Tribunals vs Courts Whats the diff

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Tribunals vs Courts Whats the diff?

• Dr Geoff Airo-Farulla
• Griffith University

Griffith Law School
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Introduction

• Doctrinal differences between courts and
  administrative agencies
• Separation of powers.
• Grounds of judicial review.
• Practical differences
• Membership.
• Procedure.
• Fact finding.
• First, what is a tribunal?

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What is a Tribunal?

• Doctrinally, the dividing line is between courts
  and all administrative agencies, including
  tribunals.
• Tribunals adjudicate
• Deciding disputes between contending parties as
  to what their legal rights are or should be.
• Does this functionally distinguish them from
  other administrative agencies?

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What is a Tribunal?

• Administrative decision-makers inhabit an
  adjudicatory spectrum

?
Not adjudicatory
Clearly adjudicatory
Judge persona designata conducting oral hearing
between adversarial parties represented by
QCs as to their existing legal rights
Departmental counter clerk deciding licence
application on the papers
Licensing board deciding licence application on
the papers
Licensing tribunal holding public hearing into
licence application
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Doctrinal differences between courts and
administrative agencies
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Courts vs Administrative Agencies

• Commonwealth Constitution
• Distinguishes Ch III Courts.
• Leaves tribunals and other administrative
  agencies constitutionally indistinguishable.
• Separation of powers doctrine
• Some limits on both courts and admin agencies.
• But substantial overlap
• Function takes its character from the
  functionary.

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Courts vs Administrative Agencies

• Common law (judicial review)
• Historically, no distinction between the
  functions that courts and executive bodies could
  perform
• Courts of limited jurisdiction performed many
  administrative functions.
• Quasi-judicial bodies could exercise judicial
  power.
• Both equally subject to superior courts
  supervisory jurisdiction via prerogative writs
• Jurisdictional error.

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Courts vs Administrative Agencies

• Craig v South Australia (1995)
• Administrative tribunals presumptively, all
  errors of law go to jurisdiction.
• Courts distinction between jurisdictional and
  non-jurisdictional errors of law remain.
• Defining characteristic?
• Court of record?

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Courts vs Administrative Agencies

• Ultra vires doctrine
• Injunction, declaration, collateral attack.
• Historically applied to much wider range of
  administrative agencies than jurisdictional
  error
• Not limited to quasi-judicial bodies.
• Wider range of grounds of review.
• ADJRA and JRA wider still.
• But courts routinely subject to merits appeals.
• Greater scrutiny of tribunals in practice
  illusory.

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Practical differences between courts and
administrative agencies
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Membership

• Judges have tenure.
• Tribunal members lack judicial tenure
• Impacts on independence.
• Tribunals can have a more flexible criteria of
  merit
• Specialist expertise.

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Membership

• Opens up government to wider participation
• Effect is more diverse, representative
  government.
• Merits review context
• Promotes accountability to members of the
  community.

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Membership

• Other ways to promote independence
• Multi-member panels impose discipline.
• Part-time membership.
• Policy makers should take more seriously the
  benefits of diverse tribunal membership.
• Broader criteria
• Not just legal practitioner of 5 years
  standing.
• Role for non-legal members.

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Procedures

• Courts
• Have well-defined, detailed but relatively
  inflexible procedures.
• Largely control their own procedures through
  Rules of Court.
• Tribunal procedures are more adaptable to
  particular context.
• Accessibility.

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Procedures

• Tribunals can also be more participatory
• Wider standing.
• Notice and comment procedures.
• But there can be greater information imbalances
• Procedural fairness privileges individual over
  public interests.
• Public objections exposed to affected persons.
• Public not guaranteed access to all information.
• Nor to reasons for decision.

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Procedures

• Tribunals also have less control over their
  procedures
• Usually subject to judicially enforced common law
  procedural fairness backdrop.
• They are more vulnerable to legislative whim
• Migration tribunals.

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Fact Finding

• Courts
• Apply the rules of evidence.
• Expect parties to discharge onus of proof.
• Decide on balance of probabilities.

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Fact Finding

• Onus and burden of proof requirements dont apply
  to tribunals.
• Factual findings need not be on balance of
  probablities, but
• Not so unreasonable that no reasonable
  decision maker could so find.

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Fact Finding

• Reasonable fact finding
• Must have some evidence
• Relevant, rationally probative.
• Must assess probative value for themselves
• Dont use the rules of evidence to short cut
  this.
• Weight goes to merits
• But cant be unreasonable.
• But, apparently, dont have to rationally
  consider the evidence.

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Fact Finding

• Reasonable fact finding
• What degree of satisfaction?
• Does reasonable more likely than not?
• Is suspicion enough?
• Re Pochi.
• Predicting future facts
• Cause and effect relationships often unclear.
• Is an informed guess enough?

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The forms and limits of adjudication
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Adjudication

• Fullers Forms and Limits of Adjudication
• Defining feature of adjudication
• The essence of adjudication lies in the mode of
  participation it accords to the affected party
• that of presenting proofs and reasoned
  arguments for a decision in their favour.
• It gives formal and institutional expression to
  the influence of reasoned argument in human
  affairs.
• Adjudicatory decisions must themselves be
  prepared to meet the test of reason.

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Adjudication

• Thus, courts and tribunals share a commitment to
  legal rationality
• Tribunals, like courts, must
• provide parties with a reasonable opportunity to
  present their case
• carefully weigh evidence or material placed
  before them
• interpret and apply the law
• expose their reasoning processes to the parties
  through the provision of reasons for decision
  and
• avoid bias or the appearance of bias.

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Adjudication

• Fuller goes further
• An adversary presentation is necessary
• To realise the mode of participation.
• To ensure decision-makers consider all the
  evidence.
• Adjudication is inappropriate where a partys
  reasoned arguments cannot be tested in
  adversarial way.
• Eg individual vs public interests.
• Implies lower expectation of rationality in
  decision making.

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Adjudication

• But
• A commitment to (requirement of) legal
  rationality suffuses administrative
  decision-making generally
• Not just adjudicators.
• Other procedures besides adversarialism allow for
  presentation of proofs and reasoned arguments.
• Other mechanisms exist to ensure rational
  decision-making.

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Conclusion Finding the Balance
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Conclusion Finding the Balance

• Courts and tribunals both have weaknesses.
• Horses for courses.
• Separation of powers
• Checks and balances.
• Using courts strength to balance tribunal
  weaknesses to promote rational decision making.
• Through judicial review grounds
• Clarify fact finding requirements.

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Conclusion Finding the Balance

• JR courts should adopt an explicitly functional
  and pragmatic approach
• PF adapts to circumstances.
• So should rationality grounds of review
• The more administrative agencies are internally
  structured to achieve rational decision-making
• ... the less intense the courts supervision
  needs to be.
• And vice versa, of course.
• Create incentives for policy makers to create
  stronger tribunals.