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76 Wash. U. L. Q. 243 (1998)
Refugees, Administrative Tribunals, and Real Independence: Dangers Ahead for Australia

handle is hein.journals/walq76 and id is 255 raw text is: REFUGEES, ADMINISTRATIVE TRIBUNALS, AND REAL INDEPENDENCE: DANGERS AHEAD FOR AUSTRALIA STEPHEN H. LEGOMSKY* Few would deny that one core ingredient of any successful justice system is the independence of those who adjudicate cases. As will be evident, I believe that Australia's system of administrative justice is in grave danger as a result of dramatic recent threats to the independence of key adjudicators. While these events have taken place in the immigration and refugee context, the ominous implications are far broader. I. THE ATTRIBUTES OF ADJUDICATION AND REVIEW What attributes should the ideal adjudication system have? I cannot improve on a formulation offered in 1964 by Roger Cramton.1 He was writing in the context of administrative law, but his thoughts apply with equal force to any dispute resolution system. Professor Cramton suggested that we should insist on three ingredients. First, the system has to be accurate.2 By accurate, I think he meant that the findings of fact should reflect the most likely interpretation of the evidence, and the conclusions of law should reflect the most likely meaning of the applicable legal sources. I believe that accuracy also subsumes procedural * Charles F. Nagel Professor of International and Comparative Law, Washington University. B.S., Worcester Polytechnic Institute, 1969; J.D., University of San Diego, 1977; D.Phil., University of Oxford, 1984. This Article is based on a presentation given at a conference entitled Immigrant Justice: Courts, Tribunals, and the Rule of Law, University of Sydney, June 6, 1997, and again at the annual meeting of the Immigration Law Section of the Association of American Law Schools in San Francisco, Jan. 8, 1998. 1 thank Dr. Mary Crock for her organizational efforts and all the participants at both conferences for their thoughtful feedback. 1. See Roger C. Cramton, Administrative Procedure Reform: The Effects of S. 1663 on the Conduct of Federal Rate Proceedings, 16 ADMIN. L. REV. 108, 111-12 (1963). For refinements of Cramton's formulation, see Ronald A. Cass, Agency Review of Administrative Law Judges' Decisions, in ADMINISTRATIVE CONFERENCE OF THE UNITED STATES, RECOMMENDATIONS AND REPORTS 113, 154-57 (1983) (leading to A.C.U.S. Rec. 83-3, 1 C.F.R. § 305.83-3 (1985)); David P. Currie & Frank I. Goodman, Judicial Review of Federal Administrative Action: Quest for the Optimum Forum, 75 COLUM. L. REV. 1 (1975) (based on report leading to A.C.U.S. Rec. No. 75-3, 1 C.F.R. § 305.75-3 (1975)); Stephen H. Legomsky, Forum Choices for the Review ofAgency Adjudication: A Study of the Immigration Process, 71 IOWA L. REV. 1297, 1313-14 (1986) (based on report leading to A.C.U.S. Rec. No. 85-4, 1 C.F.R. section 305.85-4 (1985)). In Australia, the President of the Administrative Appeals Tribunal has articulated somewhat similar goals, but without the emphasis on acceptability. See Hon. Deirdre F. O'Connor, Effective Administrative Review: An Analysis of Two-Tier Review, 1 AUSTRALIAN J. ADMIN. L. 4,4 (1993). 2. See Cramton, supra note 1, at 112.

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