A Single Tribunal for Tasmania

Discussion Paper

September 2015

Department of Justice

1

Contents

Discussion Paper for a Single Tribunal for Tasmania

Table of Contents

Overview and Summary

Glossary of terms

Chapter One: The Present Situation in Tasmania

Chapter Two: The “Vines Report” and research conducted by TARAC

Chapter Three: Theory, Best Practice and Models of Amalgamation

Chapter Four: History of Tribunal Amalgamation and Overview of Other Australian Jurisdictions

Chapter Five: Consultation with the Department of Justice

Chapter Six: Analysis and Recommendations

Chapter Seven: Annexures

Overview and Summary

Overview

Tribunals 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 Reference

The 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 options to government, with full costing and detailed discussion of each option.

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 alsoretaining necessary specialist features of those Tribunals.

-Providing economies of scale through amalgamation, which then supports:

  • flexibility in staffing, budget and resource allocation
  • access to shared facilities, staff skills and technology
  • greater opportunity for staff development, advancement and training
  • providing economic savings over time and
  • 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.

Chapter 1: The Present Situation in Tasmania

Tasmania 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 areinstances 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 TARAC

The 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 therein[2], central among 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 Amalgamation

This 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 Jurisdictions

Tasmania 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.

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 copiesof some of those reports are provided in Annexure 7. Some are no longer available on-line.)

Chapter 5: Consultation within Department of Justice

As 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 Recommendations

Chapter 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: Annexures

Chapter 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.

ExecutiveSummary

As 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 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 resourced[3];

-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.

Glossary of terms

AAD – 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

Chapter One

The Present Situation in Tasmania

This 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, and consultation occur with relevant stakeholders as part of preparation of an Options Paper.

Part one

Administrative Appeals Division of the Magistrates Court

The 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 ofindividual 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 adoptive parents / Magistrates Court (Administrative Appeals Division)
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) / Secretary / Review 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 Faculty / Refusal for individual authorisation under Section 9 / Magistrates Court (Administrative Appeals Division)
Anatomical Examinations Act 2006 s11 / Head of Faculty / Amend 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 (Domestic Poultry) Regulations 2013 s4 / Minister / Decisions regarding housing of fowls in cages / Magistrates Court (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 Council / Closure of a cemetery / Magistrate
Cat Management Act 2009, s33 / 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, 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 Appeals Division)