Administrative Justice and Innovation: Beyond the Adversarial/Inquisitorial Dichotomy

Abstract

The purpose of this paper is to explore the various mechanisms and processes through which tribunals can assume a greater role in hearings than they have in the traditional adversarial process. As the papers in this collection by Robin Creyke and Robert Thomas illustrate, the idea that tribunals should be understood in terms of their similarity to (or deviation from) a court hearing, in which the judge is a neutral and passive arbiter, is giving way to a new paradigm in the Commonwealth in which an accessible administrative hearing featuring active adjudicators is a norm, not the exception. At the same time, any administrative proceeding which is not adversarial is too often simply lumped together as – inquisitorial.‖ An inquisitorial proceeding is generally one where the decision-maker engages in fact finding. We suggest most administrative proceedings may be located somewhere between the model of the courtroom and the model of the inquiry and that these hybrids and halfway houses merit more attention.