The problem that emerges from a discussion of recent developments relating to tribunals is the extent to which amalgamation has been pursued by governments throughout the common law world, in the absence of a thorough understanding of its impact.
There are a number of reasons why governments may wish to pursue policies of amalgamation, many of which are legitimate.1 The literature suggests that amalgamation is an attractive option for three main reasons. Firstly, because it is perceived to reduce duplication of facilities and procedures, thereby reducing operating costs.2 (This factor was certainly prominent in the Australian Government’s justifications for the proposed ART.3) Secondly, amalgamated tribunals are often regarded as a neat solution to the proliferation of small, specialist tribunals which continue to emerge in jurisdiction after jurisdiction.4 Thirdly, there are suggestions that, in some instances, governments see the process of amalgamation as a way of making their mark or increasing their control over the administrative review functions of tribunals, some of which are perceived to act in a manner that is contrary to government interests.5
1 Elizabeth Ellis has argued that amalgamation can enhance accessibility and efficiency, while noting that “such potential benefits need to be monitored rather than assumed” — Ellis, Elizabeth, “Promise and practice: the impact of administrative law reform in New South Wales” (2002) 9(3) Australian Journal of Administrative Law 105-124, at 107.
2 Id.
3 Leon, Renée, “Reform of federal merits review tribunals — the Government’s position”, paper presented at Administrative law and the rule of law: still part of the same package?, conference by the Australian Institute of Administrative Law, Melbourne, 18 June 1998, at 1; Newman, Jocelyn, Commonwealth Minister for Social Security, News release, 4 February 1998; Burgess, Verona, “Tribunal to save $28.5m over 4 years”, Canberra Times, 10 May 2000, 25; Williams, Daryl, Commonwealth Attorney-General, News release: establishment of the Administrative Review Tribunal, 9 May 2000. Similar assumptions appear to have been made by the Queensland Attorney-General, Rod Welford, regarding the possibility of creating an amalgamated tribunal in Queensland — quoted in Creyke, Robin, “Tribunals and access to justice” (2002) 2(1) Queensland University of Technology Law and Justice Journal 64-82, at 64.
4 Williams, above n 3. See also Swain, Phillip, Challenging the dominant paradigm: the contribution of the welfare member to administrative review tribunals in Australia, 1998, unpublished.
5 Some commentators have suggested that governments are motivated to establish new tribunals because “it provides an opportunity for the executive to make a new set of appointments sharing the current executive’s perspective” — Daley, John, “Abolishing a specialist tribunal” (1996) 7(2) Public Law Review 73-77, at 74. See also Swain, above n 4, at 39. On the other hand, see arguments by Ellis to the effect that amalgamation of specialist tribunals in the Canadian context would enhance their independence and reduce the ability of ministers and government agencies to interfere in their operation — Ellis, Ron, “Super provincial tribunals: a radical remedy for Canada’s rights tribunals” (2002) 15 Canadian Journal of Administrative Law and Practice 15-50.
So far, amalgamation proposals have been considered in several jurisdictions in Australia, in the United Kingdom, and to a lesser extent in Canada. It would be unsurprising if this trend was adopted in other jurisdictions, given the perceived inducements.6
Despite the obvious trend towards tribunal amalgamation and calls for further research in this area,7 there is a distinct lack of theoretical engagement and research into the advantages and disadvantages of going down this path. There has been what may be termed an ill-considered approach to amalgamation. In relation to administrative law reform Justice Michael Kirby has argued that:
Judging the need for reform, and evaluating the options offered to secure reform, requires more than hunch and guesswork. All sound law and policy should be based, so far as possible, on sound data.8
However, it appears that decisions to amalgamate have been taken in the absence of data assessing the effectiveness of generalist tribunals, or the likely impact of amalgamation on the operation of specialist tribunals.
There is certainly a lack of empirical data on the consequences of amalgamation.
Moreover, academics have not worked on the construction of a theoretical framework or model for assessing the likely impact of amalgamation on the delivery of administrative justice, or on the interests of specific stakeholder groups.9 As Fleming has commented:
We have seen tribunals, their membership or their jurisdictions, have been created, amalgamated, reviewed or abolished without careful analysis of the best way to achieve their ultimate objectives [sic].10
6 Creyke, above n 3, at 82.
7 A number of speakers at Administrative law: the essentials, a conference by the Australian Institute of Administrative Law, Canberra, July 2001, called for further research into the impact of amalgamation on tribunal performance.
8 Kirby, Justice Michael, “Administrative review twenty years forward”, a paper presented at The AAT — twenty years forward, National Conference of the Commonwealth Administrative Appeals Tribunal, Canberra, July 1996, at 16. See also Kirby, Justice Michael, “The AAT: back to the future” in McMillan, John (ed), The AAT — twenty years forward, Australian Institute of Administrative Law, Canberra, 1998, 359-378, at 376.
9 Sayers, Michael and Webb, Adrian, “Franks revisited: a model of the ideal tribunal” (1990) 8 Civil Justice Quarterly 36-50, at 36.
10 Fleming, Gabriel, “Tribunal independence: maintaining public trust and confidence”, a paper presented at the Sixth AIJA tribunals conference, conference by the Australian Institute of Judicial Administration, Sydney, 5–
6 June 2003, at 11.
Rather than investigate these issues, a number of untested assumptions are routinely made in justifying amalgamation proposals. These include assumptions that bigger tribunals are more efficient as they can introduce economies of scale, and that specialist tribunals can continue to operate largely as before when they become divisions of a larger tribunal. In short, there is a sense that policy makers are ‘jumping on an amalgamation bandwagon’ without giving rigorous consideration to the consequences, in light of empirically-tested data.11
This ill-considered or ‘over-hasty’ trend towards amalgamation raises a number of questions that have not previously been adequately addressed. An obvious question is whether or not an amalgamated tribunal model is more effective than a series of smaller, specialist tribunals in delivering administrative justice12 — in other words, whether there is any net gain from a government’s decision to amalgamate. However, this is a most complicated, costly and methodologically challenging question to research: one beyond the scope of this study. A less explored, but equally important, question is how the process of amalgamation should be approached in order to realise the maximum potential benefits that an amalgamated tribunal can bring. That is, to ask what are the elements of an optimal amalgamation.
This thesis therefore focuses on the more practical question of how to implement amalgamation decisions once they have been made, rather than attempting to revisit the policy decisions that are being made by governments. The aim is to propose a way of differentiating between good and bad amalgamations, that is grounded in theory and informed by experience to date.
The hypothesis developed in this Chapter — that law, context, organisation and people are the key ingredients of successful tribunal reform — will be applied and tested in the
11 O’Neill, Nick, “Tribunals — they need to be different”, a paper presented at the Fourth AIJA tribunals conference, conference by the Australian Institute of Judicial Administration, Sydney, 8 June 2001, at 1. By way of analogy, Genn has criticised the untested assumptions that are routinely made regarding the presumed benefits of informal procedures for unrepresented applicants. She has argued that “[t]heoretical arguments for the benefits of informal procedure require empirical validation” — Genn, Hazel, “Tribunals and informal justice” (1993) 56 Modern Law Review 393-411, at 410.
12 Creyke has acknowledged the relevance of this question in Creyke, above n 3, at 64.
remaining Chapters of this thesis, with reference to the amalgamation experiences at Commonwealth level, and in NSW and Victoria.
IS A GENERALIST TRIBUNAL MODEL MORE EFFECTIVE THAN A