Inquisitorial Adjudication: The Duty to Inquire in Merits Review Tribunals

Abstract

This paper was prepared as an Honours Thesis at the ANU College of Law, under the supervision of Daniel Stewart and Robin Creyke. This paper examines the duty to inquire in Australian merits review tribunals. Following the High Court’s recent decision in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123, there has been some uncertainty surrounding the duty’s status in a number of Federal Court and Federal Magistrates Court decisions. This paper essays a conflicted conceptual basis for the duty to inquire derived from five (competing) aspects of merits review: the institutional, the procedural, the orientational, the substantive and the managerial. These five aspects of merits review underlie the development of the duty to inquire case law. Through an analysis of this case law over the last 25 years, a set of core principles to guide the confined circumstances in which a duty to inquire should arise is identified. These core principles consist of two threshold requirements and a number of further relevant circumstances concerning statutory structure, the circumstances of the particular hearing and the applicant’s situation. Implications of this limited duty to inquire for the system of administrative review are then considered.