Last week the High Court said a mere tribunal cannot determine breaches of human rights and equal opportunity and order people to pay damages. You must have a court with independent judges do that. The ruling is likely to affect two trends. One is the search for alternative methods of resolving disputes. The other is the trend to get compliant tribunals (whose members rely on political patronage to get reappointment) to pursue political aims of the federal government. The latter trend was partially nipped in the bud decades ago when the High Court said you cannot have a tribunal mucking about with the rights of employers and employees (on pain of fines or jail) and enforcing compulsory unionism from the backdoor. But the bud grew back with the establishment in the past decade of human-rights which were granted sharper and sharper dentures. The one at stake was the power of the Human Rights and Equal Opportunities Commission to determine whether people have breached human rights and equal opportunity law and then requiring them to pay damages, reinstate people or publish apologies. The court said the Constitution required that “”judicial power” can only be exercised by a court, and the key element of a court is that it is headed by an independent judge or judges who can only be removed on proven misbehaviour or incapacity. “”Judicial power” is hard to define. But it usually involves a body determining the rights and duties of citizens according to law and having the power to enforce the ruling. Ordering fines, jail and damages typify judicial power. Declaring rights and duties of individuals is another element. To the extent the High Court has cut the power of Mickey Mouse tribunals at the knees, I say good. Rights, duties, liberty and damages should be determined by independent judges _ judges who can (and have) turned their fingers up at the Executive that appointed them. However, there is an important corollary. The High Court has in effect reasserted the monopoly of the courts in exercising judicial power. Courts, and only courts, can determine and enforce significant rights, duties, damages and penalties. Fine in theory. In practice, however, the courts have not done a very good job. Why else is everyone scurrying around looking for alternatives to dispute resolution? You don’t actively search for alternatives unless the original is defective beyond repair. You catch a bus if the car breaks down _ the ride may be rougher and you might have to slum it with the plebes, but you get there and its cheaper. Now the High Court has put the kibosh on a lot of alternative dispute resolution _ no more “”come into my user-friendly, cheap, lawyer-free tribunal and we’ll deal with X, Y or Z very smartly” _ these cases will have to be decided by courts. And I am afraid to say, Your Honours, there is not a lot of faith in the ability of courts out there to do the job. They see shonks with armies of lawyers engage in tactical (nay, strategic) delay. They see coppers so badly jaundiced by people getting off on evidence-law technicalities that they start framing people. Indeed, they wonder at the common-law twaddle that says in our system of justice it is better that 10 guilty men go free than one innocent one get convicted. More likely the 10 go free (ital) and (end ital) the innocent one gets convicted. In civil law, other than running-down cases with insurance, they see the costs so high that it is hardly worth pursuing rights. But, of course, all of that is hearsay and can safely be ignored. The poisons of justice _ cost and delay _ are not new. Numerous inquiries have recommended antidotes without success. This is because they refuse to challenge the two most assiduous suppressants of truth and justice in our system _ the arcane rules of evidence and adversary system. These are not the guarantors of freedom and justice we have been led to believe (to the contrary). Rather judicial independence is. And now that that has been properly asserted by the High Court, incidentally cutting off non-judicial alternatives, it is necessary to reform the groundrules by which those independent judicial officers exercise their power lest the legal system falls into even greater disrespect.