State Systems of NSW and Victoria

The administrative decision-making system of NSW has recently undergone significant reform in an effort to streamline primary decision-making and administrative review functions in that State. In 1998 the government established an Administrative Decisions Tribunal (ADT). The ADT comprises 4 Divisions:

• Community Services Division;
• Equal Opportunity Division;
• General Division;
• Legal Services Division.  (60)

These Divisions represent the smaller, specialised tribunals which were amalgamated to form the ADT. The Second Reading Speech introducing the ADT Bill indicated that many more tribunals will be incorporated into the ADT, progressively expanding its jurisdiction.  (61) The ADT has similar structure and powers to the Commonwealth AAT. Its task is to exercise administrative power in reviewing decisions made by primary decision-makers, and to exercise judicial power in making original decisions in certain areas of dispute.  (62) The ADT therefore has an original decision-making function and a review function.

The Attorney-General stated in the Second Reading Speech on the Bill that the primary function of the ADT would be merits review of government decisions. He continued:

The ADT is integral to the Government's commitment to ensuring open and accessible government for the people of New South Wales. . The Government's commitment to administrative law reform stems from our belief in the need for open and accountable government. . The introduction of a right of review of the merits of administrative decisions through an independent forum represents a further crucial aspect of good administration.

The administrative tribunal system in Victoria has recently undergone similar change - there is a new 'super-Tribunal' called the Victorian Civil and Administrative Tribunal (VCAT).  (63) The VCAT is an amalgamation of the Victorian AAT and several smaller, separate tribunals which operated in jurisdictions such as anti-discrimination, credit, domestic building, guardianship, property, land valuation, occupation and business regulation and taxation.  (64) The Tribunal's jurisdiction is conferred by the various enabling Acts dealing with these matters. The new Tribunal has two Divisions. The Civil Division deals with matters involving anti-discrimination, civil claims, credit, domestic building, guardianship, real property, residential tenancies and retail tenancies. This Division is primarily responsible for exercising the VCAT's original jurisdiction.  (65) The Administrative Division is responsible for general matters as well as land valuation, occupation and business regulation, planning and taxation. It exercises mostly review jurisdiction.

The ADT and VCAT differ in a number of ways from the Commonwealth tribunals. Most obviously, the functions of the ADT and VCAT extend beyond merits review of administrative decisions and include the making of primary decisions in the resolution of disputes or the adjudication of matters which may or may not involve the government as a party. However, issues relating to the independence and competence of tribunal members, and the means by which these goals are best achieved, are common to both State and Federal tribunals. The ways in which issues relating to tribunal membership have been considered and resolved in contemporary reform processes are of interest in considering whether Australian administrative review systems apply best practice in this area.

This issue is discussed in more detail below. Before doing so, however, it is worth exploring a recently emerging phenomenon which has the potential to impact substantially upon the issue of recruitment and appointment of administrative decision-makers - that is, the development of a group of 'career' tribunal members.

'Career' administrative decision-makers - an emerging phenomenon

There are numerous examples throughout Australia's administrative law system of a reciprocal interflow of members and staff between different administrative review bodies, including State and Commonwealth merits review tribunals and boards. In order to illustrate this point, the paper presents two (fictional) case studies incorporating the experiences of a growing number of people whose careers have centred around statutory appointment or employment at a range of administrative review bodies.

Case Study 1

Ms X was appointed as the Registrar of a specialised tribunal operating in the Commonwealth system of merits review tribunals. She then moved to another tribunal in the State system in this capacity before working to assist in the alternative dispute resolution procedures of that tribunal. She was then appointed as a member of another specialised tribunal in the Commonwealth system. She then worked as an academic of a higher educational institution in the field of administrative law, while at the same time undertaking work as a part-time member of both a Commonwealth merits review tribunal, and a State review board.

Case Study 2

After working as a lawyer in the administrative law field, Mr Y left the bar to work as an academic. He was then appointed as a member of a specialised merits review tribunal operating in the State system of administrative review. He was then appointed as the Registrar of that tribunal, later becoming Registrar of a larger Commonwealth Tribunal. He maintains an active interest in academic developments concerning administrative review boards, and keeps in contact with a number of former colleagues working within the State and Federal systems.

These case studies, which incorporate the experience of a number of different career paths, demonstrate that Australia is witnessing the development of a de facto career in administrative decision-making. This clearly complements the growing trend for administrative review tribunals to be given jurisdiction to perform the function of administrative review as a specialised task.

These developments bring the Australian system closer to civil law systems such as France, where disputes between citizens and the State are determined by specially constituted administrative courts which are entirely separate to courts which adjudicate private law matters.  (66) Members of the Conseil d'Etat, France's supreme administrative court, are recruited from among the highest ranked graduates of a National School of Administration, or from the ranks of distinguished civil servants. There are also 12 'Conseillers en service extraordinaire' who participate in the Conseil for 4 year terms and who are distinguished jurists, administrators, industrialists or trade union leaders. Members of the Conseil d'Etat often have periods of active service in the administration where they gain valuable experience and broaden appreciation for the work of the Conseil.  (67) To some extent, the developing trend in Australia for tribunal members to forge a career centred around tribunal appointments, with periods of service in academia or the administration, approaches the French model.

The question is, what impact do these developments have upon the recruitment and appointment of administrative decision-makers, and upon the independence and high quality decision-making of our current systems of administrative review? It is arguable that the fact that so many people change jobs yet remain working within the administrative tribunal system means that Australia's approach to the recruitment and treatment of members is highly successful. If Australia is succeeding in retaining skilled and experienced people within the tribunal system, this can only have a positive affect on the quality and competence of decision-makers, and of the system as a whole. Another obvious advantage of retaining people with skills and experience in other areas of activity, such as the law, academia or administration, is that it enhances the experience and understanding of decision-makers, resulting in higher-quality decision-making. This interaction between professions also leads to a greater understanding of the role of decision-makers, not only within tribunals, but within other influential institutions as well.

On the other hand, people who perceive themselves as 'career' tribunal members may be more conscious of the way in which their decisions are perceived by the Ministers responsible for appointments to tribunals. A clear difference between the French and Australian administrative review systems is the way in which members of the Conseil are recruited, and the duration of their appointment. In Australia, members are ultimately selected by Government Ministers responsible for the Departments whose decisions are being reviewed. In this context, the desire for 'career' tribunal members to be reappointed could have an adverse impact on the actual or perceived independence of members and tribunals.  (68)

The following section of the paper aims to test whether this is in fact the case, and whether Australia's administrative law systems can claim to exemplify best practice in the recruitment, appointment and treatment of its tribunal members.

PART 3: TO WHAT EXTENT DO AUSTRALIA'S ADMINISTRATIVE LAW SYSTEMS EXEMPLIFY BEST PRACTICE?

In other forums I have pointed out that:

This country does not have a Bill of Rights. However, for the last 25 years it has had an administrative review system which gives individuals "rights" to have reviewed adverse decisions of government in a wide variety of situations. There is no decline in the demand for such review, in fact it is increasing, and the current system built around the centrepiece of the AAT has been regarded for that 25 years as world best practice.  (69)

That said, there are a number of facets which constitute 'best practice' in administrative review systems. An essential element is the independence and competence of administrative review bodies and of the decision-makers which constitute them. As discussed above, the processes whereby decision-makers are recruited, appointed, remunerated and treated are of central importance in this regard. Therefore, to justify Australia's claim to be an example of world best practice in administrative review, it is necessary to examine our recruitment and appointment processes in light of the best practice model developed above. This section revisits the model set out in Part 1 and evaluates Australia's administrative review systems against each element of that model.

The Recruitment Process

A number of the statutes establishing Commonwealth administrative tribunals set out various minimum qualifications which members must possess. For instance, s 7 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) requires that the President of the AAT be a Federal Court judge, that Deputy Presidents be enrolled as legal practitioners of the High Court, another federal court, or a Supreme Court for at least 5 years, and that senior members either possess these qualifications or have "special knowledge or skill relevant to duties of senior member". Non-presidential, non-senior members must:

1. be enrolled as a legal practitioner of the courts mentioned above;
2. have had experience for at least 5 years at high levels in industry, commerce, public administration, industrial relations, or in some other profession or government;
3. have a university degree in law, economics, public administration or some other relevant field; or
4. have special knowledge or skill relating to matters coming before the Tribunal.

In relation to the SSAT, legal and medical members are required to have professional qualifications while welfare members and full-time members generally have experience or skills in welfare or public administration. Although qualifications for appointment to the MRT or RRT are not specified in the Migration Act 1958, members are expected to have skills relevant to the work of the Tribunal. (70) The broader nature of these requirements enables members of specialist tribunals to be drawn from a wider variety of disciplines.

The statutes establishing the ADT in New South Wales and VCAT in Victoria also set out minimum requirements regarding the qualifications of members. The ADT consists of a President, Deputy Presidents, non-presidential judicial members and non-judicial members  (71) and there are different qualification requirements for each level of membership. The President must be a judge of the District Court, the Industrial Relations Commission, the Land and Environment Court or the Supreme Court. Deputy Presidents and non-presidential judicial members must be judicial officers or legal practitioners of at least 7 years standing. The Act also provides for the appointment of non-judicial members with special knowledge or skill relevant to an area within the Tribunal's jurisdiction. (72) There is further scope for judges and magistrates to be appointed under s 14 which enables judicial officers to act as members of the Tribunal in relation to particular proceedings. The fact that many members of the ADT have the status and employment conditions of judges reinforces its independence.  (73) 

The membership structure of VCAT is similar to that of the Commonwealth AAT. Division 1, Part 2 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act) provides for the appointment of a President, Vice Presidents, Deputy Presidents, Senior members and ordinary members. Unlike the Commonwealth AAT, however, VCAT's membership consists mainly of members with legal qualifications. As well as the requirement that the President be a Supreme Court judge, Vice Presidents must be County Court judges and Deputy Presidents and senior members must be experienced legal practitioners.  (74)  The qualifications for VCAT membership highlight that there is general agreement in Victoria that the benefits of judicial leadership outweigh the disadvantages associated with the development of a legalistic culture. It was generally considered that the involvement of judges in VCAT would improve the performance of the Tribunal overall, and indicate to the community its high standards of independent thought and decision-making.  (75)  Sensitive matters, such as matters involving freedom of information legislation, are generally listed before judicial members.

There is much to be said for including minimum qualifications of tribunal members, as well as some indication of recruitment processes to be followed, in the legislation establishing a tribunal or in publicly available policy documents. While this approach may reduce flexibility, it serves to enhance the consistency and transparency of recruitment processes, thereby engendering greater public confidence in the system as a whole.

At Federal level, there is a growing trend for tribunal members to be recruited via public advertisement.  (76)  This is usually followed by some type of selection process, in consultation with the President or principal member of the relevant Tribunal, followed by an interview process in consultation with the President and the Attorney-General's Department. The 4^th edition of the Cabinet Handbook expressly stated that Ministers could arrange for positions to be advertised and for selection committees to be convened. The person chairing a selection committee would then be required to submit a report with a short list from which the Minister could choose proposed appointments.  (77) 

In 1993 the Federal Minister for Justice issued a document  (78)  further defining the recruitment processes to be followed in relation to the AAT. Its aim was to ensure that all appointments and reappointments of non-judicial AAT members were on the basis of merit and were chosen from a broad field so that the AAT's membership would be more reflective of Australian society. The relevant procedures included a press advertisement every 12 months calling for expressions of interest from the public. These advertisements don't relate to any specific appointment but are designed to generate and maintain a rolling list of potential appointees for all vacancies as may arise in the following 12 months. Advertisements briefly describe the Tribunal and its work and encourage applicants to send applications addressing the selection criteria and providing the names of three referees to a senior official in the Attorney-General's Department. Unsolicited nominations could also be included on the list. Nominations may be actively solicited if the list lacks suitable candidates.

When a vacancy arises, the President of the AAT is consulted by senior officers of the Attorney-General's Department to identify persons on the list who, on basis of their written application, appear best-suited for appointment. The views of the President and the Department, together with the applications considered suitable, are then conveyed to the Minister for Justice. The Minister considers whether the persons selected should be appointed or whether further expressions of interest should be sought and, in exceptional cases, interviews may be held. Interviews are conducted by the Minister for Justice personally, or by senior officers from the Attorney-General's Department and, if he or she wishes, by the President or their nominee.  (79) 

The usual process in the specialist Commonwealth tribunals is to publicly advertise for batches of vacancies, and then measure applicants against publicly available selection criteria. This is often done through an interview process conducted by a panel constituted by a tribunal representative, Departmental representative and third party.  (80)  Following this process short-lists are submitted to the relevant portfolio Minister, without ranking suitable candidates in any particular order. The Minister then follows normal Cabinet procedure in relation to statutory appointments as outlined below.  (81) 

The processes for recruitment and appointment to the ADT and VCAT are, to some extent, set out in the statutes establishing those Tribunals. A discussion paper issued by the Department of Justice prior to the creation of VCAT recommended that there be a Victorian Tribunal Council which would advertise for and consider applications received along with any persons proposed by the Attorney-General or the Department of Justice, before creating a short-list containing at least twice as many names as the number of vacancies. After consultation with Cabinet, the Attorney-General would have chosen appointments from the list provided.  (82) This proposal was not adopted. Instead, s 15 of the VCAT Act provides that a person may apply to the Minister for appointment as a member, and also envisages that suitable candidates may be solicited for appointment. The Administrative Decisions Tribunal Act 1997 (ADT Act) contains no equivalent provisions relating to recruitment.

There is perhaps a lack of consistency throughout Australian administrative review systems with regard to recruitment practices, as demonstrated by the quite different approaches of the AAT and the specialist Commonwealth tribunals. However, the trend toward publicly advertising for expressions of interest and merit-based selection processes brings the Australian systems closer to a best practice model. The fact that interviews are increasingly relied upon also reinforces to the public that selections are made on the basis of merit, and that tribunal members are more likely to be competent and independent.

The Appointment Process

Ultimately the government is responsible for the appointment of members to Federal tribunals. As the ARC has stated:

In the Australian system of government, appointment of statutory officers, including tribunal members, is an executive (ministerial or cabinet) prerogative - even where the appointments are as a formality made by the Governor-General.  (83) 

In theory members of tribunals are appointed by the Governor-General on the advice of the Executive Council.  (84)  In practice, the Governor-General's role is a mere formality, and the relevant procedures relating to government appointments are set out in the Cabinet Handbook.  (85)  According to the Handbook appointment action is initiated by the relevant Minister, however, Prime Ministerial or Cabinet approval must be obtained before a position is offered to a candidate. There are requirements for Ministers to consult with other Ministers when proposing to appoint officers employed in another portfolio or in a State or Territory public service.  (86)  In relation to the AAT, which reviews decisions made in a large range of jurisdictions, the Attorney-General may involve other portfolio Ministers in the consultation process, for instance, the Treasurer is involved in appointments to the taxation division of the AAT. The fact that appointments are vetted by Cabinet also provides a forum in which various Ministers can be consulted about appointments.  (87)   Finally, there is a requirement in the Cabinet Handbook to have regard to the Government's policy of increasing the number of appointments of women.

In Victoria, members of VCAT are appointed by the Governor in Council on the recommendation of the Attorney-General.  (88)  In relation to the appointment of the President and Vice-Presidents, the Attorney must first consult the Chief Justice of the Supreme Court and Chief Judge of the County Court respectively. (89)  The only other procedure which differs from those in the Commonwealth  sphere is that a person may apply to the Minister for appointment and the Minister may refer the application to the Chief Commissioner of Police and request inquiry and report on matters concerned with the application.  (90)  In New South Wales, Presidential members of the ADT are appointed by the Governor, while non-presidential members are appointed by the Minister.  (91) There is no detail in either statute regarding the actual processes or procedures to be followed when appointing or reappointing members.

There are different practices amongst Federal and State tribunals regarding the length of appointments. In creating the AAT, the Government considered that tribunal members should have tenure as they envisaged AAT members would be required to make decisions on sensitive policy matters. It was thought that nothing less than full judicial status would be satisfactory for this role and that it was essential to the success of the AAT that it should enjoy a high standing in the Australian community. For these reasons, it was proposed that presidential members of the Tribunal have the same rank and status as a judge.

There are still some tenured members at the AAT, but the system of recruiting by political appointment is no longer used. Members recruited now are employed on contract. Section 8 of the AAT Act partially addresses the terms of appointment of members. It states that "a member holds office for such period of at most 7 years as is specified in the instrument of appointment, but is eligible for re-appointment." Further details of the terms and conditions of members' appointments are more difficult to find. The Tribunal wrote in 1991:

No terms and conditions of service for Senior Members and Members have ever been promulgated but were established by administrative changes agreed to between former Presidents and Attorneys-General.  (92)

There is more information available about some of the terms and conditions relating to Deputy Presidents, however, the relevant 1984 Attorney-General's guidelines are not comprehensive or binding.  (93)

In relation to the specialist Commonwealth Tribunals, there are varying terms of appointment specified in the statutes establishing each tribunal. The Social Security (Administration) Act 1999 provides that the Executive Director may be appointed for a maximum term of 5 years, while members can be appointed for up to 3 years.  (94) Members of the MRT and RRT may be appointed for terms not exceeding five years,  (95) while members of the VRB can be appointed for a maximum of 5 years.  (96) In Victoria, members of VCAT are appointed for fixed terms of 5 years. Presidential members who are already judges will have the tenure which attaches to that office.  (97) The same can be said of judicial appointments to the ADT. The presence of significant numbers of tenured judicial officers on the State Tribunals serves to reinforce the independence and public standing of these Tribunals. In contrast, ordinary members of the ADT are appointed for periods not exceeding 3 years.  (98)

There is provision for the reappointment of members to all of these bodies and no limits are placed upon the number of terms members can serve. As indicated above, the combination of shorter-term appointments with the possibility of reappointment can have a negative impact upon the independence of tribunal members. This makes it very important to establish a reappointment process which is transparent and fair.

In relation to the Commonwealth AAT, its reappointment procedures are set out in the same document outlining procedures for recruitment.  (99) Reappointment to the AAT is not automatic. Approximately 6 months before an appointment expires, the President of the Tribunal should consult with the member to see if they are interested in reappointment. Where reappointment is sought, the President should convey this to the Minister for Justice along with his or her recommendation as to whether reappointment should occur. This recommendation should be made having regard to the workload of the AAT, the need for the skills and expertise of that member, and the number and capacity of other continuing members. Where the President recommends reappointment, this should include advice on how the particular member has performed their duties by reference to the selection criteria for the particular position. In light of the recommendation, the Minister may decide to reappoint that member, to consult the rolling list for other suitable candidates, or solicit expressions of interest.  (100) 

In relation to the specialist Commonwealth tribunals, and the tribunals in Victoria and NSW, there is little publicly available information regarding reappointment procedures. This issue is not dealt with in the relevant statutes. All that can be gleaned from the legislation is that, like appointments, reappointments to the Commonwealth tribunals are made by the Governor-General upon advice from the relevant portfolio Minister, while reappointments to VCAT and the ADT are made by the Governor in Council on recommendation of the Minister, and the Governor or Minister, respectively. A suggestion was put forward in Victoria that members seeking reappointment should apply to a Victorian Tribunal Council which would consider applications as if they were applications for initial appointment, however, this proposal has not been adopted.  (101) 

As this discussion indicates, the current procedures for appointment, and more particularly reappointment, are not widely publicised or understood by the community. Moreover, there is a lack of uniformity, and the various processes are less transparent and clearly merits-based than they could be. There is therefore room for a degree of speculation about the basis for appointments. For example, there have been circumstances in the past where the reappointment of existing members has been delayed for no apparent reason, or where highly regarded members have not been reappointed. This has raised speculation concerning the politicised nature of the process and the reasons behind certain appointments, which can have a damaging impact upon the integrity of the process as a whole. This was highlighted in 1994 when the Federal Senate initiated an inquiry into a round of appointments to the Immigration Review Tribunal in response to wide-ranging criticism of the process. That this occurred at all demonstrates the need for a more transparent and uniform appointments process.  (102)  These difficulties are exacerbated by the fact that there are no minimum terms of appointment for members, and there have been occasions where members have been appointed for terms lasting less than 12 months. (103) 

In certain circumstances there may be genuine reasons for Cabinet to inquire into the suitability of nominated appointees, but this need should be balanced against a need for transparency. If appointment and reappointment procedures are not codified in legislation, there is much to be said for the publication of a policy document like that produced for the AAT, outlining the processes which will be followed in relation to each body. The more uniform and widely publicised these procedures are, the more confidence the public will have in the appointments process.

In relation to the grounds of, and procedures for, removal of a member from office, this is an issue which fortunately rarely arises in practice. Nonetheless, the statutes establishing Federal and State tribunals all make provision for the removal of members and set out the grounds upon which this may occur. For instance, s 13 of the AAT Act covers both the grounds and procedures for removing members from office. Members may be removed on the grounds of "proved misbehaviour or incapacity"; also, members 'shall' be removed from office if they become bankrupt and use their position to benefit themselves. (104)  The Governor-General has the power to remove members by presenting an address to each House of Parliament in the same session. Initially, that member is suspended from office, and the Minister puts a statement regarding the grounds of suspension before each House of Parliament within 7 sitting days. Each House must then make and pass a resolution within 15 sitting days that the member be removed from office.  (105) 

Members of the specialist Commonwealth tribunals may be removed from office by the Governor-General on grounds such as proved misbehaviour, physical or mental incapacity, bankruptcy or related problems, undisclosed conflicts of interest, or unapproved absence from work. In Victoria the Governor in Council may remove non-judicial members of VCAT upon recommendation of the Minister following an investigation procedure.  (106)  Investigations are triggered by the President and carried out by the President's nominee who then reports to the Minister about whether removal is justified on the basis of criminal activity, incapacity or misconduct. The President of the ADT cannot be removed from office except by the Governor on an address from both Houses of Parliament in the same session, seeking removal on the same grounds which cover the removal of judicial officers. In contrast, s 8 of the ADT Act provides that the Governor may remove a member from office for incapacity, incompetence or misbehaviour.

The fact that procedures for, and grounds of, removal of tribunal members are set out in legislation reinforces the transparency and fairness of the process. It gives the public confidence that members will not be removed for political or other inappropriate reasons, and in this regard justifies Australia's claim to exemplify best practice. Interestingly, only the ADT Act allows members to be removed on the ground of incompetence. A similar proposal at Commonwealth level was strongly criticised as being open to misuse, particularly if the performance standards against which incompetence were measured were not scrutinised by Parliament.  (107)  While there is increasing interest in evaluating the performance of tribunal members, care needs to be taken to ensure that those responsible for evaluations do not compromise the transparency and fairness of existing processes.

Remuneration

In general, the remuneration paid to individual Federal tribunal members is determined by the Commonwealth Remuneration Tribunal.  (108)  The Remuneration Tribunal has different methods of setting salaries for quasi-judicial and statutory officers.  (109) 

In some cases there is a linkage to judicial salaries - usually expressed as a percentage of the salary of a Federal Court judge, and in other case (sic) a linkage to senior public servants.  (110) 

Similarly, remuneration for VCAT members is determined by the Governor in Council.  (111)  The remuneration of full-time members of the ADT is determined by the Statutory and Other Offices Remuneration Tribunal in accordance with the Statutory and Other Offices Remuneration Act 1975, while the remuneration of part-time members is determined by the Minister.  (112) 

The determination of members' salaries by an independent, non-politicised body is an excellent step in ensuring the attraction and retention of members with high-level skills and in reducing the potential for conflicts of interest to develop. The Australian systems largely reflect best practice in this regard - a point which is illustrated by the fact that increasing numbers of experienced people are seeking reappointment in administrative review bodies at both Federal and State level. However, the Commonwealth Remuneration Tribunal recently indicated that it:

... would like to restate its desire to see all agencies, including the Courts, provide more substantial evidence of improved productivity, accountability and responsiveness to clients in support of pay claims. . Performance issues will increasingly be a factor in determining wage outcomes for all offices in the Tribunal's jurisdiction - they are the single most important factor driving all executive remuneration in the private sector and the Tribunal will work to ensure that they are in important driver in the Commonwealth public sector.  (113) 

This is a worrying sign. Determining remuneration by reference to productivity has the potential to impact adversely upon the quality of members' decision-making, and would to some extent undermine the achievements in this area. (114)

Working conditions

There has been a lack of stability in recent years in the Commonwealth system of merits review tribunals. The developments surrounding the ART proposals introduced a significant element of uncertainty over a long period of time. Margaret Carstairs, then acting Director of the SSAT, commented upon the impact of this uncertainty as follows:

Our own experience in the SSAT has been that, since the ART proposal was announced, there have been no three-year terms given to members. Some terms have, indeed, been less than six months; all have been less than two years, I believe. It makes it very hard to both get and keep good members if you are on an endless cycle of appointment processes. (115)

While it is the responsibility of government to design an administrative review system that it sees as most appropriate and attempts to improve the system should be encouraged, such a process needs to be managed so as to avoid placing members under unnecessary pressure. The recent Commonwealth experience is a good example of the importance of stability and job certainty in maintaining a quality system of administrative review. (116)

A number of Australian tribunals have adopted some system of performance appraisal. For instance, the performance of members of the specialist migration tribunals is evaluated with regard to indicators such as productivity, timeliness, the way members conduct themselves in hearings, or the number of decisions overturned upon judicial review. (117) There are positive features about these developments - for instance, it gives the President or principal member of each tribunal the opportunity to provide constructive feedback to members that would otherwise be largely unavailable. Moreover, the present forms of performance appraisal do not impact unreasonably upon the independence of members as performance is not linked to remuneration. Unfortunately, while performance appraisal of one kind or another has become accepted practice in Commonwealth tribunals, it is not conducted in a uniform way, for instance, against requirements set out in a statutory code of conduct or against transparent selection criteria. Improvements could be made by consulting more widely in developing a set of performance indicators which reflect a range of interests, and which have been subject to some form of external scrutiny.

Finally, there are differences amongst Australian administrative review systems in the extent to which members can vary their workload and develop their careers. While the case studies set out above indicate that members of specialist Commonwealth tribunals can develop their careers by moving between tribunals and statutory appointments, the specialised nature of tribunals like the SSAT, MRT, VRB or RRT makes it harder for them to attract or retain experienced decision-makers. In contrast, members of the AAT have the opportunity to gain experience in a wide variety of jurisdictions. There has been an increasing trend to amalgamate specialised tribunals to form larger generalist tribunals - this has occurred in both Victoria and NSW with the creation of VCAT and the ADT. There was until recently a proposal to follow this trend at Commonwealth level also. There are positive things about amalgamating specialised tribunals, in particular, it exposes members to greater variety in caseload and reduces the risk that individual tribunals will lose experienced members. This has the potential to enhance the quality of tribunal decision-making, provided members undergo proper induction and training. (118)

CONCLUSIONS

The administrative law systems which have developed at both Federal and State level in Australia since the early 1970s exemplify many aspects of best practice in the recruitment, appointment and treatment of their decision-makers. Members of Commonwealth and State tribunals are increasingly recruited via public advertisement and assessed, usually by interview, against publicly available selection criteria, and are selected on the basis of merit. There are transparent and fair legislative procedures for the removal of members, and remuneration is determined by an independent, non-politicised body. Australia's success in developing appropriate working conditions for administrative decision-makers is demonstrated by the number of people who build their careers around statutory appointments to tribunals.

Inevitably, there is room for improvement. Past experience has shown that Federal appointment and reappointment processes could be more transparent and consistent, that minimum terms of appointment should be included in legislation, and that stability and respect for administrative review bodies are vital to their effective operation. There is also a need to resist trends which may undermine the independence of tribunal members, such as the introduction of performance pay.

Overall, Australia's systems of administrative review approximate best practice in a number of ways, and this is why Australians have, for some decades, enjoyed the benefits of a system of administrative review tribunals that is among the best in the world. However, we should not take this for granted and become complacent. While, the appointment and treatment of administrative decision-makers in Australia resembles best practice to varying degrees, one of the most persistent criticisms of administrative decision-making bodies in this country is that they lack independence. (119) This demonstrates our continuing need to build upon what we have achieved and to continue striving to improve recruitment, appointment and remuneration processes for individual decision-makers.

REFERENCES

Articles

Anderson, Jill, 'Something old, something new, something borrowed - the New South Wales Administrative Decisions Tribunal" (1998) 5 Australian Journal of Administrative Law 97

Bacon, Rachel, "Recent Developments Concerning Tribunals in Australia" (2000) 7(2) Australian Journal of Administrative Law 69 - 85

Bacon, Rachel, "Are the Babies Being Thrown Out with the Bathwater? Retaining the Benefits of Specialist Tribunals within the ART" in Finn, Chris (ed), Sunrise or Sunset? Administrative Law for the New Millennium, AIAL, Canberra, 2000 at 150

Balmford, Judge Rosemary, "Gender Equality in Courts and Tribunals" (1995) Victorian Bar News 34

Daley, John, "Abolishing a Specialist Tribunal" (1996) 7 Public Law Review 73

Dawson, Paul, "Tenure and Tribunal Membership" (1997) 4 Australian Journal of Administrative Law 140

Fleming, Gabriel, "A tough call: making immigration decisions" (1999) 75 Reform 24

Forsyth, N., "AAT Reviews: Practitioners are fed up!" (1993) 28(6) Taxation in Australia 325 - 326

Glass, Helen, "Victorian Tribunals and their Operation" (1994) 68(9) Law Institute Journal 837

Gyles, R., "The Judiciary - A 'Barrister's Eye' View" (1987) 10 University of New South Wales Law Journal 186 - 188

Hanks, Peter, "What's in a Name? - A Reply to Daley" (1996) 7 Public Law Review 77

Harsel, Justin, "Tribunals in the System of Justice: the Need for Independence" (1997) 4 Australian Journal of Administrative Law 200

Hughes, Bill, "Social Security Appeals Tribunal: Independence vs DSS Member?" (1985) 10(6) Legal Service Bulletin 280 - 283

"Jim Staples is Appalled" (1990) 25(11) Australian Law News 11 - 12

Kennedy, S., "Reflections on Matters of Independence and Industrial Tribunals in Australia" (1993) 35(2) Journal of Industrial Relations 274

Kerr, Duncan, "Review Tribunals: Where to from Here?" (1995) 41/42 Admin Review 2 - 6

Mason, Sir Anthony, "Tribunal should have power to determine (not just recommend) judicial salaries" (1989) 24(8) Australian Law News 16 - 17

O'Connor, Justice Deirdre, "Merits Review in the New Millennium" in Finn, Chris (ed), Sunrise or Sunset? Administrative Law for the New Millennium, AIAL, Canberra, 2000 13

Pizer, Jason, "The VCAT - a practical overview", in Administrative Law Session W, conference by the Law Institute of Victoria, Melbourne, 11 September 1998

Riley, Patricia, "A Structurationalist Account of Political Culture" (1983) 28 Administrative Science Quarterly 414-437

Skinner, Paul, "Judicial Independence and Residential Tenancy Tribunals" (1998) 7(3) Journal of Judicial Administration 130

Streets, Sue, "The Administrative Review Tribunal Bill: Winding Back Merits Review?" (2000) 28 Australian Business Law Review 468

Tracey, R., "Administrative Tribunals - Some Emerging Issues" (1990) 74 Victorian Bar News 35

Books

Browne, L. & Bell, J., French Administrative Law, Oxford, Clarendon Press, 1998

Creyke, Robin, The Procedure of the Federal Specialist Tribunals, Canberra, AGPS, 1994

Robinson, M., New South Wales Administrative Law, Sydney, Law Book Co., 1996

Sharpe, Jennifer, The Administrative Appeals Tribunal and Policy Review, Sydney, Law Book Co., 1986

Reports

Administrative Appeals Tribunal, Report on the review of the Administrative Appeals Tribunal, Canberra, AAT, 1991

Administrative Review Council, Review of Commonwealth Merits Review Tribunals, Canberra, AGPS, 1994

Administrative Review Council, Better Decisions: Review of Commonwealth Merits Review Tribunals, Canberra, AGPS, 1995

British Columbia Council of Administrative Tribunals, Report on Independence, Accountability and Appointment Processes in British Columbia Tribunals, 1999.

Committee on Administrative Discretions, Final Report - Parliamentary Paper 316, Canberra, AGPO, 1973

Commonwealth Administrative Review Committee, Parliamentary Paper No. 144, Canberra, AGPO, 1971

Joint Select Committee on Tenure of Appointees to Commonwealth Tribunals, Tenure of Appointees to Commonwealth Tribunals, November 1989

Joint Standing Committee on Migration, The Immigration Review Tribunal Appointments Process, Canberra, AGPS, 1994

Remuneration Tribunal, 1999 - 2000 Annual Report, Remuneration Tribunal, at http://www.remtribunal.gov.au/annualReports/default.asp 

"Ruddocks's Threats to Refugee Body, Canberra Times, 27 December 1996

Senate Legal and Constitutional Legislation Committee, Inquiry into the Provisions of the Administrative Review Tribunal Bill 2000 and the Provisions of the Administrative Review Tribunal (Consequential and Transitional Provisions) Bill 2000, Senate Printing Unit, Canberra, 2001

Wade, J, Tribunals in the Department of Justice: A Principled Approach, Department of Justice, Melbourne, 1996

Other

Administrative Appeals Tribunal, Appointment of Non-Judicial Members: Policy and Procedure, 1993, unpublished

Burton, Clare, "PSMPC Seminar on Merit: Merit - what is it?", Public Service Merit Protection Commission, 1996

Department of the Prime Minister and Cabinet, Cabinet Handbook, Fifth Edition, AGPS, Canberra, 2000

Millane, Frances, "The Victorian Civil and Administrative Tribunal and Women Members - One Year On" (2000)

O'Connor, Justice Deirdre, "Accountability and Independence", Keynote Speech Presented at Second Annual AIJA Tribunals Conference, Sydney, 10 September 1999

Raymond, Sue, "Selection and qualification for appointment and induction training of tribunal members", Paper presented at 17^th AIJA Annual Conference: Justice Delivery - Meeting New Challenges, Adelaide, 6 - 8 August 1999

Ryan, Kevin, "Judges, Courts and Tribunals", Paper presented at the Australian Judicial Conference Symposium on Judicial Independence and the Rule of Law at the Turn of the Century, Australian National University, Canberra, 2-3 November 1996

Senate Legal and Constitutional Legislation Committee, Seminar: Administrative Law in Transition - The Proposed Administrative Review Tribunal, Hansard, 25 October 2000

FOOTNOTES

1. Skinner, Paul, "Judicial Independence and Residential Tenancy Tribunals" (1998) 7(3) Journal of Judicial Administration 130 at 132.

2. The term 'administrative decision-makers' in this paper refers to decision-makers who are responsible for the administrative review of decisions made by government officials.

3. See, for instance, Meagher, D, "Appointment of Judges" (1993) 2(3) Journal of Judicial Administration 190-204; Gyles, R, "The judiciary - a 'barrister's eye' view" (1987) 10(1) University of New South Wales Law Journal 186-188; Mason, Sir Anthony, "Tribunal should have power to determine (not just recommend) judicial salaries" (1989) 24(8) Australian Law News 16-17; Mason, Sir Anthony, "The role of the courts at the turn of the century" (1994) 3(3) Journal of Judicial Administration 156-167; and Ryan, Kevin, "Judges, Courts and Tribunals, Paper presented at the Australian Judicial Conference Symposium on Judicial Independence and the Rule of Law at the Turn of the Century, Australian National University, Canberra, 2-3 November 1996.

4. British Columbia Council of Administrative Tribunals, Report on Independence, Accountability and Appointment Processes in British Columbia Tribunals, 1999.

5. See Administrative Review Council, Better Decisions: Review of Commonwealth Merits Review Tribunals, Canberra, AGPS, 1995, at 71; Harsel, Justin, "Tribunals in the System of Justice: the Need for Independence" (1997) 4 Australian Journal of Administrative Law 200 at 200.

6. The ARC found that satisfaction with a tribunal's performance was highly correlated with opinions as to the quality of its members. (Administrative Review Council (1995) at 70.)

7. British Columbia Council of Administrative Tribunals (1999).

8. Administrative Review Council (1995) at 73.

9. McClelland, Robert, in Senate Legal and Constitutional Legislation Committee, Hansard, 25 October 2000 at 40.

10. Raymond, Sue, "Selection and qualification for appointment and induction training of tribunal members", Paper presented at 17^th AIJA Annual Conference: Justice Delivery - Meeting New Challenges, Adelaide, 6 - 8 August 1999 at 3.

11. Burton, Clare, "Merit - what is it?, Public Service Merit Protection Commission, 1996.

12. Burton (1996).

13. Raymond (1999) at 5. See also Balmford, Judge Rosemary, "Gender Equality in Courts and Tribunals" (1995) Victorian Bar News 34 at 36.

14. Burton (1996) quoting Riley, Patricia, "A Structurationalist Account of Political Culture" (1983) 28 Administrative Science Quarterly 414-437 at 417.

15. Raymond (1999) at 4.

16. These assessment techniques were used in appointing members to the New Zealand Tenancy Tribunal in 1987. See Skinner (1998) at 138.

17. Administrative Review Council (1995) at 78.

18. See Fleming, Gabriel, "A tough call: making immigration decisions" (1999) 75 Reform 24 at 69.

19. See Hughes, Bill, "Social Security Appeals Tribunal: Independence vs DSS Member?" (1985) 10(6) Legal Service Bulletin 280 - 283.
20. This separation of powers between the Judiciary, the Executive and the Legislature derives from the structure of the Australian Constitution.

21. Harsel (1997) at 204-5; Dawson (1997) at 140 - 142.

22. Administrative Review Council (1995) at 82.

23. This process is discussed in more detail below.

24. Harsel (1997) at 211.

25. Dawson P, 'Tenure and Tribunal Membership', (1997) 4 Australian Journal of Administrative Law 140 at 146.

26. Chief Justice Gleeson, quoted in Tracey, R., "Administrative Tribunals - Some Emerging Issues" (1990) 74 Victorian Bar News 35.

27. Administrative Review Council (1995) at 82.

28. Dawson (1997) at 146.

29. Ibid., at 147.

30. Submissions by Professor Saunders to the Joint Standing Committee on Migration, in Joint Standing Committee on Migration, The Immigration Review Tribunal Appointments Process, Canberra, AGPS, 1994 at 58.

31. Dawson (1997) at 154.

32. Administrative Review Council (1995) at 76.

33. Administrative Review Council (1995) at 83.

34. Skinner (1998) at 138-9.

35. British Columbia Council of Administrative Tribunals (1999).

36. Dawson, Paul (1997) at 152.

37. The controversial issue of performance pay is dealt with next under the heading "Working Conditions".

38. Skinner (1998) at 139.

39. Remuneration Tribunal, 1999 - 2000 Annual Report, Remuneration Tribunal, at http://www.remtribunal.gov.au/annualReports/default.asp.

40. Mason (1989) at 16-17.

41. See, for example, "Ruddocks's Threats to Refugee Body, Canberra Times, 27 December 1996.

42. Senate Legal and Constitutional Legislation Committee, Inquiry into the Provisions of the Administrative Review Tribunal Bill 2000 and the Provisions of the Administrative Review Tribunal (Consequential and Transitional Provisions) Bill 2000, Senate Printing Unit, Canberra, 2001 at 27 - 30.

43. Streets, Sue, "The Administrative Review Tribunal Bill: Winding Back Merits Review?" (2000) 28 Australian Business Law Review 468 at 470.

44. Tongue, Sue in Senate Legal and Constitutional Legislation Committee, Hansard, 25 October 2000 at 63.

45. Senate Legal and Constitutional Legislation Committee (2001) at 29; Administrative Review Council (1995) at 87.

46. Administrative Review Council (1995) at 86.

47. Committee on Administrative Discretions, Parliamentary Paper 316, Canberra, AGPS, 1973 at 25. This concern was noted last year by the Australian Attorney General in the context of debate over the implementation of the proposed Administrative Review Tribunal which would have amalgamated several highly specialised bodies. See Hansard, 28 June 2000 at 18404.

48. Administrative Review Council (1995) at 84.

49. Commonwealth Administrative Review Committee, Parliamentary Paper No. 144, Canberra, AGPS, 1971.

50. Ibid., at 68.

51. Ibid., at 104.

52. Committee on Administrative Discretions (1973) at 1.

53. Ibid., at 24.

54. Administrative Appeals Act 1975.

55. Ombudsman Act 1976.

56. Human Rights Act 1981; see now the Human Rights and Equal Opportunity Commission Act 1986.

57. Federal Court of Australia Act 1976.

58. See, for instance, Kioa v West (1987) 159 CLR 550.

59. Drake v Minister for Immigration (1979) 2 ALD 60

60. Administrative Decisions Tribunal Act 1997 (NSW) (ADT Act) at Schedule 1.

61. Bacon, Rachel, "Tribunals in Australia - Recent Developments" (2000) 7(2) Australian Journal of Administrative Law 69 at 75.

62. Robinson, M., New South Wales Administrative Law, Sydney, LBC, 1996; Anderson, Jill, 'Something old, something new, something borrowed - the New South Wales Administrative Decisions Tribunal" (1998) 5 Australian Journal of Administrative Law 97.

63. VCAT was created by the Victorian Civil and Administrative Tribunal Act 1998 (No. 53).

64. Pizer, Jason, "The VCAT - a practical overview", in Administrative Law Session W, conference by the Law Institute of Victoria, Melbourne, 11 September 1998 at 2.

65. Ibid., at 3.

66. Browne, L. & Bell, J., French Administrative Law, Oxford, Clarendon Press, 1998 at 7.

67. Browne & Bell (1998) at 81 - 84.

68. Dawson (1997) at 154; Wade, J, Tribunals in the Department of Justice: A Principled Approach, Department of Justice, Melbourne, 1996.

69. O'Connor, Justice Deirdre, "Merits Review in the New Millennium" in Finn, Chris (ed), Sunrise or Sunset? Administrative Law for the New Millennium, AIAL, Canberra, 2000 13 at 26 - 27.

70. Bacon, Rachel, "Are the babies being thrown out with the bathwater? Retaining the benefits of specialist tribunals within the ART" in (2000) in Finn, Chris (ed), Sunrise or Sunset? Administrative Law for the New Millennium, Canberra, AIAL, 2000, 150 at 156.

71. Section 12 of the Administrative Decisions Tribunal Act 1997 (NSW) (the ADT Act).

72. Section 17, ADT Act.

73. Bacon (2000) AJAdminL at 77.

74. Note that senior members may also be appointed on the basis of "extensive knowledge or experience in relation to any class of matter in respect of which functions may be exercised by the Tribunal". See s 13(2)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the VCAT Act).

75. Harsel (1997) at 208.

76. This mirrors similar trends in judicial appointment processes - see Harsel (1997) at 209.

77. Department of Prime Minister and Cabinet, Cabinet Handbook, Fourth Edition, AGPS, Canberra, 1994 at 37 - 38. The current edition of the Cabinet Handbook is silent on this issue - Department of Prime Minister and Cabinet, Cabinet Handbook, Fifth Edition, AGPS, Canberra, 2000.

78. Administrative Appeals Tribunal, Appointment of Non-Judicial Members: Policy and Procedure, 1993, unpublished.

79. Administrative Appeals Tribunal, Appointment of Non-Judicial Members: Policy and Procedure, 1993, unpublished, quoted in Joint Standing Committee on Migration (1994) at 9 - 11.

80. Administrative Review Council (1995) at 75.

81. Creyke, Robin, The Procedure of the Federal Specialist Tribunals, Canberra, AGPS, 1994 at 30; Department of Prime Minister and Cabinet (2000) at 6.6.

82. Wade (1996).

83. Administrative Review Council (1995) at 75.

84. Administrative Appeals Tribunal, Report on the review of the Administrative Appeals Tribunal, Canberra, AAT, 1991 at 97.

85. Department of the Prime Minister and Cabinet (2000) at Chapter 6.

86. Id.

87. Administrative Review Council (1995), at 73-4.

88. Section 16, VCAT Act.

89. Sections 10 and 11, VCAT Act; Pizer (1998) at 2.

90. Section 15, VCAT Act.

91. Section 13, ADT Act.

92. Administrative Appeals Tribunal, Report on the review of the Administrative Appeals Tribunal, 29 November 1991, Canberra, AAT at 108.

93. Id.

94. Schedule 3 cl 4(2), Social Security (Administration) Act 1999.

95. Sections 398 and 461 of the Migration Act 1958 respectively.

96. Creyke (1994) at 32.

97. Bacon (2000) AJAdminL at 79.

98. Cl 2, Schedule 3, ADT Act.

99. Administrative Appeals Tribunal, Appointment of Non-Judicial Members: Policy and Procedure, 1993, unpublished, quoted in Joint Standing Committee on Migration (1994) at 9 - 12.

100. Ibid., at 12.

101. Wade (1996).

102. Administrative Review Council (1995) at 76.

103. This has been a common feature of recent appointments in the expectation that the proposed Administrative Review Tribunal would commence operation on 1 July 2001. See, for instance, Carstairs, Margaret in Senate Legal and Constitutional Legislation Committee, Hansard, 25 October 2000 at 24.

104. Section 13(7), AAT Act. Note that members can be retired from office on the ground of incapacity, provided the member consents - s 13(9).

105. See Joint Select Committee on Tenure of Appointees to Commonwealth Tribunals, Tenure of Appointees to Commonwealth Tribunals, November 1989, 14.

106. This procedure is outlined in s 23 of the VCAT Act.

107. Senate Legal and Constitutional Legislation Committee (2001) at 31 - 32.

108. For instance, s 9 of the AAT Act states that all members other than judges shall be paid such remuneration as is determined by the Remuneration Tribunal. These provisions are subject to the Remuneration Tribunal Act 1973 (s 9(3)).

109. Administrative Review Council (1994) at 80

110. Id.

111. Section 17, VCAT Act.

112. Section 6, ADT Act.

113. Remuneration Tribunal, Statement on 2000 Review of Judicial and related offices remuneration, at 4.

114. In particular, compare the current system of the determination of judicial and tribunal officer remuneration with the system in place in 1989 - see Mason (1998) at 16-17.

115. Carstairs, Margaret in Senate Legal and Constitutional Legislation Committee, Hansard, 25 October 2000 at 24.

116. See Daley, John, "Abolishing a Specialist Tribunal" (1996) 7 Public Law Review 73 where he talks about the impact that abolition of specialist tribunals can have on the independence of members. See also Hanks, Peter, "What's in a Name? - A Reply to Daley" (1996) 7 Public Law Review 77.

117. Tongue, Sue in Senate Legal and Constitutional Legislation Committee, Hansard, 25 October 2000 at 63.

118. This should alleviate criticism of the kind expressed in Forsyth, N., "AAT Reviews: Practitioners are fed up!" (1993) 28(6) Taxation in Australia 325 - 326 at 325-6.

119. Harsel (1997) at 207.