LAW7248 - Decision Making for Tribunal Members

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Glossary

AAT. Administrative Appeals Tribunal established in 1975 by the Administrative Appeals Tribunal Act (Cth). This is the general review tribunal at Commonwealth level.

Act. See Legislation.

ADJR Act 1977. See Administrative Decisions (Judicial Review) Legislation.

Administrative. See Executive.

Administrative Appeals Tribunal. See AAT.

Administrative Decisions (Judicial Review) Act. A 1977 Commonwealth Act Legislation designed to codify the common law ground for judicial review of the actions of administrators, and to simplify the procedure for gaining review at the Federal level.

Administrative Decisions Tribunal (ADT). Administrative Decisions Tribunal. The NSW general review tribunal established in 1998. It is the first tiered general tribunal created by legislation in Australia

ADR. See Alternative Dispute Resolution.

Adversarial System. A mode of dispute resolution in which the competing claims of the parties are presented to an impartial and disinterested third party with the power to impose an authoritative determination.

Alternative Dispute Resolution (ADR). The decision making process by which matters are resolved outside the usual court-based litigation model. The aim of ADR is to encourage parties in conflict to arrive at compromise solutions with the assistance of a neutral person. ADR includes processes such as assisted negotiation, expert appraisal, mediation, conciliation, evaluation and arbitration.

Ambiguity. Generally, in the context of language, uncertainty or doubt. In the context of legislation, it means that more than one interpretation of a provision is possible in its application to particular facts.

Amendment. A statute may be amended by another statute, which repeals parts of it, inserts new words or provisions into it, or omits (deletes) words or provisions. The amending provisions become part of the original statute (called 'the principal Act'), and the two Acts are read as one statute.

Ambulatory. Changeable.

Appeal. A proceeding taken to rectify an erroneous decision of a court or tribunal by bringing it before a higher court or decision maker. In contrast to judicial review, the common law made no provision for appeals. The only rights of appeal are those expressly provided for by legislation. The scope of powers of an appellate court or tribunal depend on the terms of the legislation.

Appellate. The power or function of a Court or tribunal authorised by legislation to hear and determine an appeal. ARC. Administrative Review Council. A Commonwealth body with responsibility for monitoring the Commonwealth administrative justice system. The Council's reports and recommendations are a major resource for students of tribunals and administrative law.

ART. Administrative Review Tribunal. A super tribunal, proposed by the ARC, to be set up by the Commonwealth government to replace the AAT in the Better Decisions: Review of Commonwealth Merits Review Tribunals Report No 39, AGPS, Canberra, 1995. When operational, the ART will introduce a tiered system of merits review at the federal level.

Authority. 1. The scope of an administrator's power, right or permission to do acts on behalf of the government. Authority may be conferred on an administrator directly by statute, or by a delegation of administrative power from a higher official. 2. A case, statute or other highly regarded legal text relied upon and cited as a foundation for legal principle.

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Bias Rule. In administrative law, the principle that decision maker must not have an interest in the outcome of the decision or an appearance of bias. This is one of the rules of natural justice.

Bill of Rights. A statement of civil and political human rights, guaranteeing to a large extent freedom from government, interference in matters private and personal to the individual. It may take the form of a statute, or may be incorporated into the country's constitution.

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Code. Statutes collecting and stating the whole of the law, as it stood at the time they were passed.

Common Law. 1. The body of law that has its roots in ancient custom and is embodied in judicial rulings. 2. Judge-made law, as opposed to laws made by Parliament and its delegates. 3. The procedures and method of legal reasoning that characterizes the Anglo-Australian legal system, in contrast to the civil law system of continental Europe.

Commonwealth Constitution. The document, legislatively enacted in Commonwealth of Australia Constitution Act 1900, which lays down the structure of the judicial, executive, and legislative arms of the Commonwealth Government, outlines the powers and duties of these respective arms, and delineates the relationship between the Commonwealth and the States of Australia. Note - each of the States in Australia also has its own State Constitution.

Commonwealth Parliament. The body in which the legislative power of the Commonwealth if Australia is vested. It consists of the Queen, the Senate, and the House of Representatives. It may also be called the Federal Parliament.

Condition. A condition for the exercise of statutory power is something expressly or impliedly required by the statute as a prerequisite to the exercise of the power.

Constitution. 1. Those laws, institutions and customs which combine to create a system of government to which the community regulated by those laws accedes. 2. The written document embodying these laws.

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Delegated Legislation. Legislation made by the Executive Council, a Minister or an administrator exercising legislative power conferred by statute. They may be called rules, regulations, by-laws, local laws, ordinances, disallowable instruments, although other labels may also be used.

De Novo (Latin). Anew. In an appeal de novo, the matter is usually heard over again from the beginning. The appellate court or tribunal is not confined to the evidence or materials which were presented in the original hearing.

Disclosure. Making available information to the public in general or to limited classes of people. In administrative law the principle of procedural fairness requires that evidence placed before a decision maker by one party must be disclosed to other parties who must be given the opportunity to oppose.

Discretion. The power or authority of a decision maker to choose between alternatives, or to chose no alternative. Discretion is usually confined by the statute which describes the ambit of decision making power. Two categories of discretion are - 1. A weak discretion is one where standards and criteria are specified for the decision maker to follow in exercising the power. The discretion consists only of some element of judgment in applying the standards to the facts in the particular case. This may be called a discretionary judgment about the application of a standard. 2. A strong discretion is one where there are no set standards and the decision maker has to decide what the standards are going to be.

Doctrines. Systematic fitting together of rules, principles and conceptions with respect to particular situations or types of cases or fields of legal order in logically interdependent schemes.

Domestic Tribunal. A body within an association appointed to adjudicate or advise on disputes between members, or on the expulsion or suspension of members according to the association's constitution.

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Enabling Act. In relation to delegated legislation, the statute that authorises the making of the delegated legislation: the empowering Act.

Enact. To cause a Bill to become an Act; to pass into law.

Enactment. An Act of Parliament

Equal Opportunity. A principle that requires all persons to be entitled to the same opportunities and not be subjected to artificial, irrelevant or unnecessary barriers. It is closely related to the concept of non-discrimination and is often included in or related to anti-discrimination legislation.

Ethics. Treating or relating to morals; dealing with moral questions or theory; conforming to a recognised standard.

Executive (or Administrative). The body of people, members of the governing party or parties, that form policy and control the appropriate government departments and instrumentalities, and who are responsible to parliament for such administration.

Executive Council The constitutional body that comprises the Governor-General (Cth) or Governor of a State, and a quorum of Ministers. In practice, the Executive Council is controlled by Cabinet. Executive (or Administrative) Instruments Documents made by a Minister, Executive Council or administrator that are administrative, not legislative in nature, e.g, a document stating a ministerial or departmental policy.

Expiry. Occurs where a section in a statute ('sunset clause') states that the statute, or part of it, ceases to have effect on a certain date.

Explanatory Memorandum. A document provided by the proponent of a Bill that summarizes the Bill clause by clause and explains its intended effect.

Ex Post Facto (Latin). From a subsequent event; retrospective, especially a law which changes the legal status of an act committed before the law's enactment.

External Review. There are a number avenues of external review, these include: 1. by an Ombudsman who has power to recommend to the body that the decision be changed; 2. by a court with power to review decision only to the extent of checking that the decision is lawful (called 'review of legality'); and 3. by a Tribunal authorised in the statute that establishes the body to review decision. Such a Tribunal reviews the decision on its merits and can substitute its own decision for that of the original (or primary) decision maker. This kind of external review is called 'administrative review on the merits' or simply 'merits review'. A body exercising this power may be called an 'appellate' tribunal, 'appeals' tribunal or a 'merits review' tribunal.

Extrinsic Material. Material not forming part of an Act which may assist in the interpretation of that Act, such as explanatory memoranda, reports of law reform commissions and parliamentary committees and second reading speeches.

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FOI. See Freedom of Information.

Freedom of Information (FOI). The principle that administrative action should be made as open to public scrutiny as reasonably possible by permitting public access to information held by the government. FOI legislation has the expressed objects of making available to the public information about government decision-making, ensuring that policy is readily available to members of the public affected by it, and creating a general right of access to documents in the possession of decision-makers, limited only by exemptions necessary for the protection of essential public interests and private business affairs of individuals.

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Golden Rule. An approach to the interpretation of legislation, which holds that one starts with a literal interpretation and switches to a purposive approach if the literal meaning produces a result that is absurd or inconsistent with the rest of the statute.

Governor. The Queen's representative in each State, who exercises the powers and functions of the Queen in respect of the State.

Governor-General. The Queen's representative in the Commonwealth, who exercises the powers and functions of the Queen in respect of the Commonwealth.

Grounds of Review. A person seeking judicial review of a decision cannot ask the court to examine the merits of the decision, but has to show that the decision or the process leading to it was flawed. Only certain kinds of flaws are relevant. These are known as the grounds of review.

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Hansard. Full reports of parliamentary debates and speeches of members of the houses of parliament. Hansard is substantially a verbatim report with no unnecessary additions.

Hearing Rule. In administrative law, the principle that a decision maker must afford a person whose interests will be adversely affected by a decision an opportunity to present his case. Breach of the principle by the decision maker is a denial of natural justice (procedural fairness). Judicial review of the decision on this ground renders the decision void.

High Court of Australia. The highest court in Australia. Established pursuant to the Commonwealth Constitution Chapter III. It has original and appellate jurisdiction. Incorporated Treaties. Where Parliament gives legislative effect to a treaty, we say that the treaty has been 'incorporated by statute'. Most human rights treaties to which Australia is a party have not been incorporated. In some cases Parliament has passed a statute to give effect to international obligations arising under a treaty.

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Inquisitorial System. A mode of dispute resolution in which the judge or tribunal may assume responsibility for determining how the competing claims of the parties are presented by their legal representatives. The inquisitorial system is much more prevalent in European courts (in the 'civil law system') than in those which follow the common law tradition.

Instrument. Any document which has legal effect. Internal Review. A review of a decision by the public body that made the same. This is usually done by a more senior official(s) within the body.

International Law. The body of law which participating nations recognise as binding them in their conduct towards each other. International Treaties. Agreements entered into between States, either bilaterally or multilaterally. In Australia the power to enter into international treaties has been given to the Federal Government (effectively, Federal Cabinet) by the Commonwealth Constitution.

Interpretation Legislation. The Interpretation legislation for each jurisdiction contains general provisions and definitions relating to the interpretation of words and provisions in other statutes and subordinate instruments.

Irrelevant considerations. A consideration which must not be taken into account in the exercise of a discretionary power; an impermissible consideration.Taking into account an irrelevant consideration when reaching a decision is a ground for judicial review.

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Judicial Review. The determination by courts of the legality of exercises of power by administrators and tribunals. The High Court of Australia, the Federal Court of Australia and the superior courts of the States and Territories have final authority to determine the scope of administrators' powers. Judicial review is available only for defined legal errors (see grounds of review).

Jurisdiction. 1. The power of a court or judge to entertain an action, petition or other proceeding. Can be sub-categorised as original jurisdiction or appellate jurisdiction. 2. The district or limits within which the judgments or orders of a court can be enforced or executed.

Jurisprudence. 1. The theory of law; the study of the principles of law and legal systems and their fundamental philosophical basis. 2. The body of legal learning on a topic, including court and tribunal decisions and learned texts.

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Legislation. Includes laws made by Parliament (statutes, Acts, enactments) and delegated legislation made by one to whom Parliament has delegated authority.

Legislature. Parliament: the branch of the government in which resides the law-making power of government.

Legitimate Expectation. In administrative law, a reasonable expectation that a legal right or liberty will be obtained or renewed, or will not be unfairly withdrawn without a hearing. Under the principles of procedural fairness, the existence of a legitimate expectation is a basis for implying a right to a hearing.

Literal Approach. An approach to legislative interpretation which focuses on the lexical and grammatical meaning of words, phrases and provisions.

Litigation. The conduct of legal proceedings by parties before a court. Locus Standi (Latin). Lit A place of standing. The right to appeal or seek judicial review of a given decision

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Merits. The real matters in question in a decision, as opposed to legality and technicalities.

Minister. Person who holds office in the Parliamentary Executive with the responsibility of administering one or more departments in government, for example Minister for Transport. The executive power formerly vested in State Governors and Commonwealth Governor-General is, in practice, controlled by responsible ministers, acting either individually as holders of particular portfolios or acting collectively as the Executive Government.

Mischief Rule. A rule of statutory construction requiring that ambiguous words or phrases in a statute be interpreted in the light of the "mischief" or "defect" in the existing law which the statute was intended to remedy.

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Natural Justice. See Procedural Fairness.

Necessity. See Principle of Necessity.

No Evidence Rule. In administrative law, the principle that an administrator's decision must be based on logically probative evidence. Sometimes suggested to be a third rule of procedural fairness Non-Lawyer Specialists. Members of tribunals who have expertise and learning in non-legal disciplines.

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Obiter Dicta (um) [plural (singular)] (Latin). A remark in passing. Judicial observations that do not form part of the reasoning of a case.

Objects Clause. A clause explaining the object or purpose of an Act. In modern statutes this is usually located in the opening sections.

Offence. Generally synonymous with crime.

Original Jurisdiction. Matters in respect of which a proceeding (other than an appeal from a lower court) may be commenced in the High Court of Australia or State Supreme Courts. In contradistinction to appellate jurisdiction.

Ouster Clause. A statutory provision which purports to prohibit judicial review of the decision making power of a tribunal or inferior court. Also known as a privative clause

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Parliamentary Supremacy/ Sovereignty. 1. The notion, popularised by A.V. Dicey, that the United Kingdom Parliament could make or unmake any law it wished, and that no court could invalidate such laws. In Australia, the Commonwealth Parliament's supremacy is limited by the powers it was granted in the Commonwealth Constitution. 2. The power of Parliament to legislate inconsistently with the common law, and thereby to override it.

Policy. A general approach, method or procedure determined by a government agency to guide the exercise of its discretionary powers.

Power. The ability conferred on a person by law to determine, by his own will, directed to that end, the legal relations of himself or others (Salmond). A power is the converse of disability. It differs from the right in that there are no accompanying duties. Powers are public, i.e., when vested by the State in its agent or employee; or private, when conferred by one person on another.

Preamble. The recitals set out in the beginning of a statute showing the reasons for the Act.

Precedent. 1. A judgment that is authority for a case on similar facts. A case that is binding or persuasive authority for the legal principle contained in its decision. 2. See Stare Decisis Prerogative Powers. The common law powers of the Crown derived from the Queen, such as the power to conduct foreign affairs, to declare war or peace, to enter international into treaties, to prorogue, dissolve and summon the parliament.

Presumption. A conclusion or inference as to the truth of some fact in question, drawn from other facts proved or admitted to be true.

Presumption of Conformity. It is well established that courts will presume, when interpreting ambiguous statutes, that Parliament intended to legislate in conformity with Australia's international obligations.

Principle. A principle is an authoritative starting point for legal reasoning from which we seek rules or grounds of decision by deduction.

Principle of Necessity. The bias rule is subject to a common law 'principle of necessity' which recognizes that in some cases a tribunal or member must be allowed to proceed despite an appearance of bias, as otherwise the tribunal's functions would not be performed at all. For example if the tribunal could not otherwise find sufficient members to constitute a panel, members against whom there is a case of apprehended bias may take part in the decision.

Privative Clauses. See Ouster Clauses.

Probative Evidence. Evidence rationally capable of proving the existence of a fact.

Procedural Fairness. Administrative law principles developed at common law to ensure the fairness of the decision-making procedure of courts, tribunals and administrators. The term is used interchangeably with 'natural justice'. The two rules of procedural fairness are the hearing rule and the bias rule. It is suggested by some that the no evidence rule is a third rule of procedural fairness.

Procedure. The formal steps to be taken in an action or other judicial proceeding, civil or criminal. Provision. May be used to denote a section, subsection, paragraph, or sub-paragraph of a statute.

Public Law. The body of law dealing with the powers, rights and obligations of the government and governed. Public law is composed of constitutional, administrative, international and criminal law.

Purposive Approach. An approach to interpretation of legislation that interprets the words of the statute in the light of its purpose or objects.

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Ratio Decendi (Latin). The reason for deciding. Any indispensable factor in the process of reasoning leading to a judicial decision. Relevant Considerations. Considerations that a decision maker is required to take into account when exercising discretionary power. Failure to take into account a relevant consideration or taking into account an irrelevant consideration is a ground for judicial review.

Retrospective Operation. Where an Act or provision of an Act commences operation from a date before the Act was enacted.

Review. The reconsideration of a decision made by a government body, agency or department. There are two main avenues of review: internal and external. There are two main types of review: legality and merits review.

Right. Generally, a benefit or claim entitling a person to be treated in a certain way. More exact definitions vary according to the theoretical frameworks of the jurisprudential schools.

Royal Assent. The approval given by or on behalf of the Queen to a Bill passed by the Commonwealth Parliament or a Capital State Parliament. In Australia, Royal Assent is given by the Governor of a State or the Governor-General for the Commonwealth.

Royal Commission. A tribunal of inquiry set up under the prerogative power of government. While often presided over by a judge, this is not a court but an executive tribunal.

Rule of Law. Forms a fundamental principle of the constitution, has two meanings, or may be regarded from two different points of view - 1. The predominance of regular law as opposed to the influence of arbitrary power; excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government; 2. Equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts;

Rules. Precepts attaching definite legal consequences to definite states of fact.

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Second Reading Speech. Speech given by the relevant minister in parliament outlining the policy underlying a proposed law (a Bill) during the second reading. Second reading speeches may be used to discern the underlying purpose or object of statutes as an aid in statutory interpretation.

Separation of Powers. The doctrine that the three arms of government (executive, legislative and judicial) are separate and that their respective functions and powers are mutually exclusive. The Commonwealth Constitution embodies this doctrine, while at State level it is observed as a matter of convention or practice.

Standards. Standards are general limits of permissible conduct to be applied according to the circumstances of each case.

Stare Decisis (Latin). The decision stands. The doctrine under which a court is bound to follow previous decisions, unless they are inconsistent with a higher court's decision or wrong in law. Statute. An Act passed by parliament.

Statutory Interpretation. The interpretation of the meaning, effect and scope of statutes by the courts. The courts have developed a number of approaches and assumptions to aid in the discovery of the meaning of legislation, such as the literal approach, the golden rule, the mischief rule or the purposive approach.

Subordinate Legislation See Delegated legislation

Sunset Clause. See Expiry.

Supervisory Jurisdiction. The powers of the superior courts to control excesses of power by lower courts, tribunals and administrators by means of the remedies of judicial review.

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Tribunals. Bodies with judicial, quasi-judicial or administrative functions set up by statute and existing outside the usual judicial hierarchy of the Supreme Court and County Court.

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Ultra Vires (Latin). Beyond the power. An ultra vires act is beyond the legal power or authority of a person, institution, or legislation, and therefore invalid. It is an umbrella term for a number of the grounds of judicial review.

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VCAT. Victorian Civil and Administrative Tribunal established in 1998. It is the Victorian general review tribunal. Victorian Civil and Administrative Tribunal. See VCAT. Waiver. An intentional relinquishment of a right or interest.

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