INQUISITORIAL PROCEDURE IN THE ADMINISTRATIVE APPEALS ... · in procedure in the area of...

INQUISITORIAL PROCEDURE IN THE ADMINISTRATIVE APPEALS TRIBUNAL

A COMPARATIVE PERSPECTIVE BY GILLIAN OsBORNE*

1 INTRODUCTION

Tribunals and specialised courts with inquisitorial powers are now fairly common in Australia and appellate courts have begun to insist that in certain circumstances the powers be used.1 By "inquisitorial powers" is meant powers which enable the adjudicator to take the initiative in eliciting evidence and formulating legal arguments, and to control the way in which a case is presented. The Australian Committee on Administrative Discretions believed that it would be appropriate for their proposed administrative review tribunal to make use of an "investigative or inquisitorial process in most cases" .2 There have even been calls for the use of some inquisitorial procedures in ordinary courts of law.3 A radical change in the ordinary courts seems at present to be impracticable. On the other hand the Administrative Appeals Tribunal is still in a position to set its own pattern of development. It has been given almost carte blanche as to procedure and some wide inquisitorial powers. For the last six years it has been experimenting with the use of these powers, and some of its pre-trial procedures have already aroused interest. The Federal Court in its jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 ( Cth) is given power to exert far greater control over the conduct of proceedings than is normal in an adversary system.4 There is a chance that successful innovations in procedure in the area of administrative law could eventually have an influence on procedure in the ordinary courts.

A The Need for Inquisitorial Procedure in the Administrative Appeals Tribunal

There are three principal factors which can give rise to the need for the Administrative Appeals Tribunal to adopt inquisitorial measures. First, the Tribunal is intended to be accessible to applicants who cannot afford legal representation, many of whom need assistance from the Tribunal to ensure adequate presentation of their cases. The Tribunal may be faced with detailed evidence to support the decision maker,5 but little or no relevant evidence from the applicant. The senior members of the Tribunal have

* BJuris, LLB (NSW); Solicitor of the Supreme Court of New South Wales. 1 R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13,

32-33; Bilbaov Farquhar (1974) 1 NSWLR 377. 2 Committee on Administrative Discretions, Final Report (Australian Government

Publishing Service, 1973) para 172(j). 3 H Whitmore, "Justice Denied by Outdated Legal System", Sydney Morning

Herald 6 April1981; R Eggleston, "What is Wrong with the Adversary System" (1975) 49 ALJ 428, 436-438.

4 Federal Court of Australia Rules, Order 4A, Rule 8. 5 Supplied under the Administrative Appeals Tribunal Act 1975-1977 (Cth) s 37.

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referred to the frequent need for the Tribunal to "descend into the arena" in order to assist unrepresented applicants.6

Secondly, section 33 ( 1) (b) of the Act provides:

the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit.7

In order to comply with the above requirements, it would seem desirable that the Tribunal decide the degree of formality and technicality appropriate for each appeal, and the possibilities for expedition, and that it then sometimes exert a stricter control over the way in which a case is presented than would be normal in adversary proceedings. The Tribunal is not bound by rules of evidence and may inform itself on any matter in such manner as it thinks fit.8 It is thus able to explore new means of complying with section 33 (1 )(b), subject to the requirement in section 39 that "every party to a proceeding before the Tribunal is given a reasonable opportunity to present his case ... ".

Thirdly, the provisions of section 43 ( 1) of the Act have implications for procedure. That section provides:

For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision ...

Early decisions of the Tribunal and the Federal Court established that section 43 ( 1) requires the Tribunal to decide whether the decision was the correct one and to do this without regard to the processes by which the departmental decision was made.9 The current President has said that the Act clearly established a Tribunal "whose function and duty it is to review administrative decisions on their merits".10 He said that the word "may" in section 43 extended the authority of the Tribunal so that it could exercise more adequately its function of reviewing on the merits, and did not confer authority on the Tribunal to limit its function.11 It can be argued that a duty to review on the merits implies a duty to consider all matters relevant to the making of a decision, whether or not these matters have been put forward by the parties. However, any such duty would, of course, be affected by the requirement for expedition in section 33 ( 1) (b). The role of the Tribunal when reviewing a decision has been described by Smithers J., then a deputy president, as follows:

6 A N Hall, "Administrative Review Before the Administrative Appeals TribunalA Fresh Approach to Dispute Resolution?" (1981) 12 FL Rev 72, 89 (hereinafter cited as Hall); R K Todd, "Administrative Review Before the Administrative' Appeals Tribunal-A Fresh Approach to Dispute Resolution?" (1981) 12 FL Rev 85, 110 (hereinafter cited as Todd).

7 Administrative Appeals Tribunal Act 1975-1977 (Cth). Sibids33{1)(c). 9 Re Woolworths Ltd and Collector of Customs (1978) 1 ALD 116, 122; Drake v

Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77. 1° Re Control Investments Ply Ltd and the Australian Broadcasting Tribunal (No 2)

(1981) 3 ALD 88, 91-92. 11 Ibid 92.

152 Federal Law Review (VOLUME 13

The review, is an exercise in administration in an area of executive government by an administrative body, required to extend natural justice, but otherwise operating by reference to the same powers and the same principles as those applicable to the administrator whose decision is under review and whose duty it was to take into account all relevant considerations going to the interests of the community according to the standards of good government.12

Moreover, the Federal Court decision in Sullivan v Secretary, Department of Transport113 and in Kuswardana v Minister for Immigration and Ethnic AffairS14 highlight the need for the Tribunal to consider issues relevant to its decision which have not been raised by the parties.

B Uncertainty Over the Use of Inquisitorial Powers

A senior member of the Tribunal has described how it is able, by means of directions hearings, conducted if necessary by telephone, and sometimes through preliminary conferences, to assist unrepresented applicants with the presentation of their cases, and, in complex cases, to ensure that the issues in dispute are clearly identified.15 The Tribunal's use of pre-hearing procedures, resulting in a large proportion of appeals being resolved prior to or without a hearing,16 is clearly in line with the requirements of section 33(1)(b). The senior members have also described the active role sometimes taken by the Tribunal in eliciting evidence at hearings,17 and have pointed out that it has sometimes reached a decision for reasons different from those put forward by the parties.18 However, a reading of decisions reveals some marked variations in the approach of the Tribunal towards use of its inquisitorial powers even within a single jurisdiction. There have been several decisions where it has commented on the inadequacy or irrelevance of the evidence supplied by the parties,19 but has apparently made a decision on the basis of that evidence. The attitude of the Federal Court is unclear. In the Sullivan case, despite the fact that the Federal Court decision required the Tribunal to consider an issue not raised by the parties, the judgment

12 Pochi v Minister for Immigration and Ethnic Affairs (1980) 31 ALR 666, 680. See also Smithers J in Sullivan v Secretary, Department of Transport (1978) 1 ALD 383, 386; Fox J in Kuswardana v Minister for Immigration and Ethnic Affairs ( 1981) 35 ALR 186, 199-200.

13 (1978) 1 ALD 383. 14 (1981) 35 ALR 186. 15 Hall, op cit n 6, 85-87, 90-92. 16 In 1980-1981 52.9% of appeals were finalised by either the decision being altered

by the primary decision maker (32.6%) or the applicant withdrawing on his own initiative (20.3%): Administrative Review Council, Fifth Annual Report 1980-1981, 77. See Hall, op cit n 6, 86-87 on the role of the preliminary conference in achieving early resolution of disputes.

17 Hall, op cit n 6, 88-90; Todd, op cit n 6, 110. 18 Hall, op cit n 6, 90, speaking of Re Toner Distributors of Australia Pty Ltd and

The Collector of Customs (1980) 3 ALD 234. 19 Eg Re Dean and Secretary, Department of Transport unreported decision No

77/12018, 16, 18 (14 Apri11978); Re Waddy and Delegate of the Secretary, Department of Transport unreported decision No 78/10003, 16-17 (20 April 1978); Re Bishop and Secretary, Department of Transport unreported decision No 79/12004, 12 (7 June 1979); Re Pacific Film Laboratories Pty Ltd and Collector of Customs 2 ALD 144, 157 (19 January 1979); Re Foulger and Repatriation Commission (1980) 2 ALD 789, 797; Re Wheeler and Director-General Social Security unreported decision No Q80/12, 2, 24 (26 February 1981).

1982] Inquisitorial Procedure in the AAT 153

revealed significant divergences of opinion over the extent to which the Tribunal should interfere with the manner in which an unrepresented party presented his case. There was some judicial comment suggesting that a departure from adversary procedures, other than in exceptional circumstances, could amount to a breach of natural justice.20 There has been a long standing mistrust of inquisitorial procedure among eminent common lawyers21 which might inhibit the Tribunal in the development of procedures appropriate to its novel task of review on the merits and to realisation of the objectives of section 33 ( 1) (b). It may therefore be appropriate, at this stage of the Tribunal's development, to look at the use of inquisitorial powers by a long established administrative court of high repute, and to re-examine some of the common law objections to inquisitorial procedure.

In the first part of this article I will look at the procedure which has evolved over the last 150 years in the French administrative courts and at the rationale behind the procedure and organisation of work in those courts. In the light of this examination, I will then look briefly at two questions raised by the use of inquisitorial powers in the Administrative Appeals Tribunal, namely the extent to which inquisitorial procedure can assist or hinder compliance with the principles of natural justice, and the question of how to clarify the respective responsibilities of the adjudicator and the parties for adducing evidence in a tribunal with inquisitorial powers.

2 INQUISITORIAL PROCEDURE IN FRENCH ADMINISTRATIVE COURTS

A Organisation and Membership of the Courts

In order to understand the way in which inquisitorial procedure works in the French administrative courts, it is necessary to look not only at the rules of procedure themselves but at the membership of the Conseil d'Etat and the tribunaux administratifs and at the division of work and career structure within those bodies. It is also relevant, for purposes of comparison, to refer briefly to the constitutional basis and historical background of the Conseil d'Etat and to the categories of litigation which come before it.

(1) Constitutional Basis and Historical Background of the Conseil d'Etat The French Constitution is based on the separation of powers. In France

this principle is said to prohibit the civil courts from passing judgment on an act of the administration.22 In 1799 the Conseil d'Etat was created by Napoleon, principally to advise on the drafting of laws and regulations but also to provide an outlet for citizens' complaints against the administration. A decree in 1806 established the Commission du Contentieux, presided over by the Minister of Justice, to deal with the judicial work of the Conseil as opposed to the administrative work. Under the Restoration, the

20 Sullivan v Secretary, Department of Transport (1978) 1 ALD 383, 402-403 per Deane J, below p 167.

21Eg In Re Watson; Ex parte Armstrong (1976) 136 CLR 248, 257-258; Jones v National Coal Board (1957) 2 QB 55, 63-64; Yuill v Yuill (1945) 1 All ER 183, 189.

22 Law of 16-24 August, 1790 (France) cited in M Letoumeur, J Bauchet, J Merle, Le Conseil d'Etat et les Tribunaux Administratifs (1970) 79 (hereinafter cited as Letourneur).

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Commission was turned into a section and given equal status with the four administrative sections. ?:I

Today, the Section du Contentieux co-exists alongside the Section des Finances, the Section de 1'/nterieur, the Section des Travaux Publics and the Section Sociale. The direction of the entire administration is shared out between those four administrative sections.

(2) Categories of Litigation before the Conseil d'Etat There are four categories of litigation which come before the Conseil

d'Etat.24 The category which most closely resembles the present work of the Administrative Appeals Tribunal is the application to have an administrative decision quashed. This category is known as the contentieux de l'annulation, and the action brought is known as a recours pour exces de pouvoir, or if the decision-maker is classified as a jurisdiction, as a recours en cassation (appeal).

The other principal category is the contentieux de pleine jurisdiction, where the citizen is seeking damages or compensation from the state. As a result of an 1873 case, which decided that the State could not be sued for damages in the ordinary courts,25 the Conseil d'Etat has developed a sophisticated theory of state responsibility in situations. where the state, or in some situations a private company or an individual, is providing a service public.26

The third category is that of interpretation. The Conseil will give interpretations of administrative acts or decisions in limited situations in order to prevent further litigation. In the fourth category, the Conseil acts as a criminal court in respect of offences against public property.27

The body of substantive law applied by the Conseil d'Etat consists almost entirely of case-law which has been allowed to develop with no interference by statute. There is ~o principle of stare decisis, but the Conseil d'Etat attempts to maintain unite parfait de jurisprudence.28 This means that established case-law will not be modified except by a decision de principe of the section du contentieux or the assemblee.~

The Conseil d'Etat has, at least in theory, maintained a strict distinction between Iegalite and opportunitt?O (merits). Thus in theory its scope of review is narrower than that of the Administrative Appeals Tribunal. However, as will be seen, Iegalite is given a wide interpretation and opportunite an increasingly restrictive one, so it comes close in practice to reviewing certain decisions on the merits.31

23 For a brief description of the progress of the Conseil d'Etat towards independence, see L N Brown and J F Garner, French Administrative Law (1973) 19-22 (hereinafter cited as Brown).

24 Letourneur, op cit n 22, 122-123; Brown, op cit n 23, 94-96. 25 Blanco, Tribunal des Conflicts, 8 February 1873, in Brown, op cit n 23, 9. 26 Brown, op cit n 23, 63-67, and see G Vlachos, "Fondements et Fonction de la

Notion de Service Public" (1978) Recueil Dalloz Sirey (hereinafter cited as Dalloz) 582.

27 Letourneur, op cit n 22, 171-172. 28Jbid 194-195. 29 /bid 195. See also Odent, Contentieux Administratif (2nd ed 1965-1966) 810

(hereinafter cited as Odent). 30 Letourneur, op cit n 22, 137-138. 31 Heumann, "Dix Ans de Jurisprudence au Conseil d'Etat", Conseil d'Etat, Etudes

et Documents (No 18 1976) 24.


The grounds on which an administrative decision can be challenged bear close similarities to grounds of judicial review in the common law and in section 5 Administrative Decisions (Judicial Review) Act.32 The grounds on which a recours pour exces de pouvoir can be brought are traditionally classified as follows: 33

!'incompetence (acting without legal authority) le vice de forme (failure to observe procedural requirement) la violation de la regle de droit (see below) le detournement de pouvoir (abuse of power)

These grounds are not mutually exclusive. The third ground is the most widely used today.34 It includes a decision

made contrary to written law or decree, and a decision made for the wrong reasons due to mistake of law or mistake of fact. Where there is mistake of fact, the Conseil d'Etat can substitute its own view of the facts. Where the administration has been given unlimited discretion, the Conseil d'Etat has developed a doctrine of erreur manifeste d'appreciation whereby it can substitute its own view where there is an obvious error of fact or law.35 For instance, if an order for compulsory acquisition of land in the public interest is not based on sufficient evidence of public interest, the Conseil d'Etat will itself balance the advantages to the public against the disadvantages and costs.36 Also included under this third ground is violation des principes generaux de droit.31 The "general principles of law" are principles considered by the Conseil d'Etat to be implied by the "state of civilization and political organisation of the nation" }l8 Some of these general principles assume the authority of the state, while others preserve individual freedoms.39 The latter category includes various forms of the principles of equality and of liberty, and, most important in the area of procedure, the principle of "rights of defence", which is similar to our principle of audi alteram partem.

The fourth ground of review, detournement de pouvoir, exists when an otherwise valid administrative act is carried out for the wrong motives, for example where an administrator exercises his power for personal motives.

It can thus be seen that the French administrative courts are engaged in a task broadly comparable to that of the Administrative Appeals Tribunal.

(3) The Tribunaux Administratifs By 1953 it was realised that the Conseil d'Etat could not keep pace with

the increasing load of cases awaiting decision. The solution adopted was to transform the regional conseils de prefecture (set up by Napoleon in 1799 to advise the prefect and exercise a limited administrative jurisdiction) into general administrative courts of first instance, to be known as tribunaux administratifs. Their jurisdiction is determined predominantly on a territorial

32 1977 (Cth). 33 Letourneur, op cit n 22, 138. 34Jbid 143-149. 35Jbid 148-149; G A Hermann, "The Scope of Judicial Review in French Adminis

trative Law" (1977) 16 Columbia Journal of Transnational Law 195, 237-244. 36 Ville Nouvelle Est de Lille, Conseil d'Etat 28 May 1971 cited in Heumann, op cit

n 31, 24. 37 Letourneur, op cit n 22, 149-154. 38Jbid 149; see also Odent, op cit n 29, 1189. 39 Odent, op cit n 29, 1191; Letourneur, op cit n 22, 149-154.


basis. The Conseil d'Etat now exercises appellate jurisdiction over the tribunaux administratifs, and retains jurisdiction at first instance over some specified matters of particular importance or delicacy.40 In addition there are some specialised administrative jurisdictions over which the Conseil d'Etat exercises appellate jurisdiction. Because of the existence of courts of general review, specialised jurisdictions are far fewer in number than in England or Australia.

(4) Membership of the Conseil d'Etatf1

The majority of members of the Conseil d'Etat is recruited from among the most outstanding graduates of the Ecole Nationale d'Administration.42

Membership of the Conseil d'Etat constitutes a lifelong career. Admission to the Ecole Nationale d'Administration is by an open competitive examination for university graduates, mostly drawn from the law faculties. The other avenue of access to the Conseil is by invitation; persons who have already distinguished themselves in the field of public administration may be invited to join the Conseil d'Etat. This latter mode of recruitment accounts for about a quarter of the entrants.43 Members of the Section du Contentieux will thus have both legal and administrative training, and, in order to ensure that they are familiar with the problems of administration, will, at some stage of their career, work in an administrative section of the Conseil. At least one member of an administrative section will participate in each judgment.

( 5) Organisation of W orf<H

The Section du Contentieux is composed of a president, conseillers d'Etat (the highest grade), ma'itres des requetes (the intermediate grade) and auditeurs (the lower grade).45 It is divided into ten sub-sections,46 each composed of three conseillers, one of whom acts as president, and six or seven more junior members. The instruction, or preparation of a case, is carried out by a sous-section, and judgment is normally carried out by the most senior members of two sous-sections sitting together, the rapporteur for that case and one conseiller from an administrative section. A recent decree allows a single sous-section to sit in judgment, provided specified combinations of its most senior members are present.47 The minimum number of members allowed to judge a case is five in the Conseil d'Etat and three in the tribunaux administratifs. Cases of special difficulty or importance, particularly where it is necessary to ensure unity of doctrine, will be judged by the Section du Contentieux en formation de jugement.

40 Eg proceedings to annul a decree, or an acte reglementaire of a Minister, disputes concerning individual status of senior public servants, proceedings to annul an administrative act which extends beyond the jurisdiction of a single tribunal administratif; Brown, op cit n 23, 25-26.

41 Letourneur, op cit n 22, 43-48. 42 The high standards and prestige of this school are discussed in Brown, op cit

n 23, 39. 43 Ibid. In addition a few senior posts are reserved for recruits from the tribunaux

administratifs. 44 Letourneur, op cit n 22, 185-186. 45 Brown, op cit n 23, 40. 46 Increased from 9 to 10 by Decret 80-15 of 10 January 1980 Art 1 (France)

(1980 Dalloz Leg 88). 47 Decret 80-15 of 10 January 1980, Art 2 (France).

1982} Inquisitorial Procedure in the AAT 157

This consists of the president of the Section, who presides, the three assistant presidents, the nine sous-section presidents, three conseillers from an administrative section and the rapporteur. The most important cases will be judged by the Assemblee du Contentieux, which consists of the vice-president of the Conseil d'Etat, who presides and has a casting vote, the five section presidents, the two most senior presidents adjoints of the Section du Contentieux, and the rapporteur. This composition of the Assemblee ensures equal representation from the combined administrative sections and the Section du Contentieux.

B Procedure

(1) The Conseil d'Etat

Procedure before the Tribunaux Administratifs, the administrative courts of first instance, is less formal than before the Conseil d'Etat, and so perhaps more interesting from the point of view of comparison with the Administrative Appeals Tribunal. However the code which governs procedure in the tribunaux administratifs is based on practices and rules evolved and used by the Conseil d'Etat, with some modifications to take account of the fact that the tribunaux administratifs are smaller bodies in closer contact with the public. Procedure in the Conseil d'Etat will therefore be described first.

(a) Initiation of Proceedings!S

If a person affected by an administrative decision wishes to have that decision quashed, and it is a case where the Conseil d'Etat retains jurisdiction at first instance, he must lodge a recours en annulation pour exces de pouvoir, usually within two months of notification of the original decision. The recours must be written on a form obtainable at any newsagent, and should consist of a brief statement of the facts, of the legal grounds (moyens) and the relief sought, and must be signed by the applicant or his advocate. The legal grounds do not have to be precisely formulated, and may be "interpreted" by the rapporteur where applicants are not represented.49

Legal representation is not required for a recours pour exces de pouvoir but is required by law in appeals from the decision of a subordinate jurisdiction or in proceedings where damages are being claimed against the administration. 50 Only specialist administrative lawyers can appear before the Conseil d'Etat. A system of legal aid is available both before the Conseil d'Etat and the tribunaux administratifs. Most applicants choose to be represented before the Conseil d'Etat, but a substantial minority leaves the case to be investigated by the Conseil. Those who are not represented often obtain assistance in the preparation of written submissions.

(b) Preparation of the case for judgment (Instruction )51

When the recours reaches the Section du Contentieux, it is given a number, registered and allocated to one of the sous-sections. In theory,

48 Letourneur, op cit n 22, 187-188; Brown, op cit n 23, 44-46. 49 Odent, op cit 29, 788-789; cf below p 178. 50 Brown, op cit n 23, 44-45. ol Letourneur, op cit n 22, 187-189.


allocation is according to case-load, but in practice sous-sections tend to specialise in particular matters. 52 The president of the sous-section will give the case to a rapporteur who will be responsible for carrying out the instruction in the name of the sous-section. The rapporteur is usually a young auditeur or maitre des requetes. The aims of instruction are first, to clarify for the judge in advance the essential points of each party's claims and secondly, to allow the judge to ensure compliance with the principle of rights of defence.53 Proceedings are conducted in writing. The principle of rights of defence requires the instruction to be contradictoire, that is, each party must be given the opportunity to comment on the claims and submissions of the other party. Measures of instruction vary, but must include communication of the application to the responsible Minister, and, if the applicant requests it, communication to the applicant of the Minister's observations. The Conseil has been criticised for not requiring the Minister's observations to be forwarded automatically to the applicant. 54 The rapporteur prescribes a time limit (which usually varies from two weeks to two months) within which a reply will be received.

Extensions of time are frequently given, but if the administration fails to observe the final time limit it will be deemed to have acquiesced to the facts as set out in the communication. If the applicant fails to observe the time limit, he will be deemed to have desisted. Neither party is deemed to have acquiesced to legal propositions put forward by the other party-these will be considered by the Conseil as though the instruction had been contradictoire. 55 The rapporteur or the sous-section may ask questions in writing of either party, and may ask the administration to supply its reasons for the decision or the file on which the decision is based. Failure by the administration to answer a question or to provide requested documents or information within the specified time will entitle the Conseil to make findings based on the evidence already before it. Such has been the law since the case of Barel,56 where the relevant Minister had refused four men permission to sit for the entry examination to the Ecole Nationale d'Administration. The applicants had produced newspaper reports alleging that the government had decided to refuse entry to communists. The reports had been categorically denied by the Minister in the General Assembly. The Conseil d'Etat asked the Minister for his reasons and for the files on which the decision was based. When these were not produced, the Conseil said it was entitled to assume that the Minister had no good reason for such an exercise of his discretion, and the decision was quashed.

It is usually the job of the rapporteur to ensure that all the necessary facts are established by documents in the file.57 In the contentieux de plein juridiction, the Roman law adage, actori incumbit probatio applies, so the

52 Brown, op cit n 23, 46. 53 Lefas, "Essai de Comparaison entre le concept de 'natural justice' en droit

administratif anglo-saxon et les 'principes generaux du droit' ainsi que les 'regles generales de procedure' correspondents en droit administratif francais" (1978) Revue lnternationale de Droit Compare 745, 755-756.

54 R Chapus, "De 'Office du Juge: Contentieux Administratif et Nouvelle Procedure Civile" Conseil d'Etat, Etudes et Documents (1977-1978) 13, 27-28.

55 Odent, op cit n 29, 786-787. 56 Conseil d'Etat (28 May 1954), in Brown, op cit n 23, 136-137. 57 Brown, op cit n 23, 47.


applicant bears the onus of proof. However in a recours pour exces de pouvoir, the applicant has no onus of proof, according to Letourneur.58

Nevertheless, Letourneur says that the applicant cannot simply make bare allegations. If he does, the court will usually be satisfied by the contrary affirmations of the defendant. If the applicant makes detailed allegations which appear to have some evidentiary support, the judge will demand from the administrator whatever further evidence appears to him necessary. Thus it seems that there may be a practical onus on an applicant at least to draw the attention of the Conseil to the existence of evidence to support his case.

If the information supplied by the parties yields insufficient evidence, the rapporteur may ask the court to order a further measure of instruction. He cannot do so on his own authority. These measures have included, inter alia, site visits, enquetes (inquiries), expert opinions, the viewing of a film. 59

The rules of procedure governing these measures are set out in detail in the code governing the tribunaux administratifs, but that governing the Conseil d'Etat merely says "Les sous-sections dirigent !'instruction et preparent le rapport des affaires" .60 Enquetes used to be comparatively rare in the Conseil, but are becoming more frequent.61 In 1974, the judge's power to order any necessary measures of instruction was reinforced by a decree which specifically mentioned enquetes and site visits.62 The same decree gives the judge power to order any urgent measures necessary to provide relief in an emergency situation. This procedure, known as the refere administratif, was previously exercised only on the request of a party and then rarely.63 It usually involves appointing an expert to determine disputed facts, an example of its use being cases involving perishable goods. Thus the recent tendency has been to reinforce the inquisitorial nature of proceedings. 64

The parties are informed of each stage of the instruction, and may themselves suggest a new line of inquiry, but have no right to insist on its being carried out. In the absence of any law to the contrary, the applicant must pay for any special measure of instruction requested by him or ordered by the court, but these expenses are then added to the costs.65 An applicant who wins must pay for his application forms and his lawyer if he employs one. An applicant who loses must in addition pay a fixed tax,66 and for extra measures of instruction.

The parties have no right to make oral observations in person before the Conseil d'Etat. At a later stage of proceedings, counsel is allowed to elaborate on his written submissions, but seldom does so.

When the rapporteur considers that all parties have had their say, he will close the instruction. He will then draft his report in which he examines all the questions raised and proposes a draft judgment, setting out the

58Jbid 167. 59 See cases cited in Letourneur, op cit n 22, 195; Odent, op cit n 28, 787. 60 Decret 75-791 of 20 August 1975 Art 10 (France), (1975) Dalloz Leg 327, 328. 61 Letourneur, op cit n 22, 195; J P Negrin, "Reformes Recentes Relative au Conseil

d'Etat statuant au Contentieux" (1977) Dalloz Chronique 79. 62 Negrin, op cit n 61, 79. 63Jbid. 64 Ibid 78. 65 Odent, op cit n 29, 788. 66 Brown, op cit n 23, 61.


findings of fact and the legal bases which justify his conclusion. In principle the rapporteur is only supposed to examine the moyens (legal grounds) expressly raised by the parties. Judges should only raise a legal ground on their own initiative when it has the character of a moyen d' ordre publicthis cannot be precisely defined, but in general has been said to be a ground relating to a question of such public importance that if a judgment was given without taking it into account, the judge himself would be disregarding the law.67 However, where an applicant is not represented, the rapporteur may find it necessary to "interpret" the legal grounds and to distinguish grounds from arguments.68 A conseiller of the tribunal administratif of Grenoble has described how he sees the special role of the administrative judge when confronted by parties of unequal strength:

The applicant is more likely to have the feeling that an act was unlawful, or that everything did not happen quite as it should, than be able to prove this clearly. The specialised administrative department can normally confront him with highly structured legal phrases which give all the appearances of logical and irrefutable proof of the legality of the act attacked ... it takes time to discover exactly what the applicant means, translate it into legal terms, and above all to find flaws in the seemingly perfect administrative reasoning!19

The completed report and the file go to the president of the sous-section who studies it or has his assistant conseiller study it, and comes to his own conclusion. He then calls a meeting of the sous-section where the rapporteur's report and the problems raised by the case are discussed, and the rapporteur's proposal is either accepted or modified. On rare occasions the case is remitted to the rapporteur for further consideration. If the sous-section considers further fact-finding to be necessary, the instruction will be re-opened. When the report is accepted by the sous-section, the file is given to the member of the sous-section who is acting as commissaire du gouvernement for that case. This will usually be a member with considerable experience in the administrative court.

(c) The Commissaire du Gouvernement

As his name indicates the commissaire du gouvernement was originally intended to be the legal representative of the State,7° or at least to supervise the way in which the Conseil d'Etat exercised its judicial powers. However, the institution has evolved in a completely opposite sense. The person fulfilling this role has been more accurately described as le commissaire du loi ou du droit.71 The Conseil d'Etat has developed the principle of the complete independence of the commissaire du gouvernement.72 He reviews

67 Odent, op cit n 29, 796. It includes the ground of !'incompetence and has included a question of res judicata and of an amnesty. For further examples see Odent, 797-802.

68 Odent, op cit n 29, 788-789. For examples of "interpretations" see Chapus, op cit n 54, 46-47.

69 Viargues, "Plaidoyer pour les Tribunaux Administratifs", Revue du Droit Public et de Ia Science Politique en France et a l'Etranger [5-1979] 1251, 1256 (my translation).

70 The institution was created in 1831, the year in which the Commission du Contentieux began to conduct its business in public: Brown, op cit n 23, 21-22.

71 Vedel, Droit Administratif (5th ed 1973) 528. 72 Odent, op cit n 29, 805; Letourneur, op cit n 22, 192.


the file, makes any further inquiries he considers necessary, makes his own resume of the case, and recommends a decision. The purpose of this third examination of the case is twofold. First, he summarises the case for the conseillers from another sous-section who so far know nothing of the case but will participate in the judgment. Secondly, because the bulk of the preparatory work has already been done by the rapporteur and the soussection, the commissaire du gouvernement is free to consider the case from a broader perspective, to relate it to the general pattern of case-law and to any emerging problems of administration, and where necessary to criticise the case-law and propose changes.73 He may decide that the case is of sufficient importance to be judged by the full section du contentieux or the assemb!ee. 74

If the commissaire du gouvernement does not agree with the approach of the sous-section to the case, he traditionally makes known his disagreement before the judgment sitting. Further discussion ensues during which the sous-section may be convinced by the arguments of the commissaire du gouvernement or vice versa, or the disagreement may persist.75

(d) Judgmenf16

The first stage of judgment is the seance public. The few members of the public who attend are usually students. If the organ of judgment is one or two sous-sections it is possible for 20 cases to be handled consecutively during one afternoon. The full section du contentieux may handle up to six cases. The rapporteur will read a summary of the submissions put in by counsel for each party. The lawyers will then be asked if they wish to add anything to this summary. They are not allowed to introduce any new material, merely to elaborate on their written submissions. Counsel rarely makes oral submissions, but may do so if he has found out by prior inquiry that the commissaire du gouvernement intends to recommend a judgment unfavourable to his client. The client is seldom present. The commissaire du gouvernement will then read his conclusions. Counsel are permitted to make written comments on the conclusions of the commissaire du gouvernement.

The second stage is the delibere, which takes place immediately after the public hearing, and is not open to the public. However, any member of the Conseil d'Etat can attend the delibere of the full section or the assemblee as an observer, so these frequently take place before a critical audience of younger members. The cases presented at the public hearing are discussed in tum by the judges. The rapporteur is invited to support the arguments put forward in his original report, and the reasons for any disagreements are exposed. If further instruction is thought necessary the case is referred back to the sous-section. The judges will then try to reach agreement, and if this is not possible there is a count of hands. Abstention is not permitted. The decision is usually that recommended by the commissaire du gouvernement, but there have been some notable exceptions. The commissaire du

73 Letourneur, op cit n 22, 192. 74 The vice-president of the Conseil d'Etat, the president of the section du contentieux

or the president of the sous-section d'instruction may also make this decision: Brown, op cit n 23, SQ-51.

75 Odent, op cit n 29, 806. 76 Brown, op cit n 23, S0-54.


gouvernment is present at the delibere in order to clarify any aspects of his recommendations, but does not participate in the deliberations and does not vote. The rapporteur then re-writes the decision so that it reflects the opinion of the majority. It is signed by the secretary, the rapporteur and the presiding president. Their signatures serve as a guarantee that the judgment accurately reflects the majority opinion, but imply no personal agreement on the part of the signatories.77 Judgments are written in a traditional and extremely concise form and the reasons are given very baldly. To find a discussion of the relevant case law, one must study the conclusions of the commissaire du gouvernement. In important cases, these are published in the report with the judgment.

(e) Comments

The most obvious and basic characteristics of procedure before the Conseil d'Etat can be summarised as follows: 78

- proceedings are directed by the judge - they are conducted in writing - they are contradictoire--each party must be given the opportunity

to comment on the other party's case - the judgment is a collegiate decision, the result of carefully organised

teamwork

The fourth characteristic deserves further comment. The Conseil d'Etat believes that a case should be judged both by the judges who have been involved in the details of the case from the start and by judges who begin their assessment of the case with a fresh m1nd.79 It can be seen that only one out of five or more judges (the rapporteur) is intimately involved in the investigation, so runs a serious risk of having "his vision clouded by the dust of conflict".80 Thus a principal objection of common lawyers to inquisitorial procedure should not apply to the procedure of the Conseil d'Etat.

Another interesting aspect of this teamwork is related to the existence of a career as administrative judge. Decision-making is organised so that junior members have considerable responsibility, but are continually being supervised and assisted by the more senior members. The lynch-pin of the inquisitorial process is the rapporteur, a junior member, who carries out the investigation and participates in the judgment. His work is considered to be so demanding and so essential to the career of administrative judge that a decree requires that he be not transferred to another section of the Conseil or accept other outside employment until he has completed at least three years as auditeur.tn

It has occasionally been suggested that review of a case by the commissaire du gouvernement is unnecessarily time-consuming when the case has

77 Odent, op cit n 22, 812. 78 Letourneur, op cit n 22, 191-195. 79Jbid 192. 80 See Yuill v Yuill (1945) 1 All ER 183, 189; Jones v National Coal Board [1957]

2 QB 55, 63-64. lnLetoumeur, op cit n 22, 44; Decret 63-767 of 30 July 1963, Art 15 (France)

retained in Decret 75-791 of 26 August, 1975, Art 2, (1975) Dalloz Leg 327, 328.


already been examined by the rapporteur and the sous-section president.82

Defenders of the institution of commissaire du gouvernement point out that it not only provides an applicant with an independent analysis of his case, but is an ideal institution to foster the evolution of administrative law.83 All the most important doctrines of administrative law can be traced to the conclusions of commissaires du gouvernement.84 However Odent says that, although some commissaires have exerted considerable personal influence on the evolution of case-law, others have simply been the mouthpiece of a sous-section.85 The position carries considerable prestige and has been occupied by the most eminent jurists and by a subsequent Prime Minister, examples being Rene David, Letourneur and Leon Blum.

(2) The Tribunaux Administratifs

(a) Organisation and Membership

Organisation and procedure in the tribunaux administratifs was governed by an 1889 law which originally applied to the conseils de prefecture and was amended several times after the reforms of 1953 to bring procedure into line with that before the Conseil d'Etat. In 1973 these rules were put into a comprehensive code.86 The sources of recruitment and the hierarchy and method of promotion are set out in detail in a 1975 decree.87 The highest grade in the hierarchy is the president of the tribunal administratif of Paris, the next grade is president of one of the ten larger tribunals, next comes the grade of president of one of the remaining tribunaux, then three grades of conseillers. The decret provides that conseillers be recruited primarily from among graduates of the Ecole Nationale d'Administration, and that for every three graduates one other person with specified administrative or judicial experience be appointed. These latter recruits must do a six month practical course, then be slotted into a level of the hierarchy commensurate with their previous experience.

In order to cope with the dramatically increased workload of the tribunaux, 1980 legislation provides for the recruitment of additional conseillers over the next five years by entrance examination in administrative law.88 It is open to public servants of slightly less experience than has previously been required and to graduates eligible to sit for the Ecole Nationale d'Administration entrance examination. There is the possibility of promotion to the Conseil d'Etat, where three senior positions are reserved for members of tribunaux administratifs.

Three members of a tribunal administratif constitute a court. Apart from the tribunal of Paris which is divided into seven sous-sections, there is no formal equivalent of the sous-section d'instruction, although the larger tribunals may be divided informally into two or more sections. The

82 A comment made in relation to the tribunaux administratifs, below p 165. 83 Letourneur, op cit n 22, 192-193. 84 G Vedel, Cours a Ia Faculte de Droit de Paris (1951) quoted in Letourneur,

op cit n 22, 193. 85 Ibid 807-808. 86Decret 73-682 and 73-683 of 13 July 1973 (France), (1973) Dalloz Leg 307 and

308. 87 Decret 75-164 of 12 March 1975 (France), (1975) Dalloz Leg 99. SSLoi 80-511 of 7 July 1980 (France), (1980) Dalloz Leg 265.


rapporteur, usually a very junior member, tends to carry out the instruction under the close supervision of the president.89 At the beginning of each year, one or more senior conseillers will be appointed to act as commissaire du gouvernement for that year. A small committee of the Conseil d'Etat inspects the tribunaux administratifs and advises them on problems of procedure and organisation.

(b) Procedure

Procedure before the tribunaux administratifs is basically similar to that before the Conseil d'Etat, but less formal. The main difference is that parties are permitted to make oral observations before the tribunal, and they or their lawyers frequently do so. The procedure of the enquete is used more frequently than in the Conseil d'Etat. Parties who wish to be represented must be represented by lawyers, but are not restricted to the specialist advocates required for Conseil d'Etat proceedings. It is interesting to look in some detail at the parts of the code which govern special measures of instruction.

(c) Expert Opinions90

The tribunal may order an expert opinion either on its own initiative or at the request of a party. There will normally be only one expert, unless the tribunal thinks it necessary to have more. The parties may nominate experts, but the tribunal will choose them. The expert is not permitted to have any fee or expenses paid by a party. His fee is paid by the court and then added to costs. Public servants who have already expressed an opinion on the matter to be decided, or who have been involved in the decision appealed against, cannot be nominated as experts. If there are several experts, they must make a single written report within a prescribed time limit. If they disagree, they must each give a separate opinion and their reasons. The expert can refuse to give an opinion, but if he accepts and is late in producing his report, he will be liable for costs caused by his lateness. Each party is asked to comment on the expert's report within a time limit (usally 15 days). If the tribunal does not get enough help from the expert's report, it can summon the expert to appear before it and be questioned on his report, or it can order additional measures of instruction. The tribunal is not obliged to follow the advice of the expert.

(d) Site Visits91

Parties must be notified at least four days in advance as to when these will take place, and a report is made of the visit. Any comments by the parties on the visit must be attached to the report.92

(e) The Enquete93

The tribunal can, on its own initiative or at the request of the parties, order an inquiry into particular facts, to take place either at a public

89 Brown, op cit n 23, 46. 90 Decret 73-683 of 13 July 1973 (France), ( 1973) Dalloz Leg 308, Ch IV, Art

Rll7-R126. 91 Decret 73-683 of 13 July 1973 (France), (1973) Dalloz Leg 308, Art R137-R138. 92Jbid Art R137 and R123. 93[bid Art R139-14S.


hearing of the tribunal or before a tribunal member on site.94 Parties are notified and invited to bring witnesses. Evidence should be given on oath. Witnesses are heard separately, but can be re-heard and confronted with each other. Where the inquiry is conducted as a public hearing, a report is made and endorsed by the president. If the inquiry is conducted by a single member of the tribunal on site, the report must state the day, place and time of the inquiry, whether or not the parties were present, the names, addresses and professions of the witnesses, whether the witnesses took the oath or their reasons for not taking it, and the evidence. Each witness is given a report of his evidence to read and to sign, and the report must state if he is incapable of signing or refuses to sign it. If the parties were not present, the report of the enquete is placed at the Registry, and the parties are given a time limit within which to study it and make comments. The tribunal may, either on its own initiative or at the request of a party, order the parties to be questioned, either at the public hearing or in a room at the tribunal.

(f) Workload and 1980 Reforms The tribunaux administratifs have recently been faced with a dramatically

increased workload. Between 1969 and 1975, from 20,000 to 22,000 cases were registered each year.95 By 1978-1979 these had increased by 63 per cent, and the waiting list for 1981 was predicted to be three years.96 The Administrative Appeals Tribunal should be able to avoid such a problem because it can be forewarned of new areas of jurisdiction and plan accordingly. However it is relevant to look at the French courts' reaction to the problem because it has involved a re-evaluation of their long standing procedures.

It has been seen that one solution to the increased workload in France has been to increase the number of administrative judges. This measure does not have an immediate effect because of the need to train administrative judges and to integrate them into the existing hierarchy within the tribunaux. Another suggestion has been to dispense with review by a commissaire du gouvernement. Opponents of this proposal argued that it would place an impossibly heavy burden on the president.97 A 1980 decree now indicates that the commissaire du gouvernement will no longer participate in all cases, but only when the president so decides, and can act as rapporteur when not acting as commissaire du gouvernement.98

One solution which seems to be rejected by French reformers is that of the single judge. Such a solution is seen as likely to jeopardise seriously the quality and impartiality of judgments, and to necessitate some other form of safeguard which could be equally time-consuming.99 Odent, a recent president of the section du contentieux, has said:

94Jbid Art R139-140. 95 Viargues, op cit n 69, 1251. 96Jbid 1252-1253. 97 Ibid 1255. 98 Decret 80-438 of 17 June 1980 (France), (1980) Dalloz Leg 231. 99 Viargues, op cit n 69, 1254-1255. In certain cases litigants can choose to have

the case judged by a single juge-delegue, but seldom take this option.


La solution du juge unique est detestable en contentieux administratif . . . une deliberation serieuse, aboutisant a un jugement offrant des guaranties d'independance et d'impartialite aux justiciables, implique necessairement que plusieurs personnes soient consultes, discutent leur point de vue respectif et degagent une majorite.1

3 INQUISITORIAL PROCEDURE AND NATURAL JUSTICE

A Oral Hearings and Cross-Examination

An inquisitorial approach requires the judge to be actively involved in a case from an early stage of proceedings. He cannot perform his function during one temporally continuous hearing, so proceedings are discontinuous and in France are predominantly conducted in writing. The principle of "rights of defence" developed by the French administrative courts and the common law principle of audi alteram partem seem to be almost identical, except that in the Conseil d'Etat it has been considered normal for the other side to be "heard" in writing and parties have no right to cross-examine. In common law countries, an oral hearing with cross-examination is considered to be particularly important for the resolution of disputed questions of fact, especially where the credibility of the parties is in issue. The Administrative Appeals Tribunal has frequently said that it places a higher value on evidence given in person and tested under cross-examination than on written evidence.2 The Tribunal has recently gone to considerable lengths to ensure that applicants who may be prevented by distance or for medical reasons from attending a hearing have the opportunity to give oral evidence. It has travelled to country areas, and on one occasion heard the applicant's sworn evidence by means of telephone conference facilities.3 It is interesting that even in the Conseil d'Etat the procedure of the enquete is now being used more frequently to resolve questions of fact, and one conseiller has recently commented that the rights of parties before the Conseil d'Etat would be better protected if a procedure similar to cross-examination existed.4 It seems certain that, in the Administrative Appeals Tribunal, oral hearings will continue to be held in the large number of cases which involve disputed questions of fact, and that an important function of the Tribunal during the early stages of proceedings will be to sift out those questions and appeals which can be resolved prior to or without a hearing, and to identify the issues to be resolved at a hearing.

So far, tribunal members appear to have been very careful to obtain the permission of the parties before using an inquisitorial measure or adopting a certain procedure. The French approach is to notify the parties, not to

1 Cours de Contentieux Administratif de ['Institute d'Etudes Politiques de Paris (ed 1977-1978), Les Cours de Droit, 910 quoted in Viargues, op cit n 69, 1255: ''The solution of the single judge is abhorrent in administrative litigation . . . a serious deliberation resulting in a judgment offering guarantees of independence and impartiality to the parties, necessarily implies that several people be consulted, discuss their respective points of view and reach a majority decision."

2 In eg Re Waterford and Director-General of Social Services (1980) 3 ALD 63, 68. 3 Re SB and Director-General of Social Services (1981) 3 ALN 153. The Tribunal

has frequently used teleconference facilities for hearings for directions but had not previously used them for taking evidence, see generally Hall, op cit n 6, 91-92.

4 Lefas, op cit n 53, 758-759.


seek their agreement, although measures suggested by a party will sometimes be adopted. If, in the interests of expedition, the Tribunal were to exert a stricter control over the conduct of proceedings, questions of natural justice might arise, particularly in view of the Federal Court decision in the Sullivan case.5 It is relevant here to look in some detail at that case.

Major Sullivan had applied to the Administrative Appeals Tribunal for review of a decision of the Secretary of the Department of Transport refusing, on medical grounds, to renew his commercial pilot and radio telephone operator licence. At the hearing before the Tribunal, the applicant, who .conducted his own case, said he wished to call as a witness a Dr Evans, the only doctor who had recently treated him. He told the Tribunal that he had not asked for Dr Evans to be summoned because the doctor had told him he would be at the hearing. The doctor was called but found not to be present. The applicant did not request an adjournment and the Tribunal did not offer him one. Dr Evans' testimony would have been irrelevant to the claim for a normal commercial pilot licence because it was clear that the applicant failed to meet the statutory medical requirements. However, the Air Navigation Regulations required the decision-maker, on refusal of the normal licence, to consider whether a conditional licence should be granted. Dr Evans' evidence would have been relevant to the question of the conditional licence. The applicant, in his submission, had concentrated exclusively on his claim for a normal licence and the Tribunal had not appreciated the need to decide the question of the conditional licence.

On appeal to the Federal Court, all three judges based their decisions that proceedings had miscarried on error of law, in that the Tribunal had failed to deal with a question which arose for its determination, and had failed to give in its reasons findings of fact relevant to determination of that question, as required by section 43(2). However, Sullivan, who was represented before the Federal Court, also argued that the Tribunal's failure to adjourn the proceedings, or to offer an adjournment, in order to call Dr Evans, amounted to a denial of natural justice.

Two of the three judges considered the question of natural justice and made some general comments on the procedure of the Tribunal. It is relevant to quote these at some length. Deane J, referring to section 33(1) (b), said:

It is apparent that the objectives of expedition and of lack of formality or technicality and the requirements of fairness will ordinarily be best achieved by a ready identification of the issues which are, in truth, in dispute between the parties in a particular application for review. In the ordinary case, a tribunal which is under a duty to act judicially and which has the relevant parties before it will be best advised to be guided by the parties in identifying the issues and to permit the parties to present their respective cases in the manner which they think appropriate. Circumstances may, of course, arise in which such a statutory tribunal, in the proper performance of its functions, will be obliged to raise issues which the parties do not wish to dispute and to interfere, either by giving guidance or by adverse ruling, with the manner in which a particular party wishes to present his case.

5 Sullivan v Secretary, Department of Transport (1978) 1 ALD 383.


Ordinarily, however, in the absence of a request for assistance or guidance by a party who is appearing in person, a tribunal under a duty to act judicially should be conscious of the fact that undue interference in the manner in which a party conducts his case may, no matter how well intentioned, be counter-productive and, indeed, even overawe and distract a party appearing in person to the extent that it leads to a failure to extend to him an adequate opportunity of presenting his case.6

He went on to say, in answer to suggestions by counsel, that there was nothing to indicate that the applicant was under any misapprehension either that the Tribunal was not prepared to adjourn, or that Dr Evans' evidence was unnecessary.7

Smithers J considered that there had been a breach of natural justice:

As a matter of intellectual choice the question of pursuing the matter of calling Dr Evans was left to the appellant. But according to the personality and competence of the appellant in the face of the Tribunal that might mean very little.8

Earlier in his judgment he made the following general comment:

The Tribunal is established to exercise a function in the sphere of government. The objective is the achievement of justice in the relations between the citizen and the State compatible with standards only definable as those of good government. This is a function of a very special nature. Its proper performance depends upon the Tribunal having the wide powers and flexible procedures with which it is provided: see in particulars 33 of the Administrative Appeals Tribunal Act. For the performance of its function it would seem appropriate, according to circumstances, for the Tribunal to take certain initiatives, and to regard itself as unfettered by the strict rules of the adversary system. And s 39 is to be seen as imposing a duty upon the Tribunal consistent with this conception of its function.9

The different views of Smithers J and Deane J on the question of whether Major Sullivan had been denied natural justice seem to derive from their differing assessments of that applicant's competence to present his case. Deane J appears to consider that it would only be in exceptional circumstances that the Tribunal would need to raise issues or give guidance to an applicant appearing in person, a view which, in my opinion, reflects an unrealistic optimism as to the ability of non-legal applicants to find out for themselves the legal issues involved and the available procedures.10 Moreover, the Sullivan case provides a perfect example of a reliance on adversary procedures leading to confusion of the issues and frustration of the objectives of section 33 ( 1) (b). However Deane J's remarks do highlight the very delicate task facing presiding members when the Tribunal does intervene to guide an applicant.11 The senior members, who preside at the

6Jbid 402-403. 1Jbid 403. 8Jbid 392. 9Jbid 386.

lOSee Todd, (1981) 12 FL Rev 95, 110 for the approach of a Tribunal member who has presided at a large number of hearings where applicants appeared in person.

11 Hall, (1981) 12 FL Rev 71, 89, referring to Sullivan v Secretary, Department of Transport (1978) 1 ALD 383, 402-403.


majority of hearings involving unrepresented applicants, have shown themselves to be extremely sensitive to the need to ensure that applicants are not overborne and have the opportunity to put their views.

The respective approaches of Deane J and Smithers J to the question of the Tribunal's procedure may also be attributable to differing conceptions of the role of the Tribunal. Deane J's remarks suggest a conception of the primary role of the Tribunal as that of resolving a dispute between two parties. Smithers J apparently saw the Tribunal as having a governmental function with implications for procedure. Fox J, in the more recent Kuswardana case, has referred to the function of the Tribunal as one of "administrative inquiry" and has cautioned against "trying to apply to procedures and practices operating in an administrative setting those which apply in a judicial setting" .12

Fisher J, the third judge in the Sullivan case, expressed agreement with Deane J's statement of facts, "his conclusions and his reasons for reaching his conclusions" .13 It is not clear whether this agreement extended to the view that parties should ordinarily be allowed to present their cases before the Tribunal without interference.

In my opinion, it would be unfortunate if the obiter remarks of one judge in the relatively early Sullivan case were to deter the Tribunal from departing from adversary procedure where to do so will assist a non-legal applicant to present his case and is in line with the requirements of section 33 ( 1) (b). Moreover, Deane J acknowledged that intervention by the Tribunal could be necessary in some circumstances.

In cases involving applicants appearing in person or with a non-legal representative, the Tribunal has devised some procedures consistent with the requirements of section 33 ( 1) (b) .14 Some attempts have been made to speed up proceedings where parties are represented by counsel. For instance, at a hearing attended in the social security jurisdiction, the presiding member, a senior member, invited counsel for the applicant to treat a detailed statutory declaration, submitted by the applicant to the primary decisionmaker, as evidence-in-chief, to confine his examination of the applicant to elaboration of the material in the statutory declaration, and then to allow his client to be cross-examined on the whole document.15 At that hearing, the examination and cross-examination of the applicant took up most of the morning, at the end of which the applicant's position in relation to one alleged fact was still not clear and was elucidated by a few brief questions from the presiding member. It is difficult for counsel to accept a mere invitation by the Tribunal to follow a certain procedure if he considers it contrary to the instructions or interests of his client to do so. However, it seems that applicants represented by counsel would not necessarily be disadvantaged if the Tribunal were to take a firmer line on procedure.

Where the evidence of a legally represented applicant has already been reduced to writing, or summarised in a statement sought by the Tribunal,

12 Kuswardana v Minister for Immigration and Ethnic Affairs, (1981) 35 ALR 186, 199 cited in Hall, op cit 88-89.

13 Sullivan v Secretary, Department of Transport (1978) 1 ALD 383, 410. 14 Hall, op cit n 11, 88-92. 15 Re Buhagiar and Director-General of Social Services, No 81/1 unreported hearing

attended 24 April1981.

170 Federal Law Review (VOLUME 13

one possible mode of proceeding might be for the applicant to first make a statement in narrative form if he so desired, then be questioned by the Tribunal, then be examined if this was necessary in order to fill in any gaps or emphasise a particularly important point, and finally be cross-examined. A witness whose evidence was in writing could also be questioned first by the Tribunal. Such an approach would place represented applicants on a more equal footing with unrepresented applicants and would, in my opinion, be consistent with the provisions of section 39. Counsel would still have the opportunity to make submissions on points of law and to make a closing address.

B Expert Witnesses

There has been comment elsewhere about the need for the Tribunal to speed up procedure in cases which depend on expert medical evidence.16

Although the Tribunal is frequently constituted by members with expertise, it still needs to rely on the evidence of expert witnesses. For instance, in a pilot licence case, the Tribunal has said it had largely to be guided by the medical evidence.H Reliance on adversary methods of presenting expert evidence can sometimes lead to unnecessarily protracted hearings and to irrelevant or insufficient evidence coming before the Tribunal. For instance, some applicants have not called the doctor who treated them at the time of a relevant illness,l8 even after having been invited to do so by the Tribunal.19

The code governing the French tribunaux administratifs sets out a procedure which appears to allow control by the courts over the number of expert witnesses called and to ensure their impartiality, while still giving the parties a say in the choice of expert and an opportunity to contradict the expert evidence. An evaluation of the operation in practice of the French provisions could be of interest to the Tribunal.

In the French administrative courts, the expenses of an expert witness are paid by the court and then added to costs. The Administrative Appeals Tribunal does not have power to award costs, and to give it such a power could limit its accessibility to the ordinary citizen.20 However, if parties were relieved of the need to pay for their own expert witnesses, it would seem reasonable that they be required to share the cost of an expert witness summoned by the Tribunal, provided that the Tribunal had power to relieve an applicant of this obligation in cases of hardship. Parties would come to the Tribunal knowing that any medical evidence considered relevant by the Tribunal would be called.

The Tribunal would have power to appoint an expert witness under section 40(1A) of the Act. However, a limitation on a party's ability to call the expert of his choice, if considered desirable, may need to be implemented by amendment to the Act in case it were seen as inconsistent with section 39.

16S Skehill, (1981) 12 FL Rev 114, 115. 17 Re Lanham and Secretary, Department of Transport (1978) 1 ALN 629. 18 Eg Re Waddy and Delegate of the Secretary, Department of Transport (1978) 1

ALN 199. 19 Re SB and Director-General of Social Services (1981) 3 ALN 153. 20 See generally Todd, op cit n 10, 109-110.


C Official Notice

In some respects an inquisitorial approach can result in parties being better equipped to prepare their cases, and may go some way towards remedying the problem of "official notice" discussed by Dr Smillie21 and by Professor Whitmore and Dr Aronson.22 Administrative tribunals are not restricted, in their power to rely on material within the knowledge of their members, to facts of which judicial notice can be taken in a court of law.23

The Administrative Appeals Tribunal is usually constituted in part by expert members who are expected to draw on their accumulated knowledge and expertise in assessing the evidence of expert witnesses and in reaching a decision, so members have far more opportunity to rely on information not disclosed to the parties than do judges in a court of law. Section 39 of the Act requires any documents on which the Tribunal intends to rely to be made available to the parties. Courts have held that natural justice requires factual information within the knowledge of a tribunal to be disclosed to the parties, but have appreciated the difficulty of requiring disclosure of the reasoning processes of an adjudicator whereby he draws on his accumulated knowledge and experience in evaluating evidence.24 As Dr Smillie has pointed out, it is not always easy to draw a distinction between knowledge of "fact" and "accumulated knowledge, skill and expertise". He suggests some very helpful guidelines to assist tribunals in deciding whether disclosure should take place.25 However, the observance of most rules of disclosure must depend to a large extent on the tribunal member's ability and willingness to analyse his own reasoning processes. An inquisitorial approach can contribute towards automatic disclosure of the reasoning process of a tribunal member. If members make a practice of seeking submissions from the parties on matters which the members consider to be particularly relevant to the decision, parties are more likely to be able to make submissions on all matters which form the basis of the Tribunal's decision. This approach does not remove the need for guidelines governing disclosure as suggested by Dr Smillie but can, it is suggested, provide an additional safeguard against breaches of natural justice.

It is relevant to mention here the increasing number of Administrative Appeals Tribunal decisions which have to be based in part on vague concepts such as the "public interest". In some appeals, such as those involving air safety regulations, the nature of the predominant public interest would be obvious, but in others, for instance appeals involving ownership of the media, the order in which competing public interests should be rated could be a matter of opinion. Parties who invoke "the public interest" may each have a different view of it. The directions given by the President in Re Control Investments and the Australian Broadcasting Tribunal (No 2)26

provide an example of the use of an inquisitorial approach to ensure that parties make known prior to the hearing their interpretation of the public

21 J A Smillie, ''The Problem of 'Official Notice': Reliance by Administrative Tribunals on the Personal Knowledge of their Members" [1975] Public Law 64.

22 H Whitmore and M Aronson, Review of Administrative Action (1978) 114-120. 23 Smillie, op cit 65-66. 24 See case cited in Smillie, op cit 69. 25 Ibid 10, 84-86. 26 (1981) 3 ALD 88.


interest. His directions would also indicate to the parties the issues considered particularly relevant by the Tribunal, and ensure that the Tribunal received submissions on these. If a tribunal were to favour a view of the public interest not espoused by a party and not made known in prior decisions of that tribunal or by ministerial guidelines, natural justice would, it is suggested, require that the parties be invited to make submissions on that view.

The French institution of commissaire du gouvernement, to some extent, provides a procedural check on breaches of natural justice of the kind discussed above. The commissaire du gouvernement does not participate in the judgment but his views represent an impartial view of the law and of public interest questions, and are accepted by or have considerable influence on the court in the vast majority of cases. The principle of "rights of defence" requires that the parties have the opportunity to make submissions in writing after the commissaire du gouvernement makes public his conclusions. In many cases this would, in effect, be giving the parties the opportunity to comment on a draft judgment. However, it would be difficult to incorporate such an institution into the decision-making process of the Administrative Appeals Tribunal.

D Bias-The "Dust of Conflict" Objection to Inquisitorial Procedure

The common law view that judges should not descend into the arena lest their vision be clouded by the dust of conflict27 may account for the reluctance of some Administrative Appeal Tribunal members to take a more inquisitorial approach. What are the perceived and actual dangers of a judge "descending into the arena"? One Queen's Counsel, rejecting an inquisitorial system, has written:

. . . a system which does not provide for the maximum exposure of the judge to competing arguments will be less than adequate. Moreover, that he may be receptive to and capable of discerning the better argument, it is vital that he bring to the task a mind not already predisposed to one point of view by reason of having played the key role in its formulation.28

The first statement assumes a perfect functioning of the adversary system. It also seems to reflect a commonly held misconception that inquisitorial procedure does not permit the parties to present their arguments. It has been seen that the French procedure allows, and indeed requires, the judge to be exposed to the competing arguments of the parties. However the second objection deserves attention. The French have considered it desirable to ensure that some judges approach the decision-making task with a fresh mind. They have developed a procedure whereby a case is judged by at least five judges (three in the tribunaux administratifs), only one of whom becomes heavily involved in the "conflict". It has been seen that in the Conseil d'Etat there are several levels at which judges become involved in the case:

27 See Yuill v Yuill (1945) 1 AllER 183, 189; Jones v National Coal Board [1957]; 2 QB 55, 63-64.

28 P D Connolly, "The Adversary System-Is It Any Longer Appropriate?" (1975) 49 AU 439, 441.


Levell the rapporteur, who will elicit the evidence necessary for proof of facts and will prepare a draft judgment. (An order from the president of the sous-section will be required for special fact-finding measures.)

Level 2 the president of the sous-section who will supervise the work of the rapporteur, will study the file and the rapporteur's draft judgment, and may suggest the eliciting of further evidence from the parties or other sources.

Level 3 the sous-section d'instruction, which will receive a report on the case from the rapporteur and the president, may suggest that further inquiries be made or that the rapporteur's recommendations be modified, and which will agree on a recommended judgment.

Level 4 the remaining judges who become involved at the public hearing where the rapporteur summarises the submissions of each party, the parties' representatives may enlarge on these submissions, and the commissaire du gouvernement will present his independent review of the case and his recommended judgment. The judges then retire in private to consider the recommendations of the sous-section, that of the commissaire du gouvernement, and the written submissions of the parties.

In the smaller tribunaux administratifs, there is no sous-section d'instruction so levels two and three are merged and, since 1980, review by the commissaire du gouvernement will only take place where the president so orders.

A structuring of participation would be difficult to achieve in the Administrative Appeals Tribunal because, whereas the French administrative courts are constituted by judges who all have general expertise in both law and public administration, the Administrative Appeals Tribunal is usually constituted by members who each have a different area of expertise, and only one of whom is a legally qualified member. For instance, in appeals from decisions of the Department of Transport refusing on medical grounds to renew or grant a pilot's licence, the two non-legal members of the Tribunal will be a doctor and an experienced pilot. Each member has a separate role to play in fact-finding. The legal member presides at hearings and takes a leading role in the questioning of parties and witnesses. Expert witnesses may also ask questions at a hearing and will take a major role in assessing the evidence. The legal member has sole responsibility for identifying the legal issues of the case and formulating legal arguments where these are not adequately presented by the parties. An inquisitorial system incorporating the kind of safeguards built into French procedure would require the participation of another legally qualified member in the judgment or in the preparation of the case, so that the presiding member did not bear full responsibility for both the inquisitorial activity and the decision-making.

A question raised by an examination of the French system is whether the person who does the investigative and preparatory work for a case should also participate in the making of the decision. The rapporteur's participation in the judgment is based on the principle that he who hears should decide. The common law has likewise required compliance with this


principle in statutory tribunals.29 The institution of rapporteur has evolved in a decision-making context where it would not otherwise happen that the person who heard the evidence participated in the making of the decision. In the Administrative Appeals Tribunal, where the evidence relating to disputed questions of fact is given orally at a hearing before all members constituting the Tribunal, there would seem to be no violation of the above principle if an officer of the Tribunal prepared the case for hearing but did not participate in the judgment.

One possible means of achieving some separation of the inquisitorial and judicial responsibilities might lie in the allocation to each high volume jurisdiction of a legally qualified officer with a knowledge of the functioning of the relevant government department and of the the problems facing applicants in that jurisdiction. That officer could be responsible for the initial analysis of an appeal and for briefing the president and the member or members constituting the Tribunal. If the appeal proceeded to a hearing, he could, after consultation with the members constituting the Tribunal, ensure as far as possible that all relevant evidence would be before it. He might even assist in the eliciting of evidence at some hearings. An experienced officer could be nominated by the President to chair a preliminary conference or, under the 1982 amendment to section 33(2),30 to give directions as to procedure. It would of course be important for such an officer to refer appeals which seemed capable of resolution without a hearing to the member constituting the Tribunal so as to retain the flexibility whereby simple cases can be resolved quickly, or a hearing for directions can, by consent of the parties, become the final hearing.31 In cases of extreme complexity, it may be appropriate for a senior or presidential member, who would not preside at the hearing, to undertake the initial analysis and to give directions as to procedure. This did in fact occur in the Control Investments case32 where the President gave directions as to procedure and a deputy president heard the appeal.

One senior member has pointed out that a considerable amount of consultation, of the kind which has been formalised in the French administrative courts, takes place at an informal level between the full-time members of the Tribunal. These members handle most of the cases involving unrepresented applicants, where an inquisitorial approach has often been required. Members' clerks provide valuable assistance with research and preparatory work, but they only remain with the Tribunal for about twelve months.

An examination of the French system suggests that there might be advantages in having a career structure within the Tribunal whereby an experienced legal officer or member's clerk could be promoted to member and then to senior member. The presence of a hard core of career members would facilitate the development of procedures peculiarly suited to the work of the Tribunal. Moreover, if the career possibilities were made known, universities might provide more opportunities for law students to combine

29 Whitmore and Aronson, op cit 98. 30 Statute Law (Miscellaneous Amendments) Act (No 1) 1982 (Cth), s 26(b). 31 See Hall, op cit n 11, 92. 32 Re Control Investments Pty Ltd and the Australian Broadcasting Tribunal (No 2)

(1981) 3 ALD 88.


studies in administrative law with both general and specialised studies in public administration.

In devising appropriate inquisitorial procedures for the Administrative Appeals Tribunal, it may be helpful to look at procedure in the German courts, both civil and administrative, because proceedings there are conducted orally, although written briefs are required, and proof of facts takes place at the main hearing. In commercial cases and in welfare courts of first instance, the court is constituted by a presiding legal judge and two lay judges, the presiding judge acting as rapporteur. The appellate level civil courts, the general administrative courts and the appellate level welfare courts are constituted by three legal judges, sometimes sitting with two lay judges. One of the legal judges acts as rapporteur, his role being to direct the parties in preparing the case for trial.33

4 THE RESPECTIVE RESPONSIBILITIES OF THE TRIBUNAL AND THE PARTIES FOR ADDUCING EVIDENCE

In a tribunal with inquisitorial powers and a duty to decide appeals on their merits, there seems to be a need to clarify the respective responsibilities of the tribunal and the parties for adducing evidence. No such need arises in adversary proceedings where the adjudicator decides an appeal on the evidence produced by the parties, and the responsibilities of the parties at a particular point of time are automatically determined by the incidence of the evidentiary burden of proof. It is relevant to look briefly at the Administrative Appeals Tribunal's approach to the question of onus or burden of proof. The Tribunal has said in a customs case that neither party bears an onus of proof in the sense that the department's decision is considered to be either prima facie right or prima facie wrong, but that "the language of the tariff or the state of the known facts may give rise to some onus of proof resting on one party or another in a particular case".34 When the Tribunal speaks of the decision being either prima facie right or wrong, or the language of the tariff giving rise to an onus of proof resting on one party, it appears to be talking of what Professor Cross has called the "legal burden of proof".35 If the legislation governing the making of the primary decision requires the applicant to satisfy the director-general36 or requires the decision-maker to grant a claim unless satisfied that there were insufficient grounds,37 the applicant or the department would bear the same legal burden before the Tribunal. When the Tribunal speaks of the "state of known facts" giving rise to an onus resting on one party or another, it seems to be referring to the evidentiary burden38 or burden of adducing evidence. In a tribunal with inquisitorial powers and a duty to decide appeals on their merits, it does not seem strictly accurate to speak of an onus of adducing evidence falling on one party or another by reason of the state of known

33 Glos, Comparative Law (1979) 331-342. 34 Re Ladybird Childrens Wear Pty Ltd and Department of Business and Consumer

Affairs (1976) 1 ALD 1, 5. 35 J A Gobbo, D Byrne, J D Heydon (eds) Cross on Evidence, 2nd Australian ed

1979) 78-79 (hereinafter cited as Cross). 36 As in Social Services Act 1947 (Cth), s 107(1). 37 As in Repatriation Act (1920) (Cth), s47(2). 38 See Cross, op cit 79-80.


facts, because whether a party is made to bear an onus of adducing evidence will, in my opinion, depend not only on the state of known facts, but also on the policy of the tribunal on use of its inquisitorial powers.

The President, in his reasons for directions in Re Control Investments and Australian Broadcasting Tribunal (No 2) said, in answer to submissions on the onus of proof:

... no question of onus arises at the present time. The Administrative Appeals Tribunal has a function to perform and a duty to perform it. The progress of the review, which is that function, is not dependent upon the presentation of evidence by one or more of the parties. . . . During or at the end of the hearing a question of onus may arise as, for instance, because there are facts specially within the knowledge of a party which that party has not disclosed and does not wish to disclose. In such event, the Tribunal may see fit to come to its decision on an inadequate knowledge of the facts but in reliance upon a principle of onus or burden of proof.39

He re-iterated that the Tribunal would not be limited to consideration of facts, matters and contentions raised by the parties and continued:

It may appear to the Tribunal that some other matter should be taken into account.40

When exercising the powers of the Australian Broadcasting Tribunal, the Administrative Appeals Tribunal would have a statutory duty to "make a thorough investigation",41 so the President's remarks should perhaps be seen in that context. However his remarks are consistent with my submission that it is only after the Tribunal has fulfilled what it sees to be its obligation to inform itself that a question of onus of proof can arise.

It would obviously not be consistent with the requirements of section 33 ( 1) (b) that the Tribunal exhaustively investigate the facts of every appeal. Appeals within a particular jurisdiction would have certain common characteristics in respect of the kind of information required, the number of unrepresented applicants, the degree of public interest involved and any legal burden of proof placed on a party by the relevant legislation. The Tribunal might therefore be expected to develop a reasonably consistent approach towards use of its inquisitorial powers in each jurisdiction. However, a reading of decisions in jurisdictions where applicants are not normally represented reveals some marked variations in approach within a jurisdiction. To give one example, in appeals against decisions of the Minister for the Capital Territory determining the unimproved value of the applicant's land, the Tribunal has said that it should not be inhibited in its review functions by any inadequacy in the expression of the reasons for the review or any lack of understanding by an applicant of the relevant issues.42

In those cases, it is not uncommon for the Minister to justify his decision by calling an experienced valuer and for the applicant merely to proffer his non-expert opinion as to the value of the land. In one such case the Tribunal

39 (1981) 3 ALD 88, 95. 40 Ibid 96. 41 See Broadcasting and Television Act 1942 (Cth), s 25(1) and R v Australian

Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13, 32-33. 42 Re Greenham and Minister for Capital Territory (1979) 2 ALD 137, 141.


questioned the expert witness, discovered that his opinion was based in part on assumption rather than fact, and varied the decision without the benefit of another expert opinion.43 However, in another decision in the same jurisdiction the Tribunal said:

Particularly in cases where there is no expert evidence to contradict an expert with experience and no cross-examination to disclose erroneous thinking or assumptions on his part the expert's evidence must carry persuasive weight. Thus, having regard to the evidence as it was presented in this case, we accept the depreciation rates assessed by Mr M.44

A different approach as between appeals of a similar nature would mean that applicants were not equal before the Tribunal. The problem is one of striking a balance between achieving enough uniformity in a large jurisdiction to ensure that applicants in similar cases are treated reasonably equally, and preserving enough flexibility to allow the Tribunal to adapt its procedure to the needs of each case. It has so far been considered undesirable to promulgate regulations as to procedure in the Administrative Appeals Tribunal. Flexibility is conducive to expedition because simple cases can be disposed of quickly without undue formality. In this respect it is interesting to note the experience of Sweden, which until 1971 had no legislation governing procedure in a general way before administrative courts, although the code governing procedure in the ordinary courts served to some extent as a guide. In 1971 a new lower tier of administrative courts was created and an Administrative Courts Procedure Act enacted. After the system had been in operation for two years, it was noted that proceedings had become more time-consuming than before the reform, even though the new Act was less far-reaching in its regulation of the conduct of proceedings than the Act regulating procedure in the ordinary courts. 45

One possible approach for the Administrative Appeals Tribunal might lie in the drawing up of some very general guidelines, with more detailed guidelines for some jurisdictions. These could broadly set out the basic responsibilities of the Tribunal and the parties for adducing evidence, and the circumstances in which the Tribunal would be justified in pursuing inquisitorial measures requiring increased expenditure of public money.

It has been seen that in the French administrative courts, the use of inquisitorial powers is integrally tied up with the career structure and organisation of work within those courts. In the Administrative Appeals Tribunal the majority of presidential and senior non-presidential members (the members who will preside at hearings and give directions as to procedure) does not work full time with the Tribunal. There are, at the time of writing, only three full time members apart from the President himself. These are senior non-presidential members. The presidential members alternate between presiding over hearings in the Tribunal and sitting on cases in the Federal Court. Of the four part-time senior members, three have come from judicial appointments in Papua New Guinea and one

43 Re Connors and Minister for Capital Territory (1979) 2 ALD 819, 824. 44 Re Firth and Minister for Capital Territory (1979) 2 ALD 183, 198. 45 Holmgren, "The New Swedish Legislation on Administrative Jurisdiction" (1974)

18 Scandinavian Studies in Law 11, 84-85.


from the Attorney-General's Department, and not all are resident in the one state. Such a large proportion of part time presidential and senior members would not seem conducive to the development of a more uniform approach towards the use of inquisitorial powers.

It is relevant to look briefly at the extent of the investigative duty placed on administrative courts in some European countries. It has been seen that in France, a person applying to have an administrative decision annulled does not bear the burden of proof borne by an applicant in the French civil courts. It seems that the responsibilities of the applicant are to bring to the attention of the rapporteur the existence of any evidence within his knowledge which supports his case, and to supply information and documents requested by the court. The rapporteur will translate the application for review of an unrepresented applicant into legal terms, will seek relevant information from the Minister or other persons, and if necessary the court will order an expert opinion, an inquiry or a site visit.46

In Germany, the legislation governing procedure in the administrative courts provides that the code governing procedure in the civil courts will apply, one exception being that administrative courts must investigate the matter before them ex officio and are not limited to presentation of the matter by the parties. A rapporteur is appointed from among the judges.47

In the Swedish administrative courts, where a rapporteur system operates and there is review on the merits, the court, in preparing the case, is required to "ensure that the case is investigated as fully as its nature requires".48

This does not mean that an applicant can remain entirely passive. He may be informed of what particulars are required and asked to procure these himself. The travaux preparatoires for the 1972 code of procedure in administrative courts emphasised that the investigatory responsibilities of the court should be used especially to guide an unrepresented party who has difficulty in putting forward his case, but that guidance should be given openly in relation to other parties. Administrative courts normally investigate more actively when there is a greater element of public interest in the decision appealed against.49 It is difficult to find specific information about the extent to which rapporteurs in the above countries actually investigate a case, but two factors which emerge as relevant to the degree of investigation are public interest and the unrepresented applicant.

In Sweden, some concern has been expressed that proceedings have been conducted over the heads of applicants without sufficient attention being paid to their views.50 The same criticism could be made of French procedure in that the Minister's observations are not automatically forwarded to the applicant. As was mentioned earlier, the Administrative Appeals Tribunal has been extremely careful to seek the views of parties on any steps it proposes to take in order to elicit evidence. Re Josephine Duncan and Director General of Health51 provides an excellent example

46 Above p 159. 47 Glos, Comparative Law (1979) 339-340. 48 Administrative Court Procedure Act 1972 (Sweden) s 8, cited in H Ragnemalm,

"Administrative Appeal and Extraordinary Remedies in Sweden" (1976) 20 Scandinavian Studies in Law 205, 216.

49 Ragnemalm, op cit 216. 50 Ibid 217. 51 Unreported decision No Q80!2, commented on in (1980) 54 AU 752.


of a case where the Tribunal, assisted by suggestions sought from the parties, was able to elicit evidence which had not been available to the primary decision-maker.

In 1980, in order to assist applicants to prepare for hearings, the Tribunal produced a pamphlet entitled Your AAT Hearing-What Will It Be Like?. This pamphlet outlines in simple terms the procedure likely to be followed at a hearing and informs the applicant that he should bring all documents forwarded to him by the Registrar and that he can bring witnesses. It points out that the job of the Administrative Appeals Tribunal "is to decide what decision should be made in the light of all the facts and circumstances it can discover. So, if there is anything you think the Tribunal should know, tell it". Applicants with enquiries are encouraged to telephone or write to the Deputy Registrar in their capital city. The Tribunal has also prepared a pamphlet to assist applicants in Australian Capital Territory rating valuation cases. It contains extracts from previous decisions, including one on evidence, and is directed towards an applicant of a higher standard of education than is the general pamphlet. These pamphlets can only inform the applicant in a general way of what is expected of him and do not remove the need for the Tribunal to play an active role in some proceedings.

As the workload of the Tribunal expands, and its membership increases, guidelines would, in my opinion, help to ensure that applicants know what is expected of them and that applicants in similar situations receive similar assistance. Such guidelines could reflect practices already adopted by some Tribunal members. For instance, general guidelines to cover pre-hearing procedure might be along the following lines: 1 The Tribunal would attempt to find out at an early stage of proceedings

the facts and contentions on which parties, particularly applicants, sought to rely, and the witnesses they proposed to call.

2 The Tribunal would ensure that parties are aware of any other matters which the Tribunal considered relevant to the decision it has to make and of any witnesses whose evidence it considered would be of assistance.

3 An applicant, whether represented or not, would be asked to advise the Tribunal at an early stage if he were unable to attend a hearing and to give the reason why. If he were genuinely unable to attend, and his oral evidence were necessary to assist the Tribunal, an attempt would be made to obtain his oral evidence, perhaps by telephone hook-up.

4 The extent to which the Tribunal would spend time and incur expense seeking information, or summoning a witness suggested by the Tribunal to a party but not obtained or called by him, would be influenced by the importance of the case to the public and its importance to the applicant.

The fourth guideline needs some elaboration. There is an aspect of public interest in any challenge to an administrative decision because such decisions are ostensibly made in the public interest, and the public has an interest in administrative decisions being made in a manner fair to the citizen.02

52 Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 637-638.


However, there would normally be a greater public interest component in a deportation case where the applicant was well established in Australia, but suspected of drug offences, or in a decision over ownership of the media, than in a refusal by Australia Post to compensate an applicant for a broken vase, or in an appeal concerning the unimproved value of an applicant's land. However, although appeals within a jurisdiction might have something in common in terms of degree of public interest involved, it would not be possible to have rigid rules for each jurisdiction. An appeal involving a small sum of money might be of vital importance to the applicant, or be of public interest because it involved a very important question of law or administrative practice. The Tribunal would sometimes receive guidance from the relevant legislation, which might, for instance, require the decisionmaker to conduct a full inquiry. A legislative requirement that an applicant satisfy the primary decision-maker of some matter would not, in my opinion, affect the existence of the Tribunal's duty to use its inquisitorial powers to obtain relevant evidence. However, in such cases the Tribunal might adopt a consistent policy of seeking information from the parties and suggesting witnesses, but continue its present policy of not summoning a witness whom neither party was prepared to call, or seeking further information itself, unless this was demanded by the public interest. Where the public interest protected by the decision appealed against was obviously very important, for instance air safety, the Tribunal might be justified in making additional investigations before making a decision in favour of the applicant.

It would be difficult to draw up general guidelines to cover the conduct of hearings because the nature of these would vary considerably between jurisdictions. However, guidelines would seem appropriate in some jurisdictions in order to facilitate compliance with the requirements of section 33 ( 1) (b) and to ensure that applicants in similar situations received similar assistance.

5 CONCLUSION

An examination of procedure in the French administrative courts and of emerging procedures in the Administrative Appeals Tribunal indicates that inquisitorial procedure is compatible with observance of the rules of natural justice. I would argue that a sensitive use of inquisitorial procedure gives an applicant appearing in person the best opportunity to present his case, and that it can provide a safeguard against breaches of the hearing rule by Tribunal members required to make decisions based on their accumulated knowledge and expertise and on vague concepts such as the public interest. However, the rationale behind the layered decision-making process developed by the French administrative courts, and their rejection of the single judge, suggests that a presiding member should not be expected to carry the full burden of both the inquisitorial activity and the making of the decision. It would therefore seem desirable that recruitment of staff and organisation of work in a Tribunal with inquisitorial powers be directed towards achieving some division of those responsibilities.

There appears to be greater scope for inconsistent treatment of applicants by a Tribunal with inquisitorial powers than by a court operating under the adversary system. The use of broad guidelines, setting out the basic


responsibilities of the Tribunal and the parties for adducing evidence, has been suggested as one possible means of promoting a more uniform approach to the use of inquisitorial powers, particularly if the workload of the Tribunal continues to increase and its membership becomes more scattered.

Implementation of any suggestions made in this article would be made easier by the appointment of additional permanent staff to the Tribunal. At a time of public service cuts it has not been suggested that the Tribunal be fitted out with sous-sections and commissaires du gouvernement! However, the Kerr Committee envisaged that the Tribunal would be provided with research assistants.53 The allocation to each high volume jurisdiction of an appropriately qualified officer to take some responsibility for preparation of cases could, in my opinion, help the Tribunal to develop the most suitable procedures for its task, lighten the burden on presiding members, free them more frequently to suggest guidelines which would assist primary decisionmakers, 54 and may make inquisitorial measures more acceptable to some of the common lawyers on the Tribunal. It is unarguable that the long-term allocation of resources as between primary decision-making and the Administrative Appeals Tribunal should be made "in the light of the whole administrative process and the overall result that is to be achieved".55 An assessment of the contribution of the Administrative Appeals Tribunal in this wider context, including its contribution to the process of primary decision-making, should not, in my opinion, be made until the Tribunal has been given the opportunity to make the most effective use of its inquisitorial powers.

53 Commonwealth Administrative Review Committee Report (1971) para 292; and see H Whitmore, (1981) 12 FL Rev 117, 118.

54 See S Skehill, (1981) 12 FL Rev 114, 116. 55 P J Lanigan, (1981) 12 FL Rev 19, 23.

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