Evidence and fact-finding: what does ‘the tribunal is not bound by the rules of evidence’ mean?

The common statutory formula is that a tribunal “…is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit”. The first part of that formula is reasonably settled, post Sullivan v Civil Aviation Authority (2014) 226 FCR 555 and Bronze Wing International Pty Ltd v Safe Work NSW [2017] NSWCA 41, at least in theory – even if challenging to apply in practice. As to the second part, the discussion in ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 of credibility findings based on demeanour, and the link with unreasonableness and irrationality, opens up a relatively neglected area of tribunal jurisprudence. If a tribunal may be required in particular circumstances to see the person themselves before making a credibility finding, does that change our thinking as to when a tribunal is required to search out and obtain information for itself? And are there implications for tribunals in a post-COVID world , conducting hearings by telephone, on the papers, or with limited (and sometimes marginal quality) AVL facilities? This session will provide an update on recent judicial decisions, and consider a range of practical scenarios.

Dr Janina Boughey
Senior Lecturer, UNSW Law and Justice

Janina is a Senior Lecturer in the UNSW Faculty of Law, an ARC DECRA fellow, and the Director of the Administrative Law and Justice Project in the Gilbert + Tobin Centre of Public Law. Janina teaches and researches in Australian, Canadian and UK public law. Her work focusses on whether administrative law principles and institutions are ‘fit for purpose’ in light of the way modern governments function. Janina is the author, co-author and editor of several books, including ‘Government Liability: Principles and Remedies’ (LexisNexis, 2019) (with Ellen Rock and Greg Weeks) ‘Interpreting Executive Power’ (Federation Press, 2020) (edited with Lisa Burton Crawford). Janina holds a PhD from Monash University (for which she received the university medal), undergraduate degrees in Law and Economics (social science) from Sydney University (both with first class honours), and an LLM in government law from the Australian National University. She has previously worked in a number legal, policy and research positions including in the Administrative Law section of the Commonwealth Attorney-General’s Department, as a researcher in the Department of the Senate, and as Chair of Social Security Rights Victoria.

Linda Pearson
Principal Member  of NCAT

Linda Pearson is a Principal Member of the NSW Civil and Administrative Tribunal, in the Administrative & Equal Opportunity and Occupational Divisions. She has taught Administrative Law and Environmental Law, and is an Adjunct Professor, UNSW Law. Linda has worked as a member of a number of Commonwealth and NSW Tribunals, and as a Commissioner of the Land and Environment Court of NSW.

Date

Jun 11 2021

Time

11:15 am - 12:15 pm

Local Time

  • Timezone: America/New_York
  • Date: Jun 10 2021
  • Time: 9:15 pm - 10:15 pm
Category