The following paper will examine the elements of procedural fairness apparent in tribunals and compare this to that of the court system, ultimately coming to a tentative conclusion on the efficacy of each. A broad spectrum of academic literature, case law and legislation has been considered to evaluate the role that tribunals have in the Australian legal system.
In light of Kerr J’s remark (above), find and critically analyse a case which considers issues of procedural fairness in a tribunal hearing.
The case of Ashmore v Commissioner for Superannuation primarily concerned the decisions to not recognise late election and to not grant an extension of time relating to the preservation of ...view middle of the document...
The use of the transcript alone and failure to request Ashmore to provide oral evidence to the reconstituted tribunal was deemed to be a denial of procedural fairness.
The prevalence of procedural fairness issues in tribunals appears to be reflected by the case of Ashmore. However the main problem in these particular proceedings, the sole presiding senior member of the initial hearing, can be classified as a legal error, and not something attributable to the technical aspects of tribunals. If strict evidentiary rules regarding the reception of evidence had been in place, it is entirely possible that such an error could still have occurred in the given circumstances. Therefore it can be concluded that Justice Kerr’s remarks regarding the application of evidentiary rules are true for this particular case. It is important to note here that even though the applicant agreed to the reconstituted tribunal using a transcript of her oral evidence, the court still came to the conclusion that the principles of procedural fairness had not been appropriately followed. Even though the applicant had legally consented to the hearing, the court went beyond this to come to the morally correct decision.
With regard to the case you have found and Kerr J's remark, consider whether the judiciary has an inherent advantage over tribunal members in applying procedural fairness.
For the judiciary to have an inherent advantage over tribunal members in the application of procedural fairness, it follows that it must be able rule on what is the right or preferable outcome. However as Justice Brennan has stated, when reviewing administrative action the courts are only to question the legality of the decision. If courts are unable to make decisions based on the merits of the case, then this greatly reduces their ability to accord to the principles of natural justice. In Australian Broadcasting Tribunal v Bond, Chief Justice Mason concluded that findings of fact were reviewable ‘for error of law’. While this flexible approach does not condone a merits based review method, it does reveal that there is no distinct boundary between factual errors concerning the merits of the decisions and errors of law. While a particular judge may characterise an issue to be merits based, another judge could consider it a matter of law, with this prevalent ambiguity making it difficult for the judiciary to come to the morally right decision.
It has been identified that fairness and detachment together are the elements required for the achievement of natural justice. Rees raises some doubts concerning the potential conflict for tribunals between their inherent advantages of efficiency and accessibility with the ability to conduct fair hearings with the absence of bias. It has also been put forward that adherence to the fair hearing rule is ‘built into the procedural and evidentiary rules of law which govern proceedings in the courts.’ A potential counter argument to this is that any...