Commonwealth and non-judicial tribunals
Non-judicial tribunals have been established by the Commonwealth and all State governments except for Victoria to deal with industrial relations matters.
The Commonwealth Parliament power to make laws is in accordance with the heads of power provided in the Australian Constitution. In the main the Commonwealth’s power to regulate matters pertaining to industrial relations matters are contained in Section 51 of the Constitution.
9.1.1 Administrative Appeals Tribunal (“AAT”)
Overview of the Tribunal
The role of the AAT is to provide independent merits review of administrative decisions. The Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
Establishment
The Tribunal was established by the Administrative Appeals Tribunal Act 1975 (the AAT Act) and commenced operations in 1976. The AAT Act and the Administrative Appeals Tribunal Regulations 1976 (the AAT Regulations) set out the Tribunal's powers, functions and procedures.
Functions and powers
Review of decisions
- The Tribunal is an independent body that reviews a broad range of administrative decisions made by the Australian Government, including ministers and officials, authorities and other tribunals.
- The Tribunal also reviews administrative decisions made by some State government and non-government bodies in limited circumstances
- The Tribunal is not always the first avenue of review of an administrative decision. In some cases, it cannot review a decision until an internal review has been conducted by the agency that made the primary decision.
- Section 33 of the AAT Act requires that proceedings of the Tribunal be conducted with as little formality and technicality, and with as much expedition, as the requirements of the Act and a proper consideration of the matters before the Tribunal permit.
Jurisdiction
- The Tribunal does not have a general power to review any decision made under Commonwealth legislation.
- The Tribunal can only review a decision if an Act, regulation or other legislative instrument.
- Jurisdiction is generally conferred by the enactment under which the original decision was made.
- The Tribunal's jurisdiction includes areas such as Commonwealth employees' compensation, social security, taxation, veterans' entitlements, bankruptcy, civil aviation, corporations law, customs, freedom of information.
Organisation
- The Tribunal consists of a President, presidential members (including Judges and Deputy Presidents), Senior Members and Members.
- The President must be a judge of the Federal Court of Australia. The President, with the assistance of the Registrar, is responsible for the management of the Tribunal and its resources.
- Presidential members are judges of the Federal Court or Family Court of Australia. All Deputy Presidents must be lawyers.
- Senior Members may be lawyers or have special knowledge or skills relevant to the duties of a Senior Member.
- Members have expertise in areas such as accountancy, actuarial work, administration, aviation, engineering, and environment.
9.1.2 Australian Competition and Consumer Commission (“ACCC”) also known as Australian Competition Tribunal
Overview Of The Tribunal
- The ACCC promotes competition and fair trade in the market place to benefit consumers, business and the community. It also regulates national infrastructure services. Its primary responsibility is to ensure that individuals and businesses comply with the Commonwealth competition, fair-trading and consumer protection laws.
- The Australian Competition and Consumer Commission is an independent Commonwealth statutory authority. It was formed in 1995 to administer the Trade Practices Act 1974 and other acts.
The ACCC and the Trade Practices Act 1974 (Cth)
- The Trade Practices Act’s purpose is to enhance the welfare of Australians through the promotion of competition and fair-trading and provision for consumer protection.
- In broad terms the Act covers unfair market practices, industry codes, mergers and acquisitions of companies, product safety, product labeling, price monitoring, and the regulation of industries such as telecommunications, gas, electricity and airports.
Structure of the ACCC
- The ACCC is an independent statutory authority. The ACCC has a Chairman, a Deputy Chair, five full-time Commissioners and two ex-officio members and a Chief Executive Officer.
- Appointments to the ACCC involve participation by Commonwealth, state and territory governments.
Decision Making Processes
The ACCC has seven committees to help streamline the commission’s decision making. These committees comprise full-time members and/or associate and ex-officio commissioners who have expertise on particular matters.
• The enforcement committee meets weekly and oversees the enforcement program. Its recommendations are referred to the commission for decision.
• The mergers committee meets weekly and considers most mergers matters. It refers major matters to the commission and reports to it on others.
• The communications committee meets as required and oversees functions on telecommunications including matters arising under Part XIB and XIC of the Trade Practices Act and authorisations. It coordinates with the enforcement committee.
• The transport and prices committee meets as required and oversees transport issues.
• The adjudication committee meets weekly and considers authorisations and notifications, and reports to the full commission.
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9.1.3 Australian Industrial Relations Commission
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The role and functions of the Australian Industrial Relations
Commission (the Commission) are defined by the objects of the WR Act.
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The principal object of the WR Act is to provide a framework for
cooperative workplace relations, which promotes the economic prosperity
and welfare of the people of Australia.
The functions of the Commission are broadly summarised as follows:
• To prevent and settle industrial disputes, so far as possible by
conciliation, and as a last resort and within the limits specified by
the WR Act, by arbitration;
• To ensure that a safety net of fair minimum wages and conditions of employment is established and maintained;
• To facilitate equal remuneration for work of equal value;
• To facilitate agreement making between employers and employees or
organisations of employees about wages and conditions of employment
• To assess whether proposed Australian Workplace Agreements (AWAs)
referred from the Employment Advocate (EA) meet the no-disadvantage
test;
• To conciliate claims for relief in relation to
termination of employment, and if necessary to arbitrate whether a
termination is harsh, unjust or unreasonable; and
• To deal
with matters concerning organisations, particularly registration,
amalgamation, cancellation, representation rights, alteration of
eligibility rules and change of name.
Organisation
The
Commission consists of a President, two Vice Presidents and such
numbers of Senior Deputy Presidents, Deputy Presidents and
Commissioners are appointed by the Governor-General. In addition a
number of members hold dual appointments simultaneously with State
industrial tribunals.
9.2 New South Wales non-judicial tribunals
Administrative Decisions Tribunal (NSW)
Overview
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Governments often require certain standards to be met before an
individual or organisation will be allowed to undertake an activity
e.g. beekeepers must be licensed.
- The ADT allows people to apply to the ADT, where permitted by law, for an adverse administrative decision to be reviews.
-
This was established by the Administrative Decisions Tribunal Act 1997
with several objects. One being “ensure that (it) is accessible, its
proceedings are efficient and effective and its decisions are fair”.
- Three of the divisions have special functions, taking over the responsibilities of existing tribunals.
- Two of these divisions exercise “original” jurisdiction:
1.
The Legal Services Divisions will be responsible for making original
decisions in relation to complaints relation to the professional
conduct brought against a legal practitioner.
2. The Equal
Opportunity Division will make original decisions in relation to
complaints arising under the States anti discrimination laws.
- The work of the other divisions involves the exercise of “review” jurisdiction:
1.
The Community Services Division has responsibility for reviewing
specified decisions connected with the community services and ageing
and disability portfolios of government.
2. The General Divisions. Responsible for matters that fall outside the areas covered by the special divisions.
- Jurisdiction is conferred on the ADT by the relevant primary legislation rather that by the ADT act itself.
Commonwealth Ombudsman
Who Can Complain?
- A person can complain directly to the Ombudsman and need not first approach a member of parliament
How to Complain
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A complaint may be made either roraly or in writing. Where a complaint
is made orally, however, the Ombudsman may decline to investigate a
complaint further or to investigate a complaint until such complaint is
reduced to writing.
Complaints in relation to what matters?
-
The function is to investigate action “that relates to a matter of
administration” by a department or by a prescribed authority…[A]t the
outset it should be noted that the jurisdiction of the Ombudsman is not
restricted to such matters – the complaint need only “relate to” a
matter of administration.
The Ombudsman and the Administrative Appeals Tribunal
- Close ties exist between the Ombudsman and the Administrative Appeals Tribunal.
- The ombudsman can refer a question relating to the taking of administrative action to the tribunal for an advisory opinion.
Remedies
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When making a complaint to the ombudsman it should be borne in mind
that the Ombudsman cannot directly implement his decision in the same
manner as the Tribunal or the Federal Court.
- The remedy available to the ombudsman is the making of a report.
9.2.1 Consumer Trader and Tenancy Tribunal
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The Consumer, Trader and Tenancy Tribunal is a specialist independent,
accessible Tribunal for the fair and timely resolution of disputes
according to law. The CTTT resolves disputes at hearing or by
alternative dispute resolution, generally through conciliation.
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The Fair Trading Tribunal and the Residential Tribunal merged on 25
February 2002 to form the Consumer, Trader and Tenancy Tribunal. The
CTTT was established to provide a specialist dispute resolution forum
for consumer, trader and tenancy matters throughout New South Wales.
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The CTTT has 8 regional and metropolitan Registries and conducts
hearings in over 85 locations throughout NSW, including 2 permanent
hearing venues located at Campbelltown and Gosford.
Hearings are
conducted by Tribunal Members who are appointed by the Governor of NSW
on a full-time or part-time basis to hear and determine matters in
accordance with the Consumer, Trader and Tenancy Tribunal Act 2001.