Book Review: Tribunals in the Common Law World

Neither strictly judicial nor administrative, the unique place of the tribunal in contemporary society is examined in the grandly titled Tribunals in the Common Law World.  Originally created ad hoc as specialist decision-makers, there is now a trend throughout the common law world towards super-tribunals and consistency of approach: so much so that tribunals are now regarded – at least in Canada – as one of two pillars of the justice system.  This book is a patchwork of essays on the topic of tribunals and their place in contemporary society in four common law jurisdictions: The United Kingdom, Canada, New Zealand, and Australia.  The essays come from distinguished authors from each jurisdiction and complement each other very well, no doubt due to the efforts of the editor, Robin Creyke, from ANU.

The book contains a very useful overview of the tribunal scenes in Australia, Canada, New Zealand and the UK, including details of constitutional arrangements to enable the reader to understand differences.  There are essays dedicated to natural justice questions in the UK and New Zealand which would be very useful resources for the administrative lawyer hoping to plunder arguments and judicial opinions given beyond our shores.  Those interested in whether the High Court will retain the rule in Osmond¹ that there is no common law duty to give reasons may find the detailed discussion of the position in New Zealand helpful.

Tribunals do not have life-appointees and are otherwise more at the mercy of executive government than are courts.  The question of tribunal independence and how to achieve independence is addressed in two essays dealing with Australia and Canada respectively.  A discussion of a common law principle recognised in Canada as protecting tribunal independence is interesting.  The Australian article by Gabriel Fleming discusses ten characteristics of independence, all of which are necessary to ensure a tribunal meets underlying values of fairness and impartiality.  They are: Judicial leadership, Administrative and Financial Autonomy, Judicial Review, Transparent Member Appointments, Fair Determination of Remuneration and Conditions, Integrity in Performance Management, Retention of Skilled and Experienced Members, Clear Statement of Legislative Intent, Statutory Consultative Structures, and Public Reporting.

The place of the rules of evidence in tribunals are discussed in an essay by France Houle, but the most interesting discussion is of the Canadian principle that a tribunal must state “good reason” to doubt testimony given before it, and the similar presumption of the reliability of documentary evidence.  While some concepts are clearly foreign, the Canadian principles of sound decision-making and weighing of evidence are worthy of study.

Other essays deal with a range of topics including the role of policy and questions for reformers. The book concludes with four major essays addressing the future of tribunals in each of the jurisdictions covered in the book.  Each essay is worthwhile.  The Australian essay, by John McMillan, canvasses recent trends in judicial oversight, with commentary on three more recent High Court cases, including Bhardwaj².  Arguments for and against “lawyerising” tribunal processes are discussed.

Queensland is set to follow Victoria, New South Wales and the Commonwealth in creating a new super-tribunal, to be called the Queensland Civil and Administrative Tribunal (QCAT).  It will absorb dozens of specialist tribunals.  Much work is currently being undertaken on which tribunals will be absorbed and how the new tribunal will be constituted and operate.  After QCAT commences, there will no doubt be a period of settling in during which participants as well as tribunal members and staff will influence the development of its practice and procedures.  For barristers appearing in the newly formed QCAT, it may be beneficial to be armed with comparative knowledge of emerging general principles applicable to the concept of a tribunal.  If that is correct, then Tribunals of the Common Law World will be a work well worth examining.   

In any event, the book is a worthy scholarly contribution to knowledge in the areas of comparative, public, administrative, and constitutional law.

Gavin Rebetzke

Footnotes

1. Public Service Board v Osmond (1986) 159 CLR 656

2. Minister for Immigration and Multicultural Affairs v. Bhardwaj (2002) 209 CLR 587