Lyn Carins and Helen Lacey
AUSTRALIAN INSTITUTE OF ADMINISTRATIVE LAW
2006 NATIONAL ADMINISTRATIVE LAW FORUM
Administrative Law: Protection of Individual and Community Interests
Surfers Paradise Marriott Resort
22-23 June 2006
Lyn Cairns and Helen Lacey
Conference Registrars, Administrative Appeals Tribunal
Introduction
The Tribunal is an independent body that reviews a broad range of administrative decisions. The Tribunal can only review a decision if an Act, regulation or other legislative instrument provides specifically that the decision is subject to review by the Tribunal. Currently the Tribunal has jurisdiction to review decisions made under more than 400 separate Acts. The Tribunal’s jurisdiction includes Commonwealth employees’ compensation, taxation, social security and veteran’s entitlements.
The Tribunal’s website at www.aat.gov.au is a very useful resource for a wide range of information including forms, the daily cause list for each state, the general practice direction as well as jurisdiction list.
ADR processes have been available at the AAT since its inception in the form of conferences. Conferences were initially conducted by Members with Conference Registrars first appointed in the early 1990’s. Currently a Conference Registrar is appointed to every Registry with several in the larger Registries. Amendments to the AAT Act in 1993 enabled the President, with the consent of the parties, to refer an application to mediation. In 1998 the Tribunal began conducting conciliation conferences in worker’s compensation applications.
Further amendments to the AAT Act in 2005 added neutral evaluation and case appraisal as well as providing that the President could direct that a proceeding or part of a proceeding be referred to an ADR process. The 2005 amendments also allowed for the admission of a case appraisal report or neutral evaluation report providing there was no objection from either party. These amendments also gave conference registrars the power to issue directions.
Conferences
A high proportion of applications to the Tribunal are finalised without a hearing. In 2003/4, 81 per cent and in 2004/5, 78 per cent of applications were finalised without a hearing. Most of these matters settled during the conference process. In 2004-5, 8942 conferences, 771 conciliation conferences and 50 mediations were conducted. These numbers indicate the central importance of the conference process.
A conference is held in every application for review unless an application requires urgent determination. Conferences may be held in person or by telephone. A conference is a meeting, usually conducted by a Conference Registrar, involving an informal discussion of the application with the applicant and the respondent. The applicant may be represented and generally the respondent is represented. A conference provides an opportunity to clarify the issues in dispute, identify further evidence required, explore settlement and where settlement is not possible to discuss the future conduct of the matter.
The conference process is flexible, informal and its course depends on the assessment of the conference convenor as to what is appropriate for the particular case. The first conference is usually held 2-6 weeks after the T documents have been provided. The Conference Registrar will explain the purpose and process of the conference and an outline of how the application will proceed. At the first conference the issues in dispute are discussed and clarified. The need for further evidence is discussed and a time frame for gathering further evidence is agreed. If appropriate, settlement options would be explored.
At the end of the first conference the matter may be listed for another conference or some other ADR process or proceed to hearing. A second conference is usually 6-12 weeks after the first. At the second conference the further evidence would be discussed including the response of the agency party to that evidence. A time frame for gathering any further evidence is agreed. Settlement options are explored.
At the end of the conference process the matter may be referred to a further ADR process or proceed to hearing. Depending on the progress of the matter the Conference Registrar may make directions after the first, second or subsequent conference.
Conciliation conference
A conciliation conference is listed after the usual conference and evidence gathering process has been completed but before the matter is listed for hearing. Conciliation is currently used in the worker’s compensation jurisdiction but the Tribunal intends to expand its use into other areas. Conciliation is a longer process in which the parties, with the assistance of the Tribunal conciliator, identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The conciliator may be a conference registrar or a member. The conciliator’s role is not determinative but the conciliator is actively engaged in summarising views and options and assisting in the problem solving process. Conciliation is a flexible and informal process, usually involving both joint and private sessions as well as encouraging the parties to communicate directly with each other.
User Satisfaction
In July 2005 the Tribunal conducted a user satisfaction survey. The AAT engaged an independent consultant to survey all applicants who had their matter finalised by the Tribunal in the 2004 calendar year. There were a total of 1,177 applicant responses to the survey, representing a 22% response rate. Telephone surveys with applicant and respondent solicitors and with agency representatives were also conducted.
On a scale of 1-5 where 5 is extremely satisfied and 1 is not at all satisfied, applicant users rated all aspects of conferences on average between 3.2 and 3.8. Assistance by the conference registrar in preparing the parties rated the lowest with explanations by the conference registrar rated the highest.
Applicant and respondent solicitors and agency representatives had even higher satisfaction rates ranging between 3.7 and 4.5 out of 5.
The independent consultants who conducted the survey for the AAT commented that, “these ratings indicate that AAT conferences are conducted smoothly and efficiently, particularly their timing and the information and explanations given. Applicant participants recognise that they are not unduly pressured into reaching an agreement.”
Future Developments in ADR
Late in 2005, the Tribunal established a standing ADR Committee, comprised of both Members, Conference Registrars and the Assistant Registrar. Since that time the Committee has made a number of important achievements, including the development of definitions and process models for the various forms of ADR available in the Tribunal; adoption of an ADR referral policy; and the planning of both internal and external information sessions, materials and training on ADR in the AAT.
Whilst the AAT has had the capacity to provide mediation services to assist parties resolve disputes for quite some time, this had not been as actively utilised in the past as it could have been. The Tribunal already has a large number of experienced mediators and will continue to ensure both members and conference registrars have access to ongoing training and development of mediator skills.
Case Appraisal and Neutral Evaluation are new processes for the Tribunal, provided for by the Administrative Appeals Tribunal Amendment Act 2005. Case Appraisal and Neutral Evaluation are advisory processes in which a person appointed by the Tribunal on the basis of their expert knowledge of the subject matter investigate the dispute and provide a non-binding opinion. In Case Appraisal the opinion is provided about the factual issues in dispute. In Neutral Evaluation the evaluator will give an opinion about both factual and legal issues which may be in dispute. In both situations submissions or presentations may be made orally or in writing. Either process may be conducted “on the papers” at the parties request. The appraiser or evaluator may undertake independent research and where this occurs, any material obtained as a result of independent research will be given to the parties. The opinion may be given orally or put in writing. The opinion may be admitted in evidence at a Tribunal hearing unless a party objects.
The recent amendments to the Act have provided the President with power to direct that a proceeding be referred to a particular ADR process (section 34A(1)). However, the ADR Committee has developed guidelines to assist the conference registrars and members in determining the most appropriate ADR process. The Guidelines contain both general principles to consider when referring a matter to an ADR process as well as some specific considerations to be taken into account. The objectives of the Tribunal’s use of ADR processes such as resolving or limiting the issues in dispute, efficient use of resources, early resolution of disputes and enhancing the satisfaction of parties with the processes, are aligned with the Tribunal’s statutory mission to provide a “fair, just, economical, informal and quick” review mechanism.