THE OBLIGATION TO ASSIST: MODEL LITIGANTS IN ADMINISTRATIVE APPEALS TRIBUNAL SEMINAR

Canberra

Wednesday, 26 August 2009

CHECK AGAINST DELIVERY

First, may I acknowledge the traditional owners of the land we meet on – and pay my respects to their elders, both past and present.

Thank you very much for the warm welcome.

It is a pleasure to be in such esteemed company.

The topics being discussed today are essential elements of the Australian Government’s goal of providing all Australians with access to justice through our system of courts and tribunals.

Today, I’d like to speak on some key issues.

Firstly about the Commonwealth’s obligation to assist the Tribunal pursuant to the AAT Act. And secondly, about the Commonwealth’s model litigant obligation, as found within the Legal Services Directions.

Both these mechanisms are intended to ensure that the AAT is able to efficiently and effectively review the merits of administrative decisions.

I’d also like to briefly touch on the obligations introduced last year to the Directions.
These oblige parties to consider means of alternative dispute resolution prior to initiating legal proceedings.

Access to Justice

Before I speak on these issues, I’d like to set the scene and consider the overarching theme of improving access to justice. And in particular, of the Australian Government’s reforms and plans to improve access to justice for all Australians.

The Australian Government is well aware of the need for efficiency in the operation of our current administrative law system. The costs and complexities of government regulation are increasing and in some cases hampering access to justice.

Such inefficiencies can also adversely impact on individuals when they are subject to a government decision or review proceedings.

A Taskforce in my Department has been working to develop a framework to improve access to justice, including with respect to administrative law.

The Access to Justice Taskforce is examining ways to implement a more strategic approach that enriches civil justice outcomes.

So far, several themes are emerging. These include the importance of improved information, communication, and early intervention strategies. And yes, effective primary decision making also plays a key part. This is because the best outcome for the aggrieved party is to avoid the need for litigation in the first place.

So of course, individual decisions must be sound. Equally as important is communicating the decision and its basis. This includes why an applicant may not be successful in having a decision set aside or replaced. It may also be necessary to explain what other options may be open to them to address their particular circumstances.

An enhanced commitment to these principles is probably the most effective strategy the Government can use to reduce the need for decisions to be reviewed.

The Government is also concentrating on simplifying the structural architecture of our federal civil justice system.

For example in June, I introduced the Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 into the House of Representatives. This Bill will improve the Federal Court’s case management powers and allow for more effective and efficient use of court resources.

It also aims to enhance Australia’s justice system by introducing an overarching obligation on the Court, litigants and their legal practitioners to,

facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.[1]

This objective is clearly consistent with the objective and practices of the AAT.

I have also asked my Department to consider how our current means of reviewing the legality of administrative decisions is operating, and whether improvements could be made. I have also sought the expert advice of the Administrative Review Council on a range of related issues.

The aim of this work is to gauge whether this aspect of our administrative law system can be enhanced to improve access to justice for ordinary Australians.

The Government takes seriously its responsibility to ensure the system is working effectively and is accessible to people – and recognises that the way agencies behave within the system is an important aspect of achieving this.

The Legal Services Directions and the Model Litigant Obligation

Although I am sure you are all familiar with these terms – I think it’s important to reflect on what the Legal Services Directions require from Commonwealth agencies as parties to Tribunal proceedings.

And also the underlying values reflected in the model litigant obligation.

The Directions set out, in broad terms – the requirement that the Commonwealth and its agencies are to uphold the highest possible standards of fairness, honesty and integrity – going beyond the required ethical or professional standards of lawyers appearing before a court or tribunal.

Specifically, the model litigant obligation requires that the Commonwealth and its agencies:

The obligation also requires generally keeping costs to a minimum and not taking advantage of claimants who lack resources to litigate a legitimate claim.

This however does not require the Commonwealth to take a soft approach to legal proceedings. The Commonwealth is able to act firmly and properly to protect its interests.

The obligation also doesn’t prevent the Commonwealth from legitimately seeking to recover its costs where appropriate.

Clearly, holding the Commonwealth and its agencies to a high standard is not a new concept.

Although the model litigant obligation was formally articulated in its current form in 2005 – reference is often made in courts and tribunals to the 1912 case of Melbourne Steamship v Moorhead, where Chief Justice Griffith made the following observation:

I am sometimes inclined to think that in some parts - not all – of the Commonwealth, the old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects, which I learned a very long time ago to regard as elementary, is either not known or thought out of date. I should be glad to think that I am mistaken.[2]

Almost a century later, this statement is still relevant to Commonwealth’s obligation to act as a model litigant and participant in AAT proceedings.

The old-fashioned standard of fair play remains.

Maintaining a High Standard

As Attorney-General, I am ultimately responsible for ensuring that the Commonwealth maintains a high standard of conduct in proceedings before courts and tribunals.

This means making sure that the Commonwealth and government agencies are aware of, understand, and comply with, the model litigant obligations.

As a result, individuals who seek review of government decisions can be assured of the high standards of conduct of the Commonwealth, and this includes the provision of swift and effective review.

And in line with this, the AAT has expressed its goals in these terms:

to provide a national high quality merits review process that contributes to community confidence in a system of open and accountable government.[3]

The Duty to Assist

Over time, reforms to the Directions have placed an additional obligation, in the duty to assist, on the Commonwealth when appearing before Tribunals, such as the AAT.

These reforms were echoed in the AAT Amendment Bill 2004, requiring Government decision-makers to use their best endeavours to assist the Tribunal to make its decision in relation to the proceeding.[4]

The obligation to provide extra assistance to the Tribunal when an applicant is self-represented is an excellent example of the high standard of conduct expected of the Commonwealth.

This was highlighted in the recent Federal Court matter of Kasupene v Minister for Immigration and Citizenship.[5]

Justice Flick recognised that in some cases, an unrepresented applicant to the Tribunal may be disadvantaged. They may not have advanced evidence within their control, or evidence of central relevance to the decision to be made, and may not have made submissions covering all the material before the Tribunal.

This places both the Tribunal and the unrepresented party at a disadvantage, and makes the task of the Tribunal in coming to the correct and preferable decision more difficult.

The extent of the obligation on the Commonwealth to assist the Tribunal when dealing with an unrepresented party will, of course, differ from case-to-case.

However, Kasupene presents a clear statement that the Commonwealth respondent is obliged to address available evidence that is centrally relevant to the matter, even where it is not advanced by the unrepresented applicant.

This facet of the obligation to assist plays an important part in ensuring access to justice and equality between parties. And it underlines that matters before the Tribunal should not be conducted in an adversarial manner.

Member Webb commented in the 2005 matter of Pitkin that:

it is expected that the model litigant policy will be upheld and that cases will be properly prepared, with due regard to issues of procedural fairness, in order to assist the Tribunal to come to the correct or preferable decision.[6]

I agree, and expect, along with members of the general public, that the Commonwealth must demonstrate model conduct in proceedings, and be assessed on its performance as a model litigant and as an assistant to the Tribunal.

Alternative Dispute Resolution

One way in which Commonwealth respondents can demonstrate model conduct is to pursue alternative dispute resolution prior to commencing litigation.

As I have previously stated, I’m keen for ADR to be built into the fabric of our system of justice – and not simply be an add-on.[7]

And, I think one of the most important amendments to the Directions in recent times is the inclusion of an obligation on parties to consider ADR processes.

It’s worth noting that this obligation does not cease if it appears that ADR is not possible or appropriate in the first instance.

Indeed, I believe that the Commonwealth should continually revisit the question of whether ADR can assist in resolving a dispute throughout the determinative process.

Without diminishing the importance of the effect on government decision‑making of the Tribunal’s published decisions, ADR is another proper way to achieve effective and legally rigorous outcomes.

In fact it is a proven way of narrowing the issues in dispute, increasing accessibility and saving time and money.

The AAT is an excellent example of a forum in which the Commonwealth can lead by example in resolving applications efficiently, in terms of time and cost, by conducting ADR.

The AAT already has in place a commendable practice of using ADR to narrow and limit the issues in dispute, increase accessibility, and attempt to resolve disputes as early as possible.

I understand that approximately 80 per cent of matters are resolved in the AAT without recourse to hearing.

I also understand the ADR Committee of the AAT has an ongoing role in studying different process models and monitoring and evaluating how they might continue to be applied to maximum effect in the Tribunal.

Conclusion

I would like to re-emphasise that the Government and the community expect courts and tribunals reviewing administrative decisions to work effectively and efficiently.

In order to achieve this, it is incumbent on the Commonwealth, and indeed all parties in the process, to demonstrate the highest possible standards of conduct in proceedings.

When I say ‘all parties in the process’, of course I also mean to include tribunal members themselves. The conduct of the members greatly influences how an institution operates, and the outcomes it achieves.

On that note, I would like to take this opportunity to bring to your attention the recent work of the Administrative Review Council to update its Guide to standards of Conduct for Tribunal Members.

As I have said in the Preface, the updated Guide reflects the evolving role of tribunals and changing public expectations of tribunal members.

In this publication the Council draws on core administrative law values - including fairness, independence, efficiency, integrity and accountability – to illustrate what is expected of tribunal members.

It is my pleasure to officially launch the revised Guide to Standards of Conduct for Tribunal Members, and to thank the Administrative Review Council for this work.

The strong interest in this seminar is itself encouraging.

I feel confident that we can continue to work together to develop our justice system to guarantee accessible, efficient and just outcomes that benefit all of us.

Thank you.

[1] Explanatory Memoranda – Access to Justice (Civil Litigation Reforms) Amendment Bill 2009, 2.

[2] Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333, 342 (Griffith CJ).

[3] Administrative Appeals Tribunal, 2009/2010 Organisational plan, 2009. Available at: http://www.aat.gov.au/CorporatePublications/OrganisationalPlan.htm

[4] Section 33(1AA) Administrative Appeals Tribunal Act 1975.

[5] Kasupene v Minister for Immigration and Citizenship [2008] FCA 1609.

[6] Re Secretary, Department of Family and Community Services and Pitkin [2005] AATA 532.

[7] The Hon Robert McClelland MP, ‘ADR in Government Forum’, speech delivered at the ADR in Government forum, 4 June 2008. Available at: http://www.attorneygeneral.gov.au/www/ministers/RobertMc.nsf/Page/Speeches_2008_4June2008-AlternativeDisputeResolutioninGovernmentForum