Wednesday, 18 September 2013

Administrative and adversarial litigation — Worlds apart or planets in alignment?

The 2013 Richardson Oration, delivered by Chief Magistrate Lorraine Walker, Wednesday 18 September 2013.

I wish to acknowledge the great honour bestowed upon me by the invitation to speak at this memorial oration to honour the memory of Professor Jack Richardson AO.

In doing so, I wish to pay my respects to the traditional custodians of this land upon which we meet and pay my respects to their elders both past and present.

I wish to acknowledge the presence of and warmly welcome Jack Richardson’s family, his wife, Grace, his son Matthew and his daughters Rebecca and Felicia.

Unlike those erudite individuals who presented this oration on the last two occasions, Mr Damien Bugg AM QC and the Honourable Michael Kirby AC AMG, I have very little to connect me either directly or by association with Professor Richardson.

Thus I resorted to a review of the apparently limitless resources of the internet to acquaint myself, at least a little, with the man. I understand that if I had committed to the task a little earlier, I could in fact have listened to him in oral history interviews held at the National Library but, alas, the demands of Canberra’s criminal set precluded that particular pleasure. Nonetheless, after spending some intimate internet moments together, I hope you will forgive my familiarity if I refer to Professor Richardson from here on in as Jack.

Let me share a little of my discoveries.

Jack was born on 23 September 1920, making him, astrologically, a Libran:

Born under the sign of Libra, which represents the element of air, or the intellect. You’re most definitely a thinker — you like to use your mind to tackle problems. Libra is the seventh sign of the zodiac, which refers to relationships of all sorts and your connection to the world around you.

People know you as someone who loves to socialize. Your outgoing nature and love of communicating brilliant ideas to people around you is one of your strengths. You’re rarely at a loss for words … even on your worst day you have the gift of the gab!

You not only have the ability to share your ideas in a very natural way; you also have charm in the way you convey your feelings.

Well, that was indeed a positive start.

A photograph confirmed that first impression. I saw a man who looks both intelligent and kind. Can one draw such conclusions from a photograph? Despite the debunking of phrenology as pseudoscience last century, there is in fact more recent science to suggest that the science of phrenology was not entirely baseless.1 Forgive me the liberty but look at him and see if you don’t gain exactly the same impression.

Jack served with the Australian Imperial Forces during the Second World War. My research was unable to unearth which arm of the military he served with; however, I note that he had a particular interest in air and space law, having studied the subject at McGill University in Canada after the war. Indeed, he went on to introduce a course in the study of air and space law and write a text on aviation law whilst at the Faculty of Law of the Australian National University. This leads me to speculate that perhaps he was a member of the Royal Australian Air Force. Confirmation of the fact would give me some pleasure as the RAAF was my service of choice. Of course if my investigative work proved incorrect, I would nonetheless surmise that Jack, like so many others, merely aspired to membership of the most junior but effective arm of the service.

A quick scan of Google suggests that Jack was the author of no less than 11 published works on areas as diverse as trade practices law, institutional problems of foreign investment, patterns of Australian federalism, resolving deadlocks in the Australian Parliament and, of course, a number of works dedicated to the role of ombudsman. Clearly he was a prodigious worker. If his publications alone were not evidence of this, one need only briefly consider the endeavours to which he turned his hand, and the times in his life at which he did so, to be satisfied that Jack was no laggard. He was still engaging in new employments well into his seventies!

By way of formal education, Jack acquired degrees in Arts and Law, including Masters in Laws from both Melbourne University and McGill University in Canada. Jack joined the Commonwealth Attorney-General’s Department in 1949. He continued with the Australian Public Service in various capacities until 1960 when he joined the Faculty of Law at the Australian National University as a Professor. By 1961 he was Dean of the Faculty and fulfilled that role for much of the next decade. He remained at the University until 1977. He was instrumental in the evolution of this institution from an offshoot of an interstate university to a widely respected school in its own right.

In 1977 Jack was 57 years old. In that year, Australia voted in favour of a new national anthem, Advance Australia Fair allegedly winning 43.2% of the vote, although it was not adopted as the anthem until 1984. Its competitors were God Save the Queen (the original not the Sex Pistols version released the same year), Song of Australia and Waltzing Matilda. Elvis Presley died. The first Star Wars movie débuted. Queen Elizabeth II celebrated her Silver Jubilee. Voyager 1 was launched on 5 September. And Jack was appointed as the first Commonwealth Ombudsman.

Unlike my predecessors in this memorial presentation, I was not aware of the significance of the appointment at the time, being rather more concerned with the pre-pubescent angst engendered by the move from a private school for girls in the leafy suburb of Hawthorn in Melbourne to a rather more rambunctious co-educational establishment in the British Midlands.

Jack’s appointment as Commonwealth Ombudsman in 1977 was a very significant event not only in his own life but in the lives of many Australian citizens. His appointment was the culmination of a process which can be traced directly to the work of the Kerr Committee in 1968. That committee, headed by Sir John Kerr, a judge of the Commonwealth Industrial Court at that time, made sweeping recommendations for the implementation of a three-pronged approach to more extensive review of executive decisions. Since the adoption of British law in the colony, and later enshrined in the Australian Constitution, the courts have had the ability to review executive decisions on application of a party. However, that review was limited to determining the legality of the decision. The process was cumbersome and limited in its effectiveness. The Kerr Committee recommendations ultimately resulted in establishment of the Commonwealth Administrative Appeals Tribunal via the Administrative Appeals Tribunal Act 1975, enhanced judicial review by the Administrative Decisions (Judicial Review) Act 1977 and by establishment of the Commonwealth Ombudsman’s Office by the Ombudsman Act 1976, a suite of legislation which continues in force today.

It would now be unthinkable to current generations of lawyers that the only way to challenge government maladministration or wrongful decision-making would be via the blunt tool of common law judicial review. Despite its Swedish etymology, the term ‘ombudsman’ now readily rolls from the lips of Australian citizens.

Jack Richardson was instrumental in making that happen. From his innovative advertisement on the side of milk cartons to his well-publicised conflict with Mr John Stone, Secretary of the Treasury, over the perceived intrusive nature of an Ombudsman’s inquiry into the hallowed halls of government, Jack demonstrated that he would do what was necessary to ensure that the function he had been invested with was exercised on behalf of the ordinary citizen. A new era had begun.

I gathered from reading some of Jack’s speeches, and from the observations of those who knew him, that he was a man with a sense of humour. Rather than repeat it, I invite you to read on our host organisations’ websites the clever retelling of jokes and quips attributed to Jack in previous orations. Of course, in public life a sense of humour is an essential part of one’s armour. I suspect that Jack was amused by the cartoon prepared by Canberra’s own Geoff Pryor, in which, as you can see, Professor Richardson was depicted in military uniform. He was referred to as “Napoleonic” in nature by Mr John Stone in 1982 but I am not convinced that this is a Napoleonic uniform. Indeed having done a little further research, I conclude that Pryor was adverting to Captain Bligh and Mr Stone, on the ship’s wheel, as the mutineer. Clearly, any mutiny has since been suppressed.

In formulating some thoughts regarding a topic for discussion today I was no doubt influenced by a somewhat nostalgic reminiscence for 15 years’ practice in the area of administrative law. The fact that I practised in the area at all is a source of some bemusement to me. When I became aware that the job that I had secured in the ACT in 1996 on my return from the United Kingdom involved the application of the principles of administrative law, I thought that I had happened upon a creature hitherto unbeknownst by me. It was only when attending my first conference in the area that I ran across my old administrative law lecturer from the University of Sydney, Stan Hotop, then a Senior Member of the Administrative Appeals Tribunal, that I was reminded that I had in fact studied the subject at university. It is far more telling of the quality of the candidate than the lecturer that I had absolutely no recollection of either attending or learning anything throughout that period. During the next 15 years of practice in the area I came to develop an enduring respect for the principles which underpinned this area of practice. On being appointed a magistrate in the ACT, I assumed that all I had finally learned in the area was once again to be rendered redundant as I embarked, this time as a referee rather than a player, into the adversarial game.

Three years down the track in this latest endeavour, I realise that what was learned in the preceding period is not without relevance. As to just what relevance, however, is something I have turned my mind to specifically in the context of preparing to speak to you today.

At the conclusion of his oration, the Honourable Justice Kirby in 2012 observed:

“The chief point in administrative law and practice for which Jack Richardson stood, was that donees of statutory power are not unaccountable. They serve the people. They must act transparently and fairly. They must be rendered accountable by the law. No one in our Commonwealth is beyond the reach of the deep legal principle of accountability and responsiveness to the people that lies at the heart of Australia’s constitutional, legal and political arrangements.”

This summary of the function of administrative law and practice resonates with me. The principles are directly transferable to the exercise of judicial power.

So what was it about the exercise of judicial power in the field of administrative law which led to the radical changes of which Jack was at the heart? Why has this system which has developed in response to that perceived need been so widely adopted in the Western world?

Underlying principles

I am indebted to the Administrative Review Council’s “Overview of the Commonwealth System of Administrative Review” for a helpful potted summary of the development of an administrative law in Australia in recent decades. I shamelessly plagiarise from that document as follows:

30. The appointment of the Kerr Committee in 1968 marked the first comprehensive review of Commonwealth administrative law mechanisms. In its landmark report in 1971, the Committee drew attention to the steady development of a vast range of administrative discretions that could be exercised in a way that detrimentally affected the life, liberty, property, livelihood or other interests of a person.

31. The Committee considered that established mechanisms were unable to adequately correct administrative errors and to ensure justice for the individual. It was said that: the principal reliance on parliamentary and judicial review was inappropriate; the remedies and principles for judicial review were unduly encumbered by technicalities; the Australian pattern of administrative tribunals was ad hoc; and, access to review was often blocked by cost, official secrecy, and privative clauses. The Committee concluded that:

... it is highly desirable to encourage in Australia a comprehensive system of administrative law ... which is essentially Australian and which is specially tailored to meet our own experience, needs and constitutional problems.

32. The major theme underlying the report of the Kerr Committee was the need to develop a comprehensive, coherent and integrated system of administrative review. While the Committee did not spell out the concepts or principles which should underpin the new system, the major pillars were clear enough from its recommendations. Among them was the need for a system of administrative review to be: comprehensive; accessible by the public; inexpensive; focused on substantive and not procedural issues; and, based upon adequate disclosure of, and access to, information.

33. In one respect, the Committee was firm about the major plank of the system it envisaged. The creation of an expanded framework for the review of decisions on their merits was treated as a central requirement. The Committee contended that:

The basic fault of the entire structure is, however, that review cannot as a general rule ... be obtained "on the merits" — and this is usually what the aggrieved citizen is seeking.2

In summary, what the Kerr Report identified was that the then existing system for administrative review was overly technical, inaccessible, expensive and failed to address the merits of the issue in dispute.

Section 2A of the Administrative Appeals Tribunal Act 1975 was introduced in 2005. That amendment confirmed, 30 years after the Tribunal’s inception, that the overarching objectives of the Act are that:

“In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.”

I ask, rhetorically, two questions. Firstly, are these objectives transferable from the field of merits review of administrative decisions to more traditional areas of adversarial litigation? Just how far apart are these worlds? Secondly, do the mechanisms of an inquisitorial system provide a better avenue for achieving such objectives?

In formulating these questions, I have not differentiated between the various types of litigation which arise within the adversarial system. The range is, of course, enormous. The adversarial umbrella shelters matters as far apart as a drink-driving prosecution and major commercial litigation. Any observations which I make today must, therefore, be of a general nature. That said, I find it difficult to imagine that any amongst you would be heard against the suggestion that all litigation should aspire to at least four of the five aspects of the objective detailed in section 2A. The only one that I anticipate would be likely to attract divergent views is the benefit of informality in litigation.

I fear that some in the community would readily share the sentiments expressed in chapter one of Charles Dickens’ Bleak House, written before 1842:

“This is the Court of Chancery, which has its decaying houses and its blighted lands in every shire, which has its worn-out lunatic in every madhouse and its dead in every churchyard, which has its ruined suitor with his slipshod heels and threadbare dress borrowing and begging through the round of every man's acquaintance, which gives to monied might the means abundantly of wearying out the right, which so exhausts finances, patience, courage, hope, so overthrows the brain and breaks the heart, that there is not an honourable man among its practitioners who would not give — who does not often give — the warning, "Suffer any wrong that can be done you rather than come here!"

Even the highest Court in this land has had reason to express concern about the efficacy of modern adversarial litigation, as reflected in the now famous comments of Justice Haydon in the decision of Aon Risk Services Australia Limited v Australian National University (2009) 258 ALR 14; (2009) 83 ALJR 951; [2009] HCA 27 at [156] where his Honour concluded:

“The presentation and adjudication of the case in the courts below do cause it to merit a place in the precedent books. The reasons for placing it there turn on the numerous examples it affords of how litigation should not be conducted or dealt with. The proceedings reveal a strange alliance. A party which has a duty to assist the court in achieving certain objectives fails to do so. A court which has a duty to achieve those objectives does not achieve them. The torpid languor of one hand washes the drowsy procrastination of the other. Are these phenomena indications of something chronic in the modern state of litigation? Or are they merely acute and atypical breakdowns in an otherwise functional system? Are they signs of a trend, or do they reveal only an anomaly? One hopes for one set of answers. One fears that, in reality, there must be another.”

I will therefore proceed with my further observations on the assumption that all right-thinking individuals would aspire to a system of litigation of disputes between citizens and other citizens and between state and citizens that is fair, just, economical and quick.

There is, it seems to me, clearly scope for review as to whether the adversarial litigation system which determines so many legal issues in our community properly reflects those objectives which take, at least theoretically, such primacy in the administrative review environment. In this sense, I consider that the two worlds are far apart.

Which leads me back to the second question I raised; namely, do the mechanisms of an inquisitorial system provide a better avenue for achieving such objectives?

The range of issues referred to in the advertising for today’s event are each capable of forming the subject of a rather extensive review in themselves. Clearly it is not my intent to undertake that exercise in the context of this oration. Against the ground work laid above, however, I would like to make a few observations which I hope might be food for thought for those amongst you concerned about the issues of law reform or even just good legal practice.

Rules of evidence

One of the aspects of the informality identified as part of the objective of administrative review, is encapsulated in s.33(c) of the Administrative Appeals Tribunal Act 1975 to the effect that the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.

This sits in stark contrast to the application of extensive and detailed rules of evidence in adversarial litigation. Whilst apparently diametrically opposed, however, when one considers how this issue is addressed in its practical application, the two worlds are not quite so far apart as might initially appear. When one starts to analyse the application of section 33 in administrative review proceedings, it is apparent that the Tribunal has not entirely thrown out the baby with the bathwater when it comes to the issue of the rules of evidence. Two simple examples of that follow. In the decision of Re Gorrie and Repatriation Commission [2008] AATA 793, Deputy President Hack SC and Senior Member McCabe observed:

“It has been the case for a considerable time that it is impermissible to cross-examine a witness upon the statements or documents of another witness in the proceedings. Chesterman J considered the history and rationale of the rule in Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd and what his Honour said there warrants careful attention. Whilst the Tribunal is not bound by the rules of evidence the reason for the rule makes it all the more important that witnesses in the Tribunal, who will often be disadvantaged, not be cross-examined in this way. It is simply unfair to do so.”

In McCutcheon and Another v Federal Commissioner of Taxation [2008] FCA 318, Greenwood J observed:

“Although of course the Tribunal by s 33 of the AAT Act is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate, the Tribunal might usefully be guided by the foundation rule in relation to the relevance of evidence contained in s 55(1) of the Evidence Act 1995 (Cth) in these terms: "The evidence that is relevant in a proceeding is evidence that if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding".

It is clear that the rationale underpinning the rules of evidence is still considered by those undertaking administrative review. The touchstone, however, is fairness.

Similarly, the excesses of the strict application of historical rules of evidence are sought to be ameliorated within the adversarial system by developments in evidence law. In recent years, an example has been the introduction of particular provisions regarding the evidence of those involved in sexual assault prosecutions as provided for in Part 4 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). These provisions introduce practical and innovative measures to assist in eliciting evidence in a particular context. In addition there are the general discretions in the now not-so-uniform Evidence Act, recently adopted in the ACT as the Evidence Act 2011, such as the discretion to exclude improperly obtained evidence at s.138.

Section 26 of the Evidence Act provides an example, though, of how reformists’ attempts to deregulate the adversarial court process have been read down. That section provides that:

The court may make the orders it considers just in relation to —

(a) the way in which witnesses are to be questioned; and

(b) the production and use of documents and things in connection with the questioning of witnesses; and

(c) the order in which parties may question a witness; and

(d) the presence and behaviour of any person in connection with the questioning of witnesses.

On the face of it, this is a provision giving the Court wide powers to control proceedings. However, the provision has been interpreted consistent with a traditional adversarial approach to litigation. In effect, it is still a matter for parties alone to determine what witnesses will be called, and a Court will only rarely intervene in the decision as to the order of witnesses or the manner in which a witness will give evidence. As to competing views on this issue, you may be interested to read the decision of Sharp v Rangott [2008] FCAFC 45.

A reflection as to the different approaches to the rules of evidence in the inquisitorial context of administrative review as opposed to the adversarial context of court-based litigation suggests to me that there has been some recognition in the latter of the need to ameliorate the otherwise potentially harsh effects of an overly technical application of the rules of evidence by refinement in recent decades. Concentration on the function of the court in ascertaining the truth, indeed the merits, of the issues before it, as opposed to a focus on the game play of technical adversariality is important in assessing for the future any appropriate reforms in the area of evidence but also in considering the application of the current rules to a particular case. Whilst in the administrative sphere it is important that “the baby not be thrown out with the bathwater” it is equally important, at the risk of mixing my metaphors, that in adversarial litigation “the wood not be missed for the trees”.

It is worth considering, also, ways in which issues are delineated between parties and the format in which evidence should be received. In administrative review it is usual for evidence to be identified in advance, issues to be delineated and affidavits to be provided. The push in the federal arena towards clarification of issues in documents prior to the actual hearing of a matter along with a concentration on affidavit evidence where appropriate has not, I suspect, resulted in a diminution in the quality of justice being obtained in that jurisdiction. Having regard to the need to focus on efficiency as a form of fairness to the parties, it behoves all courts, including that in which I exercise jurisdiction, to have regard to alternative methods of reducing issues and receiving evidence above and beyond the traditional oral format where appropriate. This requires a more interventionist approach to case management than is traditional in adversarial litigation. The greatest resistance to this is found in criminal proceedings. I certainly hold the view that proactive judicial intervention at the time of listing criminal matters is appropriate, even to the extent of requiring the defence to identify witnesses and issues in dispute. At present, co-operation in this endeavour depends on the attitude of the defendant or, more particularly, his or her legal representative.

The role of fairness

The traditional concept of natural justice is described more frequently in the context of administrative review as procedural fairness. Whether there is any difference to the content of these two concepts is not a matter to which I have given great consideration; I suspect the nomenclature change really reflects the context of administrative review and its emphasis on procedure in light of the administrative functions involved. There is not the same overt emphasis in adversarial litigation on the notion of natural justice. Whilst of course this is a principle known to the common law, one less commonly hears reference to the notion of natural justice in matters arising in either the criminal or civil jurisdictions. Perhaps that is because the processes of the court, developed over centuries, are thought to be such that natural justice flows inherently. However there are subtle ways in which there is a real danger of the court not fulfilling its obligation to ensure natural justice. A common example, struggled with in both administrative review and general litigation, is the unrepresented party. In adversarial proceedings, the judicial officer has a very difficult line to tread between becoming too actively involved in the proceedings and ensuring protection of the rights of the unrepresented person. When the matter is one of criminal prosecution, to some extent this difficulty can be ameliorated by an ethical prosecutor. The problem can be compounded, on the other hand, by an overly zealous opponent. It can be further compounded by other inequalities such as language difficulties, intellectual capacity and so on. In this context, the inquisitorial nature of administrative review is far better placed to redress those imbalances. Whilst theoretically in criminal proceedings, such imbalance can be addressed by the provision of publicly funded legal aid, the reality is that it simply is not available to all who need it.

Assessing credibility

This is a difficult issue in all litigation. It is particularly problematic and sensitive in criminal proceedings. One almost invariably has to look to independent corroboration of facts when credibility is in issue. In the adversarial system, the judicial officer’s inability to call for evidence which seems relevant may well frustrate the process of fact-finding. The exercise is extremely unbalanced when one of the parties can simply avoid being assessed at all.

A frustrated judge in an English (adversarial) court finally asked a barrister after witnesses had produced conflicting accounts, 'Am I never to hear the truth?' 'No, my Lord, merely the evidence', replied counsel.

The mindset of the decision-maker

This brings me to the final point I will touch upon today and I intend to address this from an entirely personal perspective. I confess to experiencing a significant difficulty in donning the psychological garb of a decision-maker as opposed to that of an advocate. There remains even today the temptation to leap into the fray, to put the single killer question that will result in the unravelling of the evidential quagmire created by those appearing before you. Of course, that is largely a fantasy engaged in by one now removed from the obligation to earn one’s living by such questions. But there are still many occasions when I walk away from an adversarial proceeding with more questions in my mind than have been answered by the evidence before me and with a real concern as to whether I fully appreciate the truth of the situation as to which I am required to make a decision. At times, I have made a conscious decision to moderate judicial restraint in favour of an attempt to properly understand what it is I am dealing with. I usually try to warn those before me when I am about to do this, such that I can be saved from appellable error if that is the abyss into which am about to fall. I also try to ensure that no one is disadvantaged by what I hope to be my helpful interventions, by offering the opportunity to the parties to correct any wrong impressions that my intervention may have elicited. Such precautions are also generally exercised by those undertaking an inquisitorial proceeding in my experience. I confess to a bias in favour of an increased scope for the involvement of a judicial officer in the proceedings before him or her reflective of that available to a decision-maker in inquisitorial proceedings.

Conclusion

Just as was the case in mid-twentieth century Australia in the administrative law context, so now in respect to litigation in the courts broadly, there is a common perception that it is too hard, too costly, too technical a process in which the truth is, at times, an irrelevance. This is just the scenario that was the impetus for reform of administrative review. Similarly, there is a need for ongoing review of adversarial litigation practices. In doing so, it is sensible to look to the inquisitorial process as it operates in our own backyard, learn from it and adapt where appropriate. These two systems are, on one view, worlds apart but to some extent, there is scope for the planets to align.

Openness to reflection is vital. As I once heard former Justice Sully of the New South Wales Supreme Court say, many lawyers sharpen their minds by narrowing them.

Which takes me back to the subject of today, an event in memory of Professor Jack Richardson, a man unknown to me and I suspect to most of you here but one whom, I gather from my enquiries, may well have had something to say on the issue.


Footnotes

1. "How Your Looks Betray your Personality", Roger Highfield, Richard Wiseman and Rob Jenkins, New Scientist, 11 February 2009.
2. "Overview of the Commonwealth System of Administrative Review", The Kerr Committee, Attorney-General's Department, Administrative Review Council.

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