The Duty to Inquire in Tribunal Proceedings

33 Pages Posted: 28 Sep 2012

Date Written: 2011

Abstract

The constitutional position of tribunals in our legal system is quite different to that of the courts. It is well settled that tribunals are administrative rather than judicial in character but the consequences of this distinction have not been fully explored. A key question is when and why tribunals ought to adopt procedures that differ greatly from those used by the courts. This article examines a possible duty to inquire as an example of a different approach or obligation for tribunals. As a general rule courts have no duty to inquire into the issues placed before them. It is the parties who define issues and call relevant evidence. Should the same rule apply in tribunals? The High Court has left open the question of whether the Refugee Review Tribunals may sometimes be subject to a duty to inquire. This article examines tribunal powers, the possible basis for a duty to inquire in administrative proceedings and concludes that the High Court should endorse tentative steps towards a limited duty to inquire in administrative proceedings.

Keywords: tribunals, legal system, administrative, judicial, courts, inquire, Refugee Review Tribunals, High Court, procedures

JEL Classification: K00, K23

Suggested Citation

Groves, Matthew, The Duty to Inquire in Tribunal Proceedings (2011). Sydney Law Review, Vol. 33, p. 177, 2011, Monash University Faculty of Law Legal Studies Research Paper No. 30, Available at SSRN: https://ssrn.com/abstract=2152772

Matthew Groves (Contact Author)

La Trobe Law School ( email )

La Trobe University
Bundoora, VIC 3083 3142
Australia

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