The Duty to Inquire in Tribunal Proceedings
Sydney Law Review, Vol. 33, p. 177, 2011
Monash University Faculty of Law Legal Studies Research Paper No. 30
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: Suggested Citation