by Peter Cane. Oxford, UK, and Portland, OR: Hart Publishing, 2009. 312pp. Cloth. $110.00/£55.00. ISBN: 9781841130095.
Reviewed by Robert J. Hume, Department of Political Science, Fordham University. Email: rhume [at] fordham.edu.
Peter Cane’s ADMINISTRATIVE TRIBUNALS AND ADJUDICATION works as a general introduction to the subject of administrative adjudication, even though Cane’s special interest is the Australian legal system, and really a single institution, the Australian Administrative Appeals Tribunal (AAT). Cane states that he originally intended to write a book about the AAT, but broadened his focus to include administrative tribunals in the United States and the United Kingdom. The result is a more general account, one that explores the common features of administrative tribunals across systems, as well as the variety of approaches to their design.
The subject of the book is administrative tribunals, which are quasi-judicial organizations, located outside of the judicial branch, which play a central role in the administration of government policies. It is difficult to make generalizations about administrative tribunals because their forms and functions are so variable. However, tribunals typically resemble courts in form and, in function, decide how to apply government policies to particular cases. Perhaps the most familiar areas in which administrative tribunals operate are in immigration and social security policy, but tribunals are in fact quite common features of bureaucracies.
The book is organized in the format of a legal handbook, with chapters devoted to the history of administrative adjudication, different models of adjudication, and variations in the forms, functions, and purposes of administrative tribunals. The book is not thesis-driven, nor does Cane formally test hypotheses regarding these tribunals. Instead, Cane presents a precise, richly detailed account of administrative organizations, grounded in an impressive survey of the administrative law literature and Cane’s own observations.. Such a detailed account is valuable because, as Cane notes, there is not much literature outside of Australia about what administrative tribunals do, even though these organizations process countless claims each year and contribute substantially to the development of public policy.
The main cases that Cane examines are the Australian, British, and American systems, with some brief attention also devoted to France. These comparisons are appropriate because the legal systems in the first three countries are so closely related, while the French system provides a point of contrast. The comparisons are also instructive because the four systems present distinctly different models of administrative adjudication. At one extreme is the British system, in which the jurisdictions of courts and tribunals essentially [*120] overlap. At the other end is France, in which decisions of administrative tribunals are not reviewable by courts. In between are the American and Australian systems, in which the functions of administrative tribunals are distinguished from those of courts but adjudications remain subject to judicial review.
The system receiving the most attention is the Australian system, specifically the Australian Administrative Appeals Tribunal (AAT). Cane is upfront that one of the purposes of his book is “to introduce to a wider audience in the common-law world some of the distinctive features of Australian public law and legal institutions” (p.viii). However, Cane is also persuasive that Australia belongs at the center of a book on administrative tribunals. More than other systems, Australian law clearly distinguishes the work of tribunals from that of courts, which puts the work of tribunals in sharper focus. The Australian system has also, in the AAT, created what is surely the premiere administrative tribunal, at least among the nations that Cane studies.
What sets the AAT apart from other tribunals is the fact that it is an administrative tribunal of general jurisdiction. Other systems typically permit administrative appeals only to specialist tribunals. In the United States, appeals tribunals tend to be embedded within the same organizations as the original decisionmakers. The Board of Immigration Appeals, for example, reviews the decisions of immigration judges but does not review administrative decisions on other matters, such as social security policy. Once an agency has conducted its internal review, in the United States a tribunal decision is then subject to judicial review, with judges typically determining whether the primary decisionmakers followed appropriate procedures when rendering their judgments, or if the administrators have interpreted their governing statutes permissibly. There is no higher level of administrative review in American law, although administrative policies are of course subject to correction by Congress.
The AAT is unique, then, in that it is an independent tribunal which conducts merits review of the decisions of other organizations. Unlike judicial review, which tends to focus on administrative procedures, the emphasis of merits review is on whether administrative decisions are “correct or preferable.” The AAT can engage in more extensive fact-finding than the original decision-maker and vary or substitute the original decision instead of remanding it. In this respect, the AAT functions similarly to appeals tribunals in American law, except that the AAT is a generalist institution that reviews the actions of multiple organizations, and that American tribunals typically afford more deference to the original decisionmakers.
Although Cane’s primary interest is in Australian tribunals, he gives equal weight to the British
and American systems, with particular attention devoted to how the three systems differ. The primary benefit of these comparisons is to put into sharper relief, and thereby clarify, the theoretical underpinnings of each system, as well as their costs and benefits. For example, Cane shows how each system is grounded in a different understanding of the separation of powers. The [*121] Australian system has the most formal separation: not only are courts strictly prohibited from performing non-judicial functions, but courts have also prohibited non-judicial bodies from performing judicial functions. The American system, in contrast, is more functional, with agencies performing a variety of quasi-legislative and quasi-judicial functions.
The least developed portions of the book are the sections on France. Cane acknowledges that these sections are brief but really they are too brief to offer much insight, amounting to no more than a handful of pages in the entire book. Since Cane presents France as a theoretically important counterweight to the Australian, British, and American system, it would be helpful to have at least a few more pages to clarify the theoretical framework he outlines.
This concern is minor, however, compared to how much else the book has to offer. Readers will come away impressed with the breadth of research that Cane has conducted on these tribunals and the care with which he details the differences among them. The sections on American and British law are very thorough and will serve as a useful introduction to readers who are unfamiliar with administrative tribunals in these countries. For more experienced readers, the sections on Australian law are likely to be the most valuable contributions of the volume.
Above all, Cane’s book serves as an important reminder of how much work administrative tribunals do and yet how little we understand about their behavior. Hopefully Cane’s work will encourage additional research into these organizations. Administrative tribunals process the claims of countless individuals each year, in substantively important areas of policy, yet so far these organizations have received far less scholarly attention than courts. We know very little, for example, about whether the personnel who staff administrative tribunals tend to behave more like judges or other administrators. Tribunals might resemble courts, but if administrative judges are loyal to their organizations and concerned primarily with the implementation of particular regulatory programs, one might fairly question whether the thousands of claimants who are processed by tribunals are receiving adequate due process, especially since most tribunal decisions receive, at best, cursory judicial review. Cane is not primarily concerned about addressing these types of normative questions, but his work does make clear that administrative tribunals are too important to be ignored.
© Copyright 2010 by the author, Robert J. Hume.