Tribunals and Commissions are not Courts.



The High Court's decision Burns v Corbett significantly narrowed the jurisdiction of commissions and tribunals. The High Court held that the Australian Constitution precludes a State tribunal from exercising federal and state jurisdiction, tribunals are not Courts and cannot exercise judicial powers and jurisdiction.  A tribunal or Commission not being a 'court of a State' cannot adjudicate disputes involving any of the matters set out in ss 75 and 76 of the Australian Constitution, even when the dispute involves the application of State legislation. The decision affects all areas of law including anti-discrimination disputes, residential tenancy disputes, and building and construction disputes.

A State law cannot impair or detract from the operation of a Commonwealth law by impairing the Commonwealth law’s ‘conditional and universal’ application, except to the extent that it has a ‘legal operation or practical effect within the universe of the conditional legal operation of the Commonwealth law’. Impairing or detracting from     s 39(2) of the Judiciary Act is to say that the Parliament has made a complete, exhaustive and exclusive statement on federal jurisdiction: ‘It is necessarily to say that the Commonwealth Parliament has not only provided positively for the conditional investiture of federal jurisdiction in State courts but has also stipulated negatively for the non-investiture of any jurisdiction with respect to any of those matters other than in State courts.’  Gageler J noted the difficulty of finding any such ‘negative penumbra’ in the text of s 39(2), and stated that the more fundamental problem lies in finding a source of Commonwealth legislative power: namely that s 77(iii) does not allow Parliament to confer judicial power on a tribunal that is not a State court.

The Industrial Relations Tribunals and tribunals of the State such as VCAT and the Fair Work Commission all fall into the same category, they fail to be courts and cannot provide you with an enforceable judicial decision.