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 the federal and state level in Australia. Tribunals do not have the power to review decisions made by the government or other bodies. The power of a tribunal is limited to reviewing 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)) or in relation to the administration of a particular department or piece of legislation (e.g. the Administrative Appeals Tribunal (AAT)).
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.
The person hearing cases in a tribunal is called a “member” of the tribunal (i.e. rather than being called a magistrate or a judge).
Tribunals differ from courts in a number of ways. 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 who is hearing a case takes an active role in the proceedings. This differs from traditional magistrates and judges who are bound by the restrictions of the adversary system and act as passive umpires of the issues presented by the opposing parties.
•The judging panel in a tribunal may be comprised of members who are legally qualified and members who have specialist expertise in the relevant subject matter. For example, VCAT’s Administrative Division – which hears planning appeals – has 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 not. Instead, tribunals are required to determine each matter on its particular merits. However, in practice, many tribunals follow precedent for the sake of being consistent in their decision-making.
The Victorian Civil and Administrative Tribunal was established by the Victorian Civil and Administrative Tribunal Act 1998 (Vic). VCAT is also bound by the Victorian Civil and Administrative Tribunal (Fees) Regulations 2013 (Vic) and the Victorian Civil and Administrative Tribunal Rules 2008.
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.
The Administrative Appeals Tribunal Act 1975 (Cth) provides for the establishment, structure and management of the Administrative Appeals Tribunal. The Act and the Administrative Appeals Tribunal Regulation 2015 (Cth) set out the core powers and procedures of the AAT for all divisions (except for the Migration and Refugee Division).
Since 1 July 2015, the Migration Review Tribunal, Refugee Review Tribunal, Social Security Appeals Tribunal and Classification Review Board have been amalgamated with the AAT.
Since 1 January 2015, the AAT has conducted the merits review of freedom of information matters, which was previously undertaken by the Office of the Australian Information Commissioner.
The manner of appealing a tribunal’s decision varies. It is usually set out in the legislation that established the tribunal. The AAT hears appeals from most of the lesser specialist tribunals. An AAT decision can be reviewed by the Federal Court, but on very narrow grounds. For further information, visit AAT’s website at www.aat.gov.au.
A VCAT decision 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 VCAT’s website at www.vcat.vic.gov.au.
For more information about administrative appeals, see Appealing government and administrative decisions.