AFCA, BPC, BAB, FWC and even VCAT. What has happened to traditional courts?

AFCA, BPC, BAB, FWC and even VCAT. I am sure you can name a few others.

What has happened to traditional courts?

Well they have been gradually eroded for other forms of dispute resolution.

Yes, yes, I get it, more efficient, lower cost and so on. Many do an admirable job. I get it.

AND yes VCAT is a tribunal like in all Australian states and territories and FWC a commission…but the latest in Victoria is a new height in government control:

• The Building and Plumbing Commission

• A regulator, defendant insurer and dispute resolution provider in one.

It makes my mind boggle!

My concern is for the judicial process, because each time we see powers expand…I know it’s only a little at a time…but a little bit more power to government over time can mean a lot until…

Remember that in Australia 🇦🇺 like Britain 🇬🇧 our system is underpinned by certain principles of government. The separation of powers between the legislative, executive and judicial is fundamental to our system. Checks and balances…

Courts have strict rules of evidence, open hearings…they have certain protections critical to the rule of law.

Every year AFCA’s terms of reference expand at least by reference to the $dollar amount they can consider. And each on their own just a minor erosion but in the collective - more encroachment occurs.

They make decisions behind closed doors, out of the public scrutiny…

Why do I care?

Well let me emphasise the latest example:

The BPC in a prior life was a regulator, now it is both a dispute resolution provider determining orders, a regulator for licensing BUT more - it is now an insurer too.

Just recently the predecessor VBA was the subject of an inquiry with charges of corruption against staff!!!

That! And now this!

Judge, jury and defendant insurer in one home all under the guise of efficiency!

Who thinks that is what we need to solve the building issues in Victoria? And by the way, I am a realist, I get it, there are efforts buried in this to try get a problem fixed and control costs post the Porter Davis collapse etc

But where does this end, what’s next ‘consumer protection’ at the loss of more transparency…Opaque processes, consideration of evidence behind closed doors is not what we need. We need more transparency!

Sure, sure, many will say Blair this is where we are at. But No! I think it is important that professionals remain aware of this creep.

At a federal level it is plainly impermissible for a state tribunal to exercise federal judicial power. We know as much from Burns v Corbett. There are elements of our constitution which protect original jurisdiction…

However, when government particularly at state level have so many branches and employees, they in turn have a vested interest. Government power grows and it doesn’t tend to reverse. Unchecked power is good for no one.

This article is a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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• building disputes