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Comparing Courts To Tribunals

What is a Tribunal?

A tribunal, like a court, adjudicates on disputes. It can have one or more of the following roles:

  • Make an administrative decision;
  • Review an existing administrative decision;
  • Make a determination in respect of the competing legal rights between opposing parties, for example in areas such as consumer trading and residential tenancy.

In tribunals, adjudication is designed to be fair, informal, efficient, quick and cheap. However, fairness prevails over all the other requirements.

A Bit of History: When were the First Tribunals Created in Australia?

The first tribunal in Australia was the Administrative Appeals Tribunal, which was established in 1976. Today it has jurisdiction to review administrative decisions made under more than 400 Acts of the Commonwealth Parliament of Australian.

Major specialist tribunals have also be established at a federal level, including the Social Security Appeals Tribunal, the Migration Review Tribunal (MRT), the Refugee Review Tribunal and the Veterans’ Review Board.

Since 1976 the model of a general merits review tribunal has spread throughout the Australian states.

What are the Main Differences between a Tribunal and a Court?

1. Jurisdiction

(a) At a federal level, a strict separation of powers is imposed by the Constitution

In Australia, Commonwealth powers are controlled by the Constitution. It requires a separation of powers between the legislature, executive and judiciary. This prevents Commonwealth tribunals from exercising judicial power, because judicial power is strictly to be carried out by the courts. On the contrary, the merits review of administrative decisions comes under the executive power, and not the judicial power. Accordingly, Commonwealth tribunals are only able to make or review administrative decisions.

(b) At a state level, the separation of power is inefficient

As state powers are controlled by the states themselves, the strict separation of powers required by the Constitution does not apply in the states. As a consequence state, tribunals can review administrative decisions as well as determine civil disputes if such power is conferred upon them by statute.

However, generally the jurisdiction of the courts is still broader than the jurisdiction of tribunals, which often specialises in a particular field of law.

2. Membership

(a) Who is hearing the case?

Courts are required to be comprised of judges who usually come from a legal background.

In contrast, members of tribunals can be legally qualified or be a specialist in the subject matter in which the tribunal adjudicates. For instance, members may be medical practitioners, accountants, tax advisors, engineers, town planners, or businessmen.

(b) What is their role?

Judges have to comply with court rules and the processes of the adversary system. Accordingly, judges in courts are only a passive referee, while in tribunals the members play a more active role in the proceedings. Tribunal Members may adopt an inquisitorial role and use more creative means to help parties achieve resolution or make a determination.

3. Procedure

Courts follow well defined procedures detailed in their Rules, whereas tribunal procedures are more flexible.

(a) Can the parties represent themselves?

Parties do not have to be legally represented at a Tribunal and may attend a Hearing representing themselves. However, when there are legal arguments in dispute or where the opposition is represented by a solicitor, it would be beneficial to obtain legal advice before the Hearing to ascertain whether legal representation is necessary in the circumstances.

(b) What about the evidence process?

Tribunals apply the rule of evidence with less rigidity than courts. Hearings are less formal and often include a dialogue between the parties and the tribunal member. Fact finding need not be on the balance of probabilities; the decision must only be reasonable. However, fairness requires an opportunity for the opposing party to respond and reasonably challenge the evidence.

(c) Is the doctrine of precedents applied?

As opposed to courts which are bound by the previous decisions of courts (in particular superior courts), tribunals will generally assess each matter on its individual merits. In practice however, many tribunals follow their precedents for reason of certainty and consistency.

(d) What about the costs?

Usually it is cheaper to resolve a dispute at a tribunal. However, unlike courts, costs do not follow the event in a tribunal because tribunals generally will not award costs to the successful party. Therefore, even if an Applicant is successful it is likely that it will have to pay its own costs to obtain the decision and enforce the order. The issue of costs may be significant and thus must be carefully factored into a decision regarding which jurisdiction is preferable for a Applicant to institute proceedings.

4. Which Tribunals are there in Victoria?

The main Victorian tribunal is the Victorian Civil and Administrative Tribunal (VCAT). It is also the largest tribunal in Australia. The VCAT is in fact a combination of smaller divisions who specialise in the different areas of law, including:-

  • The Civil Division (includes civil disputes such as purchase or sales of goods and services, residential tenancies, credit);
  • The Administrative Division (includes decisions of Victorian government agencies in areas such as planning, land valuation, freedom of information); and
  • The Human Rights Division.

The other Victorian Tribunals include:-

  • Medical Tribunal;
  • Victims of Crime Assistance Tribunal (VOCAT), which provides assistance to victims of violent crime occurred in Victoria;
  • Racing Appeals Tribunal which hears appeal against some penalty decision imposed by Racing Victoria Limited, Harness Racing Victoria and Greyhound Racing Victoria or their respective stewards.

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