LLB230 Lecture Notes - Lecture 4: Gerah, Ansett Australia, Soft Law
WEEK 4
Adversarial adjudication
- formal
- courts
- not investigatory ie AAT
Non-adversarial
- no oral submission by the party
- tribunals
- AAT can be inquisitorial
Decision on the papers
- no hearing
- submission on the papers and decision made on that
Case officers
- more than admin
- prepare case and then make a recommendation
ADR
- mediation
- conference
- not all admin matters are suitable for ADR – discretion
“fair, just, informal and quick”
- s 2A Admin Appeals Act 1978 (Cth) (The AAT Act)
- s 33(1) – rules of evidence
o(b) proceedings should be conducted with as little formality and with as
much expedition
o(c) tribunal is not bound by any rules of evidence, may inform itself of any
matter
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 97 CLR 611
- is that a legal obligation of fair, just and quick?
- Could you then challenge a tribunal decision on the basis that it is not fair, just or
quick?
- Tribunal clearly said no it can’t be a legal obligation
- Tribunals can’t be restrictive
- Objectives and aspirational
- “fair, just, economical and quick”
Sullivan v Dept of Transport (1978) 20 ALR 323
- there is a duty to provide assistance for unrepresented parties?
- s 39 AAT Act – reasonable opportunity to present case
- pilots license cancelled on medical grounds
- tribunal should have adjourned and requested more medical evidence from
doctor
oSullivan didn’t ask they said tribunal should have offered
oIf Sullivan asked they might be in breach of s 39 for not allowing an
adjournment
- Obligation to help but cannot be expected to ensure partied take full advantage
of every opportunity
- May be a duty to seek out information that tribunals seem necessary (pp 226-
227)
- Rules of evidence don’t apply s 33(1)(c) – case principles
Fact Finding: Re Pochi
- convicted of weed offences
find more resources at oneclass.com
find more resources at oneclass.com
- deporting issues
odealing with ‘character’
- is there a standard suffiency of proof?
oRational probative force
- Had contact with Columbians and came upon a lot of money
oThis evidence did not meet the standard of proof
- The adverse affect of judgment is weighed against it
oDeportation is particularly bad for Pochi
Re Pochi #2
- court expanded on rational probative force
- should be established on balance of probabilities
- is not mere suspicion or speculation
- essential duty of fariness
Onus of proof:
McDonald
- must parties discharge burden of proof
- no legal burden of proof – AAT needs to be satisfied on each issue before it
Epeabaka
- what happens when you need to determine if the fact exists
- the balance of probabilities
othe civil standard is appropriate
ounless the nature of the matter makes it inappropriate
Sullivan
- doesn’t mean it is a legal rule
- pilot license (helicopter) crashed
- Briginshaw
oCivil standard applies “as a general principle of law
- Civil rules do not apply as a general principle of the law
oInconsistent with tribunals need for informality
oThe more culturally relevant an issue is the more caution a tribunal
should take in evaluating the factual foundation
Executive Policies
How the AAT deals with policy
Policy; non-statutory rule, designed by administrators and guides decision making
- manual, guide, directions from minister
- overlaps with legislative instruments and soft law
- when someone (DM) has discretion, do they consider their policy as part of
discretion or separate
Legal status of executive policies
- must be legally relevant – relevant by legislation
- ‘non-fettering’ and ‘non-abdication’ rules
os 5(2)(e) ADJR Act
- ‘behest’ is more than a request
oit is a command or bidding
- what happens when D-M ignores advantageous policy
Rendell v reherse on license board (1987?)
NSW SC
- parole board
- gaoled for murder
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Adversarial adjudication formal courts not investigatory ie aat. Non-adversarial no oral submission by the party tribunals. Decision on the papers no hearing submission on the papers and decision made on that. Adr prepare case and then make a recommendation. Mediation conference not all admin matters are suitable for adr discretion. Tribunal clearly said no it can"t be a legal obligation. Obligation to help but cannot be expected to ensure partied take full advantage of every opportunity. May be a duty to seek out information that tribunals seem necessary (pp 226- Rules of evidence don"t apply s 33(1)(c) case principles. Fact finding: re pochi convicted of weed offences deporting issues: dealing with character" is there a standard suffiency of proof, rational probative force. Had contact with columbians and came upon a lot of money: this evidence did not meet the standard of proof. The adverse affect of judgment is weighed against it: deportation is particularly bad for pochi.
