Judicial virtues and decision-making in the VCAT Guardianship List

The contemporary legal theory of virtue jurisprudence provides great insight into the proper practice of Australian tribunal members and the desired operation of tribunals. Virtue jurisprudence identifies the attributes of "good" tribunal members and provides guidance on how legal disputes should be decided. This article focuses on the fundamental virtues relevant to tribunal practice in the Guardianship List of the Victorian Civil and Administrative Tribunal. The special features of this tribunal jurisdiction, particularly the disadvantaged nature of its primary client group, require tribunal members to undertake a fact-finding, inquisitorial role, as well as a support and advisory role. Decision-makers must also become conversant with expert evidence and the process of testing expert evidence; they cannot simply defer to the expert on issues of decision-making capacity. This analysis considers the fundamental breaches of human rights that occur when tribunal members fail to execute this multilevel task properly.