Should the Primary Locus of Government Adjudication be in the Agencies, the Courts, or in a Special Tribunal? Comparisons between the US and the UK/Australia Model
This comment examines and contrasts government adjudication in the US, Australia, and the UK, and concludes that the Australian system, replicated in the UK serves as a good model, but is unlikely to be used in the US, a larger and more litigious country. The US maintains a system of government adjudication within the bureaucracy itself with judicial review of agency decisions. Australia and the UK, on the other hand, respectively maintain systems whereby national tribunals and specialized courts make decisions subject to judicial review, but only with respect to issues of law. Specialized court tribunals have not emerged in the US as a popular form of adjudication because it was recognized early on that discord would be resolved through federal bureaucratic agencies in the US, particularly in 1932, when the Supreme Court upheld administrative adjudication in Crowell v. Benson, and again with the Administrative Procedure Act of 1946, which provided for administrative proceedings with oversight and adjudication by administrative law judges, and hearings with more flexible rules of evidence and limited cross-examination. These both effectively affirmed administrative adjudication as a manner of formulating regulatory policy, although rulemaking has emerged since as perhaps a more effective technique. A change in the mindset of the bureaucracy would have to occur for cases to be reviewed by independent tribunals outside of federal government agencies. Comparatively, Australia uses tribunals, including the Administrative Appeals Tribunal at the Commonwealth level. Here, an informal agency or ministry proceeding is followed by an internal review, and a decision. Aggrieved parties are able to thereafter petition for a merits review by an administrative tribunal, with the possibility of judicial review, but only on legal questions, in Australia’s courts. The United Kingdom also uses tribunals, which are now a part of their court system. Its tribunals are separated by tiers and divided by subject matter for examination. Like Australia, there is the possibility to appeal to the courts, but only on issues of law.
Government adjudication, Rulemaking, national tribunals, Australia, UK, US
Administrative Law | Law
Lubbers, Jeffrey S. “Should the Primary Locus of Government Adjudication be in the Agencies, the Courts, or in a Special Tribunal Comparisons between the US and the UK/Australia Model?” In Effective Judicial Review: A Cornerstone of Good Governance, edited by Christopher F. Forsyth et al., 163-166. New York: Oxford University Press, 2010.