Academic journal article University of Queensland Law Journal

Community Values and Correct or Preferable Decisions in Administrative Tribunals

Academic journal article University of Queensland Law Journal

Community Values and Correct or Preferable Decisions in Administrative Tribunals

Article excerpt

Can tribunal decision-makers take account of community values, community standards or community expectations in the course of their deliberations? The courts have grappled with the role of community values in judicial decision-making for some time, but comparatively little has been said about the work of tribunals that are charged with making the correct or preferable decision. Do tribunal members have scope to refer to what Dyson Heydon recently described as 'non-legal experience'? (1) If they do, how should they go about making sense of that experience?

Downes J, President of the Administrative Appeals Tribunal, suggested in two cases he decided in 2011 before his retirement that 'community standards must assume an even more significant role' in the deliberations of tribunals compared to courts. (2) This paper begins with a discussion of the Australian debate over the role of 'non-legal experience' in the deliberations of judges. It then discusses the two decisions of Downes J and considers lessons for tribunal members. The paper concludes tribunal decision-makers should proceed cautiously when referring to non-legal experiences.

I NON-LEGAL EXPERIENCE AND THE COURTS

Until the 1980s, Australian judges generally appeared sceptical of the value of non-legal experience. Most law students are familiar with chief Justice Sir Owen Dixon's warning that 'There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism.' (3) Dixon CJ had an essentially conservative view of the role of the courts. That approach was taken rather further in the reasoning of Kitto J in Rootes v Shelton (4). His Honour gave short shrift to the intermediate court's reference to 'changing social needs' in a case about the developing law of negligence, observing:

   ... to discuss the case in terms of "judicial policy" and "social
   expediency" is to introduce deleterious foreign matter into the
   waters of the common law-in which, after all, we have no more
   than riparian rights.

This scepticism towards law that changed with the times arguably reached its apogee in the High Court's decisions in Dugan v Mirrors Newspapers Ltd (5) and State Government Insurance Commission v Trigwell. (6) In Dugan, the High Court decided the common law rule of attainder that prevented an individual sentenced to death from commencing legal proceedings continued to apply in New South Wales even though the death penalty had been abolished. In Trigwell, the High Court said the rule in Searle v Wallbank (7) was still good law in South Australia in the age of modern highways--which meant a farmer who failed to maintain his fences was not liable for negligence when his animals escaped onto the road where they might play havoc with fast-moving traffic. Barwick CJ explained the role of the court in Trigwell. (8)

   Where the law has been declared by a court of high authority, this
   Court, if it agrees that that declaration was correct when made,
   cannot alter the common law because the Court may think that
   changes in the society make or tend to make that declaration of the
   common law inappropriate to the times. The maxim that when the
   reason for its making has ceased the law itself ceases to bind has
   no application in such circumstances. ... [The court] can, of
   course, decide that that declaration was erroneous when made and
   itself declare what the common law ought properly be held to be. If
   there is no authority upon a point, the court may decide what the
   law is...

Gibbs J made a similar point. His Honour explained (9) the common law received into the colony upon settlement might include rules that:

   ... lie dormant until occasion arises for enforcing them. It is not
   however true that a law which once becomes part of the law of a
   territory ceases to become part of that law because changes in
   circumstances have rendered it unsuitable. … 
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