a single tribunal: discussion paper. september 2015€¦ · web viewthe scope of this project was...
TRANSCRIPT
A SINGLE TRIBUNAL FOR TASMANIADiscussion Paper
September 2015
Department of Justice
CONTENTSDiscussion Paper for a Single Tribunal for Tasmania
Table of Contents.................................................................2
Overview and Summary.......................................................3
Glossary of terms.................................................................9
Chapter One: The Present Situation in Tasmania................11
Chapter Two: The “Vines Report” and research conducted by TARAC..................................................................................70
Chapter Three: Theory, Best Practice and Models of Amalgamation......................................................................75
Chapter Four: History of Tribunal Amalgamation and Overview of Other Australian Jurisdictions...........................................83
Chapter Five: Consultation with the Department of Justice. 101
Chapter Six: Analysis and Recommendations......................105
Chapter Seven: Annexures..................................................131
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
2
OVERVIEW AND SUMMARYOverviewTribunals perform vital functions in the day to day lives of citizens. They are charged with responsibility to determine a range of matters that directly affect the freedom, livelihood and welfare of citizens in the community. They are intended to provide accessible, cost effective, informal and fair processes to resolve disputes. As such, their effective operation is vital to the community. This paper is to examine whether amalgamation presents an opportunity to benefit not only the Tribunals, with respect to resourcing and capacity building, but also the community through better access to justice and delivery of services.
Terms of ReferenceThe scope of this project was to prepare a Discussion Paper as Stage One of a two stage process. The Discussion Paper was to present research into the amalgamation of Tribunals and the suitability of a single tribunal for the Tasmanian jurisdiction. Stage One entails examination of the scope, legislative framework, structure and leadership/governance. Consultation within the Department of Justice formed part of the research and analysis.If government determined to proceed further with the recommendations contained in this Discussion Paper, then Stage Two would involve a detailed analysis of cost, location, staffing, and legislative drafting, with oversight provided by a steering committee. Stage Two would include broad consultation with the community and across government. It would also allow a second opportunity of consultation with those originally consulted in Stage One. This final Options Paper would provide a series of policy
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
3
options to government, with full costing and detailed discussion of each option.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
4
The Policy Objectives of this analysis are to investigate: - Improving delivery of dispute resolution services and
access to justice for the Tasmanian community, by creation of a ‘one-stop shop’ for dispute resolution of administrative decisions.
- Streamlining of administrative structures of Tribunals where appropriate, while also retaining necessary specialist features of those Tribunals.
- Providing economies of scale through amalgamation, which then supports:
o flexibility in staffing, budget and resource allocationo access to shared facilities, staff skills and technologyo greater opportunity for staff development,
advancement and trainingo providing economic savings over time ando greater efficiency in the use of resources.- Progressing the use of Alternative (Appropriate)
Dispute Resolution services across Tribunal processes.- Providing greater consistency in decision making and
processes.- Achieving greater efficiency and reduction of red-tape
through centralized registry functions and more generalized processes where appropriate.
- Developing options which are appropriate to the Tasmanian Jurisdiction in terms of scale, cost and structure.
- Ensuring careful analysis is conducted before pursuing a single tribunal policy, and that all relevant stakeholders have been consulted and involved in the decision making process.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
5
Chapter 1: The Present Situation in TasmaniaTasmania has over 25 different administrative decision making bodies in the form of Tribunals, Boards and Commissions across Government. Many of these bodies have small outputs supporting their functions with their own staff and premises, or none at all, relying instead on intermittent support from other bodies or even the private sector providing registry support on a pro-bono basis. Divergent appeal paths also occur where there are instances of single pieces of legislation having appeals rights to two or more appellate bodies such as the Building Act 2000 and Water and Sewerage Industry Act 2008 for example.Some amalgamations have already taken place with several Tribunals but those amalgamations have been ad-hoc rather than as part of a coordinated overall plan.1 Whilst the changes are conducive to a greater process of amalgamation, they need to be reviewed as part of a comprehensive analysis.With such a diverse range of decision makers, each with their own separate processes and locations, and multiple appeal rights to different bodies, it can be seen why it has been a long standing policy concern that Access to Justice is diminished by these arrangements. Chapter One of this paper explores the current situation in greater detail including those existing decision makers which may or may not be suitable for amalgamation.
Chapter 2: The “Vines Report” and research by TARACThe Tasmanian jurisdiction has previously researched the prospect of a Single Tribunal for Tasmania.Mr G Vines, the then State Services Commissioner, in April 2003 released a report titled “Report of the Review of Administrative Appeal Processes”. The “Vines Report” provided a series of recommendations for Government, based on the analysis contained therein2, central among
1 In 2013 the Building Appeal Tribunal was merged with the Resource Management and Planning Appeal Tribunal and the Anti-Discrimination Tribunal merged with WRCT in 2015 for example.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
6
them being the formation of a Civil and Administrative Appeals Tribunal for Tasmania.Subsequent to that report, in August 2004, the then Attorney-General Judy Jackson formed the Tasmanian Administrative Review Advisory Council (TARAC) to provide advice to the Attorney-General regarding reform of administrative law functions in Tasmania.Chapter Two of this Paper examines the Vines Report along with a summary of TARAC’s research and work.
Chapter 3: Theory, Best Practice and Models of AmalgamationThis chapter examines Tribunals and their functions and place within the State. Literature reviewing single tribunal formation, including theoretical work and papers for reform, has appeared over the years since amalgamation has been implemented in other jurisdictions. Drawing from that material, Chapter Three seeks to map the key aspects of successful amalgamation and provide a considered basis for Stage Two of investigating costs, structure, location and other practical issues.
Chapter 4: History of Tribunal Amalgamations and Overview of Other Australian JurisdictionsTasmania is the only state of Australia lacking a unified tribunal. That, in and of itself, is not a reason to form such a tribunal but it raises the question whether Tasmania is missing out on a significant opportunity for reform which will benefit many different groups.The advantage of being the last state to implement such a reform is that material and experience from other jurisdictions is available for consideration. It means lessons from their experiences can inform the decision making processes of this jurisdiction.
2 The Vines Report is available in full from http://www.justice.tas.gov.au/community-consultation/previous_consultations/admin_appeals_processes_review_report_-vines_june_03
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
7
Chapter Four describes the formation of single tribunals in other jurisdictions and salient lessons learned from those experiences. The summary has been informed by review of the reports prepared in those jurisdictions (web-links to copies of some of those reports are provided in Annexure 7. Some are no longer available on-line.)
Chapter 5: Consultation within Department of JusticeAs part of the preparation of this Paper, multiple interviews were conducted with relevant stakeholders within the Department of Justice. Chapter Five provides an overview of that process and notes those individuals and organisations that were consulted in development of this Paper. If Stage Two is approved, further consultation beyond the Department of Justice would be recommended as part of final preparation of an Options Paper.
Chapter 6: Analysis and RecommendationsChapter Six of the Paper will contain a series of recommendations for Government as to the future direction of analysis and assist in forming the Terms of Reference for the Steering Committee in developing a detailed Options Paper. The recommendations will draw from the study, research and analysis contained in the previous Chapters of this Paper.
Chapter 7: AnnexuresChapter 7 will annex Reports and material referred to in the substance of the Discussion Paper and which will be important in understanding the conclusions drawn.
Executive SummaryAs a result of this preliminary investigation and consultation across the Department of Justice, it is recommended that Stage Two of this investigation should be authorised. Consultation to date has demonstrated that formation of a single tribunal in Tasmania is widely supported within the Department of Justice. Amalgamation of Tribunals presents an opportunity for a
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
8
range of benefits to the community, professionals and staff and members of the Tribunals:It has the capacity to - avoid continued proliferation of tribunals, boards and
other administrative decision makers; - provide an established body which can be vested with
any future administrative decision making required by Government which is adaptable and properly resourced3;
- improve access to justice for the Tasmanian community;
- provide greater uniformity and consistency in processes and decision making, while retaining the important specialist features of specialist tribunals;
- reduce inefficiencies in existing arrangements by consolidating resources;
- improve flexibility and capacity building for tribunal services; and
- provide an independent and impartial body for dispute resolution services, generating the highest confidence of that service, in the Tasmanian public.
The preparation of an Options Paper as Stage Two should provide a more accurate assessment of costs and savings as well as provide a more detailed implementation plan and draft legislation.Tasmania is no different to any other jurisdiction in Australia with respect to its suitability for amalgamating its Tribunals. As many commentators have said in the process of consultation; this reform is long over-due.
3 By way of illustration, in 2013/14 the Attorney General referred the issue of Problem Hedges to the Tasmanian Law Reform Institute, for consideration of the formation of dispute resolution processes in that area. Dispute resolution processes for that policy development could be vested in a Single Tribunal of Tasmania.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
9
GLOSSARY OF TERMSAAD – Administrative Appeals Division of the Magistrates Court of Tasmania
ACAT – Australian Capital Territory Civil and Administrative Tribunal
AG – Attorney General
CAT – Civil and Administrative Tribunal
GAB- Guardianship and Administration Board of Tasmania
MHT- Mental Health Tribunal of Tasmania
NCAT – New South Wales Civil and Administrative Tribunal
NTCAT – Northern Territory Civil and Administrative Tribunal
QCAT – Queensland Civil and Administrative Tribunal
RMPAT – Resource Management and Planning Appeal Tribunal of Tasmania
SACAT – South Australian Civil and Administrative Tribunal
SAT – State Administrative Tribunal of Western Australia
TARAC - Tasmanian Administrative Review Advisory Council
VCAT – Victorian Civil and Administrative Tribunal
WRCT – Workers Rehabilitation and Compensation Tribunal of Tasmania
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
10
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
11
CHAPTER ONEThe Present Situation in TasmaniaThis Chapter outlines a range of decision making bodies and processes in Tasmania; however, it will be confined to the nature of administrative and civil decision making processes. These processes cover a broad range of functions and entities but the underlying focus is on originating and review jurisdictions which fit within the ambit of civil or administrative decision making (see Chapter 3 for greater explanation).Annexure 1 to this Discussion Paper provides a list of the vast majority of original and appellate jurisdictions in Tasmania and their respective Acts and appellate bodies. This is a broad overview of appellate rights and originating application functions in Tasmania. This list is focused on civil and administrative decision making, and as such, certain original and appellate jurisdictions have been excluded (criminal jurisdictions, for example).Part One of this chapter sets out those bodies which, prima facie, are suitable for amalgamation into a Civil and Administrative Tribunal.Part Two of this Chapter examines a range of jurisdictions which were:- identified as possible jurisdictions for amalgamation
but which, after initial analysis may not be suitable- not considered for initial analysis but raised in the
course of consultation- possible jurisdictions for amalgamation that remain
undecided given the complexity or impacts of amalgamation, and require further analysis and consultation.
Part Three identifies the bodies which may be suitable for amalgamation and which lie outside the ambit of the Department of Justice. These would need to be analysed,
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
12
and consultation occur with relevant stakeholders as part of preparation of an Options Paper.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
13
Part oneAdministrative Appeals Division of the Magistrates CourtThe Administrative Appeals Division of the Magistrates Court is vested with a wide array of appeal rights from a broad cross section of legislation. I have included those civil rights of review/originating applications which are legislated to go to a Magistrate, as it appears there may not have been modifications to those Acts converting the referral to the Administrative Appeals Division. (I have excluded Residential Tenancy matters from this discussion and given that jurisdiction a separate discussion.) Prima facie, a considerable number of these matters are suitable for amalgamation however; a small number may not be or require additional analysis. A recommendation has been drafted directing further consultation, and analysis of individual provisions under this section occurs.The list of such appeal rights is as below:
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Abandoned Lands Act 1977, s11
Minister - Department of Primary Industry, Water, Parks, and Environment
Decision of Minister in respect of compensation
Magistrates Court (Administrative Appeals Division)
Aboriginal Relics Act 1975, s8(13)
Director of National Parks and Wildlife
Dispute with respect to compensation under Section 8
Magistrate
Aboriginal Relics Act 1975, s12 Minister Acquisition of
Relics by Crown Magistrate
Aboriginal Relics Act 1975, s19 Director Seizure of objects Magistrate/Court of
Petty Sessions?
Access to Neighbouring Land Act 1992,
None – Originating Application Jurisdiction
Applications for access to land for a variety of basis
Magistrates Court (appeal rights to Supreme Court)
Adoption Act 1988 s96A
Secretary or Principal Officer (under the Act)
Decisions regarding applications and status of prospective
Magistrates Court (Administrative Appeals Division)
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
14
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
adoptive parents
Agricultural and Veterinary Chemicals (Control of Use) Act 1995, s57(3)
Inspectors appointed under the Act
Seizure of products, produce etc.
Magistrates Court (Administrative Appeals Division)
Agricultural and Veterinary Chemicals (Control of Use) Act 1995, s57(5)
SecretaryReview of Destruction Notices
Magistrates Court (Administrative Appeals Division)
Ambulance Service Act 1982, s35P
Secretary
Decisions regarding Part IIIA with respect to Non-Emergency Patient Transport Licenses
Magistrates Court (Administrative Appeals Division)
Anatomical Examinations Act 2006 s9
Head of FacultyRefusal for individual authorisation under Section 9
Magistrates Court (Administrative Appeals Division)
Anatomical Examinations Act 2006 s11
Head of FacultyAmend or revoke individual authorisation
Magistrates Court (Administrative Appeals Division)
Animal Farming (Registration) Act 1994 s15
Secretary
Various rights concerning refusal, cancellation or conditions of registration
Magistrates Court (Administrative Appeals Division)
Animal (Brands and Movement) Act 1984 s22C
Registrar of Animal Brands
Refusal of permission regarding permanent identification device on animal
Magistrate
Animal Health Act 1995 s91A
Secretary and Minister
Decision regarding compensation, both eligibility and quantum
Magistrates Court (Administrative Appeals Division)
Animal Welfare Act 1993 s33 Minister
Refusal, cancellation or conditions of a license
Magistrates Court (Administrative Appeals Division)
Animal Welfare Minister Decisions Magistrates Court
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
15
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
(Domestic Poultry) Regulations 2013 s4
regarding housing of fowls in cages
(Administrative Appeals Division)
Archives Act 1983, s13 Minister
Compensation regarding seizure of documents by State Archivist
Magistrates Court (Administrative Appeals Division)
Associations Incorporation Act 1964, s35
Commissioner of Corporate Affairs
Cancellation of incorporation
Magistrates Court (Administrative Appeals Division)
Australian Consumer Law (Tasmania) Act 2010, s36
Minister Interim bans and recall notices
Magistrates Court (Administrative Appeals Division)
Birth, Deaths and Marriages Registration Act 1999 s53
Registrar
Any decision in performance or purported performance under the Act
Magistrates Court (Administrative Appeals Division)
Building Act 2000, s46
RMPAT (Appeal Tribunal)
Right of review against a decision of the Tribunal under Section 44(1) or (2)
Magistrates Court (Administrative Appeals Division)
Building and Construction Industry Security of Payment Act 2009, s31
Security of Payments Official
Refusal to authorise the person to be a nominating authority, imposition of condition or variation of a condition on the authorisation
Magistrates Court (Administrative Appeals Division)
Building and Construction Industry Security of Payment Act 2009, s36
Adjudicator appointed under Section 22(4)
Decision regarding disqualification
Magistrates Court (Administrative Appeals Division)
Burial and Cremation Act 2002 s14
Director of Public Health, General Manager of a Council
Closure of a crematorium Magistrate
Burial and Cremation Act 2002 s28
Director of Public Health, General Manager of a
Closure of a cemetery
Magistrate
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
16
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Council
Cat Management Act 2009, s33
SecretaryDecisions under Part Seven of the Act
Magistrates Court (Administrative Appeals Division)
Cat Management Regulations 2012, Section 12
SecretaryDecisions under Part Two of the Regulations
Magistrates Court (Administrative Appeals Division)
Child Care Act 2001, s50 Secretary
License decisions (approval, refusal, suspension), Fines, letters of censure, any decision under Act, Regulations or Standards
Magistrates Court (Administrative Appeals Division)
Community Housing Providers National Law (Tasmania) 2013, s6 – vests appeal rights with Magistrates Court
Magistrates Court (Administrative Appeals Division)
Conveyancing Act 2004, s42
Director of Consumer Affairs and Trading
Decisions regarding licenses, appointment of receivers/managers, orders made under Section 39
Magistrates Court (Administrative Appeals Division)
Cooperatives Act 1999, s30
Commissioner of Corporate Affairs
Refusal or failure to register a cooperative
Magistrate
Cooperatives Act 1999, s109
Commissioner of Corporate Affairs
Refusal or failure to alter rules Magistrate
Cooperatives Act 1999, s110
Commissioner of Corporate Affairs
Refusal or failure to registrar alterations to rules
Magistrate
Crown Lands Act 1976, s23 Minister
Forfeiture of land to Crown due to breach of contract
Magistrates Court (Administrative Appeals Division)
Crown Lands Act 1976, s32
Minister Reassessment of rent
Magistrates Court (Administrative
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
17
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Appeals Division)
Crown Lands Act 1976, s35 Minister
Appeal against assessment of amount of payment for improvements to land disputed
Magistrates Court (Administrative Appeals Division)
Crown Lands Act 1976, s35B Minister
Compensation for vesting land to Aboriginal Land Council disputed
Magistrates Court (Administrative Appeals Division)
Crown Lands Act 1976, s39 Minister
Compensation for improvements disputed
Magistrates Court (Administrative Appeals Division)
Crown Lands Act 1976, s67 Minister
Rights, titles and interest in land extinguished by Minister or cancellation of Lease by minister
Magistrates Court (Administrative Appeals Division)
Crown Lands (Shack Sites) Act 1997, s27
Valuer GeneralValuation of land of lessee or licensees shack site
Magistrates Court (Administrative Appeals Division)
Dairy Industry Act 1994, s42
Tasmanian Dairy Industry Authority
License decisions (refusals, revocation, conditions)
Magistrates Court (Administrative Appeals Division)
Disability Services Act 2011, s48
Secretary or authorised person under the Act
Individual plan decisions (approval, refusal), Restrictive Interventions, Notices of Non-compliance under Section 23
Magistrates Court (Administrative Appeals Division)
Dog Control Act 2000, s19A
General Manager of Council
Review of decision to seize and destroy dangerous dog
Magistrates Court (Administrative Appeals Division)
Dog Control Act 2000, s31
General Manager of Council
Declaration of dog as dangerous
Magistrates Court (Administrative Appeals Division)
Dog Control Act 2000, s34A
General Manager of Council
Transfer of ownership of
Magistrates Court (Administrative
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
18
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
dangerous dog Appeals Division)
Dog Control Act 2000, s39A
General Manager of Council
Destruction of dog if not enclosure not suitable
Magistrates Court (Administrative Appeals Division)
Dog Control Act 2000, s49A
General Manager of Council
Abatement notices
Magistrates Court (Administrative Appeals Division)
Dog Control Act 2000, s59
General Manager of Council
License decisions (refusal to grant or renew, or cancellation)
Magistrates Court (Administrative Appeals Division)
Education Act 1994, s62
Registration Board
Decisions regarding registration of schools (refusal, renewal, cancellation)
Magistrates Court (Administrative Appeals Division)
Education and Care Services National Law (Application) Act 2011 s8
Magistrates Court (Administrative Appeals Division)
Electricity Industry Safety and Administration Act 1997, s78
SecretaryPerson directly affected by a decision under the Act
Magistrates Court (Administrative Appeals Division)
Explosives Act 2012, s69
Secretary or authorised officer under the Act
Any decision under the Act
Magistrates Court (Administrative Appeals Division)
Fertilizers Act 1993 s27
Inspector, Minister, Secretary
Forfeiture/disposal of fertilizer, samples and public of analysis
Magistrates Court (Administrative Appeals Division)
Fertilizers Act 1993 s28A Secretary
Complaint decisions, certificates of exemptions
Magistrates Court (Administrative Appeals Division)
Firearms Act 1996, s141
Commissioner of Police
Range of decisions regarding licensing, permits, conditions,
Magistrates Court (Administrative Appeals Division)
Fire Service Act 1979, s56
State Fire Commission
Formation of firebreak on
Magistrates Court (Administrative
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
19
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
private land Appeals Division)
Fire Service Act 1979, s60I Chief Officer
Bush Fire Management Plans accreditation
Magistrates Court (Administrative Appeals Division)
First Home Owners Grant 2000, s27
Commissioner of State Revenue
Review of decision of Commissioner with respect to objections under Section 25
Magistrates Court (Administrative Appeals Division)
Fishing (License Ownership and Interest) Registration Act 2001, s16
Registrar appointed under Section 4
Licensing and registry decisions
Magistrates Court (Administrative Appeals Division)
Food Act 2003, s83E
Director of Public Health/Body acting under delegation of the Director
Approvals, variations, refusals, conditions under Part 6A
Magistrates Court (Administrative Appeals Division)
Forestry (Fair Contracts Code) Act 2001, s16(3)
MinisterDetermination of whether a person is an interested party
Magistrates Court (Administrative Appeals Division)
Gaming Control Act 1993, s112C(8)
Tasmanian Gaming Commission
Exclusion orders from gaming
Magistrates Court (Administrative Appeals Division)
Gaming Control Act 1993, s112GB
Commissioner of Police
Exclusion order from premises
Magistrates Court (Administrative Appeals Division)
Genetically Modified Organisms Control Act 2004, s30
SecretaryDecisions regarding permits, personal exemptions,
Magistrates Court (Administrative Appeals Division)
Health Service Establishments Act 2006, s28
SecretaryA decision of the Secretary as defined by Section 27
Magistrates Court (Administrative Appeals Division)
Health Service Establishments Act 2006, s30
Secretary Cancellation of License
Magistrates Court (Administrative Appeals Division)
Heavy Vehicle National Law (Tasmania) Act
Establishes Magistrates Court (Administrative
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
20
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
2013Appeals Division) as relevant body for appeals under National Law
HIV/AIDS Preventative Measures Act 1993, s11(1)
None Originating Application
May make application to compel a person to undergo testing
Magistrate
Land Valuers Act 2001, s17
Director of Consumer Affairs and Trading
Any decision made under the Act by Director
Magistrates Court (Administrative Appeals Division)
Litter Act 2007, s35
Authorised Officer under the Act
Abatement Notices
Magistrates Court (Administrative Appeals Division)
Local Government (Highways) Act 1982, s14
Corporation (local council)
Closure of a highway or part of a highway
Magistrates Court (Administrative Appeals Division)
Local Government (Highways) Act 1982, s39
Corporation (local council)
Orders for removal of vegetation of land holders
Magistrates Court (Administrative Appeals Division)
Local Government (Highways) Act 1982, Section 114
Corporation (local council)
Review of cost of levy contributions to construction of a street
Magistrates Court (Administrative Appeals Division)
Local Government Act 1993, s109
Local Council Review of variation to rates
Magistrates Court (Administrative Appeals Division)
Local Government Act 1993, s113
Local CouncilRefusal of application to declare land Urban Farm Land
Magistrates Court (Administrative Appeals Division)
Local Government Act 1993, s114
Local CouncilRevocation of declaration of urban farmland
Magistrates Court (Administrative Appeals Division)
Local Government Act 1993, s123
General Manager Review of rates notices
Magistrates Court (Administrative Appeals Division)
Local Government Act 1993, s200
Local CouncilAppeal against abatement notices regarding nuisance
Magistrate
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
21
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Local Government Act 1993, s202
General ManagerAppeal against action taken by GM under Section 201
Magistrate
Local Government Act 1993, s209
Local Council Review of refusal to correct map
Magistrates Court (Administrative Appeals Division)
Local Government Act 1993, s262
General Manager
Review decisions in relation to nomination, electoral roll and adjustments to roll
Magistrates Court (Administrative Appeals Division)
Local Government (Rates and Charges Remissions) Act 1991, s4F
Commissioner of State Review
Decisions regarding remissions and requirements to pay
Magistrates Court (Administrative Appeals Division)
Long Service Leave (Casual Wharf Employees) Act 1982, s11
Secretary
Review of decision regarding a dispute about long service leave and remuneration
Magistrates Court (Administrative Appeals Division)
Marine and Safety (Pilotage and Navigation) Regulations 2007, s89
MAST (Marine and Safety Authority of Tas)
Decisions regarding unseaworthy vessels (detention)
Magistrates Court (Administrative Appeals Division)
Motor Vehicle Traders Act 2011, s26
Director of Consumer Affairs and Fair Trading
Refusal to grant license, cancellation, non-renewal, any other prescribed decision
Magistrates Court (Administrative Appeals Division)
National Parks and Reserves Management Act 2002, s53
MinisterCancellation of lease, compensation amount
Magistrates Court (Administrative Appeals Division)
Occupational Licensing 2005, s82
Administrator of Occupational Licensing
Review of Decision under Section 81
Magistrates Court (Administrative Appeals Division)
Passenger Transport Services Act 2011, s59
Various All decisions made under the Act
Magistrates Court (Administrative Appeals Division)
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
22
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Petroleum Products Emergency Act 1994, s10
MinisterRefusal or cancellation of a permit
Magistrates Court (Administrative Appeals Division)
Poisons Act 1971, s92 Minister
Suspension or Revocation of rights under the Act
Magistrates Court (Administrative Appeals Division)
Primary Produce Safety Act 2011, s22
Chief Inspector
Decisions regarding accreditation or food safety programs
Magistrates Court (Administrative Appeals Division)
Primary Produce Safety Act 2011, s52
Chief Inspector Prohibition orders, compensation
Magistrates Court (Administrative Appeals Division)
Primary Produce Safety Act 2011, s62
Chief Inspector Approvals of Food Safety Auditors
Magistrates Court (Administrative Appeals Division)
Property Agents and Land Transactions Act 2005, s128
Property Transactions Tribunal
Any decision made by the PAT
Magistrates Court (Administrative Appeals Division)
Property Agents and Land Transactions Act 2005, s178
Property Agents Board, Property Agents Trust
Decision to either refuse compensation or amount of compensation
Magistrates Court (Administrative Appeals Division)
Public Health Act 1997, s160
Authorised officer
Seizure of items under Section 30
Magistrates Court (Administrative Appeals Division)
Public Health Act 1997, s160A
Director of Public Health
Decisions regarding tobacco sellers licenses
Magistrates Court (Administrative Appeals Division)
Public Health Act 1997, s164 Local Council
Decisions regarding Regulated Systems
Magistrates Court (Administrative Appeals Division)
Public Health Act 1997, s165
Director of Public Health or Local Council
Any order made by either entity under the Act
Magistrates Court (Administrative Appeals Division)
Radiation Protection Act 2005, s74
Director of Public Health
Any decision with a review notice under the Act
Magistrates Court (Administrative Appeals Division)
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
23
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Rail Safety National Law (Tasmania) Act 2012, s5
Establishes Magistrates Court (Administrative Appeals Division) as relevant body under National Law
Registration to work with Vulnerable People Act 2013, s53
Registrar appointed under Section 11
Decisions set out in Section 53
Magistrates Court (Administrative Appeals Division)
Relationships Act 2003, s25
Registrar of Births Death and Marriages
Any decision made in performance or purported performance of powers under Act
Magistrates Court (Administrative Appeals Division)
Retirement Villages Act 2004, s34
Director of Consumer Affairs and Trading
Any decision or order made
Magistrates Court (Administrative Appeals Division)
Roads and Jetties Act 1935, s52CE
Minister Refusal to grant compensation
Magistrates Court (Administrative Appeals Division)
Security and Investigations Agents Act 2002, s37
Director of Consumer Affairs and Trading
Decisions regarding licenses
Magistrates Court (Administrative Appeals Division)
Security-Sensitive Dangerous Substances Act 2005, s74
Regulator (appointed under Work Health and Safety Act 2012) or authorised officer
A decision made by either entity
Magistrates Court (Administrative Appeals Division)
Surveyors Act 2002, s37
Director of Consumer Affairs
Determination or Order made before the Commencement of the Magistrates Court (Administrative Appeals Division) Act 2001
Magistrate
Surveyors Act 2002, s38
Director of Consumer Affairs
Determination or Order
Magistrates Court (Administrative Appeals Division)
Taxation Administration
Commissioner of State Revenue
Determination or failure to
Magistrates Court (Administrative
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
24
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Act 1997, s89 determine an objection
Appeals Division) OR Supreme Court
Taxi and Hire Vehicles Industries (Review of Decisions) Regulations 2010, s11
Transport Commission
A finding or determination
Magistrates Court (Administrative Appeals Division)
Teachers Registration Act 2000, s29
Teachers Registration Board
Any decision that affects a person or a person employed by that person
Magistrates Court (Administrative Appeals Division)
Vehicle and Traffic (Review of Decisions) Regulation 2010 , s11
Reviewing Authority
Any finding or determination in the table of Part 1 of Schedule 1 or the decision specified in item 6 of the table of Part 2 of Schedule 1
Magistrates Court (Administrative Appeals Division)
Vermin Control Cat 2000, s13
Secretary or Inspector
Notices issued under Section 7 or Section 8
Magistrates Court (Administrative Appeals Division)
Veterinary Surgeons Act 1987, s53
Veterinary Board of Tasmania
Refusal to Register, delay in decision, cancellation of entry Section 22, determination of the board Section 46
Magistrates Court (Administrative Appeals Division)
Water and Sewerage Industry Act 2008 s56V
Regulated EntityNotices to owners with respect to connections
Magistrates Court (Administrative Appeals Division)
Water and Sewerage Industry Act 2008 s56X
Regulated Entity Removal of TreesMagistrates Court (Administrative Appeals Division)
Weed Management Act 1999, s54
Inspector authorised under the Act
Appeal against a requirement notice issued under Section 13
Magistrate
Wildlife (Exhibited
Secretary Cancellation, suspension,
Magistrates Court (Administrative
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
25
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Animals) Regulations 19
refusal to renew license Appeals Division)
Wildlife (Exhibited Animals) Regulations 33
SecretaryCancellation of travelling wildlife exhibition license
Magistrates Court (Administrative Appeals Division)
Wildlife (Exhibited Animals) Regulations 44
Secretary
Cancellation, suspension, refusal to renew wildlife display permit
Magistrates Court (Administrative Appeals Division)
Wildlife (Deer Farming) Regulations 2010, Section 4
SecretaryNo approval of deer farm location or fence
Magistrates Court (Administrative Appeals Division)
Workers (Occupational Diseases) Relief Fund Act 1954, s44
Secretary
Able to transfer compensation from recipient to neglected family members
Police Magistrate
Work Health and Safety Act 2012, s229
Regulator or Internal Reviewer
Prescribed decisions of the Regulator or outcome of internal review
Magistrates Court (Administrative Appeals Division)
Work Health and Safety Regulations 2012, s683
RegulatorReviewable decision under Chapter 9 of Part 11.2
Magistrates Court (Administrative Appeals Division)
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
26
Number of MattersNotwithstanding the large number of appeal rights listed above, the Administrative Appeals Division of the Magistrate’s Court receives a relatively small number of appeals each year in relation to these matters.
Applications received 2010-2014 Type of Application
2010-11 2011-12 2012-13 2013-14
Review (Appeal) of a reviewable decision - S17
30 38 18 43
Declaration of entitlement to reasons for decision – S15(1)
0 0 0 1
Extension of time to apply for review of decision - S20
0 4 0 0
Other 4 0 0 1
Total 34 42 18 45
A detailed breakdown of the nature of these applications is contained in the annual report of the Magistrates Court at page 42.
Structure and StaffThe Civil Division of the Magistrate’s Court has 6 FTE positions allocated to the Civil Registry which covers all 3 Registries. These staff manage a broad range of Civil Disputes, of which Minor Civil Claims and Residential Tenancy disputes constitute the vast majority of matters (as disclosed in the Court’s Annual Report of 2013-2014). ADR services are supplied by both trained staff of the Registry and external consultants on a case by case basis. Final hearing and determinations are made by Magistrates of the Court.As of July 1 2015, there will be a Registrar, Deputy Registrar and two Administrative Officers in Hobart. One is .8 FTE the other is .6 FTE but in a full time position. Launceston allocate 1 FTE to Civil and the North West .6 FTE.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
27
The Registrar has various statutory duties across all of the jurisdictions (AAD, Mining Tribunal, Land Valuation Court, Minor Civil Claims, Residential Tenancy) including, but not limited to, issuing orders, notices, maintaining case management systems, assessing bailiff applications, assessing bills of costs for successful parties, maintain a register of decisions, issuing summons to witness, issuing warrant to sell property and warrants of possession, etc. The Deputy Registrar and Administrative Officers assist with these statutory obligations.
BudgetThe Magistrates Court was allocated a total budget of $11,743,000.00 for the financial year 2013-2014. On the estimation of the Court, the proportion of the budget allocated to AAD, Mining Tribunal, Land Valuation and Registry functions of the Motor Accident Compensation Tribunal would be less than $10,000.
Space Occupied and Location/RentalThe Civil Registry and Hearing Rooms are located in the Hobart Magistrate’s Court (23-25 Liverpool St, Hobart) and regional registries (Launceston, 73 Charles Street) (Devonport, 8 Griffith Street) (Burnie, 38 Alexander Street). It is difficult to quantify the specific costs of rental for each of the Tribunals/jurisdictions located at the Magistrates Court given the shared nature of the operations.
Number of MembersNot applicable. Magistrates ultimately determine disputes that are not resolved through ADR.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
28
Disciplinary TribunalThe Disciplinary Tribunal is established under the auspices of the Legal Profession Act 2007 (see Section 610 of the Act). The Tribunal is required to hear and determine any matter referred to it under Part 4.7 of the Act (unless Section 466(7) (b) or (c) applies).
Number of MattersThe Tribunal receives a small number of matters in a single year. On estimates provided by the current President approximately 3-5 matters may be heard and determined per year. The Annual Report of the Legal Profession Board contains details of the number of matters referred to both the Disciplinary Tribunal and Supreme Court (see page. 17 of Annual Report 2014).
Structure and StaffThere are no dedicated staff allocated to the operations of the Tribunal. At present, a full time solicitor in the private sector provides corporate/registry support to co-ordinate appointments and listings.
BudgetFunding for sitting fees is derived from the budget of the Legal Profession Board.
Space Occupied and Location/RentalNo dedicated office space is allocated to the Tribunal with hearings convened in appropriate rented hearing rooms or rooms paid for by other outputs.
Number of MembersSection 610(2) and (3) establishes the requirements for members of the Tribunal. Ten Australian legal practitioners from a panel of 15, four of whom are to be nominated by the Tasmanian Bar and the balance from nominations by the Law Society. The legal practitioner members of the panel are selected by the judges of the Supreme Court. Five lay persons are appointed by judges on the nomination of the Minister (Section 610(2) (b)). The Chairperson and Deputy Chairperson are appointed by the judges from the practitioner members of the panel. These Chairpersons and Members are Sessional.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
29
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
30
Guardianship and Administration BoardThe Guardianship and Administration Board is established under the Guardianship and Administration Act 1995.
The Board is vested with a range of original and review jurisdiction from several pieces of legislation, which are listed below.
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Disability Services Act 2011, Section 42
Originating Application Approvals to carry out restrictive interventions
Guardianship and Administration Board
Guardianship and Administration Act 1995, Section 19
Originating Application Guardianship Order
Guardianship and Administration Board
Guardianship and Administration Act1995, Section 65
Review Application Review Guardianship Order
Guardianship and Administration Board
Guardianship and Administration Act 1995, Section 32(2)(d), 32(6)
Register of Enduring Guardianship/Originating Application
Board has power to vary powers in an instrument when it is registered
Guardianship and Administration Board
Guardianship and Administration Act 1995, Section 32D
Originating Application Production of materials of enduring guardian
Guardianship and Administration Board
Guardianship and Administration Act 1995, Section 34
Originating Application Revocation of enduring guardianship
Guardianship and Administration Board
Guardianship and Administration Act 1995, Section 35
Originating Application Enduring Guardian seeking advice or direction from Board
Guardianship and Administration Board
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
31
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Guardianship and Administration Act 1995, Section 44
Originating Application Application for consent to carry out medical or dental procedures
Guardianship and Administration Board
Guardianship and Administration Act 1995, Section 50
Originating Application Administration Order
Guardianship and Administration Board
Guardianship and Administration Act 1995, Section 67
Review Application Review Administration Order
Guardianship and Administration Board
Guardianship and Administration Act 1995, Section 61
Originating Application Advice or Direction by the Board for an Administrator
Guardianship and Administration Board
Guardianship and Administration Act 1995, Section 65
Originating Application or Of Its Own Motion
Emergency Orders
Guardianship and Administration Board
Guardianship and Administration Act 1995, Section 88
Originating Application Approval to open Will
Guardianship and Administration Board
Powers of Attorney Act 2000, Section 33
Originating Application or Of Its Own Motion
Appointment, variation, revocation of enduring powers of Attorney
Guardianship and Administration Board
Wills Act 2008, Section 30
Originating Application or Of Its Own Motion
Orders authorising the making of a will on behalf of a person
Guardianship and Administration Board
Wills Act 2008, Section 36
Originating Application Modifications to a Will made by the Board
Guardianship and Administration Board
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
32
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Wills Act 2008, Section 37
Originating Application Revocation of a Will made by the Board
Guardianship and Administration Board
Number of MattersThe GAB Annual report of 2013-2014 provides a comprehensive list of the numbers of matters it has managed over the last five financial years.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
33
Applications received
2009-10 2010-11 2011-12 2012-13 2013-14
Total applications rec’d
974 1085 1029 1104 1230
Guardianship normal
141 136 148 152 198
Guardianship emergency
140 188 205 311 288
Administration normal
251 242 235 195 247
Administration emergency
79 98 81 75 63
Medical consent
21 23 23 11 4
Statutory Will 1 0 0 0 1
Other (EPAs, gifts, advice etc.)
37 57 60 50 92
Review of existing orders
304 341 277 310 337
Hearings conducted
2009-10 2010-11 2011-12 2012-13 2013-14
Total hearings 643 719 669 657 735
Guardianship 111 105 120 116 142
Administration 212 205 220 168 192
Medical consent
15 16 16 12 3
Statutory Will 0 1 0 0 0
Other 21 52 34 25 46
Reviews 284 340 277 336 352
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
34
Hearings by region
2009-10 2010-11 2011-12 2012-13 2013-14
South 332 410 370 363 432
North 186 198 188 170 200
North West 125 111 106 124 103
Structure and StaffThe Board has a President who must be an Australian lawyer of not less than 7 years standing as an Australian legal practitioner. The Act requires at least 5 other members as necessary for the proper functioning of the Board including a Deputy President. (see Section 7)The Act requires the appointment of a Registrar and such other officers as are necessary for the proper functioning of the Board. (See Section 9.) The Board currently has a Registrar and 5 other staff members. Two undertake investigative work, and the balance undertake registry responsibilities. Some staff members are employed part-time. Currently staffing is at 5.8 FTE comprising: Band 2 Administrative Assistant, Band 3 Registry Clerk (currently .4 of FTE, permanent employee wants to increase days when maternity leave ends), Band 5 Compliance officer, Band 4 Investigation Officer (.6 FTE), Band 6 Investigation Officer (.8 FTE), Band 7 Registrar.
BudgetThe Board has a budget allocation for 2015-2016 in the amounts of: $715,000 from Consolidated Fund and $321,000 funded from retained revenue.
Space Occupied and Location/RentalThe Board is located on the First Floor, 54 Victoria Street, Hobart. Its Property Expenses are listed in the Annual Report as $64,725.00 for 2013-2014. Rental costs for premises per month are $ 6002.14 (The GAB is paying for the space that was previously paid for by MHT, therefore its rent has doubled). Spaces currently provided: Hearing Room, Interview Room, Compactus Filing, 4 x Offices, 3 work stations.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
35
Number of MembersThe Board has a President (Full Time), Deputy President (Sessional) and 23 Members (Sessional). A full list of these members is provided in the Annual Report 2013-2014.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
36
Land Valuation CourtThe Land Valuation Court is established under the auspices of the Valuation of Land Act 2001. The Court is required to be constituted by a Magistrate and as such is managed and sited within the Magistrates Court. The Court is granted jurisdiction to hear and determine all objections referred to it under the Valuation of Land Act 2001. (See Section 35(2) of the Act)
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Valuation of Land Act 2001, Section 34
Creates Land Valuation Court
Valuation of Land Act 2001, Section 38
Valuer General Objections regarding valuations
Land Valuation Court
Valuation of Land Act 2001, Section 40
Land Valuation Court
Any decision on the hearing of an objection under the Act.
Supreme Court
Number of MattersThere are no current statistics for matters in the Magistrates Court Annual Report 2013-2014 for the past 4 years. It is assumed there have been no applications or appeals filed in that timeframe.
Structure and StaffThe Land Valuation Court is supported by the staff of the Civil Division of the Magistrates Court (see discussion above under AAD).
BudgetThe Magistrates Court was allocated a total budget of $11,743,000.00 for the financial year of 2013-2014. (see AAD discussion above)
Space Occupied and Location/RentalThe Civil Registry and Hearing Rooms are located in the Hobart Magistrate’s Court (23-25 Liverpool St, Hobart) and regional registries (Launceston, 73 Charles Street)(Devonport, 8 Griffith Street)(Burnie, 38 Alexander Street).
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
37
It is difficult to quantify the specific costs of rental for each of the Tribunals/jurisdictions located at the Magistrates Court given the shared nature of the operations.
Number of MembersNot applicable. It should be noted that the legislation requires the Court to be constituted by a Magistrate (Section 34(1) of the Valuation of Land Act 2001.)
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
38
Mental Health TribunalThe Mental Health Tribunal is established under the Mental Health Act 2013. It is vested with a range of originating applications and review functions, along with appeal rights to the Supreme Court against its determinations. Relevant provisions are compiled below for ease of reference:
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Corrections Act 1999, s36B
Director of Corrective Services or Chief Forensic Psychiatrist
Failure to make a direction or requirement to remove from secure mental health unit
Mental Health Tribunal
Criminal Justice (Mental Impairment) Act 1999, s37
Review Function Review of Forensic Order, to determine discharge of Order
Mental Health Tribunal
Mental Health Act 2013, s37
Originating Application
Treatment Order Mental Health Tribunal
Mental Health Act 2013, s38
Originating Application
Interim Treatment Order
Mental Health Tribunal
Mental Health Act 2013, s167
Establishes the Mental Health Tribunal
Mental Health Act 2013, s174
Mental Health Tribunal
Any decision made under the Act
Supreme Court
Mental Health Act 2013, s179
Various, broad range of review powers
Review powers over orders, admissions, transfer, leave
Mental Health Tribunal
Mental Health Act 2013, s180-192
Various, broad range of review powers
Lists specific types of reviews requirements
Mental Health Tribunal
Mental Health Act 2013, s193
General Power of review
Able to review any decision for which express provision not otherwise made under this Division
Mental Health Tribunal
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
39
Youth Justice Act 1997, s134B
Secretary, Chief Forensic Psychiatrist
Removal from secure unit
Mental Health Tribunal.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
40
Number of MattersThe following details were taken from the MHT Annual Report 2013-2014Treatment Orders- Interim Orders made: 222- Matters heard: 196(Including applications for treatment orders and renewal of treatment orders and only covers 17 Feb – 30 June 2014)- Treatment Orders made: 159- Treatment Orders varied: 30- Treatment Orders renewed 7Reviews of Treatment Orders- Matters heard: 154
(Covering period of 17 Feb – 30 June 2014)- Treatment Order affirmed: 110- Treatment Order varied: 44Forensic Orders Reviewed- Restriction Orders: 9- Certificate should issue: 0- Certificate should not issue: 9- Supervision Orders: 25- Certificate should issue: 9- Certificate should not issue: 16Leave Applications- Certificate should not issue: 16- Number of Applications: 5- Number of applications granted: 5- Number of applications refused: 0Authorisation of Treatment
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
41
- Number of Applications: 4- Number of interim authorisations made: 5- Treatment authorized at hearing: 2- Treatment not authorized: 0- Did not proceed to decision: 1Detention Authorisations- Number of Applications: 1- Number of Interim Authorisations Made: 1- Detention Authorised at hearing: 1Transfers under the Correction Act 1997- Number of reviews: 0
Continuing care and community treatment orders
2012-13
2013-14
Number of applications received 45 20
Number of notifications received of CCOs 611 269
Number of notifications received of CTOs 162 92
Number of notifications received of admissions to a secure mental health unit
8 9
Number of orders discharged prior to hearing
426 243
Number of hearings conducted 440 226
Number of orders confirmed 253 200
Number of orders revoked 133 14
Number of orders varied 134 64
Number of orders invalid 9 7
Matters adjourned 27 15
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
42
Outstanding matters listed for hearing at 30 June
21 0
Percentage of reviews conducted within statutory time frame
95% 95%
Structure and StaffThe Tribunal has a President who is an Australian lawyer with at least 5 years’ experience. A Deputy President can be appointed who is either a psychiatrist or a member who is appointed. The President and Deputy President are appointed for 5 years. Other members are appointed for not more than 3 years or such time specified in the instrument of appointment. Reappointment is permitted for all members. There does not appear to be any legislative requirements regarding qualifications for members of the Tribunal; however Section 170(4) requires the President to have regard to appointing members to hear matters with appropriate knowledge and experience.The Act authorizes the appointment of a Registrar and other State Servants to be made available to the Tribunal to enable it to perform its functions.
BudgetThe budget for the MHT for 2015-2016 is $1.478 million (funded from Consolidated Fund).
Space Occupied and Location/RentalThe Mental Health Tribunal occupies half of the 4th floor of 144-148 Macquarie Street, Hobart. Its Property Expenses were listed as $65,500.75 for 2013-2014.
Number of MembersThere is 1 President (Full time) and 1 Deputy President (Sessional) and 40 other members (Sessional).
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
43
Mining TribunalThe Mining Tribunal is a Tribunal created under the Mineral Resources Development Act 1995. It is a body which enjoys a very broad jurisdiction under the terms of that Act. It includes originating application functions as well as review rights (See Section 128). The legislation creates a Mining Division of the Magistrates Court which is to be known as the Mining Tribunal.
Number of MattersMining Tribunal matters lodged 2010-2014 Description of Outcome
2010-11 2011-12 2012-13 2013-14
Referred to Tribunal for hearing
6 3 2 3
Structure and StaffThe Mining Tribunal is the Mining Division of the Magistrates Court and is supported by the staff of the Civil Division.
BudgetThe Magistrates Court was allocated a total budget of $11,743,000.00 for the financial year of 2013-2014. (See discussion above under AAD).
Space Occupied and Location/RentalThe Civil Registry and Hearing Rooms are located in the Hobart Magistrate’s Court (23-25 Liverpool St, Hobart) and regional registries (Launceston, 73 Charles Street)(Devonport, 8 Griffith Street)(Burnie, 38 Alexander Street).
Number of MembersNot Applicable. It should be noted however that a Magistrate is required to hear and determine matters within this jurisdiction (see Section 127(2) of the Mineral Resources Development Act 1995).
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
44
Property Agents TribunalThe Property Agents Tribunal is established under the auspices of the Property Agents and Land Transactions Act 2005. Its functions are confined to a review jurisdiction as set out below.
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Property Agents and Land Transactions Act 2005, s110
Property Agents Board
Decisions regarding conduct complaints
Property Agents Tribunal
Property Agents and Land Transactions Act 2005, s113
Creates Property Agents Tribunal
Property Agents and Land Transactions Act 2005, s127
Property Agents Board
Any decision made by PAB
Property Agents Tribunal
Property Agents and Land Transactions Act 2005, s128
Property Agents Tribunal
Any decision made by the PAT
Magistrates Court (Administrative Appeals Division)
Property Agents and Land Transactions Act 2005, s178
Property Agents Board, Property Agents Trust
Decision as to either no compensation or amount
Magistrates Court (Administrative Appeals Division)
Number of MattersThere appear to be a limited number of matters which arise under the auspices of this Act. The Department of Justice Annual Report 2013-2014 reports that of the 17,546 Consumer/Trader inquiries for that year only 11 related to the Property Agents and Land Transactions Act 2005 (see table 6.16 page 73). Of the 462 Complaints and Investigations for that year, only 1 related to the Property Agents and Land Transactions Act 2005 (see table 6.17 page 75.) There are no other recorded instances of proceedings related to this Act, and no specific statistics related to the Tribunal itself.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
45
Structure and StaffThe Tribunal has no allocated staff and under the terms of the Act, the Property Agents Board is to appoint one of its employees to be Registrar of the Tribunal (see section 116(4) of the Act).
BudgetAt present any costs for the Tribunal appear to be financed by the Property Agents Board whose budget is subsumed under Consumer Affairs and Trading.
Space Occupied and Location/RentalNo dedicated space is allocated to the Tribunal and hearings are convened in rented locations, primarily at the offices of the Legal Profession Board.
Number of Members
A President of the Tribunal is appointed and must be a legal practitioner of at least 5 years’ standing who has legal experience in areas of law relevant to the position. A panel of members is appointed and must consist of 10 persons, 5 of who must have had at least 5 years’ experience as property agents. The remaining 5 are to be persons who the Minister considers represent the interests of consumers. President and Members are Sessional.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
46
Resource Management and Planning Appeal Tribunal (incorporating the Building Appeal Tribunal and Forest Practices Tribunal jurisdictions)The Resource Management and Planning Appeal Tribunal (RMPAT), is established under the Resource Management and Planning Appeal Act 1993. It exercises the functions of the Building Appeal Tribunal by virtue of the provisions of the Building Act 2000. It is the Registry of the Forest Practices Tribunal by virtue of Section 35 of the Forest Practices Act 1985.
The RMPAT is vested with both review/appellate jurisdiction as well as originating applications under a number of Acts of Parliament. The FPT has an appellate jurisdiction as set out below. Annexure 1 of this paper lists all such matters; however, they are compiled below for convenience:
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Agricultural and Veterinary Chemicals (Control of Use) Act 1995, Section 57(1)
Registrar or Secretary
Decision regarding licenses, testing or restriction notices
RMPAT (Appeal Tribunal)
Building Act 2000, Section 42
Director of Building Control
Review of any decision or action under Section 26 or 40
RMPAT (Appeal Tribunal)
Building Act 2000, Section 136
Originating application
Dispute as to costs of adjoining owner for protection word
RMPAT (Appeal Tribunal)
Building Act 2000, Section 137
Originating application
Dispute as to compensation as a result of protection work
RMPAT (Appeal Tribunal)
Building Act 2000, Section 147
Originating application
Any dispute arising under Division 2 and 3
RMPAT (Appeal Tribunal)
Building Act 2000, Section 209
Permit Authority (a General Manager of a Council or Council)
Decision to refuse, or setting of conditions on, building and plumbing permits or substantial compliance permits
RMPAT (Appeal Tribunal)
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
47
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Building Act 2000, Section 210
Building Surveyor
Refusal to grant, or conditions upon, an occupancy permit
RMPAT (Appeal Tribunal)
Building Act 2000, Section 211
General Manager, permit authority or building surveyor
A person affected by an emergency order, building order or plumbing order
RMPAT (Appeal Tribunal)
Building Act 2000, Section 212
General Manager
Refusal or failure to grant an application for temporary occupancy or conditions on the permit
RMPAT (Appeal Tribunal)
Building Act 2000, Section 213
Building Surveyor
Determination in relation to protection work not carried out under an emergency order
RMPAT (Appeal Tribunal)
Building Act 2000, Section 214
Building Surveyor
Exercise of, or failure to exercise, any powers of a building surveyor under the Act (reporting authority may appeal over issuance of likely compliance certificates)
RMPAT (Appeal Tribunal)
Building Act 2000, Section 215
Permit Authority
Exercise of or failure to exercise any power under Act
RMPAT (Appeal Tribunal)
Building Act 2000, Section 216
Director of Building Control
Replacement of a Building Surveyor under Section 54
RMPAT (Appeal Tribunal)
Building Act 2000, Section 217
Chief Fire Officer or other decision maker under Regulations
Any exercise of power under the General Fire Regulations 2000
RMPAT (Appeal Tribunal)
Building Act 2000, Section 218 and Section 218A
Originating application
Applications to see dispensations regarding BCA and TPC and Disabled Access requirements
RMPAT (Appeal Tribunal)
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
48
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Building Regulations 2014 Section 56
Permit Authority, engineer, building surveyor, Director of Building Control, Chief Officer (Fire), General Manager
Any decision made under the Regulations
RMPAT (Appeal Tribunal)
Environmental Management and Pollution Control Act 1994, Section 23
EPA Inclusion of trade secret information on register
RMPAT (Appeal Tribunal)
Environmental Management and Pollution Control Act 1994, Section 27
EPA Assessment of activities which do not require a permit
RMPAT (Appeal Tribunal)
Environmental Management and Pollution Control Act 1994, Section 30
EPA Requirement for an audit RMPAT (Appeal Tribunal)
Environmental Management and Pollution Control Act 1994, Section 35
EPA Requirement of lodgment of a financial assurance
RMPAT (Appeal Tribunal)
Environmental Management and Pollution Control Act 1994, Section 36
EPA Claim on financial assurance
RMPAT (Appeal Tribunal)
Environmental Management and Pollution Control Act 1994, Section 41
EPA Environmental Improvement Program
RMPAT (Appeal Tribunal)
Environmental Management and Pollution Control Act 1994, Section 43
Director Requirement for information
RMPAT (Appeal Tribunal)
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
49
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Environmental Management and Pollution Control Act 1994, Section 44
EPA Environmental Protection Notice
RMPAT (Appeal Tribunal)
Environmental Management and Pollution Control Act 1994, Section 74O
EPA Notice under Part 5A Division 3
RMPAT (Appeal Tribunal)
Environmental Management and Pollution Control Act 1994, Section 48
Originating Application
Civil Enforcement Proceedings
RMPAT (Appeal Tribunal)
Fire Service Act 1979, Section 133A
Chief Officer Any decision under the General Fire Regulations
RMPAT (Appeal Tribunal)
Forest Practices Act 1984, Section 25
Forest Practices Authority
Forest Practices Plans decisions
FPT
Forest Practices Act 1984, Section 29
Forest Practices Authority
Three Year Plan decisions FPT
Forest Practices Act 1984, Section 42
Forest Practices Officer appointed under the Act
Failure to comply with Certified Forest Practices Plan
FPT
Gas Act 2000, Section 84
Responsible Authority
Entry onto Public Land to do works (dispute with gas entity)
RMPAT (Appeal Tribunal)
Gas Act 2000, Section 115
Minister Minister can refer the appeal to the Tribunal for determination
RMPAT (Appeal Tribunal)
Gas Pipeline Act 2000, Section 83
Minister Any administrative review under Division 2 of the Act
RMPAT (Appeal Tribunal)
Historic Cultural Heritage Act 1995 Section 27
Heritage Council
Listings on provisional and permanent register
RMPAT (Appeal Tribunal)
Historic Cultural Heritage Act 1995 Section 45
Heritage Council
Determinations of applications
RMPAT (Appeal Tribunal)
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
50
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Historic Cultural Heritage Act 1995 Section 53
Originating Application
Enforcement of Heritage Agreements under the Act
RMPAT (Appeal Tribunal)
Historic Cultural Heritage Act 1995 Section 61
Heritage Council
Stop work Notices RMPAT (Appeal Tribunal)
Inland Fisheries Act 1995, Section 58
Director of Inland Fisheries
Grants, refusals, transfers, renewals of licenses
RMPAT (Appeal Tribunal)
Inland Fisheries Act 1995, Section 81
Director of Inland Fisheries
Cancellation of registration RMPAT (Appeal Tribunal)
Land Use Planning and Approvals Act 1993, Section 61(3)
Planning Authority
Request for additional information
RMPAT (Appeal Tribunal)
Land Use Planning and Approvals Act 1993, Section 61(4)
Planning Authority
Refusal to grant a permit or a permit subject to conditions
RMPAT (Appeal Tribunal)
Land Use Planning and Approvals Act 1993, Section 61(5)
Planning Authority
Grant of a permit (3rd party appeal)
RMPAT (Appeal Tribunal)
Land Use Planning and Approvals Act 1993, Section 61(6)
Planning Authority
Requirement to enter into a Part V agreement under the Act
RMPAT (Appeal Tribunal)
Land Use Planning and Approvals Act 1993, Section 59(3)
Planning Authority (Originating Application)
Failure to make a decision within timeframes
RMPAT (Appeal Tribunal)
Land Use Planning and Approvals Act 1993, Section 61(7)
Planning Authority
Enforcement Notices RMPAT (Appeal Tribunal)
Land Use Planning and Approvals Act 1993, Section 61(8)
Planning Authority
Cancellation of a permit RMPAT (Appeal Tribunal)
Land Use Planning and Approvals Act 1993, Section 64
Originating Application
Civil Enforcement Proceedings
RMPAT (Appeal Tribunal)
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
51
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Living Marine Resources Management Act 1995, Section 283
Minister or Secretary
Any decision made which has been subject to review under Section 282
RMPAT (Appeal Tribunal)
Local Government (Highways) Act 1982, Section 46
Corporation (local council)
Permission, revocation or conditions regarding works in highway
RMPAT (Appeal Tribunal)
Local Government Act 1993, Section 178A
Local Council Appeal against decision to lease or dispose of public land
RMPAT (Appeal Tribunal)
Marine Farming Planning Act, Section 75
Minister Lists the appeal rights available regarding leases
RMPAT (Appeal Tribunal)
Marine Farming Planning Act, Section 95
Panel/Minister Appeals regarding marine farming plans
RMPAT (Appeal Tribunal)
Marine Farming Planning Act, Section 96
Panel Planning Authority may appeal against withdrawal of a draft amendment plan
RMPAT (Appeal Tribunal)
Marine Farming Planning Act, Section 111
Originating Application
Enforcement Proceedings under the Act
RMPAT (Appeal Tribunal)
National Parks and Reserves Management Act 2002, Section 19
Director, Originating Application
Before Management Plan can be approved must have consent or arbitration by Tribunal
RMPAT (Appeal Tribunal)
Plumbing Regulations 2014, Section 54
General Manager, Permit Authority, Regulated Entity, Director of Building Control
Any decision made under the Regulations
RMPAT (Appeal Tribunal)
Public Health Act 1997, Section 103
Local Council Cancellation of registration of premises
RMPAT (Appeal Tribunal)
Public Health Act 1997, Section 161
Local Council Places of Assembly licenses
RMPAT (Appeal Tribunal)
Public Health Act 1997, Section 162
Local Council Registration of Premises RMPAT (Appeal Tribunal)
Strata Titles Act 1998, Section 96
Originating Application
Enforcement of By Laws of Body Corporates
RMPAT (Appeal Tribunal)
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
52
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Strata Titles Act 1998, Section 133
Originating Application
Orders for payment of penalties for breaches of By Laws
RMPAT (Appeal Tribunal)
Strata Titles Act 1998, Section 144 (1)(a)
Recorder of Titles
Any application under the Act
RMPAT (Appeal Tribunal)
Strata Titles Act 1998, Section 144 (1)(b)
Local Council Any application for approval
RMPAT (Appeal Tribunal)
Strata Titles Act 1998, Section 145
Originating Application
Stay of orders of Recorder of Titles until determination of an appeal
RMPAT (Appeal Tribunal)
Threatened Species Act 1995, Section 14
Minister Amendments to List of Threatened Species (removal addition etc.)
RMPAT (Appeal Tribunal)
Urban Drainage Act 2013, Section 5
Minister Order made to a local council to make provision for storm water infrastructure
RMPAT (Appeal Tribunal)
Urban Drainage Act 2013, Section 11
Local Council Requirements over construction of drains
RMPAT (Appeal Tribunal)
Urban Drainage Act 2013, Section 15
Public Authority responsible for land
Dispute with Councils over entitlements to do work or conditions of that work
RMPAT (Appeal Tribunal)
Urban Drainage Act 2013, Section 21
General Manager
Requirement to connect to public storm water system
RMPAT (Appeal Tribunal)
Urban Drainage Act 2013, Section 22
General Manager
Requirement to disconnect from public storm water system
RMPAT (Appeal Tribunal)
Water Management Act 1999, Section 275, 276
Minister List of appealable decisions under Section 275, Section 276 establishes right of appeal
RMPAT (Appeal Tribunal)
Water and Sewerage Industry Act 2008 56E
Regulated Entity
Works in public land RMPAT (Appeal Tribunal)
Water and Sewerage Industry Act 2008 Section 56TE
Regulated Entity
Decisions regarding certificates under Section 56TC or TD
RMPAT (Appeal Tribunal)
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
53
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Water and Sewerage Industry Act 2008 Section 56O(1)
Regulated Entity
Requires their input into Land Use Planning Approval Permit decisions, and makes them a party to an appeal at RMPAT on a permit appeal
RMPAT (Appeal Tribunal)
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
54
Number of MattersThe RMPAT’s Annual report sets out the number of matters it receives and resolves from year to year, including settlement rates through ADR. The following tables are taken from the RMPAT Annual Report of 2013-2014.4
4 Resource Management and Planning Appeal Tribunal Annual Report 2013-2014 p.3-4
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
55
Table 2 - Appeals by legislation
Appeals By Legislations
2006-07
2007-08
2008-09
2009-10
2010-11
2011-12
2012-13
2013-14
LUPAA 403 425 300 270 266 195 150 117
Heritage 16 14 13 19 14 11 7 10
SOL 4 2 1 1 1
Marine 3 5 2 3 4 1
Water 4 1 5 4 0
Strata Titles 2 7 2 2 3 2 4 2
EMPCA 5 3 5 6 4 1
Threatened Species 1
Local Govt. Highways Act
21
Water & Sewerage Industry Act
1
Building Act 6 3
Total 431 477 328 299 292 213 176 135
Applications by legislation
Applications By Legislations
2006-07
2007-08
2008-09
2009-10
2010-11
2011-12
2012-13
2013-14
S64 LUPAA 28 36 25 29 28 24 17 9
S48 EMPCA 1 3 1
S96 Strata 1 1 0 1
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
56
Titles
S264 Water Management 1
P12 S218A Building Act 1
Total 30 41 26 29 28 24 18 10
% Consent / Hearings to substantive decisions
Consent 71.32%
62.15%
74.55%
76.95%
77.78%
70.29%
72.15%
76.36%
82.47%
72.94%
71.30%
Hearings
28.68%
37.85%
25.45%
23.05%
22.22%
29.71%
27.85%
23.64%
17.53%
27.06%
28.70%
The Tribunal has noted a decline in proceedings since 2008 and at present receives approximately 150 matters a year. This may yet vary and indications for this calendar year (2015) show a trend of increased proceedings.
Structure and StaffThe Tribunal has a Chairperson who must be a legal practitioner of not less than 5 year’s standing who is appointed for a period of 5 years (Section 6(a) of the Resource Management and Planning Appeal Tribunal Act 1993).The Tribunal has a Registrar (Band 7), Senior Mediation Officer (Band 6) and Senior Executive Officer (Band 6) who are responsible for case management of proceedings, delivery of ADR services and oversight and management of Tribunal functions and staff. They are delegated such powers as are required by the Chairperson pursuant to Section 38 of the RMPAT Act.The Tribunal has 5 Clerical and Administrative staff who provide clerical and administrative support to senior officers; Two Band 3 Executive Assistants (.8 FTE and .9 FTE), Two Band 2 Administrative Assistants (2 FTE), 1 Band 2 Clerk (1 FTE).
BudgetThe Tribunal has a budget allocated in the sum of $1.473 million for 2015-2016 (funded from Consolidated Fund).
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
57
Space Occupied and Location/RentalThe Tribunal is located on Level 6, 144-148 Macquarie Street, Hobart. It occupies 481.2 sqm of space which comprises the entire 6th Floor. The spaces include: Hearing Room, 2 Meeting Rooms, 6 Offices, Staff Room, Compactus Storage, Reception Area, and Kitchenette.
Number of MembersThe Tribunal has a panel of 30 sessional members. There are no full time or part time members. The Chairperson is a Full Time appointment.
Worker’s Rehabilitation and Compensation Tribunal (Incorporating the Asbestos Compensation Tribunal, Anti-Discrimination Tribunal, Motor Accident Compensation Tribunal, Health Practitioners Tribunal)The Workers Rehabilitation and Compensation Tribunal (WRCT) is established under the Workers Rehabilitation and Compensation Act 1988. It is vested with both originating application and review jurisdictions under its enabling legislation. Amalgamation of several other Tribunals has occurred with the WRCT incorporating the Motor Accident Compensation Tribunal; the Asbestos Compensation Tribunal; the Health Practitioners Tribunal and most recently the Anti-Discrimination Tribunal (July 2015).There is a broad range of both originating application and review jurisdictions vested with the WRCT, along with appeal rights from its decisions. The relevant provisions from these various pieces of legislation are compiled below for convenience:
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Anti-Discrimination Act 1998, Section 65
Anti-Discrimination Commissioner
Rejection of a complaint without investigation
Anti-Discrimination Tribunal
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
58
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Anti-Discrimination Act 1998, Section 71
Anti-Discrimination Commissioner
Dismissal of a complaint
Anti-Discrimination Tribunal
Anti-Discrimination Act 1998, Section 78
Anti-Discrimination Commissioner
Referral of a complaint to the Tribunal for investigation
Anti-Discrimination Tribunal
Asbestos Related Diseases (Occupational Exposure) Compensation Act 2011, Section 43
Asbestos Compensation Commissioner
Rejection of application
Asbestos Compensation Tribunal
Asbestos Related Diseases (Occupational Exposure) Compensation Act 2011, Section 57(2)
Referral by Asbestos Compensation Commissioner
Refusal by applicant to assist medical professional
Asbestos Compensation Tribunal
Asbestos Related Diseases (Occupational Exposure) Compensation Act 2011, Section 124
Asbestos Compensation Commissioner
Determination of Application under Section 70
Asbestos Compensation Tribunal
Asbestos Related Diseases (Occupational Exposure) Compensation Act 2011, Section 125
Asbestos Compensation Commissioner
Determination under Sections 75 or 77
Asbestos Compensation Tribunal
Asbestos Related Diseases (Occupational Exposure) Compensation Act 2011, Section 126
Referral of question by compensable person, member of family or Commissioner
Questions related to expense payments
Asbestos Compensation Tribunal
Asbestos Related Diseases (Occupational Exposure) Compensation Act 2011, Section 127
Referral of question by member of family
Questions as to apportionment of lump sum
Asbestos Compensation Tribunal
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
59
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Asbestos Related Diseases (Occupational Exposure) Compensation Act 2011, Section 129
Establishes Asbestos Compensation Tribunal
Asbestos Related Diseases (Occupational Exposure) Compensation Act 2011, Section 152
Asbestos Compensation Tribunal
Right of appeal in relation to any decision of the ACT
Supreme Court
Health Practitioners Tribunal Act 2010
National Board can refer to Tribunal, decision maker under 199(1) of National Law
Hear appeals against decisions made under the National Law
Health Practitioners Tribunal established by Section 7
Motor Accidents (Liabilities and Compensation) Act 1973, Section 12
Establishes Motor Accident Compensation Tribunal
Motor Accidents (Liabilities and Compensation) Act 1973, Section 28(2) (3)
Motor Accidents Insurance Board
Rights as to payment of scheduled benefits
Motor Accident Compensation Tribunal
Motor Accidents (Liabilities and Compensation) Act 1973, Section 28(6)
Motor Accident Compensation Tribunal
Review of decision
Supreme Court
Workers (Occupational Diseases) Relief Fund Act 1954, Section 43
Secretary Determination, order, ruling, direction or decision
Workers Rehabilitation and Compensation Tribunal
Workers Rehabilitation and Compensation Act 1988, Section 16
Establishes WRC Tribunal
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
60
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Workers Rehabilitation and Compensation Act 1988, Section 31C
Application as part of Originating Application for compensation
Determination of question of which State is the State of Connection
WRC Tribunal
Workers Rehabilitation and Compensation Act 1988, Section 38(3)
Originating Application, referral by either party to dispute
Determination of validity of claim (timeframes)
WRC Tribunal
Workers Rehabilitation and Compensation Act 1988, Section 42
Originating Application
Referral of a claim for compensation for determination
WRC Tribunal
Workers Rehabilitation and Compensation Act 1988, Section 58
Referral Question of Law to Supreme Court
Supreme Court
Workers Rehabilitation and Compensation Act 1988, Section 60A
Originating Application
Interim Orders
WRC Tribunal
Workers Rehabilitation and Compensation Act 1988, Section 61
Originating Application
Consent Orders with respect to Section 81A
WRC Tribunal
Workers Rehabilitation and Compensation Act 1988, Section 63
WRC Tribunal Right of appeal against a decision of the WRCT
Supreme Court
Workers Rehabilitation and Compensation Act 1988, Section 67F
Originating Application, referral by employer or licensed insurer
Dispute as to liability in respect of death of a worker
WRC Tribunal
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
61
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Workers Rehabilitation and Compensation Act 1988, Section 77
Originating Application referral by worker, employer, insurer
Any question regarding Claim under Division is proper, reasonableness of amount, necessity for medical or rehab services
WRC Tribunal
Workers Rehabilitation and Compensation Act 1988, Section 77AA
Originating Application, referral by worker
Dispute as to liability/reasonableness of, particular expenses by employer
WRC Tribunal
Workers Rehabilitation and Compensation Act 1988, Section 77AB
Originating Application, referral by employer
Dispute as to liability to pay expense (where matter hasn’t been finalised pursuant to Section 81A) interim determination.
WRC Tribunal
Workers Rehabilitation and Compensation Act 1988, Section 77G
Work Cover Board
Refusal to grant accreditation, or revocation/ suspension
WRC Tribunal
Workers Rehabilitation and Compensation Act 1988, Section 81A
Originating Application by employer
Dispute as to liability for weekly payments
WRC Tribunal
Workers Rehabilitation and Compensation Act 1988, Section 86(4)
Originating Application, referral by worker
Termination or Reduction of weekly payments by employer
WRC Tribunal
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
62
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Workers Rehabilitation and Compensation Act 1988, Section 88
Originating Application, worker, employer, insurer
Review of weekly payments
WRC Tribunal
Workers Rehabilitation and Compensation Act 1988, Section 90C(2)
Originating Application, Referral by employer or insurer
Review obstruction or refusal of medical review
WRC Tribunal
Workers Rehabilitation and Compensation Act 1988, Section 112
Work Cover Board
Right of appeal against license and permit decisions regarding Insurance
Supreme Court
Workers Rehabilitation and Compensation Act 1988, Section 127
Originating Application
Enforcement of orders made
WRC Tribunal
Workers Rehabilitation and Compensation Act 1988, Section 132A
Originating Application, referral by worker, employer insurer
Review of Settlement by Agreement
WRC Tribunal
Workers Rehabilitation and Compensation Act 1988, Section 136
Originating Application by employer
Application to bring action on
Supreme Court
Workers Rehabilitation and Compensation Act 1988, Section 138AB
Originating Application, either worker or both worker and employer
Claim for damages, assessment
WRC Tribunal
Workers Rehabilitation and Compensation Act 1988, Section 143P & 143Q
Originating Application, referral by worker, employer, insurer, injury management coordinator
Dispute as to injury management
WRC Tribunal
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
63
Number of MattersThe following table is taken from the WRCT Annual report for 2014 (page 5.) It refers to matters brought under the Workers Rehabilitation and Compensation Act 1988.
Summary of Referrals (by Nature of Referral) received in 2013-2014
Nature of referral 2013-14
132A(4) - Referral for Settlement Approval 119
143P 0
77AB - Employers Liability for Expenses less than $5000/Liability not accepted 7
90C - Disagreements About Medical Reviews 3
S127 - Order or Judgment against Nominal Insurer 1
S138AB(3) - New Act (2010) Election to Claim Damages 1
S138AB-Election to Claim Damages 9
S143 - Injury Management Notifications 13
S3(6) Referral to Tribunal re Date of Injury 0
S42-Reference of Claims for Compensation to the Tribunal 190
S60A-Application for Interim Orders 15
S67-Amount of compensation in case of death 1
S67F-Dispute of liability in respect of death of worker 2
S69-Amount of Compensation in case of incapacity 1
S71-Compensation for Permanent Impairment 71
S77AA-Dispute regarding non-payment of expenses 28
S77-Dispute regarding medical or rehabilitation services 19
S81A(5)-Dispute liability to continue to pay compensation 17
S81A-Dispute liability for weekly payments and other benefits 593
S85(5) - Dispute about medical Examination - Section Repealed 1/7/10 0
S86(4)-Worker disputing termination or reduction of 57
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
64
Nature of referral 2013-14
payment by an Employer
S87 - Application for Tribunal to consider weekly payments beyond age 65 7
S88 - Application to review weekly payments 136
S89 - Section repealed 1/7/10 0
S97A - Disputes Between Insurers 5
Total 1295
In relation to the Anti-Discrimination Tribunal the reported number of matters at the Magistrates Court are as follows (taken from Magistrates Court Annual Report 2013-2014 page 30).
ADT Lodgments (Reviews and Inquiries) 2010-2014 Description
2010-11 2011-12 2012-13 2013-14
Applications: • Review of Rejections • Review of Dismissals
Inquiries
34 20
84 32
10 7 23
84 44
Total 27 44 40 56
In relation to the Motor Accidents Compensation Tribunal the reported number of matters are as follows (taken from the Magistrates Court Annual Report 2013-2014 page 43.)
MACT - References lodged 2010-2014 Description
2010-11 2011-12 2012-13 2013-14
References Lodged 32 30 26 41
Structure and StaffThe Tribunal is comprised of a Chief Commissioner (Full time), Commissioner (Full time), Registrar, Deputy Registrar, and 4 Assistants (2 Assistants are assigned to the Chief Commissioner and Commissioner).
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
65
BudgetThe budget for the WRCT for 2015-2016 is $1.587 million (funded from WorkCover insurance levies).
Space Occupied and Location/RentalThe following extract is from the 2014 Annual Report for the WRCT (page 4-5).
“In November 2013 the Tribunal Registry re-located to Level 7, NAB House, 86 Collins Street, Hobart. It consists of two hearing rooms, two conciliation rooms and 2 meeting rooms
In Launceston the Tribunal occupies premises on the corner of Brisbane and St Johns Streets consisting of a hearing room, conference room, meeting rooms and an office for Tribunal staff use. Tribunal staff members are based in Hobart and travel as required to the North and North West of the State.
There are video conference facilities at the premises in Hobart and Launceston.
The Tribunal utilises the Devonport Community Health Centre in the North West and incurs a room hire fee in this regard on an approximately monthly basis.
The Tribunal continues to use a conference room located at Workplace Standards Tasmania offices at Reece House in Burnie. In particular these premises, together with the video conference facility they provide are used in respect of section 81A referrals in order to relieve parties of the obligation to travel from Launceston or Hobart in order to attend such hearings. Investigations have commenced in respect to souring another location on the North West Coast for Video appearances as Workplace Standards will be unable to offer this service in the near future.”
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
66
Number of MembersThere a no additional members appointed for the purposes of arbitrated hearings of the WRCT. The Chief Commissioner or Commissioner sits alone on such matters. This is also the case for the Motor Accident Compensation Tribunal and the Asbestos Compensation Tribunal. There are members appointed to hear and determine matters under the Anti-Discrimination Tribunal. Prior to the transfer of jurisdiction from the Magistrates Court to the WRCT there were 5 Magistrates appointed as members of the Tribunal along with an additional 7 members. An eighth member was appointed from the VCAT in the event of conflicts of interests of existing members sitting on a hearing. With respect to the Health Practitioners Tribunal, members can be appointed from time to time by the Chairperson as required (Health Practitioners) and Community Members are also appointed who may be empaneled to hear and determine matters (see Sections 11-18 of the Health Practitioners Act 2010).
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
67
Part twoArbitral TribunalBy way of brief comment, the Commercial Arbitration Act 2011 allows for the formation of Arbitral Tribunals. These tribunals are formed by parties to an arbitration agreement under the auspices of that Act. It is clear these bodies are intended to be formed to allow flexibility and speed of decision making and to be within the province of the parties to such an agreement. For that reason, those provisions have not been included in this analysis as they are clearly intended to sit apart from other dispute resolution processes.
Child Protection JurisdictionAs a consequence of consultation with Crown Law and the Guardianship and Administration Board, a question has arisen regarding whether Child Protection matters which are presently vested in the jurisdiction of the Magistrates Court should be considered for amalgamation in a Civil and Administrative Tribunal.A variation of this nature is significant and has the potential to affect a wide variety of key stakeholders. It should be subject to detailed analysis and consultation. It is included in this Discussion Paper for that reason and relevant stakeholders are invited to comment upon it.One of the recommendations contained in this report is that a process feature adopted by South Australia, for the gradual inclusion of certain jurisdictions, be considered for inclusion in the Tasmanian Civil and Administrative model. Based on work to date, it is conceivable that the Child Protection jurisdiction could sit within the Protective Division of a Civil and Administrative Tribunal, however, it would need to be carefully investigated with appropriate drafting, training and resourcing provided to properly integrate such a jurisdiction. The risk with seeking to include it at this early stage of Tribunal formation is that it may delay the creation of a Civil and Administrative Tribunal where the majority of jurisdictions which would form that CAT are uncontroversial and entirely suitable for immediate consolidation.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
68
See Recommendation 2.6 which proposes that a Strategic Plan be formed which allows consideration and implementation of additional jurisdictions being brought into the Tasmanian Civil and Administrative Tribunal after its initial formation. The Child Protection jurisdiction should be actively reviewed, and detailed consultation occur as part of an Options Paper, for inclusion in the initial amalgamation. However, if the inclusion of this jurisdiction is complex, with considerable implications that require further analysis, then it can be deferred to be considered for inclusion within the first 12 months after the formation of the CAT within the Protective Division of the Tribunal, as part of the Strategic Plan.
Industrial Relations CommissionThe Tasmanian Industrial Relations Commission (TIC) is established under the auspices of the Industrial Relations Act 1984. The Commission is vested with a range of functions both of an originating application and review jurisdiction.As part of the initial analysis of bodies for possible amalgamation, the TIC was categorized as questionable as being suitable for amalgamation. Whilst a significant number of its decision making powers seem appropriate to sit within a Civil and Administrative Tribunal (Section 50 reviews under the State Service Act 2000; determination regarding Long Service Leave under the Long Service Leave Act 1976; applications under Section 79 and 81 of the Industrial Relations Act 1984 and a range of others), there are other functions it performs that are not civil and administrative in nature.Civil and administrative disputes which are limited to a citizen settling a discreet dispute with government decision makers are a category of dispute suitable for a Civil and Administrative Tribunal. Where the decision making functions extend to broad categories of persons and become legislative/policy making in function, the nature of the decision maker alters. It is the legislative/policy making nature of the functions of the TIC which place it in a category unsuitable for amalgamation. By way of example, Section 43 is a more broad declaratory function. Likewise, Section 55 with respect to industrial agreements between groups tends towards broader legislative functions.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
69
In much the same way as the Tasmanian Planning Commission exercises powers of a quasi-legislative nature (the formation of subordinate regulation in the form of Planning Schemes for example) and would be unsuitable for amalgamation, so too, the TIC’s function of determining awards and other broad ranging quasi-legislative functions place it in a similar category.It is noted that the nature of Tasmanian Industrial Relations law has altered with the advent of Federal changes under the auspices of the Fair Work suite of legislation. However, certain core legislative/policy making functions still lie with the TIC and as such, whilst that jurisdiction remains, it is not considered suitable for amalgamation.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
70
Legal Profession BoardThe Legal Profession Board is established under the auspices of the Legal Profession Act 2007. In the course of consultation, it was proposed that consideration be given to the transfer of certain dispute determination functions of the Board to a Civil and Administrative Tribunal. The Chief Executive Officer of the Board has indicated a desire to review the present arrangements of initiating a complaint, investigating the complaint and then ultimately determining that complaint, which may enable the determination function to be transferred to the Civil and Administrative Tribunal.Such a variation needs to be subject to detailed analysis and consultation with various key stakeholders. It is flagged in this Discussion Paper as a matter which should be subject to directed consultation and reported upon in any Options Paper which is produced. A recommendation to that effect has been included.
Minor Civil Claims and Civil Claims generallyThe question of whether a new Civil and Administrative Tribunal should be vested with powers to hear, determine and enforce civil claims is one which requires more detailed investigation and consultation. At present the Magistrates Court is vested with power to hear and determine civil claims to a value of $50,000. A separate minor civil claims jurisdiction with a claim limit of $5,000 exists with modified processes for efficient dispute resolution. Specifically, with respect to Minor Civil Claims:“A person lodges a claim and pays the prescribed filing fee. The claim is processed and returned to the claimant for service on the defendant. The defendant then has 21 days from the date of being served to lodge a defence. If a defence is filed, the matter proceeds directly to conciliation to attempt an early resolution. This process is highly successful. Conciliations are generally scheduled within 3-4 weeks after receiving the defence. If conciliation is not successful, orders are made for the parties to comply with, and the matter is referred for either a directions hearing or directly to hearing depending on the individual matter. If no defence is received, upon the registrar being satisfied that a defendant has been properly served with the claim by way off affidavit of service, default judgment will be entered for the claimant. The claimant is then able to
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
71
enforce the judgment. There are no proceedings before the court if no defence is filed. The matter is finalised administratively.”5
In the last financial year approximately 3 500 such minor civil claims were lodged with the Magistrates Court. Combined, the minor civil claims jurisdiction and residential tenancy disputes jurisdiction represent approximately 80% of the entire civil division case load of the Magistrates Court.
In Australia, jurisdictions vary from state to state as to whether these powers are vested with their respective Civil and Administrative Tribunal in terms of scope, limit of quantum of claims and even whether claims themselves can be brought. By way of illustration of the diversity; Western Australia, South Australia and Northern Territory have not (as yet), vested any Civil Claims jurisdiction with their Civil and Administrative Tribunals; the Australian Capital Territory have vested their CAT with a civil claims jurisdiction with a limit of quantum of $10,000 (with a broad jurisdiction as to the nature of claims); New South Wales has granted its CAT jurisdiction for claims under Consumer Claims Act to a value of $40,000; Queensland’s CAT has a civil jurisdiction of up to $25,000 with respect to property damage, debts, consumer protection and residential tenancy disputes (the majority of this relates to residential tenancy); Victoria’s VCAT has jurisdiction over civil claims limited to goods and service disputes ‘in trade or commerce’.The implications of vesting a Civil Claims jurisdiction with a Civil and Administrative Tribunal are complex. They cover questions of; quantum of claims; scope of jurisdiction; seniority of Tribunal members to hear and determine such disputes; whether unnecessary duplication of service provision or staffing levels may occur if claims above $5,000 are left at Magistrate Court level along with enforcement powers; the implications of changing existing arrangements if the entire civil claim jurisdiction were transferred; if not, whether adding an additional jurisdiction for civil claims in a CAT, works contrary to objectives of streamlining access to justice by adding an additional jurisdiction above the existing two.
5 Information supplied by the Magistrates Court regarding their procedures by Registry staff.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
72
It is not to say such a reform cannot or should not happen. Rather, preliminary investigation confirms it is complex and should not be determined in the absence of detailed work and consultation. This is in accordance with Assessment Criteria 8 and 9 of Annexure 6. It is flagged in this Discussion Paper as a point which should be subject to directed consultation and reported upon in any Options Paper which is produced. A recommendation to that effect has been included.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
73
Redistribution TribunalThe Redistribution Tribunal is created under the auspices of the Legislative Council Electoral Boundaries Act 1995.
The Tribunal acts as a referral body to hear and determine any objections which arise from the initial redistribution proposal of the Redistribution Committee under the same Act. The Act creates a process of review of enrolled electors across electoral divisions and mechanisms to review electoral boundaries, based on a range of considerations, through an independent process. This process is not a conventional civil dispute process. It is one that occupies a very unique position in the political/legal landscape. It determines certain fundamental political rights and does so in a procedure, perhaps best described as an iterative consultative one in nature. These aspects make it an unusual body and not one conventionally associated with a Civil and Administrative Tribunal. It does not appear that any other CAT in Australia has amalgamated such functions into their structure. Decisions of the Redistribution Tribunal are not appealable in any court or tribunal. As discussed above with respect to the TIC, its functions are of a legislative/policy making function and thus unsuitable for a CAT.The Tribunal last made a redistribution of the State and determination of transition arrangements in 20086.Based on consultation with the Tasmanian Electoral Commission, it is recommended that this Tribunal is not one which would be appropriate to amalgamate, and should be retained in its current form.
Residential Tenancy MattersA range of review and originating application rights sit within the Civil Division of the Magistrates Court.
6 Go to 2007-08 Redistribution of Legislative Council Electoral Boundaries Boundaries
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
74
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Residential Tenancy Act 1997, s16
Originating Application
Orders relating to inconsistency
Magistrates Court (Civil Division)
Residential Tenancy Act 1997, s23(5)
Originating Application
Review unreasonable increase in rent
Magistrates Court (Civil Division)
Residential Tenancy Act 1997, s30
Residential Tenancy Commissioner
Decision made under s29G (security deposits)
Magistrates Court (Civil Division)
Residential Tenancy Act 1997, s36
Originating Application
Dispute as to liability to reimburse for repairs
Magistrates Court (Civil Division)
Residential Tenancy Act 1997, s36A
Originating Application
Order for Repairs Magistrates Court (Civil Division)
Residential Tenancy Act 1997, s36H
Enforcement provision
Orders of the Commissioner with respect to Part 3A are enforceable as if an order of a Magistrate.
Magistrates Court (Civil Division)
Residential Tenancy Act 1997, s41
Originating Application
Order of Termination
Magistrates Court (Civil Division)
Residential Tenancy Act 1997, s45
Originating Application
Order for Vacant Possession
Magistrates Court (Civil Division)
Residential Tenancy Act 1997, s47A
Originating Application
Order declaring abandonment
Magistrates Court (Civil Division)
Residential Tenancy Act 1997, s48(c)
Originating Application
Order permitting sale of abandoned goods
Magistrates Court (Civil Division)
Residential Tenancy Act 1997, s48J
Residential Tenancy Commissioner
Orders made under s48I
Magistrates Court (Civil Division
Residential Tenancy Act 1997, s57(1B)
Originating Application
Order of compliance with Section 57(1) (locks and security devices)
Magistrates Court (Civil Division)
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
75
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Residential Tenancy Act 1997, s57(3)
Originating Application
Order for variation to lock/security devices
Magistrates Court (Civil Division)
There are variations across the different states of Australia as to the extent to which residential tenancy matters are vested with Civil and Administrative Tribunals. The Northern Territory CAT is not vested with such jurisdiction. Western Australia’s CAT has jurisdiction but only with respect to commercial tenancy disputes. South Australia’s CAT is confined to public housing tenancy disputes at present. The other states do vest residential tenancy jurisdictions, to varying degrees, with their Civil and Administrative Tribunals. VCAT, in particular, vests a broad jurisdiction which seems to include original decision making powers, the equivalent of the Tasmanian Residential Tenancy Commissioner, with that body.
The Magistrates Court received 461 Residential Tenancy disputes in the previous financial year. (425 related to vacant possession/abandonment proceedings and 36 were Bond Disputes).As noted in discussion concerning Civil Claims, these proceedings make up a considerable percentage of work for the Civil Division of the Magistrates Court. Their procedures at present are described as:“Vacant possession applications are lodged by landlords, mostly for the non-payment of rent. The applications are filed after the Notice to Vacate takes effect. Application are processed within 24 hours, and allocated a court date, generally within 7 days. The applicant must then serve a copy of the application on the respondent. In most cases, the respondent fails to appear, and providing the applicant has complied with the requirements of the act, vacant possession is granted and the matter finalised. On occasions, an applicant may need to apply for substituted service of the application, and therefore, the application is adjourned to the following week. Note that a small number of these applications are for abandonment. In these cases, the matters are listed before the court within a week, and the owner must satisfy the Magistrate that the tenant has abandoned the premises. These matters are generally finalised within a week of lodgment.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
76
Bond disputes or appeals against the Residential Tenancy Commissioner (RTC) are lodged by the aggrieved party. The appeals are processed immediately, and the Residential Tenancy Commissioner is notified by the Court so that the bond is not paid out. The RTC forwards their file to the court. A mention date is given and the appellant then serves the appeal on the respondent. There are generally only one or two mentions before the matter proceeds to hearing and is determined by a Magistrate. Following the determination, the order is forwarded by the registry to the RTC so that the funds can be distributed as per the order. “7
Given the potential implications of transferring Residential Tenancy disputes to a new Civil and Administrative Tribunal (quite similar to those outlined under discussion regarding Civil Claims), further investigation and consultation should occur during the formation of an Options Paper. Questions of enforcement, efficiency and potential duplication need to be carefully reviewed.Matters that should be considered are:- whether the jurisdiction should stay where it presently
is- whether the entire jurisdiction be transferred- whether functions of the Commissioner should also be
considered for amalgamation in a Civil and Administrative Tribunal.
Careful consideration of consequences for the Magistrates Court, the Residential Tenancy Commission, disputants and a new Civil and Administrative Tribunal needs to occur. This is in accordance with Assessment Criteria 8, 9 and 10 in particular of Annexure 6.It is flagged in this Discussion Paper as a point which should be subject to directed consultation and reported upon in any Options Paper which is produced. A recommendation to that effect has been included.
7 Information supplied by the Magistrates Court regarding their procedures by Registry staff.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
77
Review of Decisions of the Ombudsman under Right to Information Act 2009:As a consequence of consultation, the Ombudsman raised the question of whether review rights of decisions made by the Office of the Ombudsman under the Right to Information Act 2009, should be vested with a Single Tribunal. It is the case that other jurisdictions around the country have vested review powers with Civil and Administrative Tribunals with respect to Right to/Freedom of Information legislation. A recommendation is included to actively consider this request as part of a strategic plan for additional jurisdictions for the Civil and Administrative Tribunal after its initial establishment.
Supreme Court of TasmaniaThere are a small range of civil matters (both review and originating applications) which presently are vested in the jurisdiction of the Supreme Court (these are listed in the table below). This arrangement may have arisen due to the age of the legislation involved, with limited options for alternatives, or for deliberate reasons. Given the nature of these matters, however, it may be appropriate to review their present jurisdictional arrangements and determine if they may be more suited to a Civil and Administrative Tribunal and to determine the basis for their current arrangements. As such, they should be subject to consultation and further investigation as part of the preparation of an Options Paper. This is in accordance with Assessment Criterion 8 of Annexure 6 which requires careful examination of why matters were vested with a Court initially.Given that the current investigation of a Single Tribunal includes the possible amalgamation of occupational licensing and professional disciplinary powers from multiple jurisdictions (for example, Disciplinary Tribunal, Health Practitioners Tribunal, Administrative Appeals Division which includes occupational licensing matters, Building Appeal Tribunal, Property Agents Tribunal), consideration should be given to the further amalgamation of occupational regulation and disciplinary provisions of the Architects Act 1929 and Police Service Act 2003.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
78
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Abandoned Lands Act 1977, s8
Recorder of Titles
Decision of ROT with respect to s7(6)
Supreme Court
Architects Act 1929, s17A
Board of Architects of Tasmania
Refusal of registration, disciplinary actions or removal from register
Supreme Court
Conveyancing and Law of Property Act 1884, s84F
Recorder of Titles
Decisions under Part XVA of the Act
Supreme Court
Cooperatives Act 1999, Section 130
Board of a Cooperative
Cancellation of membership
Supreme Court
Cooperatives Act 1999, s343, 350, 364
Originating application
Applications for winding up; Restraint of proceedings against a cooperative; require reports
Supreme Court
Land Acquisition Act 1993, s62
Special Arbitrator under the Act
Decision of Special Arbitrator
Supreme Court
Land Titles Act 1980, s110
Recorder of Titles
Decisions of ROT regarding variation of easements under old subdivisions
Supreme Court
Land Titles Act 1980, s142(18)
Recorder of Titles
Decisions regarding rectification of boundaries and other matters
Supreme Court
Land Titles Act 1980, s144
Recorder of Titles
Decisions or failure to act by ROT under the Act
Supreme Court
Petroleum (Submerged Lands) Act 1982, s87
Minister Decisions related to the Register under Section 74
Supreme Court
Petroleum (Submerged Lands) Act 1982, s90
Minister Assessment of Fee
Supreme Court
Police Service Act 2003, s75B
Police Review Board
Review of professional
Supreme Court
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
79
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
sanctions by Commissioner
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
80
Victims of Crime CompensationThe Victims of Crime Assistance Unit administers the Victims of Crime Assistance Act 1976. The hearing function under the Victims of Crime Assistance Act appears suitable for transfer to a new Civil and Administrative Tribunal. The balance of the functions of the Victims of Crime Unit would be retained within Victims Support Services. Prima facie, there is merit in investigating such a transfer. Commissioners have been appointed from various outputs across the Department of Justice to assist in the provision of decision making functions under the Victims of Crime Assistance Act 1976. Such a transfer would formalize existing arrangements and provide greater corporate/administrative support and efficiencies for the provision of those decision making functions.Such a variation needs to be subject to detailed analysis and consultation with various key stakeholders. It is flagged in this Discussion Paper as a point which should be subject to directed consultation and reported upon in any Options Paper which is produced. A recommendation to that effect has been included.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
81
Part ThreeThe following bodies will be considered as part of the development of an Options Paper in Stage 2. They are included in this Discussion Paper to allow stakeholders within the community and government to comment upon their possible inclusion in a Civil and Administrative Tribunal. These bodies will be directly approached for detailed consultation in a manner similar to the bodies consulted in this Discussion Paper. They have not yet been subject to detailed analysis.
Alcohol and Drug Dependency TribunalThe Alcohol and Drug Dependency Tribunal is formed under the auspices of the Alcohol and Drug Dependency Act 1968. Its functions and powers are set out in Part II Division 1 of the enabling legislation. Those functions are not dissimilar to those exercised by other Protective Jurisdiction Tribunals. As such, it is recommended active investigation, consultation and consideration be given to the amalgamation of this Board into a Civil and Administrative Tribunal for Tasmania as part of Stage 2.
Liquor Licensing BoardThe Liquor Licensing Board is established under the auspices of the Liquor Licensing Act 1990 (See Section 206.) Appeal rights to the Board are set out in Section 211 of the Act. These functions are clearly ones which would fall within a Civil and Administrative Tribunal jurisdiction. Other jurisdictions in the country have incorporated such functions (see ACT for example). It is recommended active investigation, consultation and consideration be given to the amalgamation of this Board into a Civil and Administrative Tribunal for Tasmania as part of Stage 2.
Standards Panel (under the Local Government Act 1993 Section 28H)The Standards Panel formed under the Local Government Act 1993 discharges a similar function to the disciplinary proceedings for a broad range of professions and trades that are recommended for consideration for inclusion in the Tasmanian Civil and Administrative Tribunal. As such,
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
82
it is recommended active investigation, consultation and consideration be given to the amalgamation of this Panel into a Civil and Administrative Tribunal for Tasmania as part of Stage 2.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
83
Tasmanian Racing Appeal BoardThe Tasmanian Racing Appeal Board is established under the auspices of the Racing Regulation Act 2004. Prima facie, from inspection of the enabling Act, the functions undertaken by the Board appear amenable to inclusion within a Civil and Administrative Tribunal model. As such, it is recommended active investigation, consultation and consideration be given to the amalgamation of this Board into a Civil and Administrative Tribunal for Tasmania as part of Stage 2.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
84
CHAPTER TWOIn April 2003 a report titled “Report of the Review of Administrative Appeal Processes” was published by Mr Greg Vines, the then State Service Commissioner. (This report will be referred to as the ‘Vines Report’ in this discussion.) A web-link to this paper is provided under Chapter 7: Annexures.It is noteworthy that the Vines Report is the only significant report prepared in the Tasmanian jurisdiction to examine this policy development. There do not appear to be any other reports or research of comparable work on this topic of centralization of Administrative Decision Making Review. Although anecdotally, the formation of a CAT in Tasmania had been actively discussed and considered for some time before the Vines Report.
Summary of relevant points from the Vines ReportThe terms of reference of the Vines Report are set out at pages 2 and 3 of the document, but importantly and relevantly to this paper the terms of reference included:
“Without limiting the issues that may be raised, the Review is to consider:
- Any opportunities to reduce duplication of roles between the bodies;
- The desirability of standardising arrangements for access by the public to the bodies;
- The desirability of establishing a common definition of, and process for dealing with, vexatious or ‘abuse of process’ complaints, and/or a standard ‘public good’ test for the acceptance of cases;
- The opportunity for common mediation approaches between the bodies, bearing in mind the distinct nature and character of each jurisdiction; and
- The administrative support and resourcing arrangements that currently exist to support the bodies, and whether there would be benefit in changing these arrangements.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
85
The Review may make recommendations on amendments to legislation necessary to give effect to any proposed arrangements.”8
Whilst the Vines Report is over a decade old, very pertinent and relevant information still can be derived from it.A consultative process was undertaken which identified common themes and justifications for amalgamation. The inadequacies of the existing situation in 2003 are summarized as:
“Some of the perceived inadequacies with the present tribunal structure and processes relate to:
a) lack of linkages between various tribunals and complaint-handling bodies83
b) lack of an appropriate method of identifying claims that have been substantially dealt with or resolved by another entity84
c) lack of opportunities to share information and training initiatives85
d) inadequate registry services86
e) remuneration of tribunal members;
f) absence of uniform or harmonised rules of procedure
g) the creation of different regimes to regulate proceedings which cause unnecessary burdens and costs on litigants and their lawyers.”9
It is noteworthy that these complaints/inadequacies are common in reports across jurisdictions and feature in literature as a relevant basis to warrant amalgamation (See Chapter 3). It is also noteworthy that many of these issues remain current in the present day situation.The report also highlights the benefits of reform which are frequently cited in other jurisdictional reports and materials:
“An amalgamated tribunal structure offers a range of benefits to the public, including:
8 G. Vines; “Report of the Review of Administrative Appeals Processes”, April 2003, page 39 G. Vines; “Report of the Review of Administrative Appeals Processes”, April 2003, page 52
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
86
- higher profile of the tribunal
- ease of access to a single tribunal when making an application
- facilitation of the production of coherent practice notes to assist unrepresented parties to conduct their cases
- unrepresented parties may be able to access Legal Aid duty lawyers
- standardised practices and procedures for all matters yet retention of the flexibility to recognise the needs of parties in specialised jurisdictions
- the ability of members to sit across various Lists, which increases access for rural and regional Tasmanians to the tribunal.
An amalgamated structure also offers a range of benefits to tribunal members, including:
- enhanced independence of the tribunal
- increased mentoring opportunities
- training can be provided in areas of common interest, such as ethics and decision-writing
- amalgamated tribunals enable cross-fertilisation of skills and exposure to the ‘best practice’ of other bodies
- such a tribunal would have available to it a wide range of expert and experienced members (whether full-time, part-time or sessional) to serve on its various panels
- enhanced ability to identify claims that have been substantially dealt with or resolved by another entity
- greater capacity to assign different tribunal members where there is a potential conflict of interest
- standardisation of sitting fees and
- the ability to respond to changes in workflow in different jurisdictions.
Administrative benefits include:
- economies achieved from bringing together corporate and administrative services
- administrative efficiencies achieved through the centralisation of registry functions
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
87
- enhanced registrar support for small tribunals and
- standardised information technology.”10
As will become evident in the balance of this discussion paper, these benefits observed over 10 years ago remain relevant today and are significant factors militating in favor of the formation of a Single Tribunal.The report developed a series of recommendations but central among them was Recommendation 2.1 which stated:
“That a civil and administrative tribunal be established. The Tribunal should initially comprise the Anti-Discrimination Tribunal and the Administrative Appeals Division of the Magistrates Court, and such other bodies as determined by a high-level working party.
The high-level working party will consider:
- the scope or jurisdiction of the Tribunal (conduct a comprehensive audit of bodies and review mechanisms currently in existence – the desired outcome should be a clear two-step procedure from internal review to external review which is accessible and effective)
- the structure of the Tribunal (establish criteria for inclusion in an amalgamated civil and administrative tribunal. The working party should consider conceptually consistent categories of tribunals and bring those tribunals across together. For example, if a Human Rights Division is to be established, the working party should consider the category of human rights and identify a cluster of tribunals or bodies related to that category)
- the relationship between the Tribunal and the Magistrates Court. It is suggested that the Tribunal be linked to, but not be a division of, the Magistrates Court
- the relationship between the Tribunal and other courts and bodies which are to remain separate from the Tribunal and
- the provisions, if any, for appeals from the Tribunal, with consideration being given to enabling leave to appeal to a full bench of the Tribunal.”11
10 G. Vines; “Report of the Review of Administrative Appeals Processes”, April 2003, pages 52-54
11 G. Vines; “Report of the Review of Administrative Appeals Processes”, April 2003, page 6
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
88
As such, it was evident as far back as 2003 that a serious commitment should be made to the investigation and implementation of a Single Tribunal for Tasmania as a policy objective. The Vines Report encouraged the commitment of resources to develop an implementation plan for the formation of such a body.
Summary of operation and research by TARACAs a consequence of the Vines Report, in August 2004 the Tasmanian Administrative Review Advisory Council (TARAC) was established. Its membership consisted of- Mr S Carey, Chief Commissioner of the Worker’s
Rehabilitation and Compensation Tribunal - Ms Judith Paxton, Legal Ombudsman and former State
Director of the Commonwealth Merit Protection and Review Agency
- Rick Snell, Lecturer in Law, University of Tasmania - Lisa Hutton, Deputy Secretary of the Department of
Justice and - Mr Michael Lynch, Director of the Tasmanian
Conservation Trust.TARAC undertook a variety of tasks associated with the terms of reference (attached as an Annexure 2) they had been set, however this Discussion Paper focusses on information gathered pertaining to Tribunal amalgamationThe TARAC undertook research and compilation of material; approached government departments gathering information about administrative review bodies and functions; sought assistance from the University of Tasmania for research; issued further questionnaires gathering information about administrative review bodies, including their functions, appointments, stakeholders, budget and a range of other relevant details; and compiled detailed lists of existing review rights contained in legislation.In the file material there is then an 18 month delay in progress, which a Minute of 26 September 2006 attributes to a range of matters, including absence of sufficient
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
89
support and resources to complete their terms of reference combined with pressures of increased statutory workloads and functions of key persons on the Council. In early 2007, Government advised that due to financial limitations a Single Tribunal could not be pursued as a policy objective. As a consequence, TARAC resolved to vary its inquiry to look at the existing statutory regime of review powers and whether reforms could be made which achieved cost savings without great financial expenditure. Its attention turned to analysis of the low number of appeals to the AAD of the Magistrates Court by comparing the number of administrative primary decisions made, whether the scope of review rights were too restrictive and whether the AAD needed to be expanded to make administrative review easier. By early 2008, it appears the appointment of members of the TARAC had expired and no process of reappointment was undertaken. It appears the TARAC ceased to exist around this time.The work that was undertaken by TARAC has been a useful reference point, but given the passage of time since then, the research has to be recommenced and cross referenced for current applicability.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
90
CHAPTER THREETheory, Best Practice and Models of AmalgamationSeveral documents will be referred to in this Chapter. The first is the Doctoral Thesis of Rachel Bacon titled “Amalgamating Tribunals: A Recipe for Optimal Reform.”12
The others are: a recent article by Associate Professor Pamela O’Connor of Monash University titled “Tribunal Independence.”13 (now Professor O’Connor of the University of Sunshine Coast), and Professor O’Connor’s most recent work – a Discussion Paper titled “Best Practice Guide to Tribunal Independence in Appointments”14 both of which were commissioned by the Council of Australasian Tribunals(COAT) (the Discussion Paper under direction of a high level Steering Committee formed within COAT).These documents provide useful and important theoretical grounding for the process of amalgamation and ought to be considered as part of policy development. As will be seen in Chapter 4, critical elements of these documents have been incorporated into the Super Tribunals of other jurisdictions.
What is a Tribunal?Tribunals are often defined by reference to what they are not – not being a Court and not being a part of the Executive. The functional definition referred to by Professor O’Connor, derived from the Council of Australasian Tribunals, is perhaps best:
12 Bacon, R “Amalgamating Tribunals: A recipe for optimal reform”, Faculty of Law, University of Sydney, April 2004.
13 O’Connor, P “Tribunal Independence”, The Australian Institute of Judicial Administration Inc, Monash University, 2013.
14 O’Connor, P “Best Practice Guide to Tribunal Independence in Appointments – Discussion Paper”, Council of Australasian Tribunals, May 2015.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
91
“. . . . any Commonwealth, State, Territory or New Zealand body whose primary function involves the determination of disputes, including administrative review, party/party disputes and disciplinary applications, but which in carrying out this function is not acting as a court.”15
The nature of Tribunals and their ‘position’ within the system of government is complex and difficult to anchor with certainty. Depending on their nature, powers and enabling legislation; they can vary considerably in their role and place within the system of government. This can range from sitting close to the Executive arm of the State, to aligning more closely to the judicial arm of the State.16
Tribunals are intended to provide a quicker, cheaper and more efficient alternative to Courts in the determination of applications or disputes. Their statutory purpose gives direction to their functions. Invariably they seek to reduce formality and technicality, along with expense, yet still retain fairness, integrity, impartiality and independence.They can exercise both review/appeal functions as well as hear and determine originating applications.The focus of this Chapter is to explore the required features of a Single Tribunal that would incorporate bodies which share the qualities of exercising quasi-judicial functions, at arms-length of executive decision making and influence, and subject to judicial review. That is, bodies which are closely aligned to, or an adjunct of, the Courts, but whose independence must be the subject of regulation as they do not enjoy the protections afforded by Constitutional provisions.
Six Key Factors to the Amalgamation ProcessThe research completed by R Bacon17, posits six crucial factors for successful amalgamation: Sound Legislative Foundation, Political Commitment, Cohesive Organisational Structure, Flexible and Appropriate Processes and Procedures, Integrated Organisational Structure and Strong Leadership. These elements are 15 O’Connor, P “Tribunal Independence”, The Australian Institute of
Judicial Administration Inc, Monash University, 2013 p.116 O’Connor, P “Tribunal Independence”, The Australian Institute of Judicial Administration Inc, Monash University, 2013 pp. 1-417 Bacon, R “Amalgamating Tribunals: A recipe for optimal reform”, Faculty of Law, University of Sydney, April 2004, p.174
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
92
summarized below and point to the key elements required of a Single Tribunal. A web-link to R Bacon’s thesis is provided in Annexure 7 to this Paper.
1. Sound Legislative FoundationA range of important elements need to be incorporated into the legislative framework of an amalgamated tribunal. These elements are many of those listed above.Self-evidently, relevant powers of originating applications and review functions need to be well drafted; that is, the actual functions the body is called upon to hear and determine. Independence is the next most important element and comprises a range of matters. These matters are discussed in detail in both the works referenced by R. Bacon and P. O’Connor, however, the paper by Prof. O’Connor is far more detailed in this respect. In order for the public to have confidence in the independence of a Single Tribunal, it must be afforded independence in 3 key areas: Administrative Independence, Institutional Independence and Adjudicative Independence. These are discussed below under a separate heading and the article and Discussion Paper by Prof. O’Connor have links provided in Chapter 7: Annexures.The legislative foundation must allow the amalgamated bodies the flexibility to determine their own procedures both holistically and in each division or stream. One of the risks of amalgamation is inflexible application of generalist processes to specialist bodies that need the capacity to cater their procedures to suit their client base and legislative objectives. Particularly clients who are vulnerable or have differential needs due to their circumstances, and as such need simplified processes to allow them to access justice or to ensure inquisitorial modes of decision making are supported in a flexible legislative framework.ADR (Alternative/Appropriate Dispute Resolution) must form part of the legislative foundation. The application and use of ADR within a Single Tribunal is critical to achieving multiple outcomes related to speed, efficiency, usability and accessibility. Careful analysis of the ADR processes adopted for the different jurisdictions needs to occur. Some ADR processes would not be suitable for some jurisdictions.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
93
Actual drafting of legislative provisions would be addressed in detail in Stage 2 of this assessment in the Options Paper.
2. Political CommitmentThis is perhaps the most important element of all. Without the political will and commitment to allocate the necessary resources and/or pass necessary legislation, amalgamation will invariably fail. This is evidenced in the past within Tasmania’s jurisdiction, where previous attempts at progressing amalgamation have failed due to a lack of political support to advance the policy. It is also crucial for the ongoing success of a newly formed Tribunal.As stated in the report prepared for the formation of QCAT:
“Both Victoria and Western Australia have commented on the need for a strong commitment to the amalgamation process both from government and the relevant Attorneys-General. They have stressed this is essential to ensure the effective operation of a newly amalgamated Tribunal.”18
On the 28th of April 2015, the Attorney General announced the government’s authorisation to investigate the formation of a Single Tribunal. A copy of that Press Release is Annexure 4 to this report. If Stage 2 is authorized and a final decision is made to support implementation, political commitment will be central to the final success of forming a Civil and Administrative Tribunal in Tasmania.
3. Cohesive Organisational StructureThis essentially means that amalgamation must result in a single entity. It is undesirable and unproductive to simply ‘co-locate’ agencies/tribunals together in a single location without any form of structural/cultural/legislative cohesion and unity. There must be a single entity formed, with appropriate divisional elements and the capacity to share resources, members and staff to ensure a successful outcome. Some discussion will be given to co-location as a stand-alone option in the content of the Options Paper, 18 Queensland Civil and Administrative Tribunal: Stage 1 Report on the Scope and Initial Implementation Arrangements, Tribunals Review Independent Panel of Experts June 2008, p.18
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
94
however, even at this early stage of analysis, it is evident it ought not to be a recommended course of action.
4. Flexible and Appropriate Processes and Procedures
When any amalgamation occurs, there is an inevitable tension between applying generalist processes across all the previously independent agencies and concern over potentially diminishing their capacity to meet their statutory objectives. By way of illustration, persons seeking to make applications within the Guardianship jurisdiction need to be met with processes that are very different to those who may participating in a Planning Appeal or commercial dispute. Any amalgamation will, of course, look for areas where commonality in processes can be achieved, but it must allow for differences within the organization and allow the flexibility for specialist divisions to continue with processes that are proven to meet access to justice standards for vulnerable people or self-represented litigants, as well as statutory obligations.
5. Integrated Organisational CultureA concerted effort to create an inclusive, communicative culture within the new Tribunal must occur. A culture which encourages communication, a sense of shared vision and purpose, and high morale is very important to its success. Full time and part time members of a Tribunal must have a culture which encourages communication and sharing of skills and knowledge, along with and opportunities to do this. Engaging staff in opportunities to develop skills and experience different jurisdictions also builds capacity within organisations, reducing key person dependency, as well as creating greater career opportunities for staff.
6. Strong LeadershipChoosing the right leaders to oversee and implement amalgamation is also critical to success. Amalgamation informed by change management principles and awareness, along with good leadership skills is vital. Tied to this is determining seniority and tenure of leadership of the Tribunal. The Australian Institute of Judicial Administration usefully produced Suggested Criteria for Judicial Appointments. Many of the desirable features of leadership of a Civil and Administrative Tribunal are
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
95
encapsulated in that document. It is appended to this Discussion Paper as Annexure 3.These elements will be referenced in Chapter 6 and form part of the basis for the recommendations made for Stage 2.
Tribunal IndependenceAs identified under Heading 1 – Sound Legislative Foundation above, independence of a Tribunal is critical to its effectiveness and success. Prof. O’Connor devotes considerable discussion in her article “Tribunal Independence.”19 to historical and theoretical analysis underpinning the importance of independence of Tribunals given their relationship to the arms of the State and their role in the community. Prof. O’Connor has made a compelling argument, grounded in considerable detail, as to why key aspects of independence are a self-evident proposition to incorporate in the formation of a Tribunal.Prof. O’Connor establishes three areas of independence: Administrative, Institutional and Adjudicative. Each area has key features that underpin them.Adjudicative Independence is perhaps the most familiar area. It covers safeguards to ensure decisions are made impartially and free from external influences. Such safeguards can include:
“…judicial review and its grounds, including the common law bias rule, tribunal codes of conduct, and provisions in tribunal legislation relating to matters such as oath of office, immunity from suit, disclosure of interests, disqualifications and restrictions on employment.”20
These are uncontroversial and appear in various forms in most of the existing regimes of Tribunal legislation in Tasmania and other jurisdictions. Any Civil and Administrative Tribunal would and should include similar provisions, and they are examined in Chapter 6.Where additional considerations arise is in the fields of Administrative and Institutional Independence.
19 See pages 1-19, O’Connor, P. “Tribunal Independence”, The Australian Institute of Judicial Administration Inc, Monash University, 2013.20 P.18 ibid.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
96
Administrative Independence is discussed in Chapter 3 of “Tribunal Independence.”21 The problems identified here relate to funding or resources being controlled or managed by an entity that has a vested interest in the outcome of Tribunal decisions. This is less of an issue where a Department of Justice is the administering agency. As stated by Prof. O’Connor:“Reform proposals have focused on distancing the tribunal from an interested agency by substituting the Justice (or Attorney-General’s) Department as the administering agency. The department which administers the courts is seen as more neutral and more likely to understand what is required for the independence of adjudicative bodies. It is typically given responsibility for administering tribunals which operate across portfolios with jurisdiction under multiple Acts. Specialist tribunals would also benefit from being brought under the administration of the justice department . . . “22
This is currently the situation with most Tribunals in Tasmania, in that they are administered with the assistance of the Department of Justice which has experience in the independence of adjudicative bodies. The ones which sit outside the Department of Justice may well benefit from amalgamation for this reason as well.The only new consideration in this area which arises is whether a new Civil and Administrative Tribunal ought to be it is funded by its own parliamentary appropriation with the consequential effects of that arrangement. A form of this arrangement has recently been implemented in Victoria with the formation of the CSV (Court Services Victoria) where the CSV receives a direct appropriation from the Parliament (commenced 2014). The CSV then operates as an independent statutory body corporate, independent of executive government in support of judicial independence (providing services and facilities). The VCAT is supported by the CSV along with all courts.23
The Tasmanian jurisdiction is much smaller and given neither the Supreme Court nor Magistrates Court in Tasmania have a direct appropriation arrangement, a TasCAT would not be in a position to have one (and 21 P.33 O’Connor, P. “Tribunal Independence”, The Australian Institute of
Judicial Administration Inc, Monash University, 2013.22 P.96 O’Connor, P. “Tribunal Independence”, The Australian Institute of
Judicial Administration Inc, Monash University, 2013.23 Go to Court Services Victoria: About CSV , for more information about this reform.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
97
certainly not until the Superior Courts were to be subject to such a reform). There are costs and benefits to such variation to arrangements in appropriation. Whilst it certainly improves independence in real and perceived terms and represents a model to aspire to, there are practical implications related to the loss of access to certain expertise and assistance from a Justice Department which could also present difficulties, particularly if appropriation does not provide sufficient support to replicate those services (which may also give rise to potential problems of duplication of services). Were it to be pursued, it would need to be subject of detailed separate consideration and analysis and must be focused on the Superior Courts initially rather than a TasCAT.The current arrangements, whilst not the ideal model as set out by Prof. O’Connor, are adequate, and better in comparison to other examples of arrangements set out in her paper. It is unnecessary to make any recommendations in Chapter 6 regarding variation to this existing arrangement for the reasons set out above. Institutional Independence broadly covers issues related to appointment, tenure and remuneration. Appointments with respect to Tribunals are subject to even greater elaboration in “Best Practice Guide to Tribunal Independence in Appointments – Discussion Paper”24 The key matters flagged are issues such as: who determines appointments, what criteria are adopted, the term and conditions of appointment, re-appointment options, removal from office provisions and ancillary to these matters, whether codification of the exercise of ministerial discretion should occur and if so, to what extent?It is important to note that “Best Practice Guide to Tribunal Independence in Appointments – Discussion Paper” is the first stage of a process to finalise recommendations with respect to this issue. As emphasized in the Recommendations of Chapter 6 –
24 O’Connor, P “Best Practice Guide to Tribunal Independence in Appointments – Discussion Paper”, Council of Australasian Tribunals, May 2015.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
98
attention to the outcome of that research should be maintained to help inform final decisions in this area.
A link to Prof. O’Connor’s paper is in Chapter 7: Annexures in this Discussion Paper. The preliminary conclusions drawn with respect to this area are discussed in Chapter 6.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
99
CHAPTER FOURHistory of Tribunal Amalgamations and Overview of Other Australian JurisdictionsThis Chapter is provided to assist in understanding the recommendations regarding scope, structure, legislative framework and leadership/governance.The amalgamation of small decision review bodies has been the subject of review and development for decades across multiple Common Law jurisdictions. This chapter will briefly examine the longer term history of this policy before examining the Australian experience with reference to each Australian State.In researching the reported benefits of amalgamation, statistical/empirical data is limited. There are obvious benefits which arise from amalgamation but detailed costing and comparative analysis is limited. Included below are relevant extracts from the Access to Justice Arrangements: Productivity Commission Inquiry Report No. 72, 5 September 2014. A considerable amount of data collection and analysis would need to occur if accurate comparative analysis were to take place for Tasmania. Given the findings of the Productivity Commission, and the obvious benefits referred to in Chapter 6, a comparative analysis may be a misplaced use of resources, as opposed to obtaining a detailed accurate costing of amalgamation along with reporting on the obvious savings that may arise.As indicated in the summary, Tasmania is now the only State in Australia not to have implemented this policy reform.
Historical OverviewThe proliferation of tribunals or “tribunalisation” is a phenomenon which has been the subject of criticism and inquiry for decades. In her Doctoral Thesis
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
100
“Amalgamating Tribunals: A recipe for optimal reform”, the author R Bacon, provides an excellent discussion concerning the history of the proliferation of Tribunals and governmental responses to this phenomenon of ‘tribunalisation’ drawing from diverse sources and literature.25
As far back as 1929 in the United Kingdom, criticism of the uncontrolled growth of Tribunals resulted in the establishment of the Donoughmore Committee of 1932. This committee acknowledged the existence of this phenomenon but did little by way of recommendations to address the issue.26 In the UK, various inquiries have examined this issue including the Franks Report of 1957 and the more recent report of 2001 titled “Tribunals for Users – One System One Service”.
Likewise in Australia, the Commonwealth established several committees to examine the issue of tribunalisation: the Kerr, Ellicott and Bland Committees.27
Reform manifested with the formation of the Commonwealth Administrative Appeals Tribunal (AAT).Without wishing to present a detailed dissertation about the history of these reforms, an effective summary of more recent developments is given by the Productivity Commission regarding research on cost savings regarding amalgamation:
“Since the creation of the AAT, many Australian states and territories have followed suit, with seven out of nine jurisdictions now having ‘super’ civil and/or administrative tribunals (Tasmania and the Northern Territory being the exceptions). Consolidation at the state and territory level has generally been well-received and appears to offer the following advantages:
- Streamlined administrative structures resulting in improved efficiency.
25 Bacon, R “Amalgamating Tribunals: A recipe for optimal reform”, Faculty of Law, University of Sydney, April 2004.26 P. 18, Bacon, R. “Amalgamating Tribunals: A recipe for optimal reform”,
Faculty of Law, University of Sydney, April 2004,27 Ibid, p.20
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
101
- Increased physical presence outside of capital cities, thus improving visibility and access for rural and remote clients; and greater availability of technology to reduce the need for travel.
- Better record keeping and more consistent data collection.
- Support services such as duty solicitors are more likely to be cost-effective.
However, the actual impact of tribunal consolidation on efficiency and effectiveness has not been well measured. In 2004, when amalgamation was still in its early stages across Australia, Bacon found that:
… These reforms are taking place in the absence of data about their likely implications, and without a thorough understanding of the objectives that generalist versus specialist tribunal systems can realistically achieve. (2004, p. i)
Little has changed since 2004. In 2009, a ten-year review of VCAT (Bell 2009) included broad statements about the benefits of amalgamation, with no comparative data on the differences in efficiency or other indicators between large generalist and small specialist tribunals. The review of the SAT (Standing Committee on Legislation WA 2009) and the NSW study that recommended the creation of NCAT (Standing Committee on Law and Justice (NSW) 2012) also failed to provide any comparative analysis that demonstrated the benefits of amalgamation. This was partially due to poor case management systems in very small tribunals and a subsequent lack of data that could be analysed or compared pre or post consolidation. A review of QCAT commenced in 2012, as required by legislation. It is unclear whether this review will examine the benefits of amalgamation in any detail — the review is ongoing and, as at 1 July 2014, the Queensland Department of Justice could not inform the Commission of a likely finalisation or publication date.
However, in spite of an absence of Australian data, the Commission considers that there are key savings to be found in tribunal consolidation, and — where consolidation is not appropriate or desirable — shared administration of tribunals. This is consistent with overseas experience. In
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
102
Scotland, for example, the creation in 2010 of the Scottish Tribunals Service — a shared administrative body for six tribunals — was estimated to have achieved efficiencies in 2011-12 of £1 million through rationalising organisational structures and support services: around 2.4 per cent of total costs (Scottish Government 2012).”28 (Emphasis added).
The Commission also provides commentary on the specific Commonwealth reforms for amalgamation of certain Tribunals at page 379 and states:“Cost savings are likely to be based on the reduced cost of administration, accommodation and information technology services. The Government announcement indicated that the measure could save $20.2 million over four years, however the Commission suggests that the greatest benefits can be gained if this change is used as an opportunity to examine broader improvements to Commonwealth merits review, rather than being solely focused on the final dollar outcome. The amalgamation presents a range of opportunities to improve the functioning of Commonwealth tribunals, and so, parties’ access to justice. These include opportunities to consider further improvements to case management and electronic record keeping, or improved tailoring of services to individuals with special needs, including self-represented litigants.”
These same benefits are relevant to any amalgamation of Tribunals with respect to accommodation, administration, use of information technology as well as improved service delivery.The focus of this chapter is to confirm the appropriateness of a Single Tribunal as a policy reform in Tasmania but also to highlight variations in implementation which will inform the recommendations in this report.This Discussion Paper provides web-links to the relevant reports prepared by each of the other Australian jurisdictions in the formation of their respective amalgamated Tribunal bodies, where those reports are available online. See Chapter 7: Annexures.Appendix 5 of Queensland Civil and Administrative Tribunal: Stage 1 Report on the Scope and Initial Implementation Arrangements, Tribunals Review Independent Panel of Experts June 2008 in included below as a starting point.
28 Pp.377-378 , Access to Justice Arrangements: Productivity Commission Inquiry Report No. 72, 5 September 2014 (see Chapter 7: Annexures for web-link)
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
103
This provides an excellent, accurate summary of other jurisdictions as at June 2008 with a logical structure. This information has been reviewed and updated, where relevant to reflect the present day, where the information is available (mainly by use of 2013-2014 Annual Reports). The same format has been used for reporting on the other jurisdictions which were not reported upon in Queensland Report, namely, Northern Territory, South Australia and New South Wales (with its formation of NCAT).
Victorian Civil and Administrative Tribunal (VCAT)
1. OverviewThe Victorian Civil and Administrative Tribunal (VCAT) began operating in July 1998 as part of an initiative to improve the operation of the tribunal justice system in Victoria. It is one of the largest of all amalgamated tribunals, dealing with 88 523 applications in 2013-14 and with an operating budget of $46.3M.
2. Extent of jurisdiction The VCAT has both original and appellate jurisdiction.The original jurisdiction deals with resolving disputes in the following areas:- Purchase and supply of goods and services- Discrimination- Domestic building works- Guardianship and administration- Disability services- Legal profession services- Residential and retail tenancies and body corporate
disputes- Consumer creditThe appellate jurisdiction deals with merit review of administrative decisions made under legislation. It also deals with appeals from other bodies including planning and land valuation, licenses to carry on businesses (including medical professions, travel agents, motor
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
104
traders and others), state taxation and other government decisions.
3. Jurisdictions not amalgamatedThe Mental Health Review Board, the Victims of Crime Assistance Tribunal and the Racing Appeals Tribunal have not been amalgamated into VCAT.
4. OrganisationVCAT is divided into three divisions:- Administrative, which hears merits reviews of
administrative decisions- Civil which hears matters involving disputes between
parties in an original jurisdiction and- Human rights, which deals with discrimination and
guardianship matters.The three divisions are divided into a total of 11 lists, further separating matters into subject types, as outlined below.The Human rights division has:- Guardianship list (guardianship and administration
orders and reassessments, and revocation of enduring powers of attorney) and
- human rights list (hears cases under Equal Opportunity Act 2010, Health Records Act 2001, Information Privacy Act 2000 and Mental Health Act 1986, as well as other legislation).
The Civil division has:- civil claims list (disputes between purchasers and
suppliers of goods and services of any value in a range of matters including building, motor vehicles, household goods and general recovery of debts)
- Domestic building list (disputes between owners and builders and appeals against decisions of insurers relating to building works)
- Residential tenancies list (various disputes about residential tenancies both private and public)
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
105
- Real property list (disputes about co-ownership under the Property Law Act 1958 and damages claims under the Water Act 1994)
- Retail tenancies list (disputes between landlords and tenants about leases of retail premises) and
- Owners corporation list (disputes under Owners Corporations Act 2006 – body corporate disputes regarding common property for example).
The Administrative division has:- Review and regulation list (deals with 80 pieces of
legislation and hears reviews of decisions by government decision makers, professional and licensing decisions)
- planning and environment list (reviewing planning and environmental decisions by government and councils in relation to residential development proposals, and retail commercial and industrial development matters) and
- Legal practice list (complaints against legal practitioners including disputes about cost agreements and disciplinary matters against legal practitioners).
5. Leadership structureVCAT is headed by a Supreme Court judge as President of the Tribunal. The Tribunal has 16 Vice Presidents all of whom are judicial members. The non-judicial members comprise deputy presidents, senior members and members. There are 7 deputy presidents who are appointed to manage one or more lists. There are 12 Senior Members, 2 Senior Part time members and 11 Senior Sessional Members. There are 21 Full Time Members, 10 Part-Time Members and 139 Sessional Members. The only full time members who are appointed to only one list are specialist planners or planning lawyers who work exclusively in the planning and environment list.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
106
6. Length of appointmentThe president and the vice presidents hold office for a period of time specified in their instruments of appointment, but they cannot hold their positions for longer than five years. The deputy president holds office for a term of five years.Note: reform to the lists of VCAT in the Annual Report of 2013-14 whereby the Domestic Building, Retail Tenancies and Real Property lists were to be merged on 1 July 2014 to form the Building and Property List. That list has now been created and is accessible online at the VCAT website.
Western Australia State Administrative Tribunal (SAT)
1. OverviewWestern Australia’s State Administrative Tribunal (SAT) commenced operation on 1 January 2005 following the recommendation of the Western Australian Civil and Administrative Review Tribunal Taskforce Report (2002). The SAT had 7 794 new applications in 2013-14 and an operating budget of $19.6M.
2. Extent of jurisdictionThe Western Australian State Administrative Tribunal has original and review jurisdictions but in more limited areas to VCAT. Original jurisdiction is exercised in a variety of civil commercial and personal matters including guardianship and administration, equal opportunity, commercial and strata title matters. The SAT also hears disciplinary proceedings from vocational boards, ranging from architects and medical practitioners to plumbers and real estate agents. The SAT exercises review jurisdiction in relation to administrative decisions made by a public official or a local government regarding personal and commercial activities, as well as licensing decisions made by a variety of regulatory bodies.
3. Jurisdictions not amalgamatedThe Criminal Injuries Compensation Tribunal, Appeals convener under the Environmental Protection Act 1986, the Mental Health Review Board, the Racing Penalties
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
107
Appeals Tribunal, and residential tenancy original disputes dealt with by the Local Court, have not been amalgamated into SAT.
4. OrganisationThe tribunal is divided into four ‘streams’ that operate as the divisions do in Victoria, separated into subject matter types, enabling procedures to be adapted according to the type of matter and the needs of different people who use the tribunal. Each stream has both original and appellate decision making functions. The four streams are:- human rights, which has original jurisdiction in
guardianship, administration and discrimination matters and appellate jurisdiction in reviewing decisions of the Mental Health Review Board, the Gender Reassignment Board and CEO of the Department for Child Protection and Family Support
- development and resources, which has appellate jurisdiction in reviewing decisions made by government agencies regarding planning, development and resources and land valuation and compensation matters; it also deals with regulation of local government councilors
- vocational regulation, which has original jurisdiction in relation to a range of disciplinary matters (performing functions previously performed by some vocational regulatory bodies) as well as appellate jurisdiction in reviewing decisions from various vocational bodies (previously performed by a court) and
- commercial and civil stream, which has original jurisdiction in strata title and retirement village disputes, Building Commission matters under the Building Services (Complaint Resolution and Administration Act 2011), commercial tenancy and credit matters, as well as appellate jurisdiction in reviewing decisions about state revenue and other commercial and personal matters such as the Building Act 2011 and Dog Act 1976.
5. Leadership structureThe State Administrative Tribunal is headed by a president who is a Supreme Court judge who oversees the work of the tribunal in all divisions but has close supervision of and responsibility for the vocational
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
108
regulation division. There are two deputy presidents who are also judicial members, who have responsibility for the human rights division and the development and resources division respectively and have shared responsibility for overseeing the commercial and civil stream. The Act also provides for supplementary presidents and deputy presidents to be appointed and for magistrates to sit as members of the SAT. There are 17 full time members (six senior members and eleven ordinary members). There are 64 senior sessional members and 48 ordinary sessional members. The senior members have day to day supervisory functions for the streams to which they are assigned. All full time members are able to work across all divisions.
6. Length of appointmentThe terms of the president and the deputy president positions are fixed, but can be no longer than five years. Non–judicial member terms are also fixed at no longer than five years.
Australian Capital Territory Civil and Administrative Tribunal (ACAT)
1. OverviewThe ACT Civil and Administrative Tribunal Bill 2008 was introduced into the Australian Capital Territory Legislative Assembly on 8 May 2008. Following a review of tribunal structures in 2006-07, including consultation on an options paper released in July 2007, the Bill was introduced consolidating a number of existing ACT tribunals into the new ACT Civil and Administrative Tribunal. The ACAT commenced operations in February 2009.
The ACAT receives over 5000 cases a year; reporting 5730 cases lodged for 2013-2014. The allocated budget for the Tribunal for 2013-2014 was $5,548,994.00. For this financial year it is $5,821,534.00.
2. Extent of Jurisdiction
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
109
The Civil and Administrative Tribunal incorporates 16 jurisdictions and tribunals including the Administrative Appeals Tribunal, Discrimination Tribunal, Guardianship and Management of Property Tribunal, Mental Health Tribunal, Residential Tenancies Tribunal and the small claims jurisdiction of the Magistrates Court. Also incorporated are a range of occupational disciplinary bodies such as the Health Professionals Tribunal and the Legal Profession Disciplinary Tribunal, and various consumer and regulatory bodies such as the Commissioner for Fair Trading (when acting as a tribunal in relation to motor vehicle dealers, tobacco and finance brokers) and the Liquor Licensing Board.
3. Jurisdictions not amalgamatedThe ACT Remuneration Tribunal was recommended not to be amalgamated.
4. OrganisationBy reference to the ACAT website the Tribunal is divided into 10 separate lists: Unit Titles and Retirement Villages; Administrative Review (includes Planning, Heritage, Tree Disputes); Civil Disputes and Common Boundaries; Residential Tenancies; Energy & Water; Mental Health; Guardianship; Professional and Occupational Disciplines; Discrimination; and Appeals. The 10 lists are supported by a central Registry.Each list details the relevant originating applications and review rights they have jurisdiction over. The lists also include links to the relevant forms and a brief description of certain requirements including required information as part of the filing process. The Registry has 26 positions, and is headed by a Legal Registrar.
5. Leadership StructureThe following quote is taken from the Annual Report 2013-2014 of the ACAT which summarises the current Leadership Structure:
“The tribunal has two full-time presidential members, two part-time presidential members, an acting presidential member, a full time non-presidential member and 71 sessional non-presidential members. The acting presidential member is also a sessional member…
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
110
The General President is responsible for ensuring the orderly and prompt discharge of tribunal business and ensuring that tribunal decisions are made according to law. She allocates members to tribunals to deal with applications and has a number of other statutory functions relating to the operation of the tribunal. The Appeal President is responsible for the orderly and prompt discharge of tribunal business relating to appeals and referrals to the Supreme Court. He allocates members to tribunals to deal with appeal applications.”29
Figure 1 Diagram representing the organisational structure of the ACT Civil and Administrative Tribunal as at May 2015
6. Length of AppointmentPresidential members are appointed for a minimum term of 7 years. They must be lawyers with at least 5 years’ experience. Non-presidential appointments are for 5 years; however, the Act allows discretion as to appointment durations for both presidential and non-presidential appointments.29 P.4 ACAT Australian Capital Territory Civil and Administrative Tribunal
Annual Report 2013-2014.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
111
New South Wales Civil and Administrative Tribunal (NCAT)
1. OverviewThe formation of the NCAT had arisen from some previous steps of amalgamation of various Tribunals in the past. The Administrative Decisions Tribunal (ADT) was established in October 1998. The original jurisdiction was established primarily through the merger of jurisdiction of the Equal Opportunity Tribunal, the Legal Services Tribunal, the Boxing Appeals Tribunal, the Veterinary Surgeons Disciplinary Tribunal, the Community Services Appeals Tribunal, and the Schools Appeal Tribunal. Additional jurisdiction has been conferred upon it since the original amalgamation in relation to a number of other areas.The Consumer, Trader and Tenancy Tribunal (CTTT) was established in 2002, replacing the former Fair Trading Tribunal and the Residential Tribunal. Generally, it has original jurisdiction for residential tenancy issues, supply of goods or services, motor vehicle repairs, financial and credit issues, building disputes, and retirement villages. NCAT was established on 1 Jan 2014 amalgamating some 22 different bodies. Reviewing the Annual Report for 2014 up to 30 June 2014 – there were 39,509 applications. The NCAT’s expenditure for the period of 1 Jan – 30 June 2014 was over $24M. At the time of completing this report no annual report for 2014-2015 had yet been published but from inquiries made the overall budget for NCAT for 2014-2015 was approximately $47M.
2. Extent of jurisdictionThe final amalgamation of bodies which formed NCAT were: the Aboriginal and Torres Strait Islander Health Practice Tribunal; Aboriginal Land Councils Pecuniary Interest and Disciplinary Tribunal; Administrative Decisions Tribunal; Charity Referees; Consumer, Trader and Tenancy Tribunal; Dental Tribunal; Guardianship Tribunal; Chinese Medicine Tribunal; Chiropractic Tribunal; Medication Radiation Practice Tribunal; Medical Tribunal; Nursing and Midwifery Tribunal; Occupational Therapy Tribunal; Optometry Tribunal; Osteopathy Tribunal; Pharmacy Tribunal; Physiotherapy Tribunal; Podiatry Tribunal; Psychology Tribunal; Local Government
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
112
Pecuniary Interest and Disciplinary Tribunal; Local Land Boards; Victims Compensation Tribunal and the Vocational Training Appeals Panel.
3. Jurisdictions not amalgamatedThe following bodies were not included but the Government Response (Oct 2012) noted some of these bodies may be considered for consolidation in the future:- Independent Liquor Gaming Authority- Industrial Relations Commission (expert panel
indicated the IRC would be suitable for amalgamation)- Mental Health Review Tribunal (expert panel indicated
the MHRT would be suitable for amalgamation)- Motor Accident Authority- Racing Appeals Tribunal; Remuneration Tribunals- Workers Compensation Commission.
4. OrganisationNCAT has a broad and diverse jurisdiction which is divided over four divisions: Administrative and Equal Opportunity Division; Consumer and Commercial Division; Guardianship Division and the Occupational Division; with a fifth internal appeal Division.The Administrative and Equal Opportunity Division reviews administrative decisions made by NSW Government agencies such as access to information held by government; use of and access to personal information held by government; firearm licenses; guardianship and financial management; administrative decisions made in the community services sector and review of various State taxation decisions. This division also resolves discrimination matters under referrals by the President of the Anti-Discrimination Board concerning alleged breaches under the Anti-Discrimination Act 1977. Other functions also relate to review of decisions by the President on complaints or applications for exemptions and the registration of conciliation agreements.The Consumer and Commercial Division resolves a large range of disputes related to tenancy and other residential property disputes; disputes as to the supply of goods of services as well.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
113
The Guardianship Division is a specialist division. It determines applications with respect to guardianship orders; financial management orders; determines consent for treatment by medical professionals; reviews enduring powers of attorney; reviews enduring guardianship appointments and can approve a clinical trial such that people with decision making disabilities can take part.The Occupational Division reviews decisions by government agencies regarding licenses and complaints concerning professional conduct and discipline. Licensing review covers drivers and operators of taxis, buses, hire cars and tow trucks. It also covers security guards, builders, real estate agents, motor dealers and repairers, pawnbrokers and second hand dealers, stock and station agents, business agents, travel agents, valuers and licensed conveyancers. The professional disciplinary jurisdiction covers legal practitioners; health practitioners; veterinary practitioners; architects and building professionals.The Internal Appeals Division provides review rights to certain decisions made in the other 4 divisions.
5. Leadership structureNCAT is led by a President who is a Supreme Court Judge. Each division is headed by a Deputy President. There are then Principle Members, Senior Members and General Members. There are 260 Members of the NCAT.
6. Length of appointmentMembers including the President and Deputy Presidents are appointed for a period not exceeding 5 years but are entitled to be reappointed.
Queensland Civil and Administrative Tribunal (QCAT)
1. OverviewQCAT was formed on 1 December 2009. It consists of a broad range of review and originating application functions as outlined in (b) below. The QCAT received over 30,000 applications in the financial year 2013-2014, with the majority arising in the Minor Civil Disputes and Guardianship jurisdictions of the Tribunal. The operating costs of the QCAT for 2013-2014 were $20.84M with
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
114
$17.46M allocated by government and the balance from user charges and a specific allocation for a Justice of the Peace project which involves JP’s assisting in dispute resolution regarding Minor Civil Disputes within the Tribunal.
2. Extent of jurisdictionThe following tribunals were amalgamated into QCAT on 1 Dec 2009: Anti-Discrimination Tribunal; Appeal Tribunals formed under the Local Government Act; Children Services Tribunal; Commercial and Consumer Tribunal; Fire Panel of Referees; Fisheries Tribunal; Guardianship and Administrative Tribunal; Health Practitioners Tribunal; Independent Assessor under the Prostitution Act 1999; Legal Practice Tribunal; Misconduct Tribunal; Nursing Tribunal; Racing Appeal Tribunal; Retail Shop Leases Tribunal; Small Claims Tribunal; Surveyors Disciplinary Committee; Teachers Disciplinary Committee; Valuers Registration Committee; Veterinary Tribunal. A range of other decisions were transferred from the Supreme Court, District Court, Magistrates Court and the Gaming Commission and Information Commissioner were also transferred to QCAT.
3. Jurisdictions not amalgamatedThe Mental Health Review Tribunal and Mental Health Court; Planning and Environment Court; the Land Court and the Building and Development Tribunals. Industrial Court, Industrial Relations Commission and review functions of the Public Service Commission.
4. OrganisationQCAT has two primary divisions: Civil, Administrative and Disciplinary, and Human Rights.
The Civil, Administrative and Disciplinary Division deals with building disputes; body corporate and community management; tree disputes; manufactured homes and retirement villages; and retail shop leases. It also reviews administrative decisions and deals with occupational registration and disciplinary matters including teachers, health professionals and legal practitioners. The Human Rights Division deals with Guardianship and Administration for adults; Anti-Discrimination matters and
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
115
matters pertaining to Children and Young People and Education. It is unclear from the Annual Report or the website if the Minor Civil Disputes jurisdiction is a stand-alone Division or falls within the Civil, Administrative and Disciplinary Division. However the Minor Civil Disputes jurisdiction constitutes over 16,000 applications of the 30,000 received by the Tribunal.QCAT also has an internal Appeals Process which reviews certain determinations of the divisions.
5. Leadership structureQCAT is led by a President who must be a Supreme Court Judge and a Deputy President who is a District Court Judge. There are 3 types of members listed - Senior Members, Ordinary Members and Supplementary Members. Senior Members must be either Legal Practitioners of not less than 8 years standing or persons with extensive knowledge, expertise or experience in a field related to functions of the Tribunal. Ordinary Members must be Legal Practitioners of not less than 6 years standing or persons with special knowledge, expertise or experience in a field related to functions of the Tribunal. Supplementary Members are an emergency measure which allows the appointment of judicial officers for short terms to assist the functioning of the Tribunal. The Tribunal also has power to appoint Sessional Members (who are classed as Ordinary members) who sit on a sessional basis. Adjudicators can also be appointed who are Legal Practitioners of not less than 5 years standing. A range of specialist assessors and mediators must also be appointed for certain jurisdictions.The Tribunal has 4 Senior Members; 10 Ordinary Members (3 of whom work part-time) and 94 Sessional Members (5 of whom are part-time adjudicators). The Tribunal also has 9 Adjudicators (7 of whom are appointed on a part-time basis) and 110 Justices of the Peace appointed.
6. Length of appointmentBoth President and Deputy President are appointed for not less than 3 years but not more than 5 years; reappointment is authorised under the Act. The same time frames apply to both Senior and Ordinary Members of the Tribunal.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
116
Northern Territory Civil and Administrative Tribunal (NTCAT)
1. OverviewThe Northern Territory Law Reform Committee, in separate reports of 1991 and 2004 reviewed the lack of centralised tribunal functions in the NT. Both reports recommended establishment of a tribunal system to address the lack of centralised decision making/review functions.In Oct 2014, the Northern Territory Civil and Administrative Tribunal Act commenced. The process of conferring jurisdiction upon the NTCAT occurs through individual amendments to other Acts.The Tribunal has only received a small number of matters at this early stage. There was a budget allocation of approximately $2.2M up until 30 June 2015. It is to be noted that this is only for preliminary implementation and is unlikely to represent the actual costs of operation.
2. Extent of jurisdictionThe NTCAT website contains a list of the Acts which have had originating application or review powers vested in the Tribunal and details of the relevant sections. The following is just the names of the relevant Acts without details of the nature of the jurisdiction exercised: Birth Deaths and Marriages Registration Act; Building Act; Control of Roads Act; Energy Pipelines Act; Fences Act; Gaming Control Act; Gaming Machine Act; Geothermal Energy Act; Heritage Act; Kava Management Act; Land Acquisitions Act; Licensing Act; Liquor Act; Mineral Titles Act; Pastoral Land Act; Petroleum Act; Planning Act; Poppy Regulation Act; Private Security Act; Prostitution Regulation Act; Tobacco Control Act; Termination of Units Plans and Unit Titles Schemes Act; Victims of Crime Assistance Act. In April 2015 the jurisdiction of the Commissioner of Tenancies was transferred to NTCAT from the Residential Tenancies Act. Go to the NTCAT website for the full description of the originating and review rights vested in the NTCAT.
3. Jurisdictions not amalgamated
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
117
Given the approach of the NT Government to form the NTCAT and then vest it with jurisdictions over time and through legislative amendment, it is difficult to ascertain if any particular jurisdictions were determined to be excluded from NTCAT.
4. OrganisationGiven the NTCAT is a relatively new body there is limited information available. It does not appear to have any divisional structure. Its enabling legislation does not create a divisional structure but vests broad administrative powers in the President for organisation of Tribunal business.
5. Leadership structureThe NTCAT is headed by a President who is either a Magistrate or eligible to be appointed as a Magistrate. The Act authorises the appointment of Deputy Presidents, of which there must be at least one. A Deputy President must be a Magistrate or eligible to be appointed as a Magistrate. Ordinary members are appointed based on having suitable qualifications, knowledge/experience relating to the jurisdiction of the Tribunal or be a lawyer with at least 5 years’ experience as a legal practitioner.
6. Length of appointmentAny member may be appointed for 5 years or less if specified in the Instrument of Appointment. They are also eligible for reappointment.
South Australian Civil and Administrative Tribunal (SACAT)
1. OverviewThe SACAT is the most recent Civil and Administrative Tribunal to come into existence in Australia, becoming operational at the end of March 2015. In a similar approach to NTCAT, the SACAT commenced with a few jurisdictions vested with it, but with a clear programme of additional jurisdictions to be added over time. Given the SACAT is relatively new, there is limited information on the number of matters received to date. The SACAT has an operating budget of approximately $8.6M.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
118
2. Extent of jurisdictionSACAT is vested with jurisdiction over the following Acts: Advanced Care Directives Act 2013, Community Housing Providers (National Law)(SA) Act 2013; Consent to Medical Treatment and Palliative Care Act 1995; Guardianship and Administration Act 1993; Local Government Act 1999; Mental Health Act 2009; Powers of Attorney and Agency Act 1984; Residential Tenancies Act 1995; Retirement Villages Act 1987; Residential Parks Act 2007; SA Cooperative and Community Housing Act 1991; South Australian Housing Trust Act 1995; Valuation of Land Act 1971.It is foreshadowed that the SACAT will also be vested with the following jurisdictions in 2015: Public Sector Act 2009; First Home and Housing Construction Grants Act 2000; Freedom of Information Act 1991.
3. Jurisdictions not amalgamatedGiven that SACAT will be vested with additional jurisdictions over time, it is difficult to ascertain whether any jurisdictions were explicitly eliminated from consideration for amalgamation.
4. OrganisationSACAT does not appear to adopt a divisional structure but does broadly classify the types of cases it is required to resolve. The following categories are used: Housing Disputes; Guardianship; Administration; Consent to Medical Treatment; Advanced Care Directives; Mental Health; Review of Government Decisions.
5. Leadership structureSACAT is headed by a President who will be a judge of the Supreme Court, appointed to be the President of the SACAT. There must be at least 1 Deputy President but the Act allows additional Deputies to be appointed. A Deputy must be a judge of the District Court. Supplementary Deputy Presidents can also be appointed if required for a limited time. Magistrates can be appointed as members (full time, part time or sessional) of the Tribunal. There are Senior and Ordinary members of the Tribunal. Senior and Ordinary members must be legal practitioners of at least 5 years standing or have extensive knowledge, expertise and experience in a class of matter whose
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
119
functions may be exercised by the Tribunal. Such members can be appointed on a full-time, part-time or sessional basis. It is worth noting that the SACAT Act requires consideration be given to balanced gender representation and social and cultural diversity in the appointment of members. Supplemental members can also be appointed for fixed terms. Assessors are the final category of member who may be appointed. They must be persons who are qualified by virtue of knowledge, expertise and experience to provide specialist knowledge on fields in which the Tribunal exercises jurisdiction. Different conditions apply to categories of members, for example, Assessors are permitted to perform work outside the Tribunal, however, members may not do so without permission of the President.
6. Length of appointmentThe President is appointed for a period of 5 years with the capacity to be reappointed. Deputy Presidents are also appointed for 5 years with the power to be reappointed. Appointment of Senior or Ordinary members can be for a period of between 3 and5 years. Assessors can be appointed for up to 5 years.
CHAPTER FIVEConsultation with Department of JusticeConsultation OverviewConsultation regarding a Civil and Administrative Tribunal for Tasmania was confined to the Courts and those bodies which fell within the ambit of support of the Department of Justice. Given that the majority of potential bodies for amalgamation sat within this ambit, it was determined to ascertain the position of the majority of these bodies before proceeding further. Without their support, there would be limited utility in exploring the formation of a Single Tribunal further.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
120
Consultation involved the following process:- Written contact from the Deputy Secretary of
Department of Justice advising of the investigation and provision of an information sheet, advising that contact would be made by the relevant officer.
- Individual contact made with each body which included a set of initial questions and supplemental questions
- One or more meetings with relevant officers/office holders from the respective body or alternatively the provision of their written response, with subsequent additional questions forwarded to those who expressed interest in amalgamation or who were identified as appropriate.
- Follow up meetings with any bodies who requested it.It should be noted that all of these bodies will be afforded another opportunity to comment upon the contents of this Discussion Paper as part of the preparation of an Options Paper. It is anticipated that after consultation has concluded with Whole of Government, stakeholders and the community, the content of that feedback will be provided to the initial bodies consulted as part of the Discussion Paper for a final reply.Schedule 1 of this chapter contains a list of all Courts, Tribunals and outputs/persons that were consulted.Some bodies/persons provided with the option for feedback elected not to do so for a range of reasons, including that: they had no opinion on the issue; it did not affect their area and as such they did not need to make any submissions; it may not have been appropriate for them to express an opinion on policy matters.It was requested of all persons consulted that feedback be provided in writing to ensure accuracy of reporting. A small number provided short verbal feedback with consent to it being reported.Given the variable timeframes within which feedback was provided, it was determined that Surveys of Members of Tribunals (which was supported by various bodies) would be conducted in Stage 2 of the project. It is of greater benefit for them to be able to read the Discussion Paper as part of that consultation process in any event.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
121
Schedule 1Name PositionJim Connolly Registrar, Supreme CourtYvonne Chaperon President Mental Health
Tribunal
Martha Robson Registrar Mental Health Tribunal
Neale Buchanan Monetary Penalty Enforcement Service
Catherine Edwards Manager - Victims of Crime Compensation
Anita Smith President Guardianship and Administration Board
Donna Spong Registrar Guardianship and Administration Board
Tim Abey President – Tasmanian Industrial Relations Commission
Nicole Wells Deputy President – Tasmanian Industrial Relations Commission
Allan Mahoney Registrar – Tasmanian Industrial Relations Commission
Daryl Coates SC Acting Director of Public Prosecutions
Michael O’Farrell Solicitor General
Paul Turner Deputy Director of Public Prosecutions (Civil Division)
Kerry Worsley Manager – Crown Law
Robin Banks Anti-Discrimination Commissioner
Catherine Vickers Director Strategic Legislation
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
122
and Policy
Steven Carey Chief Commissioner - Workers Rehabilitation and Compensation Tribunal
Rod Chandler Commissioner – Workers Rehabilitation and Compensation Tribunal
Andrew Cooper Registrar – Workers Rehabilitation and Compensation Tribunal
Tim Mills Statutory Appointments Officer
Julian Type Tasmanian Electoral Commissioner
Pamela Honan Director – Community Corrections
Liz Hawkes Secretary – Parole Board
Wayne Johnson Administrator of Courts – Magistrates Court
Ross Thomas Manager – Civil Division, Magistrates Court
Roger Illingsworth Manager – North & North West, Magistrates Court
Graham Hill Legal Aid Commission
Sarah Piggot Legal Aid Commission
Richard Connock Ombudsman
Stephen Morrison Director Corporate Services
Kylie Hillier Acting Public Guardian
David Wallace President, Property Transactions Tribunal
Mark Cocker Director of Industry Safety
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
123
Brian Edwards Director of Prisons
Ann Owen Registrar - Birth Deaths and Marriages
Martin Shirley General Manager - WorkSafe Tasmania
Gregory Geason Chairman - Resource Management and Planning Appeal Tribunal
Sally Bridge Acting Registrar – Resource Management & Planning Appeal Tribunal
Dale Webster Manager - Building Standards and Occupational Licensing
Alison Jekimovics Manager - Integrated Law Libraries
Kerrie Crowder Director - Human Resources
Jen Lee Director - Communications
Julie Fletcher Manager - IT
Megan Killion – Richardson Program Director
Greg Alomes Executive Commissioner - Tasmanian Planning Commission
Ashton Denehey President - Disciplinary Tribunal
Frank Ederle Chief Executive Officer - Legal Profession Board
Michael Hill Chief Magistrate
KAM Pitt QC President - Forest Practice Tribunal
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
124
CHAPTER SIXAnalysis and RecommendationsThis Chapter seeks to bring together the research and consultation undertaken into a cohesive analysis that underpins the recommendations below.It should be noted that not all of these recommendations are conclusive findings or final recommendations. These represent preliminary views on matters which ought to be the subject of commentary as part of an Options Paper. Reasons are provided for framing recommendations in the terms drafted, but consultation and feedback may well provide information and views which may alter these. They are intended as a starting point for discussion.The only recommendations considered to be ‘final’ are those recommending that Stage 2 be authorized to commence.
1. General RecommendationsIt is evident from the preceding material that Tasmania is no different to any other state in the country with respect to having a range of similar smaller statutory independent bodies exercising a similar range of Civil and Administrative decision making powers. Other jurisdictions have successfully amalgamated their Tribunals into a single Civil and Administrative Tribunal with resultant benefits to both the community and their Tribunals as a result.It was not the purpose of this Discussion Paper to provide detailed costing of an amalgamation process. That is the role of Stage 2 in the preparation of an Options Paper. Rather, the task of the Discussion Paper was to identify: is Tasmania suitable for a CAT? And, are there sufficient obvious benefits to creating a CAT to justify further investigation? The answer is “yes” to both.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
125
In summarizing the likely benefits of amalgamation it must be recognized that there are benefits or cost savings which are best described as ‘second tier’ benefits. That is, benefits or costs savings which may not appear in immediate balance sheets as ‘dollars and cents’ but which can be reasonably predicted to flow into other areas. They should be considered as part of an Option Paper reporting on cost to Government.As a general opening comment it is worth repeating the findings made by the Australian Productivity Commission in its very recent Inquiry Report – Access to Justice Arrangements No. 72, 5 September 2014. Quotes are contained in Chapter 4 of this Discussion Paper. The Inquiry Report confirms that notwithstanding limitations on Australian Data “…that there are key savings to be found in tribunal consolidation…”30 Obvious likely benefits and savings can be summarized as follows.
Improved Administration Support for TribunalsBy consolidating staff and resources of smaller outputs, capacity to improve administrative support for those individual outputs increases considerably. By way of example, staff can be allocated to divisions/jurisdictions which are experiencing an increase in workload, giving flexibility to respond to demand. It also allows other staff to be trained in the specialized features of other jurisdictions allowing greater flexibility for staff to take leave (sick or recreational) without impacting on service delivery and reducing pressure/stress to specialist staff. It also ensures institutional knowledge isn’t lost when staff depart an organization thus reducing the risk of key-person dependency and its impacts.At present several very small outputs have very little corporate support (e.g. Disciplinary Tribunal, Property Agents Tribunal). This would address that resourcing shortfall.Specialised services can be supported in a larger organization. By having dedicated staff for IT Support, Finance, Human Resources and other areas, this can allow senior staff greater time and attention to core statutory functions. It may also reduce demand and workload on Department of Justice divisions which previously had to 30 P.378 , Access to Justice Arrangements: Productivity Commission Inquiry Report No. 72, 5 September 2014
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
126
support many smaller outputs individually rather than through a single officer or point of contact. This can also result in dedicated collection of data and reporting on Tribunal functions which is more difficult in smaller outputs with limited resources.Greater opportunity for training, acquiring skills and career development would also arise for staff and members of existing Tribunals.
Improved Use of TechnologyEconomies of scale allow investment in a single high quality case management system which can be used to support all jurisdictions of a Tribunal. It also means better servicing and support of a unified case management system. This would also improve data collection and reporting. It also allows investment in shared technology that benefits access to justice, such as video conferencing from shared facilities and use of technology to allow new service delivery options (such as Oral Applications for example) being supported.
Improved Service Delivery/Access to JusticeEconomies of scale may also open up options for provision of additional service delivery beyond those available to smaller outputs. As indicated above, technology available to a larger single entity may allow: E-Lodgment of proceedings and case management; the taking of Oral Applications; provision of dedicated support officers to unrepresented parties in understanding procedures and completing forms; co-operation with the Law School of the University of Tasmania, Law Society and other possible bodies to provide assistance programs for self-represented litigants (an example being implemented in Victoria with VCAT and Monash University, Faculty of Law)31. Pooling resources of smaller outputs allows the benefits of investing in such technology and programs to be shared by all those outputs in a single Tribunal.Shared facilities also mean better standards of hearing rooms, technology and greater options for regional support.Greater consistency in procedures (where appropriate) will also improve access to justice for the community with 31 Prof B Horrigan, “Access to Justice, Law Schools, and Clinical Legal
Education – the VCAT Self-Help Clinic”, paper presented at COAT Conference 5 June 2015
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
127
improvement in decision making processes both in terms of time and quality, where resourcing is shared. This can also lead to reduction in costs to the community in both initial decision making processes and potentially reduce appeal proceedings.ADR can be centralized and managed well in a larger body, ensuring quality of training and maintenance of standards and greater flexibility in types of ADR (use of Tribunal Experts in Dispute Resolution processes).There are other benefits which arise from the formation of a Civil and Administrative Tribunal. Those listed above are only a sample but on their own present sufficient justification to recommend Stage 2 being implemented. The Options Paper required in Stage 2 would specifically examine in detail, the cost to government and savings that may accrue through amalgamation.There should be further consideration of how other jurisdictions approached the process of amalgamation. Some jurisdictions report great success in simply bringing over all staff and members (for the balance of their appointment terms) as part of the initial amalgamation process. Review of the operations of the new Tribunal can then occur as part of a Strategic Plan for the organization.Finally a recurring theme in informal feedback from other jurisdictions has arisen: make sure careful costing (and a costing model is adopted) which covers all functions of the Tribunal. It is also recommended that formal feedback be sought from all other jurisdictions that have Civil and Administrative Tribunals with respect to the contents of this Discussion Paper and its recommendations.
Recommendation 1.1That Government authorises Stage 2: the preparation of an Options Paper of the consideration of formation of a Civil and Administrative Tribunal for Tasmania, incorporating recommendations set out below.
Recommendation 1.2That Government authorises the formation of a Steering Committee to oversee the preparation of an Options Paper. That Terms of Reference be prepared to guide the Steering Committee’s work.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
128
Recommendation 1.3That consultation across Government, the community and other key stakeholders occur as early as possible in Stage 2 in order to collate information and allow an opportunity for original bodies to comment upon any feedback received.
Recommendation 1.4That as part of Stage 2, analysis occurs as to the process of amalgamation including: a lead-in period before the Tribunal commences operations to allow the President and other senior appointees to establish/resolve a range of procedures and implementation matters. That there be an examination of the amalgamation processes of other states with particular reference to retaining all staff and members of original Tribunals as part of initial amalgamation and then establishing ‘audits’ and terms of reviewing the new Civil and Administrative Tribunal as part of a Strategic Plan (see Recommendation 2.6).
Recommendation 1.5That as part of Stage 2, a careful audit of all functions of the proposed model occur to ensure staffing, resources and funding have been appropriately allocated for the proposed functions of the Tribunal, by way of creation of a costing model.
Recommendation 1.6That as part of consultation in Stage 2; active steps are taken to seek input from each jurisdiction around the country regarding the contents of this Discussion Paper in settling the final recommended features of a Civil and Administrative Tribunal for Tasmania.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
129
2. ScopeCertain jurisdictions identified in this Discussion Paper are uncontroversial with respect to amalgamation. Indeed, a large majority of them support their own inclusion in a Civil and Administrative Tribunal. Examples of amalgamation of similar jurisdictions have occurred in the different states of the country.In determining the Scope of a Civil and Administrative Tribunal, the Assessment Criteria utilized during the formation of QCAT have been largely adopted. These Assessment Criteria are provided as Annexure 6 to this Discussion Paper.It should be noted that in Chapter 1 of this Paper, certain jurisdictions are identified as requiring additional analysis to address Assessment Criteria 6, 7, 8, 9 and 10 in particular, among others. Those are recommended for further analysis as part of Stage 2.It is noted that the Mental Health Tribunal has indicated its opposition to amalgamation in its response as part of consultation. The concerns raised are entirely understandable particularly for a specialized Tribunal such as the MHT. The core issues for the MHT itself (as opposed to general concerns as to costs), relate to possible impairment of the existing specialised services and processes of the Tribunal as they currently stand and potential loss of expertise of members, and staff, as a result of amalgamation. The review/investigatory functions outlined by the MHT should be capable of being supported in a flexible structure: support for swift resolution; use of inquisitorial powers; flexibility in procedures and hearing requirements; retention of existing expertise - can all be accommodated. Indeed, given the volume of matters the MHT presently manages, if its present functions can be maintained but greater corporate support afforded to it as an organization, it may greatly assist it in discharging its statutory obligations. Other jurisdictions have incorporated the equivalent of the MHT into their Super Tribunals (ACT and SA, NSW recommended incorporation into the NCAT)32. A specific 32 It is worth noting at this early stage that anecdotally, positive
feedback regarding the amalgamation of the Mental Health Tribunal as well as other jurisdictions such as Residential Tenancy in the ACT, has been communicated to the author. According to this feedback, it is not uncommon for people living with mental health disorders to have
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
130
recommendation has been included that the possible inclusion of the MHT be given detailed attention as part of Stage 2 to ensure that the concerns raised are specifically addressed and the subject of recommendations. Likewise, if as a result of investigation, exclusion of the MHT is deemed appropriate – that can be as a result of detailed consideration having reference to Assessment Criteria.Other jurisdictions, in particular, South Australia, have created a statutory regime which allows the gradual inclusion of new jurisdictions into its Civil and Administrative Tribunal. Given Tasmania is a smaller state a variation of that model is proposed. However, given the relative smaller size of Tasmania, there must be a sufficient mass of jurisdictions to justify and support the formation of a CAT in Tasmania.A regime which allows recommendations and reporting upon other jurisdictions being brought into the new CAT should be supported. As a result of these early stages of consultation it is clear there are areas which could be suitable for reform. A Tasmanian Civil and Administrative Tribunal offers opportunities to improve performance in different jurisdictions. What may happen however is too much is undertaken too soon, and the basics of amalgamation become lost in an overzealous attempt to reform everything. A sensible approach is to create the starting body and implement a strategic plan to report upon and (if appropriate) implement vesting additional jurisdictions which may arise through this strategic planning process. This is particularly appropriate if certain reforms are new and untested and require additional research, consultation and preparation for the CAT to implement. Important reforms can be considered as part of an Options Paper, but if as a result of that examination proposed reforms are identified as complex and controversial and are not central to formation of a CAT; they should be deferred for a time to prevent the central amalgamation reform being delayed.It is also important that the performance of a new CAT be recorded and reported upon. A strategic plan with
concurrent matters running in several of these jurisdictions. By amalgamating these jurisdictions, those involved in these proceedings have a single point of access and staff are able to apply training and consideration to the management of their disputes in a more holistic sense. This should be looked at in further detail as part of Stage 2.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
131
performance criteria should be incorporated into implementation.An additional recommendation which is ancillary to scope, is investigation of a Reference Group forming part of the amalgamation lead-in process. Once legislation has been passed determining the bodies to be amalgamated, a Reference Group (of peak representative bodies) should be formed. The Reference Group will provide advice to the President, Deputies and Division Heads regarding the processes and procedures (Rules) which will be adopted to manage the jurisdictions to be amalgamated. This model was adopted in NSW and proved extremely effective in assisting the Tribunal and stakeholders in the amalgamation process.
Recommendation 2.1That the Steering Committee oversee the preparation of detailed analysis and an implementation plan of the following bodies being amalgamated into a Civil and Administrative Tribunal for Tasmania as part of an Options Paper: The Resource Management and Planning Appeal Tribunal, The Building Appeal Tribunal, The Forest Practices Tribunal, The Workers Rehabilitation and Compensation Tribunal, The Anti-Discrimination Tribunal, The Asbestos Compensation Tribunal, The Health Practitioners Tribunal, The Motor Accident Compensation Tribunal, The Guardianship and Administration Board, The Disciplinary Tribunal, The Property Agents Tribunal, The Mining Tribunal, The Land Valuation Court.
Recommendation 2.2That in reporting on amalgamation of the bodies in Recommendation 2.1, that the Mental Health Tribunal be included in that analysis but detailed specific attention and analysis be given to the concerns raised by the MHT and with detailed analysis of recommendations as to how those issues can be appropriately addressed. Alternatively, include analysis as to why the Mental Health Tribunal should be excluded from final amalgamation if such a finding is made.
Recommendation 2.3That in reporting on amalgamation of the bodies in Recommendation 2.1, that the Administrative Appeals Division of the Magistrates Court be included in that analysis but with additional detailed analysis of appellate
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
132
provisions in the list contained in Part 1 of Chapter 1 (p. 11-20) to confirm suitability of amalgamation as required by Assessment Criteria 7, 8 and 9.
Recommendation 2.4That further dedicated analysis and consultation take place with respect to those jurisdictions set out in Part 2 of Chapter 1 and be reported upon in the Options Paper. This analysis (by reference to Assessment Criteria set out in Annexure 6) should confirm whether amalgamation should occur with respect to those bodies/jurisdictions and if so, include an implementation plan as prepared for bodies identified under Recommendation 2.1. It may also recommend deferral of a determination to be incorporated into a Strategic Plan as recommended under 2.6 below.
Recommendation 2.5That further dedicated analysis and consultation take place with respect to those jurisdictions set out in Part 3 of Chapter 1 and be reported upon in the Options Paper. This analysis (by reference to Assessment Criteria set out in Annexure 6) should confirm whether amalgamation should occur with respect to those bodies/jurisdictions and if so, include an implementation plan as prepared for bodies identified under Recommendation 2.1. It may also recommend deferral of a determination to be incorporated into a Strategic Plan as recommended under 2.6.
Recommendation 2.6That the Options Paper include recommendations and details of necessary statutory provisions, to incorporate a Strategic Plan for a new Civil and Administrative which sets out:- review of the operations of a new Civil and
Administrative Tribunal with Performance Criteria as part of the assessment, over a set time frame.
- power to recommend and report upon the inclusion of additional new jurisdictions into the new Civil and Administrative Tribunal.
- a list of any jurisdictions that should be reviewed for inclusion in a new Civil and Administrative Tribunal, potentially during, and after its inception, with indicative time frames.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
133
Recommendation 2.7As part of the reporting on the process for amalgamation, specific focus be given to the NSW experience of creating a Reference Group as part of assisting the Tribunal in establishing its Rules and procedures and whether that approach should be adopted in Tasmania.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
134
3. StructureThe results of investigation indicate that flexibility in the Tribunal being able to arrange its own internal Registries, Streams and processes is vital to effective management and resolution of proceedings as well as being adaptable to change and any new powers vested in the Tribunal.South Australia has the most flexible of legislative provision which defers formation of Streams, Lists and Divisions to the setting of Rules for the Tribunal (See Section 27 of the South Australian Civil and Administrative Tribunal Act 2013 and Rule 10 of the South Australian Civil and Administrative Tribunal Consolidated Rules 2014). It is recommended that very limited definition of Divisions, with one exception, be set out in the enabling legislation to allow maximum flexibility for the Tribunal President and senior appointees to arrange the internal structure of the Tribunals lists.The exception is to ensure that the specialized and inquisitorial nature of certain Tribunals is specifically addressed and recognized in the Tribunal’s formation. It is recommended that a Protective Division is specifically created in the enabling legislation to recognize the very different nature of the operations of some Tribunals who are required to resolve matters for vulnerable individuals or individuals with differential or special needs in the community. By creating a Protective Division within the Civil and Administrative Tribunal, it emphasizes the wish of Parliament that diversity of procedures, where they are necessary and appropriate, are supported within the operations of the new Civil and Administrative Tribunal.
Recommendation 3.1That draft legislation prepared as part of an Options Paper limit Divisional Structure to two Divisions: Protective Division and General Division.
Recommendation 3.2That the President of the Civil and Administrative Tribunal be given power to establish such Streams/Lists within the two Divisions as determined as necessary to discharge the statutory obligations of the Tribunal.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
135
4. Legislative FrameworkThis section is intended to identify important features of legislative regimes in other jurisdictions and derived from research, which should be considered for inclusion of the Tasmanian Model of a Civil and Administrative Tribunal. It is important to note the actual drafting of legislation is intended to occur in Stage 2 with more detailed discussion of legislative features. This stage is to flag key features for possible inclusion, and the general approach to the statutory structure of the final CAT.What is clear from both research and consultation with other jurisdiction is that the enabling legislation should strive for flexibility and simplicity as much as possible. By doing so, the legislation supports the Tribunal in achieving objectives of fairness and efficiency. Other jurisdictions have described the problems encountered as a result of being overly prescriptive in the parent legislation as to matters which should have been left to the discretion of the Tribunal, which resulted in problems and subsequent delays due to the time required to make legislative amendments.Consultation included commentary of two key aspects of legislation related to Internal Appeal Processes and Timeframes. In terms of creation of a Civil and Administrative Tribunal it is recommended that an enabling Act be created which establishes a CAT and sets out its Objectives, Jurisdiction, Membership, Principles, Powers and Procedures. The parent legislation should ensure the features referred to in Chapter 3 (p.70-72) regarding Independence of decision making are incorporated into the Act. Comparative analysis of legislation adopted in other states for wording and structure should occur as part of the drafting process. Those Tribunals/Boards which are to be vested in the jurisdiction of the CAT will then have their relevant legislation amended as required.Broad flexibility (discretion) should be drafted into the legislation with respect to a range of factors:- Decision making processes should allow for a wide
range of options of ‘how’ decisions can be made (for example, ‘on the papers’ through to full hearings convened by Panels), as well as flexibility as to ‘where’
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
136
hearings can be convened. This should include power to refer matters to ADR (Appropriate/Alternative Dispute Resolution) processes, and that a broad range of ADR be supported such as mediation, conciliation, neutral expert evaluation and others.
- The internal structure of the Tribunal should lie within the discretion of the President along with the other senior members of the Tribunal (as discussed in 3. Structure).
- The setting of internal processes, creation/content of forms, electronic transactions and protocols, setting of fees (for example, cost recovery fees related to litigation searches, copying of materials and recordings etc.) and other operational matters should also be the subject of general provisions granting discretion and freedom to the Tribunal to establish them for itself through Rules/Regulations.
- The composition of Tribunal Panels should be flexible, but one of the concerns raised in consultation is the possible loss of expert members sitting on matters (due to cost saving considerations) which should and must have expert determination. This can be possibly resolved through the requirement for Rules/Regulations/Schedules to identify those jurisdictions which must have expert members of panels so that the exercise of discretion is constrained in those matters by reference to those Rules/Regulations/Schedules. This allows flexibility for the Tribunal to modify its practices and requirements as is necessary, and gives certainty for those jurisdictions which must have specialists hearing and determining matters.
- There are various jurisdictions which have introduced the inclusion of community members on their Panels. For example Section 13(6) (b) of the New South Wales Civil and Administrative Act 2013 includes a person who “is capable of representing the public (or a sector of the public), or a particular organization, body or group of persons (or class of organisations, bodies or groups of persons) in relation to any one or more classes of matters in respect of which the Tribunal has jurisdiction.” Some Tribunals in Tasmania have a variation of this category of member as part of their composition (the Health Practitioners Tribunal and
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
137
Disciplinary Tribunal for example). The involvement of community members on panels has been the subject of favorable feedback from jurisdictions such as NCAT for example. Active consideration of inclusion of that category of appointee should be part of the Tasmanian research.
In terms of evidentiary provisions – apart from the expected provisions related to summonses to produce documents/compel attendance of witnesses, offences related to misleading evidence and so on, the following specific powers that may be lacking in current statutes in some jurisdictions should also be considered: powers of entry to premises/land for parties and Tribunal members; specific provisions for the use of expert conferencing and concurrent evidence by experts; and the Tribunal having power to refer any question in proceedings for investigation and reporting by an expert in the relevant field (Section 42 of South Australian Civil and Administrative Tribunal Act 2013 for example).Timeframes were the subject of specific inquiry as part of consultation. Two broad schools of thought emerged: a strong desire to see timeframes imposed to ensure timeliness in decision making, balanced against the risk of artificially imposed timeframes potentially diminishing the quality of decision making (preventing the preferred and correct outcome from being reached due to time constraints). Jurisdictions across the country have different approaches to time constraints. Some adopt general statements of reasonableness (Queensland for example). Others set time frames for a decision to be handed down after a hearing is finally concluded (Western Australia and Northern Territory). Some limited jurisdictions set actual time frames (Major Cases list or Guardianship matters in VCAT, ACAT with Planning/Heritage and Tree Protection Disputes).Other considerations arise as well. Some jurisdictions have timeframes as part of their legislative regime (see Section 72 of the Guardianship and Administration Act 1995 for example). These timeframes are either necessary or important to ensuring certain jurisdictions meet statutory objectives. As such, there needs to be sufficient flexibility within the enabling legislation to accommodate these competing interests.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
138
The initial recommendation is to establish a general statutory obligation to determine matters within a ‘reasonable timeframe’ (or similar wording) within the enabling legislation that will cover all decision making functions. The Act can then allow the creation of additional specified timeframes within Rules/Regulations/Schedules thus allowing those jurisdictions that require time constraints, to create them for their operations. Those Rules should be able to be varied at the discretion of the Tribunal and there ought to be power to seek leave from the President for an extension of any timeframes created under the Rules.As part of timeliness, Objectives set out in the Act should include proportionality and impose obligations upon all parties, as well as the Tribunal, to achieve timely and just outcomes. The NSW Civil and Administrative Tribunal Act 2013 should be used as a reference point for this matter. Such provisions provide an additional basis to reinforce the Tribunal’s objectives to achieve outcomes in a fair, swift and efficient manner. Recent case law in NSW illustrates the way they have been utilized33.Internal Rights of Appeal were also subject to consultation. A particularly useful and recent article regarding Internal Appeal processes was produced by His Honour Judge Kevin O’Connor34. The article undertakes a comprehensive comparative analysis of internal appeal processes of existing Super Tribunals jurisdictions and provides recommendations drawn from both that analysis and direct experience. A web-link to this paper is included as Annexure 7 to this Discussion Paper. Considering the various submissions made and research undertaken it is recommended that an Internal Right of Appeal be actively considered for inclusion in the Tasmanian Model. An internal right of appeal affords parties to a dispute a cost effective option of review of a decision; it can enable the Tribunal to correct any defects in the original decision making without the expense and time of requiring Supreme Court review, and ensures consistency in its own decision making; and its provisions can be drafted to prevent unnecessary or unmeritorious litigation and 33 (see for examples: Kurmond Homes Pty Ltd v Spiter i [2015] NSWCATAP
48 (25 March 2015); BHM v BHN & Ors [2014] NSWCATAP 26 (10 June 2014); Donoghoe v Compass Housing Services [2015] NSWCATAP 97 (22 May 2015)
34 O’Connor, K.P., “Appeal Panels in Super Tribunals” UQLJ [2013] Merits Review Special Edition Vol 32 No.1
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
139
ensuring appropriate finality in decision making. The provisions should be informed by the recommendations contained in the paper cited above (see Recommendation 4.7). In summary, close consideration should be had to there being a general right of appeal on any ground, with a requirement for leave to be granted by the President. The President should be vested with a general discretion (which can be given some direction by the examples given by Justice O’Connor35) with respect to leave. Likewise, the same flexibility with respect to how ordinary proceedings are heard and determined, should apply to internal appeals. That is – the President can direct the manner in which the appeal will be heard and determined. Consideration should be given to Rules/Regulations being empowered to set time frames for the making of an Internal Appeal leave application, rather than setting it in the enabling Act, if possible.Some jurisdictions have provisions related to improving access to justice. These can range from creating positive obligations on a Tribunal to contact litigants to ensure procedures and requirements are understood or to actively pursue reasonable practical steps to resolve the matter early (Section 29 QCAT Act 2009, Section 31 of ACT CAT Act 2008); providing legislative protection from liability to Tribunal staff to assist parties with procedural advice (not legal advice); legislative support for the use of technology. Inclusion of provisions which enhance access to justice should be the subject of detailed inquiry and reporting. There are opportunities to provide legislative support for programs which could enhance the community’s access to justice. A critical part of access to justice considerations must also be regional access to justice. This can incorporate a range of options for improvement such as – regional registries, flexibility in hearing locations, and use of technology to enable greater participation. These need to be included as part of any recommendations for access to justice features.
Recommendation 4.1That the means for implementing amalgamation proceed by creation of a Parent/Enabling Act for the CAT and then subsequent amendments made to all relevant legislation for transferal of those jurisdictions to the CAT.35 See p. 41 O’Connor, K.P., “Appeal Panels in Super Tribunals” UQLJ
[2013] Merits Review Special Edition Vol 32 No.1
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
140
Recommendation 4.2That draft enabling legislation prepared as part of an Options Paper ensure powers are included to allow the formation of a Rules Committee or grant the President power to make Rules of the Tribunal. That the Rules of the Tribunal be allowed to cover as many organizational/procedural matters as possible to ensure flexibility and adaptability for the Tribunal. It would be appropriate to include reference back to Objectives or to create guidelines which direct the creation of Rules and matters they should consider as part of drafting.
Recommendation 4.3That draft enabling legislation vests a broad discretion and flexibility with the Tribunal over: internal structure (see 3. Structure); decision making processes, ADR, venues for hearings and ADR; forms, cost recovery fees and other organizational matters; and use of technology.
Recommendation 4.4That draft enabling legislation allow flexibility in the composition of Tribunal Panel appointments but enable the setting of compulsory expert membership on Panels via Regulations, Rules or Schedules for those jurisdictions where such expert involvement is necessary.
Recommendation 4.5That in addition to standard expected evidentiary provisions of draft legislation (e.g. public vs. in-camera evidence powers, summonses for material/witnesses, false/misleading evidence offences, failure to attend provisions, oaths and affirmations, allowances for witnesses), analysis and reporting on additional features such as powers of entry, expert conferencing and concurrent expert evidence (Western Australia), and Tribunal referrals of questions to experts also occur (South Australia). Any additional evidentiary innovations from other jurisdictions should also be included in this analysis.
Recommendation 4.6That the draft enabling legislation includes a general requirement for timely decision making (such as ‘within a reasonable timeframe’ for example). That the Tribunal be vested with power to set specific timeframes for those matters within its jurisdiction that the Tribunal considers should be constrained by time limits. The legislation
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
141
should also allow application for leave to the President for extensions to any set time frames where appropriate.
Recommendation 4.7That the draft enabling legislation allow for an Internal Right of Appeal in general terms, but that leave to appeal must be granted by the President within a time frame which can be set by the Tribunal. That direction as to the exercise of that discretion is given some detail but in permissive terms, not mandatory. That the President retains a broad discretion as to the manner in which the appeal will be heard and determined.
Recommendation 4.8That analysis and reporting occur with respect to provisions which support access to justice and recommendations made as to those which are appropriate for inclusion in the draft enabling legislation. Regional access to justice must also be specifically addressed in analysis with suitable powers to support regional access issues.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
142
5. Leadership/GovernanceThis section will cover a range of recommendations related to appointment of Tribunal Presidents, Deputy Presidents and Members. It will also examine tenure and duration of appointment, seniority of legal officers, and remuneration.
Selection and Appointment Process, Reappointment, Removal from OfficeIn Tasmania, appointment processes for Tribunals mostly require an appointment by either the Governor, or the Governor on nomination of the Minister: (Section 7 Resource Management and Planning Appeal Tribunal Act 1993, Section 1 Schedule 1 Guardianship and Administration Act 1995, Sections 17A & 17B of the Workers Rehabilitation and Compensation Act 1988, Section 167 of the Mental Health Act 2013, Section 34 of the Forest Practices Act 1985 for examples). Some legislation has appointment of members by decision of the Minister only (Section 12 of the Anti-Discrimination Act 1998, Section 8 & 9 of the Health Practitioners Tribunal Act 2011 for examples). There are some rare exceptions such as the Disciplinary Tribunal which require appointment of certain members of the Tribunal by the Judiciary. Given the importance and nature of the jurisdiction of the Disciplinary Tribunal, careful consideration needs to be given to potentially altering that appointment process, and it should be subject to further consultation and analysis.The present process of appointments in Tasmania involves a combination of legislative requirements and policy requirements.36 By way of example, government policy (since 2011) for the process of seeking appointment of members requires information to be provided to the Tasmanian Women’s Register and suitable nominations sought from the Register as a means of addressing gender 36 The interlacing of legislative and policy requirements described above
is not particularly different across jurisdictions. As Prof. O’Connor notes: “Tribunal legislation is usually silent as to the selection and nomination stages of appointment processes. The procedures and some criteria are regulated by administrative policies and procedures set out in documents such as a Cabinet handbook or guide issued by a central agency of government. Their content and coverage differ from one jurisdiction to another.” (Page 13 of “Best Practice Guide to Tribunal Independence by Appoints – Discussion Paper”, Council of Australasian Tribunals, May 2015.)
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
143
balance in boards and committees. Other policy requirements may entail consultation with certain bodies or institutions or a range of other possible requirements. These policy requirements may vary as to when in the appointment process they take place.The general process followed can be summarized as follows with respect to appointments by the Governor37:- Public Advertisements calling for Expressions of
Interest in appointment to positions occur.- Expressions of Interest received are reviewed by the
relevant body at first instance with recommendations of suitable candidates forwarded to Departmental Officers.
- Advice is prepared for the relevant Minister which includes advice as to all persons who submitted EOIs and those who are shortlisted for active consideration.
- The Minister selects one or more nominees and the Minister’s selection is submitted to Cabinet for endorsement.
- Once endorsed by Cabinet, the recommended appointment/s is forwarded to Executive Council for approval by the Governor.
The following extracts are from Section 1.5 ‘Matters which come before Cabinet’ from the Cabinet Handbook:38
- Senior appointments in government departments (i.e. the salary is equivalent to level 1 of the Senior Executive Service or higher)
- Appointments of chief executive officers of government businesses
- Appointments to significant boards, committees, authorities and advisory bodies, including directors of government businesses [1]
- Appointments to statutory offices
- Any appointment to be made by the Governor-in-Council
37 This process is very similar in most jurisdictions. See page 8 of “Best Practice Guide to Tribunal Independence by Appoints – Discussion Paper”, Council of Australasian Tribunals, May 2015.)
38 Tasmanian Government Cabinet Handbook
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
144
[1] An appointment is significant if: the members, in connection with their role on a body, receive remuneration of any type from government funds, or are responsible for allocating government funds or resources; it is to regulatory and licensing bodies, commissions, industry tribunals and boards, consumer and other tribunals of appeal or redress, major research bodies, regional coordination or service delivery bodies, bodies principally responsible for the natural and cultural heritage of the State and principal advisory bodies to the government or Ministers; or a Minister considers he or she should bring it to the attention of Cabinet because of the pre-eminence of the body in question, its scope and/or influence or function, budgetary impact or whole-of-government interest.
In Chapter 3 of this Discussion Paper reference to the work of Prof. O’Connor with respect to Institutional Independence was made, and both papers are annexed to this Discussion Paper.The Discussion Paper prepared by Prof O’Connor flags a range of matters for investigation, and as such does not provide conclusive outcomes on all issues but certainly maps their complexity very well and provides recommendations where possible. In reviewing the work referenced above the following matters are potentially relevant39 to the formation of a Single Tribunal in Tasmania with respect to appointment processes.Discounting significant change to the existing appointment processes occurring (such as the creation of an Independent Appointment Commission which would entail work beyond the ambit of this policy initiative), are there any changes to the existing process that ought to be considered? The adoption of an Assessment Panel Model40 seems appropriate and may not necessarily significantly burden or alter procedures as they presently stand, but this needs 39 For example, other policy considerations such as the formation of an
Independent Appointments Commission, need to be holistically considered particularly with reference to Superior Courts and could not form a recommendation as part of this process.
40 Pages 11-13 “Best Practice Guide to Tribunal Independence by Appoints – Discussion Paper”, Council of Australasian Tribunals, May 2015.)
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
145
to be confirmed. It would include publicly available assessment criteria for consideration of candidates. Selection Criteria should address four key criteria suggested by Prof. O’Connor as a minimum: Qualifications, Merit, Character, Needs of the Tribunal.41
It may also be appropriate to establish legislative guidance to the exercise of Ministerial discretion in the decision making process of making appointments. It is possible making certain considerations mandatory may be problematic given the content of Prof. O’Connor’s research. However, flagging matters such as the five criteria set out in the South Australian legislation, but in permissive rather than mandatory wording, would seem a possible way of balancing those considerations.The State Government has recently expressed its policy commitment to increasing gender balance to all appointment processes.- Women on Boards Strategy 2015-20: A five-year plan
for improving gender equity on Tasmanian Government boards and committees
As indicated above, such a policy can dove-tail with legislative processes. By inclusion in statute of these matters as relevant to decision making, it reinforces and supports those policy initiatives. By using permissive rather than mandatory language it can mitigate the risk of conflict with existing Anti-Discrimination legislation. Given the process of drafting an Options Paper will take further time, close attention to the results of Prof. O’Connor’s research should be maintained. If final recommendations are made before completion of the Options Paper, they may assist the final approach taken to these issues.Briefly, it is recommended that Stage 2 look at the questions of existing members being brought over as part of the amalgamation process and remaining as members for the balance of their appointment periods. This approach was adopted in some other jurisdictions (NSW for example) and appeared to have beneficial effects. An ancillary question which should be considered is whether uniformity of remuneration (for existing members) can be organized as part of that amalgamation to avoid disparity
41 Pp. 16-18 ibid
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
146
of pay rates in the new Tribunal. (See Recommendation 5.17).With respect to the issue of reappointment, two key elements need to be considered.Firstly, it should be unnecessary to put already experienced and qualified members through the same appointment process as the one initially applied (Assessment by Panel for example). Reappointment by recommendation of the President of the Tribunal should also be considered particularly where you have a limited range of specialists within a jurisdiction. See Section 19(7) of the South Australian Civil and Administrative Tribunal Act 2013 as an example.Secondly, by adopting not only selection criteria but also performance standards expected of members, it is possible to ensure there are measurable requirements to assess performance and in turn suitability for reappointment. South Australia has adopted such standards in the management of its members and a similar Performance Plan model is recommended for implementation in the Tasmanian model. By using such measures, it also means that any decision not to reappointment a member can be done by reference to clear and measured performance standards.
Recommendation 5.1That provisions of the draft legislation for a Civil and Administrative Tribunal for Tasmania require appointments of President, Deputy Presidents and Members, be made by the Governor on nomination from the Minister. That further investigation and reporting on the Disciplinary Tribunal appointment process occur before any alteration is considered.
Recommendation 5.2That there be final investigation and reporting on provisions of the draft legislation for a Civil and Administrative Tribunal for Tasmania including incorporation of an Assessment Panel Model, as discussed in “Best Practice Guide to Tribunal Independence by Appoints – Discussion Paper”, to govern the appointments process leading up to the exercise of ministerial discretion including formulation of minimum contents of Selection Criteria.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
147
Recommendation 5.3That there be final investigation and reporting on provisions of the draft legislation for a Civil and Administrative Tribunal for Tasmania including statutory guidance to the exercise of ministerial discretion over appointments with the inclusion of five criteria: selection criteria recommended by the selection panel, any report by the panel following assessment of the candidates; the need for gender balance; the need for cultural and social diversity; and the range of knowledge, expertise and experience required in the membership.
Recommendation 5.4That there be final investigation and reporting on the criteria set out above in 5.3 being drafted in permissive terms in legislation rather than mandatory terms.
Recommendation 5.5That there be final investigation and reporting on inclusion of performance standards related to the conduct of duties of members, as part of any schedules relating to reappointment of members. Performance standards should not necessarily be linked to Removal from Office provisions (see below).
Tenure, Seniority and RemunerationThese elements have been grouped together as they are linked in their considerations. A diverse range of views concerning leadership of a Civil and Administrative Tribunal have emerged through consultation, research material and discussions at a Conference of the Council of Australasian Tribunals in June 2015.In order to ensure the independence and authority of a Civil and Administrative Tribunal the head of the Tribunal should have security of tenure of judicial/magisterial appointment which is concurrent with their appointment as head of the Tribunal. This reinforces the independence of the Tribunal allowing the President to withstand pressure from Government, sit on matters which are potentially sensitive, and enhances public perception of the independence of the Tribunal. The level of seniority must also be informed by the nature of jurisdiction vested in the Tribunal. Some legislative regimes may have contemplated persons of a certain seniority determining
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
148
matters for compelling policy reasons. This must also be examined as part of Stage 2.
In finally determining the level of seniority of the appointment of a President and their duration of appointment, regard must be had to ensuring quality applicants are attracted to the position (seniority). There must also be sufficient time for the inaugural President to oversee the formation and implementation of the Tribunal as well as then act as its President. Any subsequent appointees must also have sufficient time to implement any reforms. Time frames need to have regard to maximizing the benefits of an appointee who has developed expertise in the jurisdiction so that their appointment period does not end too soon, but also prevent stultification of change by allowing a change of leadership within reasonable time frames. In offering tenure beyond the appointment as President of a Civil and Administrative Tribunal, regard must be had to what duties and functions the appointee would fulfill at the end of their appointment as President. This all needs to be considered with respect to the circumstances of Tasmania being a small state with limited resources. Whilst it is recommended the President of the new CAT be given tenure, this will need to be the subject of inquiry in Stage 2 as to whether sufficient resources and duties beyond the duration of their service as President can be supported.All these factors must be balanced and the subject of further reporting.With respect to Deputy Presidents or Divisional Heads of the Tribunal, those who are presently appointed as Presidents or Chairpersons of existing Tribunals are appointed for time frames of around 3 to 5 years. Five years is recommended as the time frame adopted for appointments of Members and Deputy Presidents/Divisional Heads, with the power to reappoint for at least another 5 years. Given Tasmania is a small state with more limited options regarding appointees than larger jurisdictions, it may be prudent to allow discretion over the reappointment of Deputies/Divisional Heads, beyond a 10 year period, particularly where they are specialists and it is a risk to the organization that their departure could significantly
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
149
impair the operations of the Tribunal. However, to balance that situation, it may be appropriate that they must be assessed under the Assessment Panel Model if reappointment beyond 10 years is to be considered. This allows for scrutiny of reappointment to ensure maintenance of professional standards, as well as preventing lack of opportunity for change and renewal in the Tribunal while also balancing potential loss of vital expertise.As to the final numbers of Deputies and Divisional Heads, that will need to be analysed as part of Stage 2. It is likely there would be at least 2 Deputies given the proposed divisional structure of 2 Divisions set out in Recommendation 3.1.There should also be flexibility in the nature of appointments of Members of the Tribunal, covering Full Time, Part Time and Sessional Members. This will allow the Tribunal to respond to differing demands on its jurisdiction and allow cost savings through appointment of Full Time or Part Time members where appropriate and required. It still allows flexibility of the use of Sessional Members to address conflicts of interest of Full Time or Part Time members, as well as variation and diversity in Tribunal panel composition.Consideration should also be given to creating two tiers of membership of the Tribunal: Senior and Ordinary Members. This structure would provide several benefits including: appropriate recognition of significantly experienced members, career advancement for members and mentoring possibilities for new members.The Duties of Members should also be drafted in as flexible terms as possible. By restricting members to hearing and determining hearings only, the Tribunal would be limited in their involvement in equally beneficial processes such as Expert Conciliations or review of material submitted as part of a hearing on the papers for example. The flexibility to utilize the expertise of members in a range of ways should be enabled.The remuneration of Deputy Presidents/Divisional Heads should be commensurate with the rates presently paid. It is important that quality applicants are attracted to these positions and their skills and expertise appropriately remunerated. Given the nature of decision making is not going to substantially change with amalgamation; that is
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
150
also a basis to ensure the current remuneration rates are sustained.In terms of seniority and qualifications, whilst remuneration may be equivalent to magisterial rates, it is unnecessary for the Deputies or Divisional Heads to be granted tenure. Most legislation sets requirements of legal practitioners with standing of no less than 5 years (sometimes 7 years).As identified by Prof. O’Connor in her research work “Tribunal Independence”42, duration of appointment varies from state to state. However, appointment periods should not be of too short duration as the investment of time and resources in an appointee becoming familiar with a jurisdiction may then be lost prematurely. Equally, there must be sufficient appointment time to act as an incentive to apply for such positions by quality applicants.As also discussed by Prof. O’Connor, security of remuneration should be considered as part of Tribunal independence. Remuneration should not be reduced during a term of appointment, and cannot be under current Tasmanian arrangements for most legislative appointments. In setting rates of pay for members, it is also an opportunity to remove the disparity between rates which presently exists across Boards and Tribunals. Members should be set equal rates for remuneration.What needs to be addressed are appropriate increases in remuneration. In current practice, sizing statements which sets the rate of remuneration for members do not change and are not subject to regular review. This can result in no variation to the rate of pay over a considerable period of time and requires members to lobby for appropriate review of their remuneration. That is most undesirable. It is recommended that provisions require regular (annual or every 2 years) review of sizing statements by, preferably, an independent body to determine if increases in remuneration should occur. Given the Industrial Relations Commission is not presently recommended for amalgamation, and has been vested with similar functions related to remuneration for politicians; it may be a suitable body to undertake that function.
42 O’Connor, P “Tribunal Independence”, The Australian Institute of Judicial Administration Inc, Monash University, 2013
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
151
With respect to Removal from Office or Vacation of Office, Prof. O’Connor examines those jurisdictions with fair and transparent processes for removal and describes them as the “strong end of the spectrum of provisions for removal processes.”43 Three in particular are referred to as strong – VCAT (Victorian Civil and Administrative Tribunal Act), SAT (State Administrative Tribunal Act (WA)) and QCAT (Queensland Civil and Administrative Tribunal Act). It is preferable to ensure Removal from Office occurs by a process which is rigorous and fair, and as such the processes outlined in those Acts should be actively considered for inclusion in the Tasmanian model. Care needs to be had when drafting Vacation of Office provisions. These self-executing provisions must ensure they are not arbitrary in their function or they may impair the independence of the Tribunal.44
The Grounds of Removal provisions likewise, should be clear in their terms. A specific concern raised by Prof. O’Connor is the potential for internal performance standards being linked to removal provisions, where performance standards are subsequently created and may not form appropriate bases for removal45. Concern is also raised over vague criteria for removal being adopted.46
There are different models across jurisdictions as to wording of grounds of removal47. It is recommended that final wording ensures these two issues are addressed.
Recommendation 5.6That the President of a new Civil and Administrative Tribunal should have security of tenure as a judicial or magisterial appointment beyond the time they are appointed as President. That the question of seniority of that appointment be the subject of inquiry, but seniority of no less than Chief Magistrate equivalent should be actively considered.
43 See pp. 69-70 ibid44 See Page 71 Ibid45 See Page 73 O’Connor, P , “Tribunal Independence”, The Australian
Institute of Judicial Administration Inc, Monash University, 201346 See Page 74, ibid47 See Page 71, ibid
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
152
Recommendation 5.7That the period of appointment of the inaugural President of the Civil and Administrative Tribunal be for a period of 7 years, with statutory power to extend the appointment for a further 3 years.
Recommendation 5.8That the period of appointment of subsequent Presidents of the Civil and Administrative Tribunal be for a period of 5 years, with statutory power to extend the appointment for a further 5 years.
Recommendation 5.9That the Deputy Presidents, Divisional Heads, and Members of the Tribunal be appointed for 5 years, with power to extend appointment for a further 5 years. That there should be power to appoint additional Deputies beyond being limited to Divisional Structure (for example, Internal Appeals may require a dedicated Deputy).
Recommendation 5.10That any appointment of a specialist member of the Tribunal beyond 10 years, who may be important to the continuing functioning of the Tribunal, be subject to the Assessment Panel Model recommended in 5.2.
Recommendation 5.11That legislation supports a range of appointment options for Members including Full Time, Part Time and Sessional; and the inclusion of Senior and Ordinary rankings for Members.
Recommendation 5.12That legislation enables the terms of appointment to include flexibility of work duties of Members of the Tribunal but retains the discretion of the President as to allocation of duties.
Recommendation 5.13That rates of remuneration are retained at their current levels for Deputy Presidents/Divisional Heads (or those appointed for legal oversight of jurisdictional functions). That rates not be subject to reduction during the appointment term. That rates be uniform across all expert Members but appropriately differentiated between
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
153
Senior and Ordinary Members. That all rates be reviewed regularly by an independent body for any appropriate increases (linked to CPI or increases in professional rates for example.)
Recommendation 5.14That a fair and transparent process for Removal from Office be adopted in legislation, which is derived from VCAT, QCAT and SAT legislation.
Recommendation 5.15That provisions related to Vacation of Office and Grounds for Removal are subject to careful drafting to avoid ambiguity or arbitrary results in their operation.
Recommendation 5.16That as part of analyzing the process to be adopted for amalgamation, detailed consideration be given to all existing members being brought over as members of the new Civil and Administrative Tribunal for the balance of their existing appointments, before the new processes outlined above are applied. And investigation as to whether pay for those members can be made uniform for the balance of their appointment period as members of the new Tribunal.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
154
CHAPTER SEVENAnnexures1. List of Originating and Review (Civil and Administrative)
Jurisdictions (Tas).2. Terms of Reference of the Review of Administrative
Appeal Processes3. AIJA Suggested Guidelines for Judicial Appointments4. Press Release: Attorney General V Goodwin, Apr 20155. Information Hand Out6. Assessment Criteria7. Web links
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
155
Annexure 1: *List of Originating and Review (Civil and Administrative) Jurisdictions (Tas)* Tables of legislation from A - ZTable 1 - "A" Legislation
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Abandoned Lands Act 1977, Section 8
Recorder of Titles
Decision of ROT with respect to Section 7(6)
Supreme Court of Tasmania
Abandoned Lands Act 1977, Section 11
Minister - Department of Primary Industry, Water, Parks, and Environment
Decision of Minister in respect of compensation
Magistrates Court (Administrative Appeals Division)
Aboriginal Lands Act 1995 , Section 10A and 10
Electoral Commissioner
Entering names on Preliminary Roll of the Aboriginal Land Council of Tasmania Electoral Roll, also appeal rights regarding procedural irregularities
Supreme Court of Tasmania
Aboriginal Lands Act 1995 , Section 29
Local Council (Local Government)
Decisions regarding leases or licenses
Tasmanian Planning Commission
Aboriginal Relics Act 1975, Section 8(13)
Director of National Parks and Wildlife
Dispute with respect to compensation under Section 8
Magistrate
Aboriginal Relics Act 1975, Section 12
Minister Acquisition of Relics by Crown
Magistrate
Aboriginal Relics Act 1975, Section 19
Director Seizure of objects
Magistrate
Access to Neighbouring Land Act 1992,
None – Originating Application Jurisdiction
Applications for access to land on a variety of bases
Magistrates Court (appeal rights to Supreme Court)
Adoption Act Secretary or Decisions Magistrates Court
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
156
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
1988 Section 96A
Principal Officer (under the Act)
regarding applications and status of prospective adoptive parents
(Administrative Appeals Division)
Adoption Act 1988 Section 86C
Relevant Authority, Secretary, Principal Officer
Access to information regarding Division 2
Ombudsman
Adoption Act 1988 Section 87 & 88
None Originating Application jurisdiction
Access to information
Supreme Court
Agricultural and Veterinary Chemicals (Control of Use) Act 1995, Section 57(1)
Registrar or Secretary
Decision regarding licenses, testing or restriction notices
Resource Management and Planning Appeal Tribunal
Agricultural and Veterinary Chemicals (Control of Use) Act 1995, Section 57(3)
Inspectors appointed under the Act
Seizure of products, produce etc.
Magistrates Court (Administrative Appeals Division)
Agricultural and Veterinary Chemicals (Control of Use) Act 1995, Section 57(5)
Secretary Review of Destruction Notices
Magistrates Court (Administrative Appeals Division)
Alcohol and Drug Dependency Act 1968
None – Originating Application Jurisdiction
Hear and determine applications under the Act regarding admission and Discharge
Alcohol and Drug Dependency Tribunal
Alcohol and Drug Dependency Act 1968 Section 53-55
Alcohol and Drug Dependency Tribunal
Decisions of the ADDT regarding directions or decisions except discharge
Supreme Court
Ambulance Service Act 1982, Section 35P
Secretary Decisions regarding Part IIIA with respect to Non-Emergency Patient Transport
Magistrates Court (Administrative Appeals Division)
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
157
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Licenses
Anatomical Examinations Act 2006 Section 9
Head of Faculty Refusal for individual authorisation under Section 9
Magistrates Court (Administrative Appeals Division)
Anatomical Examinations Act 2006 Section 11
Head of Faculty Amend or revoke individual authorisation
Magistrates Court (Administrative Appeals Division)
Animal Farming (Registration) Act 1994 Section 15
Secretary Various rights concerning refusal, cancellation or conditions of registration
Magistrates Court (Administrative Appeals Division)
Animal (Brands and Movement) Act 1984 Section 22C
Registrar of Animal Brands
Refusal of permission regarding permanent identification device on animal
Magistrate
Animal Health Act 1995 Section 91A
Secretary and Minister
Decision regarding compensation, both eligibility and quantum
Magistrates Court (Administrative Appeals Division)
Animal Welfare Act 1993 Section 33
Minister Refusal, cancellation or conditions of a license
Magistrates Court (Administrative Appeals Division)
Animal Welfare (Domestic Poultry) Regulations 2013 Section 4
Minister Decisions regarding housing of fowls in cages
Magistrates Court (Administrative Appeals Division)
Anti-Discrimination Act 1998, Section 65
Anti-Discrimination Commissioner
Rejection of a complaint without investigation
Anti-Discrimination Tribunal
Anti-Discrimination Act 1998, Section 71
Anti-Discrimination Commissioner
Dismissal of a complaint
Anti-Discrimination Tribunal
Anti-Discrimination Act 1998,
Anti-Discrimination
Referral of a complaint to the Tribunal for
Anti-Discrimination Tribunal
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
158
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Section 78 Commissioner investigation
Anti-Discrimination Act 1998, Section 100
Anti-Discrimination Tribunal
Rights of appeal against various decisions of the ADT
Supreme Court
Architects Act 1929, Section 17A
Board of Architects of Tasmania
Refusal of registration, disciplinary actions or removal from register
Supreme Court
Archives Act 1983, Section 13
Minister Compensation regarding seizure of documents by State Archivist
Magistrates Court (Administrative Appeals Division)
Asbestos Related Diseases (Occupational Exposure) Compensation Act 2011, Section 43
Asbestos Compensation Commissioner
Rejection of application
Asbestos Compensation Tribunal
Asbestos Related Diseases (Occupational Exposure) Compensation Act 2011, Section 57(2)
Referral by Asbestos Compensation Commissioner
Refusal by applicant to assist medical professional
Asbestos Compensation Tribunal
Asbestos Related Diseases (Occupational Exposure) Compensation Act 2011, Section 124
Asbestos Compensation Commissioner
Determination of Application under Section 70
Asbestos Compensation Tribunal
Asbestos Related Diseases (Occupational Exposure) Compensation Act 2011, Section 125
Asbestos Compensation Commissioner
Determination under Sections 75 or 77
Asbestos Compensation Tribunal
Asbestos Related Diseases (Occupational Exposure) Compensation
Referral of question by compensable person, member of family or
Questions related to expense payments
Asbestos Compensation Tribunal
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
159
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Act 2011, Section 126
Commissioner
Asbestos Related Diseases (Occupational Exposure) Compensation Act 2011, Section 127
Referral of question by member of family
Questions as to apportionment of lump sum
Asbestos Compensation Tribunal
Asbestos Related Diseases (Occupational Exposure) Compensation Act 2011, Section 129
Establishes Asbestos Compensation Tribunal
Asbestos Related Diseases (Occupational Exposure) Compensation Act 2011, Section 152
Asbestos Compensation Tribunal
Right of appeal in relation to any decision of the ACT
Supreme Court
Associations Incorporation Act 1964, Section 35
Commissioner of Corporate Affairs
Cancellation of incorporation
Magistrates Court (Administrative Appeals Division)
Australian Consumer Law (Tasmania) Act 2010, Section 36
Minister Interim bans and recall notices
Magistrates Court (Administrative Appeals Division)
Table 2 - "B" Legislation
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Birth, Deaths and Marriages Registration Act 1999 Section 53
Registrar Any decision in performance or purported performance under the Act
Magistrates Court (Administrative Appeals Division)
Building Act 2000, Section 42
Director of Building Control
Review of any decision or action under Section 26
RMPAT (Appeal Tribunal)
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
160
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
or 40
Building Act 2000, Section 46
RMPAT (Appeal Tribunal)
Right of review against a decision of the Tribunal under Section 44(1) or (2)
Magistrates Court (Administrative Appeals Division)
Building Act 2000, Section 136
None, originating application
Dispute as to costs of adjoining owner for protection work
RMPAT (Appeal Tribunal)
Building Act 2000, Section 137
None, originating application
Dispute as to compensation as a result of protection work
RMPAT (Appeal Tribunal)
Building Act 2000, Section 147
None, originating application
Any dispute arising under Division 2 and 3
RMPAT (Appeal Tribunal)
Building Act 2000, Section 209
Permit Authority (a General Manager of a Council or Council)
Decision to refuse or setting of conditions on building and plumbing permits or substantial compliance permits
RMPAT (Appeal Tribunal)
Building Act 2000, Section 210
Building Surveyor
Refusal to grant or conditions upon an occupancy permit
RMPAT (Appeal Tribunal)
Building Act 2000, Section 211
General Manager, permit authority or building surveyor
A person affected by an emergency order, building order or plumbing order
RMPAT (Appeal Tribunal)
Building Act 2000, Section 212
General Manager
Refusal or failure to grant an application for temporary occupancy or conditions on the permit
RMPAT (Appeal Tribunal)
Building Act 2000, Section 213
Building Surveyor
Determination in relation to protection work not carried out under an
RMPAT (Appeal Tribunal)
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
161
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
emergency order
Building Act 2000, Section 214
Building Surveyor
Exercise of or failure to exercise any powers of a building surveyor under the Act (reporting authority may appeal over issuance of likely compliance certificates)
RMPAT (Appeal Tribunal)
Building Act 2000, Section 215
Permit Authority Exercise of or failure to exercise any power under Act
RMPAT (Appeal Tribunal)
Building Act 2000, Section 216
Director of Building Control
Replacement of a Building Surveyor under Section 54
RMPAT (Appeal Tribunal)
Building Act 2000, Section 217
Chief Fire Officer or other decision maker under Regs
Any exercise of power under the General Fire Regulations 2000
RMPAT (Appeal Tribunal)
Building Act 2000, Section 218 and Section 218A
None, originating jurisdiction
Applications to see dispensations regarding BCA and TPC and Disability Access requirements
RMPAT (Appeal Tribunal)
Building and Construction Industry Security of Payment Act 2009, Section 31
Security of Payments Official
Refusal to authorise the person to be a nominating authority, imposition of condition or variation of a condition on the authorisation
Magistrates Court (Administrative Appeals Division)
Building and Construction Industry Security of Payment Act 2009, Section 36
Adjudicator appointed under Section 22(4)
Decision regarding disqualification
Magistrates Court (Administrative Appeals Division)
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
162
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Building Regulations 2014 Section 56
Permit Authority, engineer, building surveyor, Director of Building Control, Chief Officer (Fire), General Manager
Any decision made under the Regulations
RMPAT (Appeal Tribunal)
Burial and Cremation Act 2002 Section 14
Director of Public Health, General Manager of a Council
Closure of a crematorium
Magistrate
Burial and Cremation Act 2002 Section 28
Director of Public Health, General Manager of a Council
Closure of a cemetery
Magistrate
Table 3 - “C” Legislation
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Cat Management Act 2009, Section 33
Secretary Decisions under Part Seven of the Act
Magistrates Court (Administrative Appeals Division)
Cat Management Regulations 2012, Section 12
Secretary Decisions under Part Two of the Regulations
Magistrates Court (Administrative Appeals Division)
Child Care Act 2001, Section 50
Secretary License decisions (approval, refusal, suspension), Fines, letters of censure, any decision under Act, Regs or Standards
Magistrates Court (Administrative Appeals Division)
Community Housing Providers National Law (Tasmania) 2013, Section 6
Magistrates Court (Administrative Appeals Division)
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
163
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
– vests appeal rights with Magistrates Court
Commercial Arbitration Act 2011, Section 34A
Arbiter appointed under the Act
Supreme Court
Conveyancing Act 2004, Section 42
Director of Consumer Affairs and Trading
Decisions regarding licenses, appointment of receivers/managers, orders made under Section 39
Magistrates Court (Administrative Appeals Division)
Conveyancing and Law of Property Act 1884, Section 84F
Recorder of Titles
Decisions under Part XVA of the Act
Supreme Court
Cooperatives Act 1999, Section 30
Commissioner of Corporate Affairs
Refusal or failure to register a cooperative
Magistrate
Cooperatives Act 1999, Section 109
Commissioner of Corporate Affairs
Refusal or failure to alter rules
Magistrate
Cooperatives Act 1999, Section 110
Commissioner of Corporate Affairs
Refusal or failure to register alterations to rules
Magistrate
Cooperatives Act 1999, Section 130
Board of a Cooperative
Cancellation of membership
Supreme Court
Cooperatives Act 1999, Section 343, 350, 364
Originating application
Applications for winding up; Restraint of proceedings against a cooperative; require reports
Supreme Court
Corrections Act 1997, Section 36B
Director of Corrective Services or Chief Forensic Psychiatrist
Failure to make a direction or requirement to remove from secure mental health unit
Mental Health Tribunal
Crown Lands Act 1976,
Minister Forfeiture of land to Crown due to
Magistrates Court (Administrative
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
164
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Section 23 breach of contract Appeals Division)
Crown Lands Act 1976, Section 32
Minister Reassessment of rent
Magistrates Court (Administrative Appeals Division)
Crown Lands Act 1976, Section 35
Minister Appeal against assessment of amount of payment for improvements to land disputed
Magistrates Court (Administrative Appeals Division)
Crown Lands Act 1976, Section 35B
Minister Compensation for vesting land to Aboriginal Land Council disputed
Magistrates Court (Administrative Appeals Division)
Crown Lands Act 1976, Section 39
Minister Compensation for improvements disputed
Magistrates Court (Administrative Appeals Division)
Crown Lands Act 1976, Section 67
Minister Rights, titles and interest in land extinguished by Minister or cancellation of Lease by minister
Magistrates Court (Administrative Appeals Division)
Crown Lands (Shack Sites) Act 1997, Section 27
Valuer General Valuation of land of lessee or licensee’s shack site
Magistrates Court (Administrative Appeals Division)
Table 4 - “D” Legislation
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Dairy Industry Act 1994, Section 42
Tasmanian Dairy Industry Authority
License decisions (refusals, revocation, conditions)
Magistrates Court (Administrative Appeals Division)
Disability Services Act 2011, Section 40(4)
Secretary Restrictive Interventions made under Section 38
Guardianship and Administration Board
Disability Services Act 2011, Section 42
Originating Application
Approvals to carry out restrictive interventions
Guardianship and Administration Board
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
165
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Disability Services Act 2011, Section 48
Secretary or authorised person under the Act
Individual plan decisions (approval, refusal), Restrictive Interventions, Notices of Noncompliance under Section 23
Magistrates Court (Administrative Appeals Division)
Dog Control Act 2000, Section 19A
General Manager of Council
Review of decision to seize and destroy dangerous dog
Magistrates Court (Administrative Appeals Division)
Dog Control Act 2000, Section 31
General Manager of Council
Declaration of dog as dangerous
Magistrates Court (Administrative Appeals Division)
Dog Control Act 2000, Section 34A
General Manager of Council
Transfer of ownership of dangerous dog
Magistrates Court (Administrative Appeals Division)
Dog Control Act 2000, Section 39A
General Manager of Council
Destruction of dog if not enclosure not suitable
Magistrates Court (Administrative Appeals Division)
Dog Control Act 2000, Section 49A
General Manager of Council
Abatement notices
Magistrates Court (Administrative Appeals Division)
Dog Control Act 2000, Section 59
General Manager of Council
License decisions (refusal to grant or renew, or cancellation)
Magistrates Court (Administrative Appeals Division)
Table 5 - “E” Legislation
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Education Act 1994, Section 62
Registration Board
Decisions regarding registration of schools (refusal, renewal, cancellation)
Magistrates Court (Administrative Appeals Division)
Electricity Industry Safety and
Secretary Person directly affected by a decision under
Magistrates Court (Administrative
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
166
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Administration Act 1997, Section 78
the Act Appeals Division)
Electricity Supply Industry Act 1995, Section 96
Regulator, Health and Safety Secretary or authorised officer
Person whose interests are affected by a decision under the Act
(Appropriate Appellate Authority – unclear if one has been created under Regulations)
Electricity Supply Industry Act 1995, Section 101
Applicable Authority
Review of a decision under Section 96
Specified Authority under the Regs or the Minister
Education and Care Services National Law (Application) Act 2011 Section 8
Magistrates Court (Administrative Appeals Division)
Electoral Act 2004, Section 49
Electoral Commission
Registration of a party
Supreme Court
Environmental Management and Pollution Control Act 1994, Section 23
EPA Inclusion of trade secret information on register
RMPAT
Environmental Management and Pollution Control Act 1994, Section 27
EPA Assessment of activities which do not require a permit
RMPAT
Environmental Management and Pollution Control Act 1994, Section 30
EPA Requirement for an audit
RMPAT
Environmental Management and Pollution Control Act 1994, Section 35
EPA Requirement of lodgment of a financial assurance
RMPAT
Environmental Management and Pollution Control Act 1994, Section 36
EPA Claim on financial assurance
RMPAT
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
167
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Environmental Management and Pollution Control Act 1994, Section 41
EPA Environmental Improvement Programme
RMPAT
Environmental Management and Pollution Control Act 1994, Section 43
Director Requirement for information
RMPAT
Environmental Management and Pollution Control Act 1994, Section 44
EPA Environmental Protection Notice
RMPAT
Environmental Management and Pollution Control Act 1994, Section 74O
EPA Notice under Part 5A Division 3
RMPAT
Environmental Management and Pollution Control Act 1994, Section 48
Originating Application
Civil Enforcement Proceedings
RMPAT
Explosives Act 2012, Section 69
Secretary or authorised officer under the Act
Any decision under the Act
Magistrates Court (Administrative Appeals Division)
Table 6 - “F” Legislation
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Fertilizers Act 1993 Section 27
Inspector, Minister, Secretary
Forfeiture/disposal of fertilizer, samples and publication of analysis
Magistrates Court (Administrative Appeals Division)
Fertilizers Act 1993 Section 28A
Secretary Complaint decisions, certificates of exemptions
Magistrates Court (Administrative Appeals Division)
Firearms Act 1996, Section
Commissioner of Range of decisions regarding
Magistrates Court (Administrative
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
168
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
141 Police licensing, permits, conditions,
Appeals Division)
Fire Service Act 1979, Section 56
State Fire Commission
Formation of firebreak on private land
Magistrates Court (Administrative Appeals Division)
Fire Service Act 1979, Section 60I
Chief Officer Bush Fire Management Plans accreditation
Magistrates Court (Administrative Appeals Division)
Fire Service Act 1979, Section 66
Fire Officer Decisions regarding fire permits
State Fire Commission
Fire Service Act 1979, Section 133A
Chief Officer Any decision under the General Fire Regulations
RMPAT (Appeal Tribunal)
First Home Owners Grant 2000, Section 27
Commissioner of State Revenue
Review of decision of Commissioner with respect to objections under Section 25
Magistrates Court (Administrative Appeals Division)
Fishing (License Ownership and Interest) Registration Act 2001, Section 16
Registrar appointed under Section 4
Licensing and registry decisions
Magistrates Court (Administrative Appeals Division)
Food Act 2003, Section 83E
Director of Public Health/Body acting under delegation of the Director
Approvals, variations, refusals, conditions under Part 6A
Magistrates Court (Administrative Appeals Division)
Forestry (Fair Contracts Code) Act 2001, Section 16(3)
Minister Determination of whether a person is an interested party
Magistrates Court (Administrative Appeals Division)
Forest Practices Act 1984, Section 25
Forest Practices Authority
Forest Practices Plans decisions
Forest Practices Tribunal
Forest Practices Act 1984, Section 29
Forest Practices Authority
Three Year Plan decisions
Forest Practices Tribunal
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
169
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Forest Practices Act 1984, Section 42
Forest Practices Officer appointed under the Act
Failure to comply with Certified Forest Practices Plan
Forest Practices Tribunal
Table 7 - “G” Legislation
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Gaming Control Act 1993, 112C(8)
Tasmanian Gaming Commission
Exclusion orders from gaming
Magistrates Court (Administrative Appeals Division)
Gaming Control Act 1993, 112F
Specified License Holder or person authorised by such
Exclusion order from premises
Tasmanian Gaming Commission
Gaming Control Act 1993, 112GB
Commissioner of Police
Exclusion order from premises
Magistrates Court (Administrative Appeals Division)
Gaming Control Act 1993, Section 173
Tasmanian Gaming Commission
Decisions regarding licenses, gaming endorsements, entering names on the Roll
Supreme Court
Gas Act 2000, Section 84
Responsible Authority
Entry onto Public Land to do works (dispute with gas entity)
RMPAT
Gas Act 2000, Section 114
Regulator, Director of Gas Safety or other authorised officer
Any decision made under the Act
Minister
Gas Act 2000, Section 115
Minister Minister can refer the appeal to the Tribunal for determination
RMPAT
Gas Pipeline Act 2000, Section
Minister Any administrative
RMPAT (Appeal
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
170
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
83 review under Division 2 of the Act
Tribunal)
Genetically Modified Organisms Control Act 2004, Section 30
Secretary Decisions regarding permits, personal exemptions,
Magistrates Court (Administrative Appeals Division)
Guardianship and Administration Act 1995, Section 19
Originating Application
Guardianship Order
Guardianship and Administration Board
Guardianship and Administration Act 1995, Section 32(2)(d), 32(6)
Register of Enduring Guardianship/Originating Application
Board has power to vary powers in an instrument
Guardianship and Administration Board
Guardianship and Administration Act 1995, Section 32D
Originating Application
Production of materials of enduring guardian
Guardianship and Administration Board
Guardianship and Administration Act 1995, Section 34
Originating Application
Revocation of enduring guardianship
Guardianship and Administration Board
Guardianship and Administration Act 1995, Section 35
Originating Application
Enduring Guardian seeking advice or direction from Board
Guardianship and Administration Board
Guardianship and Administration Act 1995, Section 44
Originating Application
Application for consent to carry out medical or dental procedures
Guardianship and Administration Board
Guardianship and Administration Act 1995, Section 50
Originating Application
Administration Order
Guardianship and Administration Board
Guardianship and
Originating Application
Advice or Direction by the
Guardianship and
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
171
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Administration Act 1995, Section 61
Board for an Administrator
Administration Board
Guardianship and Administration Act 1995, Section 65
Originating Application or Of Its Own Motion
Emergency Orders
Guardianship and Administration Board
Guardianship and Administration Act 1995 Section 76
Board Any decision arising from a hearing of the Board
Supreme Court
Guardianship and Administration Act 1995, Section 88
Originating Application
Approval to open Will
Guardianship and Administration Board
Table 8 - “H” Legislation
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Health Practitioners Tribunal Act 2010
National Board can refer to Tribunal, decision maker under 199(1) of National Law
Hear appeals against decisions made under the National Law
Health Practitioners Tribunal
Health Practitioners Tribunal Act 2010, Section 52
Health Practitioners Tribunal
Any decision under the Act
Supreme Court
Health Service Establishments Act 2006, Section 28
Secretary A decision of the Secretary as defined by Section 27
Magistrates Court (Administrative Appeals Division)
Health Service Establishments Act 2006, Section 30
Secretary Cancellation of License
Magistrates Court (Administrative Appeals Division)
Heavy Vehicle National Law (Tasmania) Act 2013
Establishes Magistrates Court (Administrative Appeals Division)
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
172
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
as relevant body for appeals under National Law
Historic Cultural Heritage Act 1995 Section 27
Heritage Council
Listings on provisional and permanent register
RMPAT
Historic Cultural Heritage Act 1995 Section 45
Heritage Council
Determinations of applications
RMPAT
Historic Cultural Heritage Act 1995 Section 53
Originating Application
Enforcement of Heritage Agreements under the Act
RMPAT
Historic Cultural Heritage Act 1995 Section 61
Heritage Council
Stopwork Notices RMPAT
HIV/AIDS Preventative Measures Act 1993, Section 11(1)
None - Originating Application
May make application to compel a person to undergo testing
Magistrate
Table 9 - “I” & “J” & “K” Legislation
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Industrial Relations Act 1984
Originating Applications, State Service Commissioner
Section 19 sets out jurisdiction, review of State Service Act decisions, Dispute Resolution
Industrial Relations Commission
Inland Fisheries Act 1995, Section 58
Director of Inland Fisheries
Grants, refusals, transfers, renewals of licenses
RMPAT
Inland Fisheries Act 1995, Section 81
Director of Inland Fisheries
Cancellation of registration
RMPAT
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
173
Table 10 - “L” Legislation
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Land Acquisition Act 1993, Section 62
Special Arbitrator under the Act
Decision of Special Arbitrator
Supreme Court
Land Titles Act 1980, Section 110
Recorder of Titles Decisions of ROT regarding variation of easements under old subdivisions
Supreme Court
Land Titles Act 1980, Section 142(18)
Recorder of Titles Decisions regarding rectification of boundaries and other matters
Supreme Court
Land Titles Act 1980, Section 144
Recorder of Titles Decisions or failure to act by ROT under the Act
Supreme Court
Land Use Planning and Approvals Act 1993, Section 61(3)
Planning Authority Request for additional information
RMPAT
Land Use Planning and Approvals Act 1993, Section 61(4)
Planning Authority Refusal to grant a permit or a permit subject to conditions
RMPAT
Land Use Planning and Approvals Act 1993, Section 61(5)
Planning Authority Grant of a permit (3rd party appeal)
RMPAT
Land Use Planning and Approvals Act 1993, Section 61(6)
Planning Authority Requirement to enter into a Part V agreement under the Act
RMPAT
Land Use Planning and Approvals Act 1993, Section 59(3)
Planning Authority (Originating Application)
Failure to make a decision within timeframes
RMPAT
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
174
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Land Use Planning and Approvals Act 1993, Section 61(7)
Planning Authority Enforcement Notices
RMPAT
Land Use Planning and Approvals Act 1993, Section 61(8)
Planning Authority Cancellation of a permit
RMPAT
Land Use Planning and Approvals Act 1993, Section 64
Originating Application
Civil Enforcement Proceedings
RMPAT
Land Valuers Act 2001, Section 17
Director of Consumer Affairs and Trading
Any decision made under the Act by Director
Magistrates Court (Administrative Appeals Division)
Legal Profession Act 2007, Section 610
Legal Profession Board of Tasmania
Decisions or referrals to the Tribunal
Creates Disciplinary Tribunal under Part 7.3
Liquor Licensing Act 1990, Section 211
Commissioner of Licensing
Decision of Commissioner related to permits and licenses
Liquor Licensing Board
Litter Act 2007, Section 35
Authorised Officer under the Act
Abatement Notices
Magistrates Court (Administrative Appeals Division)
Living Marine Resources Management Act 1995, Section 283
Minister or Secretary
Any decision made which has been subject to review under Section 282
RMPAT
Local Government (Highways) Act 1982, Section 14
Corporation (local council)
Closure of a highway or part of a highway
Magistrates Court (Administrative Appeals Division)
Local Government (Highways) Act 1982, Section 39
Corporation (local council)
Orders for removal of vegetation of land holders
Magistrates Court (Administrative Appeals Division)
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
175
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Local Government (Highways) Act 1982, Section 46
Corporation (local council)
Permission, revocation or conditions regarding works in highway
RMPAT
Local Government (Highways) Act 1982, Section 114
Corporation (local council)
Review of cost of levy contributions to construction of a street
Magistrates Court (Administrative Appeals Division)
Local Government Act 1993, Section 28H
Creates a Standards Panel
Local Government (General Regulations) 2005, Section 22D
Creates a Code of Conduct Panel
Local Government Act 1993, Section 109
Local Council Review of variation to rates
Magistrates Court (Administrative Appeals Division)
Local Government Act 1993, Section 113
Local Council Refusal of application to declare land Urban Farm Land
Magistrates Court (Administrative Appeals Division)
Local Government Act 1993, Section 114
Local Council Revocation of declaration of urban farmland
Magistrates Court (Administrative Appeals Division)
Local Government Act 1993, Section 123
General Manager Review of rates notices
Magistrates Court (Administrative Appeals Division)
Local Government Act 1993, Section 178A
Local Council Appeal against decision to lease or dispose of public land
RMPAT
Local Government Act 1993, Section 200
Local Council Appeal against abatement notices regarding nuisance
Magistrate
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
176
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Local Government Act 1993, Section 202
General Manager Appeal against action taken by GM under Section 201
Magistrate
Local Government Act 1993, Section 209
Local Council Review of refusal to correct map
Magistrates Court (Administrative Appeals Division)
Local Government Act 1993, Section 262
General Manager Review decisions in relation to nomination, electoral roll and adjustments to roll
Magistrates Court (Administrative Appeals Division)
Local Government Act 1993, Section 272
Returning Officer Nomination refusals
Tasmanian Electoral Commission
Local Government Act 1993, Section 305
Returning Officer Refusal to recount votes
Tasmanian Electoral Commission
Local Government (Rates and Charges Remissions) Act 1991, Section 4F
Commissioner of State Review
Decisions regarding remissions and requirements to pay
Magistrates Court (Administrative Appeals Division)
Long Service Leave Act 1976, Section 14
Secretary or Commissioner
Refusals to grant exemptions or renewals
Full Bench of the Industrial Relations Commission
Long Service Leave (Casual Wharf Employees) Act 1982, Section 11
Secretary Review of decision regarding a dispute about long service leave and remuneration
Magistrates Court (Administrative Appeals Division)
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
177
Table 11 - “M” Legislation
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Marine and Safety Authority Act 1997, Section 42 (g)
Unclear if bylaws exist or appellate body created
Marine and Safety (Pilotage and Navigation) Regulations 2007, Section 89
MAST (Marine and Safety Authority of Tasmania)
Decisions regarding unseaworthy vessels (detention)
Magistrates Court (Administrative Appeals Division)
Marine and Safety ByLaws
Unclear if they exist.
Marine Farming Planning Act, Section 75
Minister Lists the appeal rights available regarding leases
RMPAT
Marine Farming Planning Act, Section 95
Panel/Minister Appeals regarding marine farming plans
RMPAT
Marine Farming Planning Act, Section 96
Panel Planning Authority may appeal against withdrawal of a draft amendment plan
RMPAT
Marine Farming Planning Act, Section 111
Originating Application
Enforcement Proceedings under the Act
RMPAT
Mental Health Act 2013, Section 37
Originating Application
Treatment Order Mental Health Tribunal
Mental Health Act 2013, Section 38
Originating Application
Interim Treatment Order
Mental Health Tribunal
Mental Health Act 2013, Section 167
Establishes Tribunal
Mental Health Act 2013, Section 174
Mental Health Tribunal
Any decision made under the Act
Supreme Court
Mental Health Act 2013, Section 179
Various Review powers over orders, admissions,
Mental Health Tribunal
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
178
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
transfer, leave
Mental Health Act 2013, Sections 180-192
Various Lists specific types of reviews requirements
Mental Health Tribunal
Mental Health Act 2013, Section 193
General Power of review
Able to review any decision for which express provision not otherwise made under this Division
Mental Health Tribunal
Mineral Resources Development Act 1995, Section 128
Originating Applications and appeals
Very broad range of matters under the Act
Mining Tribunal
Motor Vehicle Traders Act 2011, Section 26
Director of Consumer Affairs and Fair Trading
Refusal to grant license, cancellation, non-renewal, any other prescribed decision
Magistrates Court (Administrative Appeals Division)
Motor Accidents (Liabilities and Compensation) Act 1973, Section 12
Establishes Tribunal
Motor Accidents (Liabilities and Compensation) Act 1973, Section 28(2) (3)
Motor Accidents Insurance Board
Rights as to payment of scheduled benefits
Motor Accident Compensation Tribunal
Motor Accidents (Liabilities and Compensation) Act 1973, Section 28(6)
Motor Accident Compensation Tribunal
Review of decision
Supreme Court
Table 12 - “N” & “O” Legislation
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
National Parks and Reserves
Director, Originating
Before Management
RMPAT
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
179
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Management Act 2002, Section 19
Application Plan can be approved must have consent or arbitration by Tribunal
National Parks and Reserves Management Act 2002, Section 53
Minister Cancellation of lease, compensation amount
Magistrates Court (Administrative Appeals Division)
Occupational Licensing 2005, Section 81
Administrator of Occupational Licensing or Authorised Officer
Review of any decision listed in Section 79
Administrator of Occupational Licensing
Occupational Licensing 2005, Section 82
Administrator of Occupational Licensing
Review of Decision under Section 81
Magistrates Court (Administrative Appeals Division)
Occupational Licensing National Law Act 2011, Section 6 & 9
Section 9 allows regs to be made with appeal rights
Unclear if Section 6 is commenced and any regulations exist with appeal rights
Table 13 - “P” & “Q” Legislation
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Passenger Transport Services Act 2011, Section 59
Various All decisions made under the Act
Magistrates Court (Administrative Appeals Division)
Petroleum (Submerged Lands) Act 1982, Section 62 (Schedule 5 – Division 5)
OHS inspector Range of decisions under Section 62(1)
Appeals to reviewing authority- Australian Industrial Relations Commission
Petroleum (Submerged Lands) Act 1982, Section 87
Minister Decisions related to the Register under Section 74
Supreme Court
Petroleum Minister Assessment of Supreme Court
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
180
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
(Submerged Lands) Act 1982, Section 90
Fee
Petroleum Products Emergency Act 1994, Section 10
Minister Refusal or cancellation of a permit
Magistrates Court (Administrative Appeals Division)
Pharmacy Control Act 2001, Section 60
Tasmanian Pharmacy Authority
Any decision of the TPA
Health Practitioners Tribunal
Plumbing Regulations 2014, Section 54
General Manager, Permit Authority, Regulated Entity, Director of Building Control
Any decision made under the Regulations
RMPAT
Police Service Act 2003, Section 75B
Police Review Board
Review of professional sanctions by Commissioner
Supreme Court
Poisons Act 1971, Section 92
Minister Suspension or Revocation of rights under the Act
Magistrates Court (Administrative Appeals Division)
Powers of Attorney Act 2000, Section 33
Originating Application or own motion
Appointment, variation, revocation of enduring powers of Attorney
Guardianship and Administration Board
Powers of Attorney Act 2000, Section 39
GAB Referral of Question of Law to Supreme Court
Supreme Court
Powers of Attorney Act 2000, Section 40
Guardianship and Administration Board
Decision of the GAB
Supreme Court
Primary Produce Safety Act 2011, Section 22
Chief Inspector Decisions regarding accreditation or food safety programs
Magistrates Court (Administrative Appeals Division)
Primary Produce Chief Inspector Prohibition Magistrates Court
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
181
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Safety Act 2011, Section 52
orders, compensation
(Administrative Appeals Division)
Primary Produce Safety Act 2011, Section 62
Chief Inspector Approvals of Food Safety Auditors
Magistrates Court (Administrative Appeals Division)
Property Agents and Land Transactions Act 2005, Section 110
Property Agents Board
Decisions regarding conduct complaints
Property Agents Tribunal
Property Agents and Land Transactions Act 2005, Section 113
Establishes Tribunal
Property Agents and Land Transactions Act 2005, Section 127
Property Agents Board
Any decision made by PAB
Property Agents Tribunal
Property Agents and Land Transactions Act 2005, Section 128
Property Agents Tribunal
Any decision made by the PAT
Magistrates Court (Administrative Appeals Division)
Property Agents and Land Transactions Act 2005, Section 178
Property Agents Board, Property Agents Trust
Decision as to either no compensation or amount
Magistrates Court (Administrative Appeals Division)
Public Health Act 1997, Section 103
Local Council Cancellation of registration of premises
RMPAT
Public Health Act 1997, Section 160
Authorised officer Seizure of items under Section 30
Magistrates Court (Administrative Appeals Division)
Public Health Act 1997, Section 160A
Director of Public Health
Decisions regarding tobacco sellers licenses
Magistrates Court (Administrative Appeals Division)
Public Health Act 1997, Section 161
Local Council Places of Assembly licenses
RMPAT
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
182
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Public Health Act 1997, Section 162
Local Council Registration of Premises
RMPAT
Public Health Act 1997, Section 164
Local Council Decisions regarding Regulated Systems
Magistrates Court (Administrative Appeals Division)
Public Health Act 1997, Section 165
Director of Public Health or Local Council
Any order made by either entity under the Act
Magistrates Court (Administrative Appeals Division)
Public Trusts Act 1882, Section 42
Recorder of Titles Any decision of an application to the ROT made under the Act
Supreme Court
Table 14 - “R” & “S” Legislation
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Racing Regulation Act 2004, Section 23
Establishes Tasmanian Racing Appeal Board
Racing Regulation Act 2004, Section 28
Tasracing, Stewards, Registered Club
Warning Off Notices, fines, suspensions, Disqualifications
Tasmanian Racing Appeal Board
Radiation Protection Act 2005, Section 74
Director of Public Health
Any decision with a review notice under the Act
Magistrates Court (Administrative Appeals Division)
Rail Safety National Law (Tasmania) Act 2012, Section 5
Establishes Magistrates Court (Administrative Appeals Division) as relevant body under National Law
Registration to work with Vulnerable People Act 2013, Section
Registrar appointed under Section 11
Decisions set out in Section 53
Magistrates Court (Administrative Appeals Division)
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
183
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
53
Relationships Act 2003, Section 25
Registrar of Births Death and Marriages
Any decision made in performance or purported performance of powers under Act
Magistrates Court (Administrative Appeals Division)
Residential Tenancy Act 1997, Section 16
Originating Application
Orders relating to inconsistency
Magistrates Court (Civil Division)
Residential Tenancy Act 1997, Section 23(5)
Originating Application
Review unreasonable increase in rent
Magistrates Court (Civil Division)
Residential Tenancy Act 1997, Section 30
Residential Tenancy Commissioner
Decision made under Section 29G (security deposits)
Magistrates Court (Civil Division)
Residential Tenancy Act 1997, Section 36
Originating Application
Dispute as to liability to reimburse for repairs
Magistrates Court (Civil Division)
Residential Tenancy Act 1997, Section 36A
Originating Application
Order for Repairs Magistrates Court (Civil Division)
Residential Tenancy Act 1997, Section 36H
Enforcement Provision
Orders of the Commissioner with respect to Part 3A are enforceable as if an order of a Magistrate
Magistrates Court (Civil Division)
Residential Tenancy Act 1997, Section 41
Originating Application
Order of Termination
Magistrates Court (Civil Division)
Residential Tenancy Act 1997, Section 45
Originating Application
Order for Vacant Possession
Magistrates Court (Civil Division)
Residential Tenancy Act 1997, Section 47A
Originating Application
Order declaring abandonment
Magistrates Court (Civil Division)
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
184
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Residential Tenancy Act 1997, Section 48(c)
Originating Application
Order permitting sale of abandoned goods
Magistrates Court (Civil Division)
Residential Tenancy Act 1997, Section 48J
Residential Tenancy Commissioner
Orders made under Section 48I
Magistrates Court (Civil Division)
Residential Tenancy Act 1997, Section 57(1B)
Originating Application
Order of compliance with Section 57(1) (locks and security devices)
Magistrates Court (Civil Division)
Residential Tenancy Act 1997, Section 57(3)
Originating Application
Order for variation to lock/security devices
Magistrates Court (Civil Division)
Resource Management and Planning Appeal Tribunal Act 1993
Establishes RMPAT
Retirement Villages Act 2004, Section 34
Director of Consumer Affairs and Trading
Any decision or order made
Magistrates Court (Administrative Appeals Division)
Roads and Jetties Act 1935, Section 52CE
Minister Refusal to grant compensation
Magistrates Court (Administrative Appeals Division)
Security and Investigations Agents Act 2002, Section 37
Director of Consumer Affairs and Trading
Decisions regarding licenses
Magistrates Court (Administrative Appeals Division)
Security-Sensitive Dangerous Substances Act 2005, Section 74
Regulator (appointed under Work Health and Safety Act 2012) or authorised officer
A decision made by either entity
Magistrates Court (Administrative Appeals Division)
Strata Titles Act 1998, Section 96
Originating Application
Enforcement of By Laws of Body Corporates
RMPAT
Strata Titles Act 1998, Section 133
Originating Application
Orders for payment of penalties for
RMPAT
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
185
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
breaches of By Laws
Strata Titles Act 1998, Section 144 (1)(a)
Recorder of Titles
Any application under the Act
RMPAT
Strata Titles Act 1998, Section 144 (1)(b)
Local Council Any application for approval
RMPAT
Strata Titles Act 1998, Section 145
Originating Application
Stay of orders of Recorder of Titles until determination of an appeal
RMPAT
Surveyors Act 2002, Section 37
Director of Consumer Affairs
Determination or Order made before the Commencement of the Magistrates Court (Administrative Appeals Division) Act 2001
Magistrate
Surveyors Act 2002, Section 38
Director of Consumer Affairs
Determination or Order
Magistrates Court (Administrative Appeals Division)
Table 15 - “T” & “U” Legislation
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Tasmanian Qualifications Authority Act 2003, Section 60
Magistrates Court (Administrative Appeals Division)
Taxation Administration Act 1997, Section 89
Commissioner of State Revenue
Determination or failure to determine an objection
Magistrates Court (Administrative Appeals Division) OR Supreme Court
Taxi and Hire Vehicles Industries (Review of Decisions) Regulations
Transport Commission
A finding or determination
Magistrates Court (Administrative Appeals Division)
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
186
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
2010, Section 11
Teachers Registration Act 2000, Section 29
Teachers Registration Board
Any decision that affects a person or a person employed by that person
Magistrates Court (Administrative Appeals Division)
Therapeutic Goods Act 2001, Section 3
Power to create regulations which include rights of appeal – no current rights of appeal in regulations at present
Threatened Species Act 1995, Section 14
Minister Amendments to List of Threatened Species (removal addition etc.)
RMPAT
Trustee Companies Act 1953, Section 18A(5)
Originating Application - Beneficiaries of the Trust
Review of charges made by a trustee company for administration of the trust
Supreme Court
Urban Drainage Act 2013, Section 5
Minister Order made to a local council to make provision for storm water infrastructure
RMPAT
Urban Drainage Act 2013, Section 11
Local Council Requirements over construction of drains
RMPAT
Urban Drainage Act 2013, Section 15
Public Authority responsible for land
Dispute with Councils over entitlements to do work or conditions of that work
RMPAT
Urban Drainage Act 2013, Section 21
General Manager Requirement to connect to public storm water system
RMPAT
Urban Drainage Act 2013, Section 22
General Manager Requirement to disconnect from public storm water system
RMPAT
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
187
Table 16 - “V”, “W”, “Y” Legislation
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Valuation of Land Act 2001, Section 34
Establishes Land Valuation Court.
Valuation of Land Act 2001, Section 38
Valuer General Objections regarding valuations
Land Valuation Court (unsure if any rules exist pursuant to Section 62)
Valuation of Land Act 2001, Section 40
Land Valuation Court
Any decision on the hearing of an objection under the Act.
Supreme Court
Vehicle and Traffic (Review of Decisions) Regulation 2010 , Section 11
Reviewing Authority
Any finding or determination in the table of Part 1 of Schedule 1 or the decision specified in item 6 of the table of Part 2 of Schedule 1
Magistrates Court (Administrative Appeals Division)
Vermin Control Cat 2000, Section 13
Secretary or Inspector
Notices issued under Section 7 or Section 8
Magistrates Court (Administrative Appeals Division)
Veterinary Surgeons Act 1987 , Section 53
Veterinary Board of Tasmania
Refusal to Register, delay in decision, cancellation of entry Section 22, determination of the board Section 46
Magistrates Court (Administrative Appeals Division)
Veterinary Surgeons Act 1987 , Section 53(2)
Veterinary Board of Tasmania
Section 49 order Supreme Court
Water Management Act 1999, Section 275, 276
Minister List of appealable decisions under Section 275, Section 276 establishes right of appeal
RMPAT
Water and Sewerage Industry Act 2008 56E
Regulated Entity
Works in public land RMPAT
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
188
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Water and Sewerage Industry Act 2008 Section 56TE
Regulated Entity
Decisions regarding certificates under Section 56TC or TD
RMPAT
Water and Sewerage Industry Act 2008 Section 56V
Regulated Entity
Notices to owners with respect to connections
Magistrates Court (Administrative Appeals Division)
Water and Sewerage Industry Act 2008 Section 56X
Regulated Entity
Removal of Trees Magistrates Court (Administrative Appeals Division)
Water and Sewerage Industry Act 2008 Section 56O(1)
Regulated Entity
Requires their input into Land Use Planning Approval Permit decisions, and makes them a party to an appeal at RMPAT on a permit appeal
RMPAT
Waterworks Clauses Act 1952, Section 31
Undertakers authorised under the Act
Issuance of water restrictions
Minister
War Service Land Settlement Act 1950, Section 68, 69, 69A
Closer Settlement Board (now Tasmanian Development Authority due to Section 69A)
A determination of the TDA
War Service Land Settlement Appeal Board
Weed Management Act 1999, Section 54
Inspector authorised under the Act
Appeal against a requirement notice issued under Section 13
Magistrate
Wildlife (Exhibited Animals) Regulations 19
Secretary Cancellation, suspension, refusal to renew license
Magistrates Court (Administrative Appeals Division)
Wildlife (Exhibited Animals) Regulations 33
Secretary? Cancellation of travelling wildlife exhibition license
Magistrates Court (Administrative Appeals
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
189
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Division)
Wildlife (Exhibited Animals) Regulations 44
Secretary Cancellation, suspension, refusal to renew wildlife display permit
Magistrates Court (Administrative Appeals Division)
Wildlife (Deer Farming) Regulations 2010, Section 4
Secretary No approval of deer farm location or fence
Magistrates Court (Administrative Appeals Division)
Wills Act 2008, Section 30
Originating Application or of Board’s own motion
Orders authorising the making of a will on behalf of a person
Guardianship and Administration Board
Wills Act 2008, Section 36
Originating Application
Modifications to a Will made by the Board
Guardianship and Administration Board
Wills Act 2008, Section 37
Originating Application
Revocation of a Will made by the Board
Guardianship and Administration Board
Witness Protection Act 2000, Section 20
Commissioner of Police
Discontinuance of witness protection
Ombudsman
Witness Protection Act 2000, Section 22
Commissioner of Police
Restoration of previous identity of person under protection
Ombudsman
Workers (Occupational Diseases) Relief Fund Act 1954, Section 32
Certifying Medical Officer
Issuance of a medical certificate
Medical Referee appointed under Section 14
Workers (Occupational Diseases) Relief Fund Act 1954, Section 43
Secretary Determination, order, ruling, direction or decision
Workers Rehabilitation and Compensation Tribunal
Workers (Occupational Diseases)
Secretary Able to transfer compensation from recipient to neglected
Police Magistrate
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
190
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Relief Fund Act 1954, Section 44
family members
Work Health and Safety Act 2012, Section 229
Regulator or Internal Reviewer
Prescribed decisions of the Regulator or outcome of internal review
Magistrates Court (Administrative Appeals Division)
Work Health and Safety Regulations 2012, Section 683
Regulator Reviewable decision under Chapter 9 or Part 11.2
Magistrates Court (Administrative Appeals Division)
Workers Rehabilitation and Compensation Act 1988
WRC Tribunal
Workers Rehabilitation and Compensation Act 1988, Section 16
Establishes WRC Tribunal
Workers Rehabilitation and Compensation Act 1988, Section 31C
Application as part of Originating Application for compensation
Determination of question of which State is the State of Connection
WRC Tribunal
Workers Rehabilitation and Compensation Act 1988, Section 38(3)
Originating Application, referral by either party to dispute
Determination of validity of claim (timeframes)
WRC Tribunal
Workers Rehabilitation and Compensation Act 1988, Section 42
Originating Application
Referral of a claim for compensation for determination
WRC Tribunal
Workers Rehabilitation
Referral Question of Law to Supreme Court
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
191
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
and Compensation Act 1988, Section 58
Supreme Court
Workers Rehabilitation and Compensation Act 1988, Section 60A
Originating Application
Interim Orders WRC Tribunal
Workers Rehabilitation and Compensation Act 1988, Section 61
Originating Application
Consent Orders with respect to Section 81A
WRC Tribunal
Workers Rehabilitation and Compensation Act 1988, Section 63
WRC Tribunal Right of appeal against a decision of the WRCT
Supreme Court
Workers Rehabilitation and Compensation Act 1988, Section 67F
Originating Application, referral by employer or licensed insurer
Dispute as to liability in respect of death of a worker
WRC Tribunal
Workers Rehabilitation and Compensation Act 1988, Section 77
Originating Application referral by worker, employer, insurer
Any question regarding whether Claim under Division is proper, reasonableness of amount, necessity for medical or rehab services
WRC Tribunal
Workers Rehabilitation and Compensation Act 1988, Section 77AA
Originating Application, referral by worker
Dispute as to liability/reasonableness of, particular expenses by employer
WRC Tribunal
Workers Rehabilitation and Compensation Act 1988, Section 77AB
Originating Application, referral by employer
Dispute as to liability to pay expense (where matter hasn’t been finalised pursuant to Section 81A) interim determination.
WRC Tribunal
Workers Work Cover Refusal to grant WRC Tribunal
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
192
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Rehabilitation and Compensation Act 1988, Section 77G
Board accreditation, or revocation/suspension
Workers Rehabilitation and Compensation Act 1988, Section 81A
Originating Application by employer
Dispute as to liability for weekly payments
WRC Tribunal
Workers Rehabilitation and Compensation Act 1988, Section 86(4)
Originating Application, referral by worker
Termination or Reduction of weekly payments by employer
WRC Tribunal
Workers Rehabilitation and Compensation Act 1988, Section 88
Originating Application, worker, employer, insurer
Review of weekly payments
WRC Tribunal
Workers Rehabilitation and Compensation Act 1988, Section 90C(2)
Originating Application, Referral by employer or insurer
Review obstruction or refusal of medical review
WRC Tribunal
Workers Rehabilitation and Compensation Act 1988, Section 112
Work Cover Board
Right of appeal against license and permit decisions regarding Insurance
Supreme Court
Workers Rehabilitation and Compensation Act 1988, Section 127
Originating Application
Enforcement of orders made
WRC Tribunal
Workers Rehabilitation and Compensation Act 1988, Section 132A
Originating Application, referral by worker, employer insurer
Review of Settlement by Agreement
WRC Tribunal
Workers Originating Application to bring Supreme Court
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
193
Legislation and Section
Primary Decision Maker
Nature of Decision Appealable
Appeal Body/Applicant Body
Rehabilitation and Compensation Act 1988, Section 136
Application by employer
action on
Workers Rehabilitation and Compensation Act 1988, Section 138AB
Originating Application, either worker or both worker and employer?
Claim for damages, assessment
WRC Tribunal
Workers Rehabilitation and Compensation Act 1988, Section 143P & 143Q
Originating Application, referral by worker, employer, insurer, injury management coordinator
Dispute as to injury management
WRC Tribunal
Youth Justice Act 1997, Section 134B
Secretary, Chief Forensic Psychiatrist
Removal from secure unit
Mental Health Tribunal
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
194
Annexure 2: Terms of Reference of Review of Administrative Appeal Processes –the “Vines Report”Terms of ReferenceThe Attorney-General provided the following Terms of Reference for the Review:
The Review is to consider and make recommendations on the appropriate processes to provide for the effective review of administrative decision-making in Tasmania, and the linkages that should exist between these structures. The examination should encompass the relationships between: - The Ombudsman - The Anti-Discrimination Commissioner and the Anti-
Discrimination Tribunal- The State Service Commissioner and the Ombudsman,
exercising responsibilities under the Public Interest Disclosures Act 2002;
- The Legal Aid Commission legal advice and referral service
- The Office of Consumer Affairs and Fair Trading consumer advice function and
- The Administrative Appeals Division of the Magistrates Court
- and any other bodies exercising an administrative review function (“the bodies”).
Without limiting the issues that may be raised, the Review is to consider: - Any opportunities to reduce duplication of roles
between the bodies; - The desirability of standardising arrangements for
access by the public to the bodies- The desirability of establishing a common definition of,
and process for dealing with, vexatious or ‘abuse of process’ complaints, and/or a standard ‘public good’ test for the acceptance of cases
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
195
- The opportunity for common mediation approaches between the bodies, bearing in mind the distinct nature and character of each jurisdiction and
The administrative support and resourcing arrangements that currently exist to support the bodies, and whether there would be benefit in changing these arrangements. The Review may make recommendations on amendments to legislation necessary to give effect to any proposed arrangements.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
196
Annexure 3: AIJA Suggested Criteria for Judicial AppointmentsThese suggested criteria have been developed by the AIJA. They are expressed to apply to all judicial appointments, but the list is not exhaustive and not all proposed criteria will apply equally to all judicial appointments. Judicial appointment will need to take into account factors such as the nature and volume of work of a particular court to which a candidate is to be appointed. Leadership qualities may be more important when considering the appointment of a head of jurisdiction, as may other qualities not listed in these suggested criteria.The suggested criteria draw on information from a range of sources including research into the qualities and skills regarded as important by the Australian judiciary at all levels. The AIJA has reviewed criteria for judicial appointment from a large number of common law jurisdictions, particularly England and Wales, developed by the Judicial Appointments Commission.
1. Intellectual Capacity- Legal expertise- Litigation experience or familiarity with court
processes, including alternative dispute resolution- Ability to absorb and analyse information- Appropriate knowledge of the law and its underlying
principles, and the ability to acquire new knowledge.2. Personal Qualities- Integrity and independence of mind- Sound judgement- Decisiveness- Objectivity- Diligence- Sound temperament
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
197
- Ability and willingness to learn and develop professionally and to adapt to change
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
198
3. An Ability to Understand and Deal Fairly- Impartiality- Awareness of and respect for the diverse communities
which the courts serve and an understanding of differing needs
- Commitment to justice, independence, public service and fair treatment
- Willingness to listen with patience and courtesy- Commitment to respect for all court users
4. Authority and Communication Skills- Ability to explain the procedure and any decisions
reached clearly and succinctly to all those involved- Ability to inspire respect and confidence- Ability to maintain authority when challenged- Ability to communicate orally and in writing in clear
standard English5. Efficiency- Ability to work expeditiously- Ability to organise time effectively to discharge duties
promptly- Manages workload effectively- Ability to work constructively with others
6. Leadership and Management Skills- Ability to form strategic objectives and to provide
leadership to implement them effectively- Ability to engage constructively and collegially with
others in the court, including courts administration.- Ability to represent the court appropriately including to
external bodies such as the legal profession- Ability to motivate, support and encourage the
professional development of others in the court
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
199
- Ability to manage change effectively- Ability to manage available resources
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
200
Annexure 4
28 April 2015Vanessa Goodwin, Attorney-General
Investigation of a Civil and Administrative Tribunal for TasmaniaThe Hodgman Liberal Government has commenced work to assess the feasibility of a single Civil and Administrative Tribunal for Tasmania which could reduce duplication and improve access to justice. Tasmania is the only Australian state that does not have a single tribunal and administrative appeals structure. The Department of Justice alone currently supports 15 bodies which will all be consulted as part of this project to assess their suitability for consideration for inclusion in an amalgamated tribunal. Any other relevant tribunals and boards which fall within other portfolio areas will also be considered as to their suitability for inclusion in a single tribunal.Each existing tribunal has its own administrative and legislative framework, requiring a high level of resourcing and support that could be streamlined to deliver a more efficient and accessible service.I have asked the Department of Justice to develop a discussion paper which will examine the range of bodies suitable for amalgamation, as well as the possible structure, legislative requirements, governance and leadership of a single tribunal.Any development of a single tribunal would ensure that the Tribunal continues to have access to the expertise required, and would focus on eliminating duplication of administration and support costs. Reform of this kind to Tasmania’s civil and administrative decision-making processes has the potential to improve service delivery and consistency of processes, provide
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
201
better access to justice, and reduce red-tape and duplication.It is anticipated that the discussion paper will be completed by mid-2015. Providing initial consultation and discussion supports further investigation, an options paper would then be completed by the end of the year.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
202
Annexure 5: Information Hand OutTasmania is the only State in Australia that does not have a Civil and Administrative Tribunal. This policy reform has been considered in the past and the current State Government has committed to investigation of the suitability of a Single Tribunal for Tasmania. This investigation will entail two stages.
Stage 1 – Discussion Paper The Discussion Paper will examine the Scope (that is the range of bodies suitable for amalgamation, current legislative provisions and processes), Structure (both legislative and organisational), and Governance and Leadership of a Single Tribunal. In doing so, it will map the present situation in Tasmania which will include consultation with as many outputs as possible within the Department of Justice, and more detailed consultation with bodies that may be suitable for amalgamation. It will also review the reports and work done in other jurisdictions around Australia in implementing their Civil and Administrative Tribunals. It will present this research along with possible benefits and risks and final recommendations for more detailed investigation, should Government decide to progress the investigation of implementing a Single Tribunal. It will form the starting point for the development of an Options Paper which is Stage 2.
Stage 2 – Options Paper A Steering Committee will be formed with Terms of Reference to direct the preparation of an Options Paper. This Options Paper will entail detailed information regarding; cost to government, savings, location, practical implementation, timeframes and draft legislation. It will also encompass broad consultation with Whole of Government, stakeholders and the community to obtain feedback about the policy proposal. A final set of costed options and implementation recommendations would be presented for consideration by Government for possible implementation.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
203
Annexure 6: Assessment CriteriaThe following is adopted and adapted from Appendix 3 of the Queensland Civil and Administrative Tribunal: Stage 1 Report on the Scope and Initial Implementation Arrangements.48 It represents an excellent, logical approach to assessment of amalgamation.
ApproachThe formation of a Single Tribunal must ensure that that body will be:- Independent- Efficient (that is, timely and cost efficient)- Expert (to ensure quality of decision-making across a
range of different jurisdictions)- Accessible- Flexible (to meet the needs of a range of stakeholders
ranging from the most vulnerable in the community to businesses with complex contractual disputes) and
- Able to adapt to future pressures.It is necessary to consider the precise scope of the jurisdiction of the new tribunal including the original and appellate jurisdictions of the bodies currently performing civil and administrative justice in Tasmania (listed in Annexure 1) and which of these bodies is to remain outside of the new tribunal.In formulating recommendations about which of these bodies is to remain outside of the new tribunal, regard must be had to, amongst other things:- The expert views of existing tribunal members and
registry staff, representatives of users of tribunals and relevant government agencies.
- The experience of other jurisdictions in developing and implementing amalgamated models of civil and administrative justice in Australia.
48 Queensland Civil and Administrative Tribunal: Stage 1 Report on the Scope and Initial Implementation Arrangements, Tribunals Review Independent Panel of Experts June 2008, Appendix 3
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
204
- Any evaluations of amalgamated models of civil and administrative justice currently operating in Australia.
In formulating recommendations about which of the nominated bodies is to remain outside of the new tribunal, it would be expected that the new tribunal will draw upon the specialist expertise possessed by members and staff appointed to the new tribunal, including many persons who presently are members and staff of existing tribunals.As such, the fact that an existing tribunal possesses specialist skills and experience is not a sufficient reason for it to remain outside of the new tribunal.A preliminary approach should be that the specialist skills and experience of persons appointed to the new tribunal (whether from existing tribunals or otherwise) should be utilised in the organizational and administrative arrangements for the new tribunal, including the creation of specialist lists or divisions within which these skills and experience can be most effectively utilised.In determining which of the bodies listed in Annexure 1 are to remain outside of the new tribunal, it is proposed that the following criteria be applied to assess suitability for amalgamation.
Criteria1. Unless good reasons exist for a tribunal to remain
outside of the new tribunal, the initial recommendation would be for its inclusion.
2. A tribunal should remain outside of the new tribunal if its inclusion in the new tribunal would substantially impair the effectiveness and efficiency of the new tribunal.
3. In general, a tribunal should be included in the new tribunal if inclusion is likely to enhance the quality and consistency of decision-making of the new tribunal.
4. A tribunal should remain outside of the new tribunal if its inclusion in the new tribunal would diminish the effectiveness of its operation, its efficiency or access to it by members of the community.
5. The fact that an existing tribunal already acts efficiently, and delivers good quality decision-making that is independent of the original decision maker or other parties to the proceedings, is not a sufficient
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
205
reason for it to remain outside of the new tribunal. Indeed, these attributes can be expected to enhance the operation of the new tribunal, and provide a point of reference by which the tribunal as a whole can improve its efficiency and effectiveness.
6. It is recognised that special circumstances may exist as to why an existing tribunal should remain outside of the new tribunal, and that circumstances may exist as to why a court, rather than a tribunal, should determine a matter.
7. The fact that the type of decision being undertaken is one that is characteristic of a tribunal, rather than a court, for instance merit review and disciplinary and regulatory matters, provides a strong reason as to why, as a general rule, the matter should fall within the jurisdiction of the new tribunal, rather than be determined by a Court. But special circumstances may warrant the matter being determined by a Court.
8. The fact that a Magistrates Court or another Court previously has had conferred upon it specific jurisdiction to determine certain matters requires consideration whether there is a good reason for those matters to continue to be determined by a Court, rather than by the new tribunal. The original reasons for jurisdiction being conferred upon a court rather than a tribunal, the subject matter in issue, or other factors may justify the matter remaining within the jurisdiction of a Court.
9. The volume of matters, or the capacity of an existing court or tribunal to deal with those matters, may make it more practical and efficient to maintain the status quo, provided that the quality and consistency of decision-making are not compromised.
10. Access to an existing court or tribunal may provide a more accessible, timely and efficient disposition of a matter than the new tribunal. This may be so in certain regional, rural and remote areas. To reach an informed decision about such access issues, consideration is to be given to the ease with which persons currently access such courts or tribunals, and the likely means of access via a new tribunal.
11. Accessibility, timeliness and cost effectiveness are relevant criteria. Consideration will be given to whether
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
206
these matters are likely to be improved, maintained or reduced by the inclusion of an existing tribunal in the new tribunal. Cost effectiveness includes the costs of operating the amalgamated tribunal and the costs to members of the community using it.
12. There must be compelling evidence that attributes possessed by an existing tribunal (e.g. independence, efficiency, expertise, accessibility, timeliness and quality of decision making) would not be able to be maintained if the tribunal was amalgamated into the new tribunal.
13. The resource and administrative implications of including certain matters within the jurisdiction of the new tribunal require consideration. For instance, the volume of certain matters and reasonable expectations of how the new tribunal might deal with those matters, may impose a substantial administrative and resource burden upon the new tribunal. Assessment of probable cost of providing an enhanced system must occur.
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
207
Annexure 7: Web links
- G. Vines; “ Report of the Review of Administrative Appeals Processes ”, April 2003
- Bacon, R., “ Amalgamating Tribunals: A recipe for optimal reform ”, Faculty of Law, University of Sydney, April 2004
- O’Connor, P., “ Best Practice Guide to Tribunal Independence in Appointments – Discussion Paper ”, Council of Australasian Tribunals, May 2015; O’Connor, P. “Tribunal Independence”, The Australian Institute of Judicial Administration Inc, Monash University, 2013
- Access to Justice Arrangements: Productivity Commission Inquiry Report No. 72 , 5 September 2014.
- O’Connor, K.P., “ Appeal Panels in Super Tribunals ” UQLJ [2013] Merits Review Special Edition Vol 32 No.1
Links to reports from other jurisdictions regarding formation of Civil and Administrative TribunalsACT- Options for reform of the structure of ACT Tribunals:
Discussion Paper NSW- Final Report, Opportunities to consolidate tribunals in NSW
NT- Report on the Review of Administrative Decisions and an
Administrative Tribunal WA- Western Australian Civil and Administrative Review Tribunal
Taskforce Report on the Establishment of the State Administrative Tribunal
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
208
A Single Tribunal for Tasmania – Discussion Paper Department of Justice
209
Prepared by Mr. J BryanDepartment of Justice
Inquiries and Submissions should be directed toEmail: [email protected]
Post: GPO Box 825HOBART TAS 7001
Visit: www.justice.tas.gov.au