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Tribunal proceedings and natural justice: a duty to inquire.

This paper had its genesis in an interest, on the part of Judge Kingham (the first Deputy President of QCAT), in the nature of the duty to inquire and its role in the particular arena of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act'), namely QCAT itself, and the way our still relatively new tribunal has done its work in its first three years.

When this paper was proposed she intended to examine the current parameters of the duty in two contexts. First, with an eye to QCAT practices and procedures, including the conduct of hearings 'on the papers'--i.e., without oral hearings and in reliance on documents and submissions from the parties. Secondly, by looking at the duty in the light of modern legislation setting up tribunals which places them under a positive obligation to assist self-represented parties and ensure they understand and effectively participate in tribunal proceedings.

Not least because this paper may be my own swansong at QCAT it has grown, rather, to include some reflections upon what I perceive to be tensions between court structures and procedures, and the way that tribunals are expected, by the parliaments that create them, to do their work.

These musings sprang from the fact that the duty to inquire has, on many occasions, been said to be a feature that distinguishes tribunals from courts. The perception in some courts seems to be that tribunals are unfettered by the constraints of the adversarial system and, with our inquisitorial powers, have leapt free of court's inability to mould and shape the case to its own ends as part of a search for the truth. In contrast judges are perceived to be left to languish within the confines of their system deciding a kind of 'second best' truth--not what the truth is, but which of the adversarial parties' versions of it is the most persuasive. Tribunals, unchained from this system, are like the Inspector Poirot of our legal pantheon, plodding thoughtfully and doggedly through the morass with our myriad detective tools, finally revealing the truth through the genius of our inquisitorial powers.

A marked difference between courts and tribunals, rooted in this characteristic distinction, is regularly reiterated. In Minister for Immigration and Multicultural Affairs v Wang (1) (' Wang'), Gummow and Hayne JJ explained that in adversarial litigation the issues of fact and law joined by the parties will be defined by court processes and by the course of the hearing; but in tribunals, they said, the process will be 'very different'--it is not adversarial, there are no opposing parties, and there are no 'issues joined'. (2)

To describe all but a few of QCAT's tens of thousands of annual proceedings in those terms is, with respect of course, at least whimsical and at worst misguided.

The remarks in Wang prompt further thoughts. They include that courts have not always understood, or may have been reluctant to acknowledge, the full extent of the intentions of parliaments in creating tribunals, and have also been commensurately slow (and, at times, unhelpful) in recognising and accepting those differences. Some examples will follow later, in the context of the topic of this paper.

The matter was brought home to me vividly last year in the Queensland Court of Appeal in a case called Owen v Menzies & Ors; Bruce v Owen; Menzies v Owen (3). If I may, first, be permitted a short historical diversion. The Independent Panel of Experts, charged with writing the reports which lead the Queensland Government to fold 18 tribunals and 23 smaller bodies into one 'super' tribunal: QCAT, said that 'the recognition that QCAT is a tribunal and not a court must be at the forefront of all the new tribunal's business'; and that 'the culture and leadership of QCAT will need to reinforce to members, staff and users that the new tribunal is not a court'. (4)

That is what I strove to do--acknowledging, in passing, the matter of form rather than substance (as it seemed to me) that s 164 of the QCAT Act says that the Tribunal is actually a 'court of record' and has a seal which must be kept safe by its Principal Registrar.

I made statements to members, staff, users and, indeed, anyone who would listen that QCAT was not a court, but a tribunal. Those statements were relied upon, to my surprise and consternation, by the appellant in Owen who was arguing that QCAT was not a court of the State and, hence, not within the purview of Chapter III of the Commonwealth Constitution and not invested, then, with federal jurisdiction to adjudicate anti-discrimination matters. The fact I had been so vehement in saying that we were not a court, on so many occasions, suddenly seemed both dangerous and imprudent.

The Chief Justice was taken to these statements in which, it was said, I had described QCAT (indeed) 'with some emphasis' as a tribunal and not a court. He was gracious enough to describe them as 'extra-mural' and to point out that the nature of the tribunal, in terms of its power, is to be determined by reference to its statute and not the exhalations of its President.

I am grateful, of course--but do not resile. It seems to me that the differences between modern Australian tribunals and courts are to be found in the way governments expect us to do our work: freed of what politicians see as the constraints of the adversarial system, with greater liberty and power to cut to the heart of a matter, of whatever kind. In that sense--but that sense only--does the Inspector Poirot metaphor come anywhere close to being apt.

The dialectic which has sprung up between the two--courts and tribunals-may actually be traced to some things that actually bind the two together. They include the tendency for tribunals to be constructed and invested with rules of practice in a way that, in major respects, mimics courts in structure and procedure; the fact that they are often governed or overseen by judges; and, that they have their procedures vetted by courts--which recognise, but may have not fully come to grips with, the differences that governments sought to embed in tribunals by investing them with what are, now, the standard tools by which they are differentiated from courts.

QCAT's governing legislation epitomises these differences. The Tribunal is intended to decide matters within what might be called the arena of legal dispute resolution, and it has a structure and rules and procedures which are redolent of Australian courts, but is told to conduct its proceedings in quite a different way.

QCAT:

* Must conduct its proceedings in a manner that is accessible, fair, just, economical, informal and quick; (5)

* Must also strive to ensure that proceedings are conducted in an informal way that minimises cost to parties and is as quick as can be, consistent with achieving justice; (6)

* May inform itself in any way it considers appropriate; (7)

* Is not bound by the rules of evidence; (8)

* Must ensure, as far as practicable, that all relevant material is disclosed to it; (9)

* Is not bound to follow the practices or procedures of courts; (10)

* Must take all reasonable steps to ensure that proceedings are conducted in a way that recognises and is responsive to the needs of a party; (11)

* Must also take all reasonable steps to explain its practices and procedures to parties and, the nature of assertions made in the proceedings and the legal implications of those assertions; (12) and,

* May conduct all or part of its proceedings on the papers. (13)

These directives--some prescriptive, some permissive, and some exhortatory--are reviewed in their performance by judges who, as John Forbes has observed (14) are the products of legal practice wedded to the adversarial system and who, despite regularly reminding tribunals that they are not bound to imitate that system, nevertheless closely and critically scrutinise any investigative activity by tribunals.

Matthew Groves, in a journal article for which I am indebted, (15) has observed that the courts are not reluctant to recognise the constitutional distinctions between courts and tribunals, but appear less willing to recognise or expound the functional consequences of that distinction. As he also notes, there is an obvious paradox in the fact that the courts appear anxious to keep tribunals at arm's length at the constitutional level, but in a close embrace at the procedural level. (16)

In any event, most tribunals must do the things listed earlier and observe the rules of natural justice. (17) It is that stricture which, as the cases suggest and some commentators have acknowledged, can cause problems when tribunals attempt (or fail) to pursue an inquisitorial avenue.

The 'duty to inquire' is a phrase of indeterminate parentage. It appears to spring from a recognition of, and an attempt to define or categorise, the differences between the traditional system of adversarial proceeding in our courts and the Continental system, initially adapted for Royal Commissions and other events in our legal pantheon that even the courts recognised were not done well in their pure adversarial system.

Actual instances of legislation imposing a positive duty to inquire are very rare here. R v The Australian Broadcasting Commission and Ors; Ex Parte Hardiman and Ors (18) is an isolated example but, there, the governing Act said the Tribunal should 'make a thorough investigation into all matters relevant to the enquiry'.

The fact that the QCAT Act nowhere uses the phrase, or expressly stipulates that the tribunal's procedures are to be inherently inquisitorial rather than adversarial, is no deterrent. Courts have been saying for so long that tribunals are different because they use inquisitorial methods that it is, now, a received truth. The actual truth is that QCAT rarely does things the courts do not do, rarely seeks evidence of its own volition, and rarely acts in ways which even remotely resemble the courts of the continental system.

Rather, what it and many tribunals do is use the statutory imprecations in their governing legislation to be more active, more intrusive, more directive, and more forceful in using things like informal conferences combining ADR techniques and case management to do what another Queensland Supreme Court judge recently suggested, privately, the court urgently needs: some 'weeder-outer' judges to manage and mould cases to minimise time being wasted in expensive courtrooms by unmeritorious issues and arid disputes.

The assumption--that tribunals are, inevitably and invariably, creatures prone to inquire into things--must explain the absence of the phrase in the QCAT Act, in which the only clues that the tribunal may or should adopt inquisitorial procedures are to be found by reading the provisions I mentioned earlier, namely ss 28, 3 and 4, closely and in concert.

That said, while the courts regularly speak of inquisitorial procedures in tribunals and how that distinguishes them from courts, both the High Court and some legal commentators have conceded that the phrase has a special meaning here and that our tribunals do not, in truth, mimic the procedure of the continental courts.

Bedford and Creyke have pointed out that Australian tribunals are not usually charged with responsibility for actively collecting and testing evidence, to identify the truth of the matter. (19) The High Court has observed that, when used in respect of the RRT, the term 'inquisitorial' does not carry its full ordinary meaning; rather, the Court said, it 'delimits' the nature of tribunal ordinary functions. (20)

As Matthew Groves observes, (21) the creation of tribunals with some inquisitorial features does not necessarily import the full panoply of the inquisitorial process such as the power, or duty, to inquire. As he also notes, Australian tribunals are not commonly funded on the basis they will be able, for example, to engage their own experts, or appoint investigators.

But despite the fact that inquisitorial processes in our tribunals are (compared to European courts) much watered-down and, it may be said, a very thin soup indeed, Australian courts including in particular the High Court have regularly spoken in terms suggesting the tribunals usually retain some level of obligation to inquire and investigate matters that come up in review proceedings. In doing so, mixed messages have been sent.

I know the uncertainty surrounding some of these decisions prompted Judge Kingham's interest in the question. She was aware that the High Court and the Federal Court have said a number of things which, with respect, serve to confuse rather than clarify a tribunal's obligations to inquire--if that means, in the thinner cordial of tribunal world, a continuing obligation to seek out evidence itself.

This is a proposition which can be traced back to the decision of Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (22) in which it was said that, in certain limited circumstance, a failure to inquire might invalidate proceedings because the failure offends ordinary principles of Wednesbury reasonableness. In particular, it may be offensive in cases where it is obvious that material is readily available which is centrally relevant to the decision to be made, and if the Tribunal presses on to a decision without making any attempt to obtain that information it can be described as making its decision in circumstances that are so unreasonable that no reasonable person would have done so.

In Teoh v Minister for Immigration and Ethnic Affairs (23) it was suggested, in the Federal Court, that a duty to inquire might arise as an ordinary aspect of principles of natural justice and procedural fairness but, on appeal, the High Court said that was plainly wrong. (24) The court was of the view that the authorities invoked earlier in the Federal Court simply did not support a duty of inquiry as an aspect of procedural fairness.

Despite that clear statement subsequent decisions of the High Court suggest that a tribunal may, in fact, be obliged to make inquiries in some cases.

The question these later decisions leave unanswered is this: if the duty is not plain from the tribunal's governing legislation, and does not spring from the obligation to afford procedural fairness, where does it come from and what is its foundation?

In Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (25) the High Court observed that the requirements of procedural fairness will vary in the context of each case, and that the particular circumstances arising in that case actually obliged the RRT to make its own inquiries and form its own view about the applicant's claim. The tribunal had, in the course of reviewing the Minister's refusal of an application for a protection visa, received a letter containing allegations against the appellant but requesting that it be kept confidential. The correspondence was not disclosed to the appellant. It does seem, with respect, that remarks in this case about the duty to inquire were a gloss on what was in any event an apparent failure, it might be thought, to observe ordinary principles of procedural fairness.

The proposition that those principles might themselves generate an obligation to inquire was, however, again rejected by the High Court in SZIAI. Here, all seven members of the court said that it was difficult to see any basis upon which a failure to comply could constitute a breach of the requirements of procedural fairness at common law.

Rather, the court said, if there is evidence that is not before the tribunal but could be fairly easily obtained and is centrally relevant and 'obvious' (in the sense that it is plainly germane to issues in the review process), then the duty might have a foundation in something akin, rather, to jurisdictional error in the sense that a tribunal's failure to take appropriate steps to obtain the evidence signifies a failure to perform its proper function to review.

The idea that a tribunal should not move to decide review proceedings in the face of presently unavailable--but plainly important and readily obtainable evidence--is, in my view, perfectly unsurprising in the context of QCAT's governing legislation and the central tenets of it extracted earlier. It cannot be forgotten that, in amongst the imprecations to be quick, cheap and easy to get at, QCAT still operates under an overarching obligation: to be just, to meet these goals of speed and economy while still 'achieving justice', to always act fairly and in accordance with the substantial merits of the case and, of course, to pursue natural justice.

Nothing more than a slow walk through our governing legislation would provide, it might be suggested, a rational basis for an expectation that QCAT should not decide proceedings wilfully in the face of important, unproduced, but readily available evidence. That will be true whether the tribunal is conducting its proceedings in the traditional way, with oral hearings, or if it has avoided that process and invited the parties to have their case determined 'on the papers' by written statements of evidence and submissions.

That brings us to the second question which is, in effect, whether QCAT's obligations to assist parties adds some extra burden to the tribunal's acknowledged duty to inquire in the circumstances just mentioned.

John Forbes refers to a line of cases suggesting that the kinds of duties mentioned in s 28 may give rise to a requirement for a tribunal to elicit information which a party has failed to provide, and that natural justice may require tribunals to alert parties to manifest gaps in their case. (26)

Typically Dr Forbes, who is a great hoarder of odd and unusual cases, has found a colourful instance in which a Tribunal plainly went too far. In Optical Board of Registration (27), a Tribunal had received complaints that a practitioner was molesting female clients. It decided to seek more evidence and for that purpose arranged for a woman to pose as one of the optician's clients. She reported misconduct and the Board then called upon the practitioner to show cause before cancelling his practicing certificate).

In a case called Collection House Ltd v Taylor (28) Justice Nettle suggested that tribunals are generally under 'a higher burden of explanation and assistance' than the courts. Again, the QCAT Act provisions crystallise that proposition; but does it expand the duty to inquire that we have identified?

Groves is concerned that some tension may arise. (29) He speaks of a concern that the right to persuade unrepresented parties to a particular course, in their own interests, cannot impinge upon their autonomy without offending fundamental principles of fairness or the desirable neutrality of the tribunal itself. Indeed, the duty to inquire-- even within the limited parameters the courts have set--may cause offence of this kind if it is undertaken unilaterally, or over objection from the party.

The decision of the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (30) grappled with this dilemma, in the context of a question whether an applicant with a post traumatic stress disorder was fit to attend a hearing. A majority of the judges accepted that procedural fairness might require the RRT to look into the matter itself--but stressed that this would only arise in 'exceptional' cases and did not oblige the tribunal to embark upon an open-ended investigation.

The Federal Court has said something similar in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (31), in the useful context of the kinds of statutory obligations which concern us at this point. The Full Court observed that the obligation upon the RRT to invite applicants to appear before it to give evidence and present arguments did not require the Tribunal to actively help them or to carry out an inquiry in order to identify what the case may be.

The RRT's obligation to provide a 'real and meaningful' hearing was, elsewhere, said by Keane CJ to mean that it the tribunal is not obliged to 'take upon itself the role of ensuring that all possible arguable lines of argument which might be available to an applicant in any given case are pursued to the applicants best advantage'. (32) As Groves observes, (33) this serves to explain the High Court's reluctance in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (34) to impose a positive duty of inquiry, even on the key issue of an applicant's competence.

As Dr Forbes points out (35) the investigative approach is not without risk in a legal culture wedded to the adversary system. Despite statutory exaltations that tribunals are not bound to imitate that system, their practices and procedures, in truth, are regularly reviewed by Judges who have spent their professional lives in that environment and have, in might be said, both a suspicion and a degree of unfamiliarity with the way Tribunals are intended to operate.

Groves (36) makes the same point. He suggests that the hesitant attitude of the High Court in SZIAI towards the duty to inquire is puzzling. As he says, courts are not reluctant to emphasise the constitutional distinctions between courts and tribunals, but appear less willing to recognise or expound the functional consequences of that distinction:
   There is an obvious paradox in that the courts appear anxious to
   keep tribunals at arm's length at the constitutional level, but
   often in a close embrace at the procedural level.


Groves goes on to suggest that the recognition of a limited duty to inquire in tribunal proceedings--and, I respectfully add, better attempts to define its nature and limits--would be a desirable thing, for obvious reasons. Such recognition would provide tribunals with the useful and flexible procedural rule; would better define the procedural differences between courts and tribunals and would make the life of tribunal members easier.

In a tribunal like QCAT where, as Parliament has made clear, self-representation is the norm, it is a frequent occurrence that applicants appearing for themselves without the aid of lawyers supply incomplete or imperfect information. Tribunals need better guidance about their obligations in those circumstances. The recognition of a limited duty to inquire, couched in flexible terms, would be a useful tool requiring tribunal members to pause and ask whether they believe that all the obviously relevant material is before them and, if not, whether they could fairly obtain any relevant material that was not at hand. As Groves says, if such a question was posed by tribunal members as a matter of course, experience would sharpen their ability to quickly identity instances in which relevant and easily available material that was not before the tribunal should be sought. (37)

The question posed at the outset concerned QCAT's particular obligations to parties before it, under ss 28 and 29, and whether they added something, some extra facet, to a duty to inquire of the kind we have now identified. Peter Cane speaks of provisions like them when he describes a review process which is 'active' in the sense that the legislation creating the process carries a clear expectation that the reviewer will go beyond mere managing of the case in the hearing room and actually suggest or even require parties to gather specified evidence or, even, gather evidence personally. (38)

The courts have made it clear that, in considering the powers and obligations of tribunals, close attention must be paid to the governing legislation. (39) So much is unsurprising. It seems to me that these provisions of the QCAT Act place new burdens upon members to ensure that parties understand the proceedings in which they are involved and, even, to suggest or encourage the production of particular evidence or the taking of particular steps in ways that aid the parties themselves and, also, ensure the tribunal fulfils its statutory remit.

They are not couched, however, in imperative terms. QCAT is obliged to ensure it has all relevant material but only, in the words of s 28, 'so far as is practicable'. It must aid parties, s 29 says, but only to the extent of taking 'reasonable steps'. Groves suggests, (40) and I agree, that this does not require the tribunal to assume responsibility for or take control of a party's application. In particular, the language cannot sensibly be stretched to encompass an exhortation to assume an overarching duty to inquire. At the highest, these provisions alert tribunal members to be active and not passive.

In that sense, they provide a distinction between courts and tribunals which is not founded in what I hope to have shown is an artificial adversarial/ inquisitorial divide. Rather, they highlight the difference parliaments seek to instil when they create tribunals with these kinds of objects and with freedom from the fetters under which the courts labour. What the Queensland government plainly wanted is a body which will, in truth, be 'active' in the way it does its work.

These provisions do not create an adjudicative body that mimics the continental system; rather, they look to establish one which can do a better job of identifying the real issues and throwing a clearer light upon them because the tribunal has the means to do so--and, it is plain, is expected to use them.

The past three years have been absorbing. QCAT has striven to use these tools as the tribunal's first Deputy President, Judge Kingham (and latterly, her successor, Judge Horneman-Wren SC) and I believe Parliament intended. That has not been without its tensions. We have strongly emphasised ADR from the first and, now, it permeates all our 150 or so jurisdictions. The form of ADR we favour--the 'compulsory conference'--is an active process, in the sense I have described as applying to our members; we expect them to aid parties to identify the real issues, and the evidence they need to address those issues. We are also jealous of public resources--having very little, we must be--and use these ADR processes as a means of ensuring time and money is not wasted, either of the parties or of QCAT. We are strongly oriented (consistently, in our view, with the objects and functions our Act sets out) towards exhorting the parties to resolve things on their own terms, if that is possible.

I am told by some old legal friends that this means that QCAT is seen as the place where there is a real risk that someone will be obliged to hug somebody, at some time, in any proceeding. If that is what being 'active' in resolving disputes of so many kinds and in such diverse arenas actually means, then so be it.

Justice Alan Wilson, Justice of the Supreme Court of Queensland and President of the Queensland Civil and Administrative Tribunal ('QCAT').

(1) (2003) 215 CLR 518.

(2) Ibid 70-1.

(3) [2012] QCA 170.

(4) Independent Panel of Experts, Stage 1 Report (2008) 4, 21.

(5) QCAT Act 2009 (Qld) s 3(b).

(6) Ibid s 4(c).

(7) Ibid s 28(3)(c).

(8) Ibid s 28(3)(b).

(9) Ibid s 28(3)(d).

(10) Ibid s 28(3)(b).

(11) Ibid s 29(1)(c)(ii).

(12) Ibid s 29()(a).

(13) Ibid s 32.

(14) John Forbes, Justice in Tribunals (The Federation Press, 3rd ed, 2010) 204.

(15) Matthew Groves, The Duty to Inquire in Tribunal Proceedings (2011) 33 Sydney Law Review 177.

(16) Ibid 207.

(17) QCAT Act 2009 (Qld) s 28(3)(a).

(18) (1980) 144 CLR 13.

(19) Narelle Bedford and Robin Creyke, Inquisitorial Processes in Australian Tribunals (Australian Institute of Judicial Administration, 2006) 4-9.

(20) Minister for Immigration v SZIAI (2009) 259 ALR 249, [18] ('SZAI').

(21) Groves, above n 15.

(22) (1985) 65 ALR 549.

(23) (1994) 49 FCR 409.

(24) Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 290, 305.

(25) (2005) 225 CLR 88.

(26) Forbes, above n 14, 200.

(27) Optical Board of Registration; Ex Parte Qurban (1933) SASR 1.

(28) [2004] 21 VAR 333.

(29) Groves, above n 15, 194.

(30) (2004) 207 ALR 12.

(31) (2003) 128 FCR 553.

(32) Minister for Immigration and Citizenship v SZNVN (2010) 183 FCR 575.

(33) Groves, above n 15, 196.

(34) (2004) 207 ALR 12.

(35) Forbes, above n 15, 204.

(36) Ibid 207.

(37) Ibid.

(38) Peter Crane, Administrative Tribunals and Adjudication (Hart Publishing, 2009) at 239.

(39) SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, 161.

(40) Groves, above n 15, 184.
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Title Annotation:Australia
Author:Wilson, Alan
Publication:University of Queensland Law Journal
Date:Jul 1, 2013
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