Correct, when there is only one decision; preferable, when a range of decisions is available. Administrative review tribunals are accordingly concerned with more than determining legal rights. They may determine, for example, whether a development should proceed or what conditions should be imposed on a broadcasting licence.
Merits review has been said to involve the administrative review tribunal "standing in the shoes" of the original decision-maker. Merits review in an administrative appeals tribunal is to be contrasted with judicial review in a court. Courts reviewing administrative decisions are concerned with the lawfulness of the decision rather than its correctness. A court may set aside a decision because, for example, the decision-maker has wrongly understood the legal basis for it, or acted on wrong material, or not permitted the parties a proper opportunity to be heard.
It may not set aside a decision because it does not agree with it unless the decision is so unreasonable that no reasonable person could have made it. Such a decision is contrary to law. Whether tribunals are seen to be exercising judicial power or not, a characteristic of all of them is informality. Although most tribunals conduct hearings of a kind, the rules of evidence do not usually apply. In the first tier Commonwealth tribunals, such as the Social Security Appeals Tribunal and the Veterans' Review Board, as well as in the migration tribunals, the original decision-making department is not represented.
Hearings there are more informal and include a dialogue between the applicant and the tribunal decision-maker. The universal aim of tribunals is to resolve disputes fairly, informally, efficiently, quickly and cheaply. It should not be thought that the goals of economy, speed and efficiency compromise the supervening requirement for fairness.
The absence of formality and the technical requirements of the rules of evidence does not displace due process, natural justice or procedural fairness. In a tribunal, evidence may be received in a form which would not be permitted in accordance with the rules of evidence.
However, the opposing parties will always be given the opportunity to test the evidence if it is reasonably challenged. Broadly speaking, procedural fairness requires tribunals to do what is fair in the circumstances of each case. Acting fairly will always require disclosure of the case being made against a party and giving the party an opportunity to respond to that case.
Sometimes that may require a tribunal to require facts to be established in ways closer to the methods required by the rules of evidence.
Sometimes greater informality will still yield a fair result. However, when greater formality is required it will not be because the rules of evidence are being applied but because fairness in the circumstances requires a stricter approach to the establishing of facts in dispute. Fairness is not confined, however, to methods of proof. It also requires disclosure and the giving of an opportunity to respond. Disclosure of a serious claim at a hearing without giving a proper opportunity for the other party to respond will itself be likely to offend against procedural fairness.
Tribunal procedures generally seek to anticipate and avoid such problems by ensuring that any claim which might not be anticipated is communicated to the parties before a hearing commences.
The cost of legal representation and the informality of processes in tribunals has led to a substantial number of claimants presenting their own cases before tribunals.
Accordingly, tribunals have established procedures to assist self represented applicants. In the Administrative Appeals Tribunal there are client service offices and, in larger registries, dedicated outreach officers to assist applicants in person.
Many cases involve individuals putting their own case, without legal assistance, so the system needs to be accessible to all. Tribunal judges often help to ensure this, by guiding non-legally qualified parties through the necessary procedures, if necessary. There are many different tribunals, covering a wide range of different areas affecting day-to-day life. Before the hearing begins, the Tribunal Judge chairing the hearing reads the papers in the case and considers how to proceed when the hearing begins.
Tribunal judges play an active role in managing tribunal cases once issued, helping to ensure they proceed as quickly and efficiently as possible. This may include:. As many Tribunal hearings are open to the public, parties involved in a Tribunal case are welcome to arrange an early visit to the relevant hearing centre to see another appeal.
This will give an insight to how the particular Tribunal conducts an open hearing. Except in cases which involve national security or evidence of a very personal nature, tribunal cases are held in public.
In many cases, no oath will be administered, and hearsay evidence can be considered. Proceedings are relatively informal and nobody wears robes or wigs. Parties are expected to assist by following directions and providing enough copies of their relevant documents in good time, but the stricter disclosure rules for the ordinary courts may not be applied.
Occasionally, the parties will have agreed the relevant facts and it will not be necessary for the judge to hear oral evidence. The issues may concern the law to be applied or the terms of the decision or judgment to be given. The Tribunal Judge ensures that all parties have their case presented and considered as fully and fairly as possible. During the case, the Tribunal Judge or the panel members may ask questions on any point that needs clarification or which will help with his or her decision.
The Tribunal Judge also decides on all matters of procedure which may arise during a hearing. At each session it delivers approximately 90 judgments on cases which are generally examined in accordance with the procedure set out in Articles 6 , 8 and 9 of its Rules or in accordance with the summary procedure provided for in Article 7 of the Rules.
The Tribunal is serviced by a Registry , comprising a Registrar and a small team of legal officers. The Registry's secretariat receives the documents submitted in the course of the proceedings and replies to requests for information.
A complaint is receivable only if it is brought against an administrative decision, which may be explicit or implicit. An administrative decision is one that has been taken unilaterally by the administration and which has legal consequences for the person concerned. An administrative decision which is explicit is one that clearly expresses what the administration intends to do. It can be written or oral see, for example, Judgments 50 and and must have legal consequences for the person concerned.
An implicit decision is one which may be inferred from the silence or inaction of the administration. In other words, when the administration fails to respond within a certain period of time to a claim by an official, its silence is construed as being a rejection of the claim see Article VII of the Statute.
The exhaustion of all internal appeal procedures is a prior condition for any complaint to be receivable and the case law of the Tribunal shows that this rule has always been strictly applied see, for example, Judgment
0コメント