Tribunals

Contributor: Greg Connellan

Tribunals are now an important part of the Australian legal system, providing citizens with an independent review of decisions that affect their interests. They can be administrative (reviewing executive actions of government) or civil (resolving private disputes). They may be government sponsored or private.

Administrative tribunals play a significant role in the resolution of disputes at both federal and state level in Australia. Tribunals do not have general power to review decisions made by government or other bodies. The power of a tribunal is limited to review of administrative decisions expressly made subject to review by legislation. Most tribunals are established to hear disputes concerning the administrative actions of government, either generally (e.g. the Victorian Civil and Administrative Tribunal (VCAT), see below) or in relation to the administration of a particular department or piece of legislation (e.g. the Administrative Appeals Tribunal).

From 1 July 2015 the AAT will be amalgamated with the Migration Review Tribunal, Refugee Review Tribunal, Social Security Appeals Tribunal and Classification Review Board. From 1 January 2015 the AAT will undertake merits review of Freedom of Information matters currently undertaken by the Office of the Australian Information Commissioner.

Other tribunals have been established to hear disputes between individuals or businesses that have nothing to do with government action. Tribunals are generally established for the resolution of particular types of dispute in relation to which the courts are inappropriate, either because they lack the requisite expertise, are too expensive or slow, or are otherwise inaccessible.

VCAT is an amalgamation of a number of smaller Victorian tribunals. It is divided into four divisions.

The Civil Division has three lists:

the Building and Property List;

the Civil Claims List;

the Owners Corporations List.

The Administrative Division has three lists:

the Legal Practice List;

the Planning and Environment List;

the Review and Regulation List.

The Human Rights Division has two lists:

the Guardianship List;

the Human Rights List.

The Residential Tenancies Division has the residential tenancies list.

Tribunals differ from courts in a number of ways, although the differences may vary substantially from tribunal to tribunal, and in some cases are marginal. Some of the differences include:

Procedures in a tribunal are less formal, the required documentation is simpler, the rules of evidence are applied less rigidly, and the hearings are conducted in a less formal manner.

The member of a tribunal hearing a case takes a more active role in the proceedings than a traditional judge who, being bound by the restrictions of the adversary system, acts as a passive umpire of the issues put by the parties.

A tribunal may be comprised of members who are legally qualified and members who have specialist expertise in the subject matter with which a particular tribunal deals. For example, the Administrative Division of VCAT – which hears, among other things, planning appeals – has a number of members who are town planners.

Some tribunals encourage or require parties to appear in person, without lawyers.

While courts are bound by the previous decisions of superior courts, tribunals are generally not, and instead are required to determine each matter on its particular merits. In practice, however, many tribunals follow precedent for the sake of being consistent in their decision-making.

Appeals

The manner of appealing from the decision of a tribunal varies. It is usually set out in the legislation that established the tribunal. The AAT hears appeals from most of the lesser specialist tribunals. A decision of the AAT can generally be reviewed by the Federal Court, but usually on very narrow grounds. For further information, visit the AAT website at www.aat.gov.au.

A decision of VCAT can be appealed to the Supreme Court, but only with the court’s leave, and only in relation to a question of law. For further information, visit the VCAT website at www.vcat.vic.gov.au.

For further information about administrative appeals, see Chapter 12.2: Appealing government and administrative decisions.

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