Section 12: Tribunals

Tribunals are generally set up to provide a faster, less expensive and more informal process for deciding disputes between people. Since the 1970s, a wide range of tribunals have been established to deal with disputes in specific areas of the law at both state and federal levels. The nature and role of a tribunal can vary greatly, depending on the purpose of the tribunal. The characteristics of different tribunals are determined by the legislation under which they are established.

Tribunals generally have many of the features of courts, such as independence from the executive government, public hearings, a duty to decide disputes according to law and to give reasons for decisions. There is usually a right of appeal on a question of law to a court, such as the District Court or the Supreme Court. They generally differ from courts in having a more informal procedure, such as greater freedom to depart from the rules of evidence. Tribunals are generally made up of ‘members’ rather than judges or magistrates (although a member of a tribunal may be a judge or a magistrate). Some tribunals have non-lawyer members, for example, a tribunal may be constituted by two legal practitioners and another person with special expertise in a particular area. In some tribunals, the parties may not be entitled to legal representation, or the use of legal representation may be limited.

The growth in tribunals is a response to the problems of the expense and time-consuming nature of litigation in court. Tribunals are intended to be less formal, more efficient, cheaper and more accessible to ordinary people. Criticisms about the trend towards directing disputes to tribunals centre on the fear that they may provide a lower standard of justice than the courts, because:

  • they are not required to apply the rules of evidence
  • the use of legal representation and adversarial procedures is reduced
  • tribunal members may have less expertise than judges or magistrates
  • the high volume and fast turnover of matters may limit the amount of consideration that can be given to each case
  • the appointment of tribunal members by the executive government for limited terms (rather than life-time tenure) reduces the independence of tribunal members from the executive government.

The main types of tribunals are:

  • tribunals set up to deal with matters that were previously heard by the courts
  • tribunals that provide an avenue for review of administrative decisions (decisions made by government authorities).

Administrative review tribunals

Administrative review tribunals deal with disputes about the merits of administrative decisions, rather than resolving disputes between private individuals or companies. ‘Merits review’ means that the tribunal looks not just at whether there were any legal errors in the decision being reviewed, but whether the decision was the correct or preferable decision in the circumstances. An example of a review tribunal is the Administrative Decisions Tribunal of New South Wales, one function of which is to review a number of licensing decisions.

A person who is dissatisfied with a decision made by a public body or official can only apply to an administrative review tribunal for review if legislation provides such a right. There is no right at common law for review by a tribunal.

An administrative review tribunal deciding an application for review usually has the power to make any of the following determinations:

  • to affirm the original decision (in which case the original decision remains unchanged)
  • to vary the original decision in some way
  • to set aside the original decision and either substitute a new decision or send the matter back to the original decision-maker for the decision to be reconsidered.