Merits Review III

Administrative Tribunals and Government Policy

• This part of the textbook addresses the tension in the tribunals role – whether or not it should regard consistency and certainty as core values of public administration, accepting that policy making is a government responsibility

  • OR whether it should act as an adjudicative body, giving pre-eminence to the justice of the individual case

• This controversy was first ignited by the Kerr Committee which concluded that tribunals shouldn’t substitute decisions ‘when it is shown that the administrative decision is properly based on government policy’ and in such a case inform the minister that the policy applies in an oppressive/discriminatory/unjust manner

  • But in Drake the Full Federal Court held that an unreflective application of executive policy would abdicate the tribunal’s function to reach the correct or preferable decision on the merits of the case under review

    • Bowen CJ and Deane J referred to the tension between consistency and justice in the individual case – criticizing the blank application of policy but asserting that Tribunal’s should make it clear that tribunals have considered the propriety of the particular policy and expressly indicate considerations that lead it to its conclusion

  • On remittal to the Tribunal the judgement of Brennan J has been followed by other courts (see below)

    • Nevistic v Minister for Immigration and Ethnic Affairs – Deane J: “While consistency may properly be seen as an ingredient of justice it does not constitute a hallmark of it...[it] must ultimately be related to policy and is safely sought by reference to a policy only when the policy is appropriate and acceptable”

  • The tensions lie in what exactly amounts to a ‘policy’’ and what are ‘cogent reasons’ for departure, what is an ‘unjust’ result etc.

• In this context there have been many criticisms that tribunals have ignored policy while judicial protests are aimed at the executive disregard for the independent adjudicative role of the Tribunals (Wilcox J in Nikac re: not accepting decisions of the AAT in the field of criminal deportation)

  • Sir Gerard Brennan: Talks of the difficulties caused by policy to the AAT and the benefits associated through exposure to “critical examination” which can commence a useful dialectic between the executive and the tribunal while injustices in the individual case are relieved by the Tribunal’s power to make the correct/preferable decision

  • Mr M Sassella: Talks of the problems with tribunals – their “lack of sufficient interest in government and departmental policy and practice” (making the ‘preferable decision’ at odds with the ‘correct’ and the “not so preferable decision” made by the decision maker. They are an “unacceptable subversion of government policy”

• This tension is exemplified in the enactment of provisions that give statutory backing to administrative policies – these are generally directed at administrative tribunals

  • E.g. the Victorian Civil and Administrative Tribunal Act 1998 provides the tribunal is obliged to apply valid policy in reviewing the decision if a minister has certified the policy’s authenticity

    • This has posed confusion (p852.10)

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