WEEK 7 Sacat PDF

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WEEK 7: SACAT Rise of the ‘super’ tribunal • All States in Australia now have a generalist merits tribunal. • “Court-substitute” model, similar to the AAT, established in AG or Justice portfolio but many also with some inquisitorial features • Each jurisdiction in Australia has chosen slightly different model and included different jurisdictions • Key feature of difference to AAT in some models is inclusion of minor civil claims • All have grown exponentially since their establishment, both in their jurisdictions, number of enabling acts and number of claims resolved • Have successfully proven their efficiencies, eg QCAT was established to be cost neutral even with increased case load • Like the AAT, ADR central to the success of all the tribunals • Need to remember the Constitutional difference of AAT as compared to State Tribunals – (is the “Civil” component of the name) Background to merits review in SA • History-some attempts at rationalization – 1984 Law Reform Committee • 1991- legislative base for District Court & establishment of Administrative Appeal Division • 1993-1995 erosion and eventual abolition of Commercial tribunal. Change name to ADD. • Reference of civil & consumer matters to Magistrates Court • Gradual consolidation of occupational & disciplinary jurisdiction with ADD – but far from comprehensive. • Parliamentary Committee 2012 – 2014 • SACAT Commenced March 2015 • www.sacat.sa.gov.au Membership of SACAT • President of the SACAT is a Judge of the Supreme Court. (see AAT Act; Drake v MIEA (‘Drake No.1’) (1978) 2 ALD 60; • Appointed by A-G, Currently 2 Judges and 45 members. Usually highly experienced members. • Current President is Justice Judy Hughes (appointed 4/7/17, former Crown Solicitor; replaced Parker J also former Crown Solicitor!); strong normative role, fewer appeals • 3 Executive Senior Members and 5 Dep/Reg Mediators • Ordinary members do not require legal qualifications. – President may authorise ordinary members to exercise powers conferred exclusively on presidential or senior members. – Minimum 3 year term imposed on membership SACAT Act 2013 Div 3 South Australian Civil and Administrative Tribunal Consolidated Rules 2014 (link on website) • What type of decision is subject to merits review at the SACAT?

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SACAT’s commencement jurisdiction narrow only due to commencement phase so there are few conferring Acts – will grow over time. Jurisdiction may be very broad s.31 & 32 Original and Review (Including Internal Review s.70) Jurisdiction of ‘super tribunals’ intentionally as broad as possible

Eg. AAT may also validly review cases in which the decision to be reviewed was ultra vires. Referred to as the “Lawlor Principle”. Collector of Customs (NSW) v Brian Lawlor Automotive P/L(1979) 41 FLR 338 per Bowen CJ - S.25 of Act was interpreted to mean in “purported” exercise of powers conferred by the enactment even if power did not actually exist. • In practice scope of jurisdiction intentionally very broad “As a matter of principle the [ARC] believes that an administrative decision that will, or is likely to affect the interests of a person should be subject to merits review” - ARC 1999; see Creyke • Standing? SACAT Act • ALWAYS check conferring legislation

Tribunals & Questions of Law • Tribunals may consider ‘incidental’ questions of law: interpret relevant legislation and regulations Drake v MIEA (No.2) (1979) 2 ALD 60 per Bowen CJ & Dean J (FCFCA) • Tribunals cannot decide questions of law conclusively, but must decide legal issues incidental to making decisions according to law • SACAT may refer question of law to Supreme Court s.26 – eg. Ruling on whether delegated legislation is invalid • Parties may ‘appeal’ on question of law to Supreme Court; (No appeal on question of fact) • Enforcement of decisions – Monetary Orders etc. s.89 Tribunals & Policy • Tribunals must take into account policy changes – contemporaneity • Like principal decision-maker Tribunal member must not fetter discretion • Reasons for original decision and documents may be suppressed only in confidentiality or security • Be aware that AAT may not review government policy – statutes may specifically restrict eg. Veterans Entitlements Act Drake (No. 1) & Drake (No.2) – MUST READ THESE CASES • AAT entitled to act inconsistently with policy, such as where policy is illegal, but very reluctant to do so. Complex jurisprudence – distinguishes between high level policy, eg. cabinet and policy applied in arbitrary manner Re Becker and MIEA (1977) 1 ALD 158

Procedure at SACAT  Like AAT ‘fair, just, economical, informal and quick’ See Div 2, S.8(1) • Usually a public hearing with ‘adversarial’ procedure • Legal representation permissible. Legal aid available. • Practice Directions apply (copy uploaded to FLO) • Conferences (like arbitration/conciliation) • Voluntary mediation (around 80% settle at this point) • Costs s.57 – may be different depending on jurisdiction • Reasons must be given on request • Not bound the rules of evidence (but standard of procedural fairness) • Strict time limits in Rules – eg. For Review must apply to within 28 days of decision. • Applicant may apply for Reasons for original decision which must be provided within 21 days. May also require further/better reasons. Decision-maker must provide SACAT with copies of all relevant documentation within 7 days, which are forwarded to all parties.

Powers of the SACAT • Original jurisdiction – Where legislation gives SACAT power to make original decision or resolve dispute (– no reviewable decision) • Review jurisdiction (similar to AAT) s.34, s.37 – Affirm or vary the decision; – Set it aside and make a substitute decision; – Or remit decision to the decision maker with directions (binding) or recommendations (non-binding) • Original decision treated as null & void deemed to come into effect as from date of original decision. • May exercise all [and only] the powers and discretions conferred on the original decision-maker Task of the SACAT • In Review Jurisdiction, question whether the decision was ‘correct or preferable’ Drake (No.1) at 68 per Bowen CJ & Deane J • Procedural error lacks independent significance (unlike JR) • No binding precedent as no judicial power, however ‘Consistency’ & ‘predictability’ of decision required (difference?) • Rulings on issues of fact may give rise to issue estoppel • May dismiss frivolous, vexatious matters; • Not limited to original evidence, can gather fresh evidence and take into account changes in facts. No general duty to inquire, however may depend on statute and composition of tribunal • Must apply law at time of decision, not necessarily original decision (contemporaneity), BUT where there is new legislation, rights may be found to be preserved that accrued under repealed law.

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May not base decision on ground not raised by parties; must give parties opportunity to respond, including observations of demeanor

SACAT’s current jurisdiction  Public authorities with experience of review  High volume  High special needs • CATs – A2J measures

CATs - Common Accessibility Features • One Stop Shop – amalgamation of all legislative review • Original – merits – appeal model • Requirement for reasons • More inquisitorial – no formal onus of proof – tribunal to satisfy itself • Duty to act fairly – flexible procedures • Accessible Information • Mediation – ADR • Publication of Reasons/Summaries • Some – interventionist strategies • Telephone & video conferencing • Less formal accommodation • Minimal fees and no requirement for lawyer VCAT - Victoria • Victorian Civil and Administrative Tribunal (VCAT) - established 1st July 1998. 90,000 matters each year • Three Divisions & 14 Lists – Civil – Human Rights – Administrative • President-Judge; 6 Judicial Members; 41 F/T; 193 P/T • Original and Review Jurisdiction; 150 enabling Acts • Correct or Preferable Decision; flexible procedures • Accessibility is key focus http://www.vcat.vic.gov.au/ NCAT - New South Wales • Previous structure of Admin only Tribunal 1988 - 2014 was named Administrative Decisions Tribunal (ADT) • 2014 Reforms, consolidated the work of 22 former tribunals into a single point of access for specialist tribunal services in NSW • First 6 months - 39,509 Applications lodged 85% consumer commercial • 4 Divisions Administrative and equal opportunity Consumer and commercial Guardianship

Occupational • Original decision making, merits review and appeal from own decisions (preliminary internal review); • President-Judge; F/T & P/T Judicial DPs; Judicial & non Judicial members • Correct and preferable decision; inquisitorial • Accessibility issues See www.ncat.nsw.gov.au SAT - Western Australia • State Administrative Tribunal (SAT) -Established Nov 2004. • 4 Streams – Human rights – Development & resources – Vocational Regulation – Commercial & Civil • President –Judge. 2 Judicial DP’s. 17 F/T & 105 P/T members • Some original decision making; merits review; limited second tier review; 130 enabling Acts • Correct and preferable decision; flexible procedures • Deference to certified govt policy • Accessibility issues http://www.sat.justice.wa.gov.au/ QCAT - Queensland • Queensland Civil & Administrative Tribunal (QCAT); Established Dec. 2009. • Amalgamated 26 Tribunals • 3 Divisions – Human Rights – Administrative & Disciplinary – Civil Disputes • President-Judge; DP-Judge or Lawyer; pool of existing judicial members; senior and other members-lawyers and non lawyers F/T & P/T • Original decision making; merits review & internal appeal (SAT) • Appeal-Supreme Court questions of law http://www.qcat.qld.gov.au/ CAT - ACT • Civil & Administrative Tribunal (CAT) since May 2008 • 4 Divisions – Civil disputes – Administrative review – Occupational Discipline – General • Legally qualified General President & Appeal President. http://www.acat.act.gov.au/ NTCAT – NT

CAT - Commenced with admin jurisdiction since October 2014; from May 2016 has taken over Small Claims • Original jurisdiction; eg.licensing decisions, planning decisions; and decisions about the payment of compensation to victims of crime. • Review jurisdictions; Residential Tenancies Act; civil claims up to $25,000; professional disciplinary; guardianship/administration, discrimination; body corporates http://www.ntcat.nt.gov.au/ •...