Administrative Review Council

29 October 2002

The Hon Daryl Williams AM QC MP

Attorney-General

Parliament House

CANBERRA ACT 2600

Dear Attorney-General

The Administrative Review Council (the “ARC”) is pleased to present its report on the establishment of the Council of Australasian Tribunals (the “COAT”).

On 12 June 2001 the ARC wrote to you outlining options for the establishment of a Council of Australian Tribunals. We are pleased to report that the ARC’s proposals were adopted at a meeting of Commonwealth, State and Territory tribunals in Melbourne on 6 June 2002. As you are aware, the concept was expanded at that meeting to a Council of Australasian Tribunals to include tribunals from
New Zealand. The COAT commenced operation on that date.

In progressing its proposals the ARC consulted extensively with Commonwealth, State and Territory tribunals. The ARC convened a meeting of tribunal heads in Sydney on 3 October 2001 which was attended by you and presiding officers of tribunals from a number of Australian jurisdictions.

Wayne Martin QC Justice Garry Downes AM

Ron McLeod AM Professor David Weisbrot

Bill Blick PSM Christine Charles

Robert Cornall Professor Robin Creyke

Stephen Gageler SC Patricia Ridley

Robert Garran Offices, National Circuit, Barton ACT 2600

Telephone: (02) 6250 5800 Facsimile: (02) 6250 5980 e-mail: arc.can@ag.gov.au

Internet: law.gov.au/arc

The wide interest in and support for the COAT by tribunals should ensure that it will prove to be an effective network for improving tribunal operations, training and the continued development of a strong tribunal culture. This, in turn, will assist in improving the standard of administrative justice in all jurisdictions.

The ARC played an ongoing role in the establishment of the COAT and the Executive Officer of the Council Secretariat acted as Secretary to a Steering Group of tribunal heads convened to implement the ARC proposals.

The ARC will continue to have a role in the COAT, as I will be an ex officio member of the COAT, with the capacity to contribute to, as well as learn from, its activities and meetings in the years ahead.

In providing this report to you, the ARC acknowledges the contribution of
the Hon Deirdre O’Connor who was President of the Administrative Appeals Tribunal at the time the current proposals were developed by the ARC.
Ms O’Connor was a strong supporter of the concept of the COAT while a member of the ARC.

Yours sincerely

Wayne Martin QC
President

Page No

1. Letter of Transmittal	5
2. Abbreviations	9
3. Report on the Establishment of the Council of Australasian Tribunals	11
4. Constitution of the Council of Australasian Tribunals	21
5. Council of Australasian Tribunals Memorandum of Objects of State and Territory Chapters	29
6. Council of Australasian Tribunals Minutes of Inaugural Meeting -6 June 2002	33
7. Attorney-General’s Speech Presented at the Conference Dinner	43
APPENDIX 1 - Letter from Administrative Review Council to Attorney-General 12 June 2001	49

3. Report on the Establishment of the
Council of Australasian Tribunals

Establishment of the Council of Australasian Tribunals

The Council of Australasian Tribunals (the “COAT”) was established in Melbourne on 6 June 2002 at a meeting of Commonwealth, State, Territory and New Zealand tribunal presiding officers. At that meeting, presiding officers adopted the COAT Constitution and elected office holders to serve on the Interim Executive.

Genesis of a Council of Australasian Tribunals

The lack of support and guidance available for tribunals was recognised by both the Administrative Review Council (the “ARC”) and the Australian Law Reform Commission (the “ALRC”). In its Better Decisions report, the ARC proposed a “Tribunals Executive” to promote greater support and liaison between review tribunals.[1] The ARC envisaged that the Tribunals Executive would include principal members of tribunals from all Australian jurisdictions and possibly registrars.

The ALRC’s Managing Justice report expanded on the ARC proposal and suggested a “Council on Tribunals”. The ALRC anticipated that this Council would be a national forum for tribunal leadership to develop policies, secure research and promote education on matters of common interest for tribunals.[2] The ALRC recommended that membership should include the heads of Commonwealth and State tribunals involved in administrative review, and the President of the ARC.

At its meeting on 1-2 March 2001, the ARC agreed that it would be timely to revisit the proposal to establish such a Council. It committed itself to facilitating the creation of such a body, through consultation with appropriate tribunal leaders. On
20 April 2001, the ARC endorsed a proposal for the COAT that could be taken forward.

Summary of the ARC Proposal

In short, the model proposed by the ARC comprised the following elements:

· the proposed COAT would be an informal body, operating largely by consensus. Its objectives would be broadly expressed, to enhance its appeal to a diverse membership of State, Territory and Commonwealth tribunals;

· membership would be open to all Commonwealth, State and Territory tribunals. Apart from readily identifiable candidate tribunals, membership would be determined by “guided” self-selection based on key indicia and a clear statement of objectives and functions of the COAT, rather than strict eligibility criteria;

· the presiding member of a participating tribunal would be elected/appointed chair for a one-two year period, with the opportunity to incorporate a deputy chair and executive committee. The chair would also appoint the secretary (it was anticipated that secretariat functions would be predominantly performed by the registrar of the Chair’s tribunal);

· the COAT would operate nationally, as well as establishing State and Territory chapters; and

· each tribunal would bear its own costs, but the COAT could make the case for funding in light of its experience when established, if necessary.

For convenience, and want of a better term, the ARC proposed that the title “Council of Australian Tribunals”, or “COAT”, be adopted, although this would ultimately be a matter for decision by the Council’s membership.

In progressing its proposed model, the ARC consulted extensively with Commonwealth, State and Territory tribunals. The ARC convened a meeting in the NSW Parliament House in Sydney on 3 October 2001. The meeting was attended by presiding officers of tribunals from a number of Australian jurisdictions. That meeting endorsed the ARC’s proposed model and convened a Steering Group to further consider the proposal. The Steering Group comprised:

· The Hon Justice Murray Kellam (Chair of the Steering Group)
President, Victorian Civil and Administrative Tribunal;

· Mr Keith Chapman
President, Guardianship and Administration Board (WA);

· Mr Barry Cotterell
Chair, Property Agents and Motor Dealers Tribunal (QLD);

· Mrs Wendy Cull
Chair, Queensland Building Tribunal;

· Judge Kevin O’Connor[3]
President, Administrative Decisions Tribunal (NSW);

· The Hon Justice Deirdre O’Connor[4]
President, Administrative Appeals Tribunal (AAT); and

· Mr Matt Minogue (Secretary to the Steering Group)
Executive Officer, Administrative Review Council Secretariat.

The ARC proposal, which was further developed in conjunction with the Steering Group, was then accepted at an inaugural meeting of Commonwealth, State, Territory and New Zealand presiding officers on 6 June 2002 in Melbourne. At that meeting the proposal was expanded to include New Zealand tribunals in the membership of the COAT. The COAT then became known as the “Council of Australasian Tribunals”.

Structure of the COAT

When deciding on a structure for the COAT, the ARC looked at the models of the Council of Chief Justices of Australia and New Zealand, the Council of Chief Magistrates, the Council of Canadian Administrative Tribunals (the “CCAT”) and the United Kingdom Council on Tribunals.[5] After looking at the structures of these bodies, the ARC considered that the COAT would operate effectively through an informal federal-like structure. This would involve a National Council, comprising all member tribunals and State and Territory chapters. The ARC considered that this model would allow tribunals to gain broader support networks and provide an opportunity for smaller tribunals to better participate in the activities of the COAT.

At the National Council level, participation would be limited to presiding officers or their delegates because participants would need to have the authority to speak for their respective tribunals. It was envisaged that participants at the national level could instigate the development of tribunal networks amongst Commonwealth, State and Territory tribunals. In this way, support could be given for tribunal member activities at local levels, training initiatives could be shared and initiatives developed at the national level could be utilised by tribunal members generally.

Objectives of the COAT

The ARC proposed a number of objects for the COAT. At its meeting of
14 November 2001, the COAT Steering Group endorsed the following objects for inclusion in the COAT’s Constitution:

(a) to establish a national network of tribunals and a national register of Tribunal members;

(b) to establish a national network for members of tribunals to consult and discuss areas of concern or interest and common experiences;

(c) to provide training and support for members of tribunals, particularly smaller tribunals which may not have the resources to undertake such activities alone;

(d) to provide a forum for the exchange of information and opinions on aspects of tribunals and tribunal practices and procedures;

(e) to develop best practice or model procedural rules based on collective experience of what works;

(f) to develop standards of behaviour and conduct for members of tribunals;

(g) to develop performance standards for tribunals;

(h) to develop support systems for tribunals, including case management and information technology systems;

(i) to provide advice to governments on tribunal requirements;

(j) to publish and encourage the publication of papers, articles and commentaries about tribunals and tribunal practices and procedures;

(k) to promote lectures, seminars and conferences about tribunals and tribunal practices and procedures;

(l) to make and disseminate reports, commentaries and submissions on aspects of tribunals and tribunal practices and procedures; and

(m) to co-operate with institutions of academic learning, and with other persons having an interest in tribunals and tribunal practices and procedures in promoting the objects referred to in paragraphs (a) to (l).

What is an eligible tribunal?

As noted above, an important principle was that the COAT should include Commonwealth, State and Territory tribunals.

This raised the central issue of what a tribunal is and what kinds of tribunals should be eligible to participate in the COAT. Tribunals have an array of different functions and powers. For example, some tribunals are primary decision-makers, while others are strictly review bodies.

While a definition of a tribunal would readily capture some tribunals, it would be likely to exclude others. A definition had to be broad enough to include tribunals exercising purely executive power and those tribunals that exercise a mixture of judicial and executive power, and which often operate in the States and Territories. It was also difficult to estimate how many relevant tribunals there might be.[6]

Initially, the ARC proposed that membership be open to as many Commonwealth, State and Territory tribunals (however described) as possible. Rather than defining eligible bodies in any detail, it was considered that the better option was to rely on “guided” self-selection. The development of a clear statement of objectives and functions of the COAT would allow other bodies to determine for themselves if they might appropriately become COAT members.[7]

According to these principles, the ARC sought to develop an inclusive definition of a tribunal as:

“any Commonwealth, State or Territory body whose primary function involves the determination of disputes, including administrative review, party/party disputes and disciplinary applications but which in carrying out this function is not acting as a court.”

This would include tribunals such as the Administrative Appeals Court of South Australia and the Administrative Appeals Division of the Magistrates’ Court in Tasmania. This broad definition was subsequently incorporated into clause 2(1) of the COAT Constitution.

Funding

The ARC considered that flexibility was critical during the early stages of the COAT. The concern was that more formal funding arrangements would require agreement at ministerial level, which would become more complicated if the COAT were jointly funded by the Commonwealth, States and Territories. Funding by appropriation would also impose expensive accountability requirements on the COAT.

The option proposed to tribunals by the ARC was for a self-funding model where each tribunal would bear its own costs, but would be free to negotiate resources with its respective government. When established, the COAT would have the capacity to make the case for alternative funding arrangements, if necessary.

Management of the COAT

In the tribunal context there is no supreme national tribunal. Each State tribunal has its own jurisdiction and is not subordinate to the Commonwealth. Equally, while New South Wales and Victoria have large generalist tribunals comprising several divisions (and Western Australia is progressing reforms aimed at developing a Western Australian Civil and Administrative Review Tribunal), the other States and Territories do not.

The ARC was therefore concerned that the COAT should not be dominated by tribunals from a particular jurisdiction. In addressing this problem, the Council of Chief Magistrates rotates the Council Chair for each meeting. However, it was thought that rotating the Chair of the COAT (and the secretariat) for each meeting would result in:

· a lack of continuity - as each meeting would be handled by a different office, experience and corporate memory would be low; and

· reduced outcomes - as different registries might service only one meeting every few years, the focus would be on hosting the meeting, not taking resolutions forward. This would increase the likelihood of the same issues being revisited over several years without real progress.

The ARC’s preferred option was for periodic chairing, that is, the election of a presiding tribunal officer as Chair for a one-two year period. This would provide continuity and ensure against domination by one or more tribunals.

The ARC proposal also recognised that participation by a greater range of member tribunals could be encouraged by providing for a deputy Chair and executive committee (comprising the heads of each State and Territory chapter). It was considered that this would assist the Chair in carrying out their role, while also achieving a balance of Commonwealth, State and Territory office holders.

Given the approach to self-funding, a standing secretariat was not recommended, unless a tribunal with sufficient resources offered to take on the role.[8] As with the position with the Chair, the ARC was concerned that rotating the secretariat for each meeting would not be effective.

Ultimately, the ARC considered that if the proposal for a one-two year Chair was accepted, secretariat functions would be most effectively undertaken for that period by the registrar of that Chair’s tribunal. This would provide continuity without unduly drawing on the resources of the Chair and their registry. Participation from a broader range of tribunals would be also encouraged.

On the basis of the above considerations, the following offices were suggested:

1. Chair of the COAT

· the Chair would preside at a general meeting; and

· one of the functions of the Chair would be to appoint the senior registrar or chief executive officer of a member tribunal as the secretary of the COAT. It was anticipated that the Chair would appoint the CEO or registrar of their tribunal as the secretary.

2. Deputy Chair

· the deputy Chair would assist the Chair in carrying out his or her role; and

· in the Chair’s absence, the deputy Chair would preside at a general meeting.

3. Executive

· the Executive would comprise the Chair, the deputy Chair and the convenors of the State and Territory chapters of the Council; and

4. Interim Executive

· the Interim Executive would oversee implementation of the COAT in the year immediately following its establishment; and

· would comprise the members of the Steering Group and such other members as are nominated up to eight members in total.

COAT Constitution

Some of the features of the Constitution endorsed by the meeting of tribunal heads on 6 June 2002, are set out below.

Under clause 4 of the Constitution, the COAT is constituted by:

· the National Council (comprising the Executive and member tribunals); and

· State and Territory chapters of the Council, headed by a convenor for each State and Territory.

Under clause 5(5), tribunals whose presiding officers were present at the meeting on
6 June 2002 and who supported the adoption of the Constitution became members of the COAT. Generally, a tribunal would participate through its presiding officer
(clause 5(4)). However, the constitution also provides that at a meeting of the COAT, a member tribunal may be represented:

“by the presiding officer of that Tribunal or another member of that Tribunal appointed by the presiding officer to represent the Tribunal at the Council (clause 16(4)).”

State, Territory and New Zealand Chapters

Consistent with the model adopted by tribunal heads on 6 June 2002, the Convenor of a State and Territory chapter will host the meetings of the particular State or Territory chapter and will have some information dissemination functions.

As participation in State and Territory chapters does not require the authority to speak for a tribunal, membership is not limited to presiding officers, but is open to any member of a tribunal that is a member of the Council. Practitioners, academics and other interested persons are also eligible to become members of a chapter
(clause 7).

COAT Interim Executive Office-Holders

Following nominations by tribunal heads, the following office holders were elected on 6 June 2002:

Chair: The Hon Justice Murray Kellam, President, Victorian Civil and Administrative Tribunal;

Deputy Chair: Mr Steve Karas OAM, Principal Member, Migration Review Tribunal and Refugee Review Tribunal;

Members:

Mr Grant Aislabie, Principal Disputes Referee (NZ);

Mr Keith Chapman, President, Guardianship and Administration Board (WA);

Mr Barry Cotterell, Chairperson, Property Agents and Motor Dealers Tribunal (Qld);

Mrs Wendy Cull, Chair, Queensland Building Tribunal;

The Hon Justice Garry Downes AM, Acting President, Administrative Appeals Tribunal;

Judge Kevin O’Connor AM, President, Administrative Decisions Tribunal (NSW);

Mr Nicholas O’Neill, President, Guardianship Tribunal (NSW);

Ms Pat Patrick, Presiding Member, Residential Tenancies Tribunal (SA);

Ms Debra Rigby, President, Mental Health Tribunal of Tasmania;

The Hon Justice Terry Sheahan AO, President, Workers Compensation Commission (NSW); and

Ms Maureen Shelly, Convenor Classification Review Board, Office of Film and Literature Classification.

4. Constitution of the Council of Australasian Tribunals[9]

Part 1 – General

Name

1. There is established in accordance with this Constitution an organisation by the name "The Council of Australasian Tribunals.”

Interpretation

2.(1) In this Constitution, unless the context otherwise requires:

"Executive" means the Executive of the Council referred to in clause 8;

"Council" means the organisation established in accordance with this Constitution;

"member" means a Tribunal that is a member of the Council;

"Tribunal" means any Commonwealth, State, Territory or New Zealand body whose primary function involves the determination of disputes, including administrative review, party/party disputes and disciplinary applications but which in carrying out this function is not acting as a court;

Example: the Administrative Appeals Court of South Australia and the Administrative Appeals Division of the Magistrates’ Court in Tasmania are eligible.

(2) In this Constitution, unless the context otherwise requires:

(a) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;

(b) words importing a gender include each other gender; and

(3) A power conferred by this Constitution may be exercised from time to time as the occasion requires.

Objects

3. The objects of the Council are:

(a) to establish a national network of Tribunals and a national register of Tribunal members;

(b) to establish a national network for members of Tribunals to consult and discuss areas of concern or interest and common experiences;

(c) to provide training and support for members of Tribunals, particularly of smaller Tribunals which may not have the resources to undertake such activities alone;

(d) to provide a forum for the exchange of information and opinions on aspects of Tribunals and Tribunal practices and procedures;

(e) to develop best practice or model procedural rules based on collective experience of what works;

(f) to develop standards of behaviour and conduct for members of Tribunals;

(g) to develop performance standards for Tribunals;

(h) to develop support systems for Tribunals, including case management and IT systems;

(i) to provide advice to governments on Tribunal requirements;

(j) to publish and encourage the publication of papers, articles and commentaries about Tribunals and Tribunal practices and procedures;

(k) to promote lectures, seminars and conferences about Tribunals and Tribunal practices and procedures;

(l) to make and disseminate reports, commentaries and submissions on aspects of Tribunals and Tribunal practices and procedures; and

(m) to co-operate with institutions of academic learning, and with other persons having an interest in Tribunals and Tribunal practices and procedures, in promoting the objects referred to in paragraphs (a) to (l).

Part 2 – Structure of the Council

4. The Council shall comprise:

(a) the National Council, comprising the Executive and member Tribunals; and

(b) State and Territory chapters of the Council, headed by a Convenor for each State or Territory.

Part 3 - Membership

Membership of the Council

5. (1) Any Tribunal that is supportive of the objects of the Council is eligible for membership of the Council.

(2) A Tribunal that wishes to become a member may lodge with the Secretary a written application.

(3) The Executive may, in their discretion, admit the applicant to membership or refuse the application.

(4) A Tribunal that is a member is entitled to participate through its presiding officer.

(5) Subject to this Constitution:

(a) Tribunals whose presiding officers were present at the meeting, or a person authorised by them to represent the Tribunal at the Council, that adopted this Constitution and voted in favour of the adoption; and

(b) the President of the Administrative Review Council;

are members of the Council.

(6) The Chair is to keep a membership register in which the names and addresses of member Tribunals and office holders are to be recorded.

Resignation

6. A member may resign from membership by written notice to the Secretary.

Membership of State and Territory Chapters

7. Any member of a Tribunal that is a member of the Council is entitled to be a member of a State and Territory chapter of the Council. In addition, membership of State and Territory chapters shall also be open to practitioners, academics and other interested persons.

Part 4 - Management

Executive

8. (1) The management and control of the affairs of the Council are vested in the Executive.

(2) The following officers comprise the Executive:

(a) the Chair;

(b) the Deputy Chair; and

(3) The presiding officer of a Tribunal that is, or proposes to become, a member of the Council shall be eligible to stand for election to an office of the Executive.

(4) The Secretary of the Council shall be the senior registrar or Chief Executive Officer of a member of the Council, appointed by the Chair in consultation with the Executive.

Interim Executive

8A. (1) Notwithstanding anything in this Constitution, a meeting of tribunal presiding officers adopting this Constitution may authorise the Chair to appoint an Interim Executive to oversee implementation of the Council in the period immediately following its establishment. The Interim Executive shall not exceed 8 officers, who shall hold office until the next annual general meeting after the date of their appointment.

(2) This clause shall be automatically deleted from this Constitution at the time the Interim Executive ceases to hold office under subclause 8A(1) without requiring any resolution for amendment under clause 24.

Term of Office

9. (1) The Executive are to be elected at each annual general meeting and hold office, subject to this Constitution, until the next annual general meeting.

(2) An officer who is eligible to hold the office concerned may be re-elected.

Powers of Executive

10. The Executive may, on behalf of the Council, do any act or thing that they consider necessary or convenient for the purpose of carrying out the objects of the Council.

Casual Vacancies

11. (1) The Executive may appoint a member who is eligible to hold the office to any office that is or becomes vacant before the next annual general meeting.

(2) The Executive continues to function despite a vacancy in any office.

Meetings of Executive

12. (1) The Executive is to hold such meetings as are necessary for the efficient performance of their functions.

(2) A meeting may be convened by the Chair, or on the receipt by the Chair of a written request signed by at least 2 other office holders.

(3) At a meeting 3 officers form a quorum.

Part 5 –Meetings of the Council

General Meetings

13. (1) The Executive may, at any time, convene a general meeting of members.

(2) Except as otherwise provided in this Constitution, the Secretary must give at least 21 days written notice of a general meeting to each member.

(3) The Executive are to hold at least one general meeting of the Council per financial year, at such date, time and place as the Executive determine.

(4) The Chair must convene a special general meeting upon the receipt of a written request from not fewer than 10 members specifying the particular matter that they wish to have considered at the meeting.

Annual General Meeting

14. If only one general meeting is held in a financial year, that meeting is the annual general meeting. If more than one general meeting is held in a financial year, the meeting that is closest to the anniversary of the last annual general meeting is the annual general meeting for that financial year.

Notices

15. A notice of a general meeting must contain the date, time and place of meeting and a list of matters (including the text of any motion of which the Secretary has received notice before the notice of the meeting is given) to be considered at the meeting.

Quorum and Proxies

16. (1) The quorum at a general meeting is 10 members.

(2) If a quorum is not present, the meeting shall be held 14 days after the date fixed for the original meeting at the time and place identified in the notice given for the original meeting.

(3) Proxies shall be permitted.

(4) A member Tribunal may only be represented by the presiding officer of that Tribunal, or another member of that Tribunal appointed by the presiding officer to represent the Tribunal at the Council.

Presiding Officer

17. The Chair, or in the Chair’s absence the Deputy Chair, is to preside at a general meeting.

Method of Voting at Annual General Meetings

18. (1) At a general meeting:

(a) each member present in person has one vote; and

(b) each member present by proxy has one vote when a poll is taken.

(2) Subject to this clause, voting on a motion moved at a general meeting is to be by a show of hands.

(3) If a member present in person or by proxy so requests, whether before or after the declaration of the result of the show of hands, voting is to be by poll.

(4) A request for a poll may be withdrawn.

(5) This clause does not apply in relation to an election.

Decisions at General Meetings

19. (1) Except as otherwise provided in this Constitution, questions at a general meeting shall be decided by a majority of the members present and voting.

(2) The member presiding has a deliberative vote only and, if the votes on a question are equal, the question shall be decided in the negative.

Effect of Resolutions

20. Resolutions passed at a general meeting are binding on all members whether or not present at the meeting.

Minutes

21. The Secretary shall keep minutes of general meetings.

Notices of Motion

22. A member may give to the Secretary, not less than 7 days before the date fixed for the annual general meeting, written notice of a motion that the member intends to move at that meeting.

Election of Officers

23. (1) The Secretary must call for nominations for election to the Executive by written notice sent to all members at least 14 days before the day on which the annual general meeting is to be held.

(2) A nomination for any office is invalid unless it is in writing, specifies the office to which the nomination relates and is signed by a proposer and the nominee (if different from the proposer).

(3) If the number of nominations received for a category of office is equal to the number of vacancies in that category of office, the persons nominated are elected.

(4) If the number of nominations received for a category of office exceeds the number of vacancies in that category of office, a secret ballot must be held in such manner as the member presiding directs.

(5) Each member present, in person or by proxy, has one vote in respect of each office that is to be filled.

(6) If there is only one vacancy in a category of office, the candidate who received the highest number of votes is elected but, if 2 or more candidates received the highest number of votes, the Returning Officer is to decide by lot which of them is elected.

Part 6 - Amendment

Amendment

24. This Constitution may be amended by resolution of the Council at a meeting.

5. Council of Australasian Tribunals Memorandum of
Objects of State and Territory Chapters[10]

WHEREAS:

A. The Council of Australasian Tribunals was established as a national network of tribunals on 6 June 2002; and

B. The Council’s Constitution provides for the establishment of State and Territory chapters to further the objects of the Council and provide members with the opportunity to share information, experiences and views about developments and trends in administrative decision making

the […insert relevant State or Territory…] Chapter of the Council is hereby established.

Interpretation

1. In this memorandum, unless the context otherwise requires:

"Council" means the Council of Australasian Tribunals established in at a meeting of tribunals on 6 June 2002;

"Constitution" means the constitution of the Council adopted at a meeting of tribunals on 6 June 2002 as amended from time to time;

"member" means a Tribunal that is a member of the Council;

Example: the Administrative Appeals Court of South Australia and the Administrative Appeals Division of the Magistrates’ Court in Tasmania are eligible.

Objects

2. This Chapter supports the objects of the Council identified in clause 3 of the Constitution, as follows:

(a) to establish a national network of Tribunals and a national register of Tribunal members;

(b) to establish a national network for members of Tribunals to consult and discuss areas of concern or interest and common experiences;

(c) to provide training and support for members of Tribunals, particularly of smaller Tribunals which may not have the resources to undertake such activities alone;

(d) to provide a forum for the exchange of information and opinions on aspects of Tribunals and Tribunal practices and procedures;

(e) to develop best practice or model procedural rules based on collective experience of what works;

(f) to develop standards of behaviour and conduct for members of Tribunals;

(g) to develop performance standards for Tribunals;

(h) to develop support systems for Tribunals, including case management and IT systems;

(i) to provide advice to governments on Tribunal requirements;

(j) to publish and encourage the publication of papers, articles and commentaries about Tribunals and Tribunal practices and procedures;

(k) to promote lectures, seminars and conferences about Tribunals and Tribunal practices and procedures;

(l) to make and disseminate reports, commentaries and submissions on aspects of Tribunals and Tribunal practices and procedures; and

(m) to co-operate with institutions of academic learning and with other persons having an interest in Tribunals and Tribunal practices and procedures in promoting the objects referred to in paragraphs (a) to (l).

Membership

3. Membership of this Chapter shall be open to any person ordinarily resident in […insert relevant State or Territory…] who is:

(a) a member of a Tribunal that is a member of the Council; or

(b) a practitioner, academic, student or other person interested in the work of the Council.

Management

4. (1) The members of the chapter shall elect or appoint the presiding officer of a Tribunal operating within […insert relevant State or Territory…] that is, or proposes to become, a member of the Council as the Convenor for that State or Territory.

(2) In accordance with clause 8 of the Council’s Constitution, the Convenor shall be entitled to participate as a member of the Executive of the National Council.

Meetings of Chapter

5. Meetings of Chapter shall be held from time to time as considered necessary or appropriate to further the objects of the Council and provide members with the opportunity to share information, experiences and views about developments and trends in administrative decision making.

Adopted at a meeting of interested persons whose signatures appear below at […insert date, time and place of meeting…]

Signatures:

6. Council of Australasian Tribunals Minutes of
Inaugural Meeting – 6 June 2002

The Inaugural Meeting of the Council of Australasian Tribunals (COAT) was convened at the Chifley on Flemington Hotel in Melbourne. The meeting was held in conjunction with the Australian Institute of Judicial Administration (AIJA) Tribunals Conference.

The meeting was opened by Justice Murray Kellam, President of Victorian Civil and Administration Tribunal (VCAT).

1. Establishment of a Council of Australian Tribunals

The text of Justice Kellam’s opening address to the meeting is at Attachment A.[11]

The issue was raised whether New Zealand tribunals should be able to participate in the COAT. Following discussion on the floor, it was agreed that participation of New Zealand tribunals would be a positive move. In that event, a New Zealand chapter of the COAT could be convened, along the lines of the State and Territory chapters already envisaged. This would also necessitate a change from the original proposal that it be a council of Australian tribunals, to a council of Australasian tribunals.

Other issues raised during plenary discussion included:

· should the COAT be an incorporated body, or left unincorporated as is presently proposed? and

· should the COAT attempt to include as many tribunals as possible?

Justice Kellam noted that while incorporation and a more informal approach both have advantages, the view was taken by the Steering Group that leaving the COAT unincorporated at this stage provided the greater flexibility. After the COAT had been in existence and operating for some time, its membership could then determine the model it should adopt. Barry Cotterell (member of the Steering Group) supported this view and noted that the definition in the proposed constitution was intended to be as broad and inclusive as possible.

This is consistent with the original ARC proposal that tribunals be encouraged to join by a process of “guided self selection”. Under this model tribunals or bodies who found the COAT's activities not relevant to them would not continue to participate. Justice Kellam added that one of the big issues in the whole process has been identifying what tribunals currently exist in Australia. The coverage at the moment is incomplete, and that is why a broad definition is also an advantage.

Justice Garry Downes (A/g President, AAT) queried whether there should be a Commonwealth chapter, as well as State and Territory chapters?

Judge Kevin O’Connor (President, ADT, NSW) responded that the benefit of State and Territory chapters was in not separating tribunal members according to jurisdiction, but rather to provide a forum for tribunal members of Commonwealth, State and Territory tribunals in the one geographic location. This would provide a mechanism for a good cross-fertilisation of ideas. It was also noted that many part time tribunal members hold office in both Commonwealth and State tribunals, and hence the distinction became less important.

The issue of whether the COAT would only apply to review tribunals was raised. The example of the Victims of Crime Tribunal was given, which essentially makes primary decisions. Justice Kellam commented that it was intended that the definition be broad enough to include these bodies, who act in a tribunal-like way in determining issues, and not be limited to review bodies or bodies arbitrating disputes between parties.

2. Meeting of Presiding Officers

Following the plenary discussion presiding officers of tribunals met separately to consider the following issues:

· adoption of the COAT constitution;

· members of the COAT;

· appointment of office bearers.

Adoption of Constitution

Justice Kellam proposed that the constitution as circulated to delegates at the conference, amended as necessary to accommodate the inclusion of New Zealand tribunals, be adopted. This motion was carried on the voices.

Membership of the COAT

Clause 5(5) of the Constitution provides that:

(a) Tribunals whose presiding officers, or a person authorised by them to represent the Tribunal at the Council, who were present at the meeting that adopted this Constitution and voted in favour of the adoption; and

(b) the President of the Administrative Review Council;

are members of the Council.

A schedule of tribunals qualifying for membership under clause 5(5) and their presiding officers at the meeting is at Attachment B.[12]

Appointment of Office Holders

Chair: The Hon Justice Kellam was nominated as chair of COAT. There being no other nomination, this was carried.

Deputy Chair: Steve Karas OAM (President, Refugee Review Tribunal/Migration Review Tribunal) was nominated as Deputy Chair of COAT. There being no other nomination, this was carried.

Interim Executive – nominations were received from:

Mr Grant Aislabie (Principal Disputes Referee, New Zealand);

Mr Keith Chapman (President, Guardianship and Administration Board,
WA);

The Hon Justice Garry Downes AM (A/g President, Administrative Appeals Tribunal);

Mr Barry Cotterell (Chair, Property Agents and Motor Dealers Tribunal, Retirement Villages Tribunal, QLD);

Mrs Wendy Cull (Chair, Queensland Building Tribunal);

Judge Kevin O’Connor AM (President, Administrative Decisions Tribunal, NSW);

Mr Nicholas O’Neill (President, Guardianship Tribunal, NSW);

Ms Patricia Patrick (Presiding Member, Residential Tenancies Tribunal, SA);

Ms Debra Rigby (President, Mental Health Tribunal, Tas);

The Hon Justice Terry Sheahan AO (President, Workers Compensation Commission, NSW); and

Ms Maureen Shelley (Convenor, Classification Review Board, Office of Film and Literature Classification).

It was agreed that all those nominated be appointed to the Interim Executive, and the COAT Constitution be amended to reflect that the number of the Interim Executive is more than the eight originally proposed.

3. Plenary Discussion – Priorities of COAT

Justice Kellam reported to the plenary session that the COAT constitution had been adopted and the Interim Executive appointed.

Discussion was then opened up as to what the priorities of the COAT should be. This discussion was led by Professor Greg Reinhardt, Executive Director, AIJA. The subjects raised during plenary discussion included:

· priorities of the COAT should include information sharing, and the Register of Tribunals;

· the continuing relationship of the COAT and the AIJA was raised.
Justice Kellam indicated that there should be good opportunities for a close relationship between the two bodies without either taking over. He also proposed that, as in the present occasion, a full meeting of the COAT might be held in conjunction with an AIJA Tribunals Conference in the future;

· tribunal conditions, including remuneration;

· particular issues faced by sessional and part-time tribunal members, and managers of tribunals with a large proportion of such members;

· tenure of members;

· performance evaluation;

· legal education of non-legal members;

· specialist members, and in particular continuing education within their profession;

· the COAT acting as a clearing house and a resource bank for tribunals, alerting tribunals to resources that tribunals already have, so that others may take advantage of them if possible or at least not reinvent the wheel. For example, the President of the National Native Title Tribunal noted that in relation to the internal operations of tribunals, his tribunal has prepared policies and manuals as to how its members should conduct various activities. This was the type of resource that other tribunals might find useful;

· the possibility of tribunal visits or an exchange program between tribunals was also raised;

· concern was raised that with the increasing volume of work tribunals handle, members need support in both time management and case management, and this might be an area where COAT could contribute;

· increasing use of appropriate IT, to overcome the isolation of members.
Justice Kellam noted the COAT website was operational, and the AAT’s support in hosting the site;

ADMINISTRATIVE REVIEW COUNCIL

REPORT ON THE COUNCIL OF AUSTRALASIAN TRIBUNALS

October 2002

Administrative Review Council Information Officer

Administrative Review Council

CONTENTS

Page No

1. Letter of Transmittal

2. Abbreviations

3. Report on the Establishment of the Council of Australasian Tribunals

Establishment of the Council of Australasian Tribunals

Genesis of a Council of Australasian Tribunals

Summary of the ARC Proposal

Structure of the COAT

Objectives of the COAT

What is an eligible tribunal?

Funding

Management of the COAT

1. Chair of the COAT

2. Deputy Chair

3. Executive

4. Interim Executive

COAT Constitution

State, Territory and New Zealand Chapters

COAT Interim Executive Office-Holders

4. Constitution of the Council of Australasian Tribunals[9]

Part 1 – General

Name

Interpretation

Objects

Part 2 – Structure of the Council

Part 3 - Membership

Resignation

Membership of State and Territory Chapters

Part 4 - Management

Executive

Interim Executive

Term of Office

Powers of Executive

Part 5 –Meetings of the Council

Annual General Meeting

Method of Voting at Annual General Meetings

Part 6 - Amendment

Interpretation

Objects

6. Council of Australasian Tribunals Minutes of Inaugural Meeting – 6 June 2002

1. Establishment of a Council of Australian Tribunals

2. Meeting of Presiding Officers

Adoption of Constitution

Membership of the COAT

Appointment of Office Holders

3. Plenary Discussion – Priorities of COAT

REPORT ON THE
COUNCIL OF AUSTRALASIAN TRIBUNALS

3. Report on the Establishment of the
Council of Australasian Tribunals

6. Council of Australasian Tribunals Minutes of
Inaugural Meeting – 6 June 2002