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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

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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


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


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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.


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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.


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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


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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


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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.


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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


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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,


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


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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



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adoptive parents

Agricultural and Veterinary Chemicals (Control of Use) Act 1995, s57(3)

Inspectors appointed under the Act

Seizure of products, produce etc.


Agricultural and Veterinary Chemicals (Control of Use) Act 1995, s57(5)

SecretaryReview of Destruction Notices


Ambulance Service Act 1982, s35P

Secretary

Decisions regarding Part IIIA with respect to Non-Emergency Patient Transport Licenses


Anatomical Examinations Act 2006 s9

Head of FacultyRefusal for individual authorisation under Section 9


Anatomical Examinations Act 2006 s11

Head of FacultyAmend or revoke individual authorisation


Animal Farming (Registration) Act 1994 s15

Secretary

Various rights concerning refusal, cancellation or conditions of registration


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


Animal Welfare Act 1993 s33 Minister

Refusal, cancellation or conditions of a license


Animal Welfare Minister Decisions Magistrates Court


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(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


Associations Incorporation Act 1964, s35

Commissioner of Corporate Affairs

Cancellation of incorporation


Australian Consumer Law (Tasmania) Act 2010, s36

Minister Interim bans and recall notices


Birth, Deaths and Marriages Registration Act 1999 s53

Registrar

Any decision in performance or purported performance under the Act


Building Act 2000, s46

RMPAT (Appeal Tribunal)

Right of review against a decision of the Tribunal under Section 44(1) or (2)


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


Building and Construction Industry Security of Payment Act 2009, s36

Adjudicator appointed under Section 22(4)

Decision regarding disqualification


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


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Council

Cat Management Act 2009, s33

SecretaryDecisions under Part Seven of the Act


Cat Management Regulations 2012, Section 12

SecretaryDecisions under Part Two of the Regulations


Child Care Act 2001, s50 Secretary

License decisions (approval, refusal, suspension), Fines, letters of censure, any decision under Act, Regulations or Standards


Community Housing Providers National Law (Tasmania) 2013, s6 – vests appeal rights with Magistrates Court


Conveyancing Act 2004, s42

Director of Consumer Affairs and Trading

Decisions regarding licenses, appointment of receivers/managers, orders made under Section 39


Cooperatives Act 1999, s30


Refusal or failure to register a cooperative

Magistrate



Refusal or failure to alter rules Magistrate



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


Crown Lands Act 1976, s32

Minister Reassessment of rent

Magistrates Court (Administrative


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Appeals Division)


Appeal against assessment of amount of payment for improvements to land disputed


Crown Lands Act 1976, s35B Minister

Compensation for vesting land to Aboriginal Land Council disputed



Compensation for improvements disputed



Rights, titles and interest in land extinguished by Minister or cancellation of Lease by minister


Crown Lands (Shack Sites) Act 1997, s27

Valuer GeneralValuation of land of lessee or licensees shack site


Dairy Industry Act 1994, s42

Tasmanian Dairy Industry Authority

License decisions (refusals, revocation, conditions)


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


Dog Control Act 2000, s19A

General Manager of Council

Review of decision to seize and destroy dangerous dog


Dog Control Act 2000, s31


Declaration of dog as dangerous




Transfer of ownership of



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dangerous dog Appeals Division)



Destruction of dog if not enclosure not suitable




Abatement notices


Dog Control Act 2000, s59


License decisions (refusal to grant or renew, or cancellation)


Education Act 1994, s62

Registration Board

Decisions regarding registration of schools (refusal, renewal, cancellation)


Education and Care Services National Law (Application) Act 2011 s8


Electricity Industry Safety and Administration Act 1997, s78

SecretaryPerson directly affected by a decision under the Act


Explosives Act 2012, s69

Secretary or authorised officer under the Act

Any decision under the Act


Fertilizers Act 1993 s27

Inspector, Minister, Secretary

Forfeiture/disposal of fertilizer, samples and public of analysis


Fertilizers Act 1993 s28A Secretary

Complaint decisions, certificates of exemptions


Firearms Act 1996, s141

Commissioner of Police

Range of decisions regarding licensing, permits, conditions,


Fire Service Act 1979, s56

State Fire Commission

Formation of firebreak on



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private land Appeals Division)

Fire Service Act 1979, s60I Chief Officer

Bush Fire Management Plans accreditation


First Home Owners Grant 2000, s27

Commissioner of State Revenue

Review of decision of Commissioner with respect to objections under Section 25


Fishing (License Ownership and Interest) Registration Act 2001, s16

Registrar appointed under Section 4

Licensing and registry decisions


Food Act 2003, s83E

Director of Public Health/Body acting under delegation of the Director

Approvals, variations, refusals, conditions under Part 6A


Forestry (Fair Contracts Code) Act 2001, s16(3)

MinisterDetermination of whether a person is an interested party


Gaming Control Act 1993, s112C(8)

Tasmanian Gaming Commission

Exclusion orders from gaming


Gaming Control Act 1993, s112GB


Exclusion order from premises


Genetically Modified Organisms Control Act 2004, s30

SecretaryDecisions regarding permits, personal exemptions,


Health Service Establishments Act 2006, s28

SecretaryA decision of the Secretary as defined by Section 27


Health Service Establishments Act 2006, s30

Secretary Cancellation of License


Heavy Vehicle National Law (Tasmania) Act

Establishes Magistrates Court (Administrative


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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


Any decision made under the Act by Director


Litter Act 2007, s35

Authorised Officer under the Act

Abatement Notices


Local Government (Highways) Act 1982, s14

Corporation (local council)

Closure of a highway or part of a highway


Local Government (Highways) Act 1982, s39


Orders for removal of vegetation of land holders


Local Government (Highways) Act 1982, Section 114


Review of cost of levy contributions to construction of a street


Local Government Act 1993, s109

Local Council Review of variation to rates



Local CouncilRefusal of application to declare land Urban Farm Land



Local CouncilRevocation of declaration of urban farmland



General Manager Review of rates notices



Local CouncilAppeal against abatement notices regarding nuisance

Magistrate


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General ManagerAppeal against action taken by GM under Section 201

Magistrate


Local Council Review of refusal to correct map



General Manager

Review decisions in relation to nomination, electoral roll and adjustments to roll


Local Government (Rates and Charges Remissions) Act 1991, s4F

Commissioner of State Review

Decisions regarding remissions and requirements to pay


Long Service Leave (Casual Wharf Employees) Act 1982, s11

Secretary

Review of decision regarding a dispute about long service leave and remuneration


Marine and Safety (Pilotage and Navigation) Regulations 2007, s89

MAST (Marine and Safety Authority of Tas)

Decisions regarding unseaworthy vessels (detention)


Motor Vehicle Traders Act 2011, s26

Director of Consumer Affairs and Fair Trading

Refusal to grant license, cancellation, non-renewal, any other prescribed decision


National Parks and Reserves Management Act 2002, s53

MinisterCancellation of lease, compensation amount


Occupational Licensing 2005, s82

Administrator of Occupational Licensing

Review of Decision under Section 81


Passenger Transport Services Act 2011, s59

Various All decisions made under the Act



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Petroleum Products Emergency Act 1994, s10

MinisterRefusal or cancellation of a permit


Poisons Act 1971, s92 Minister

Suspension or Revocation of rights under the Act


Primary Produce Safety Act 2011, s22

Chief Inspector

Decisions regarding accreditation or food safety programs



Chief Inspector Prohibition orders, compensation



Chief Inspector Approvals of Food Safety Auditors


Property Agents and Land Transactions Act 2005, s128

Property Transactions Tribunal

Any decision made by the PAT



Property Agents Board, Property Agents Trust

Decision to either refuse compensation or amount of compensation


Public Health Act 1997, s160

Authorised officer

Seizure of items under Section 30


Public Health Act 1997, s160A

Director of Public Health

Decisions regarding tobacco sellers licenses


Public Health Act 1997, s164 Local Council

Decisions regarding Regulated Systems


Public Health Act 1997, s165

Director of Public Health or Local Council

Any order made by either entity under the Act


Radiation Protection Act 2005, s74


Any decision with a review notice under the Act



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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


Decisions set out in Section 53


Relationships Act 2003, s25

Registrar of Births Death and Marriages

Any decision made in performance or purported performance of powers under Act


Retirement Villages Act 2004, s34


Any decision or order made


Roads and Jetties Act 1935, s52CE

Minister Refusal to grant compensation


Security and Investigations Agents Act 2002, s37


Decisions regarding licenses


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


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


Determination or Order


Taxation Administration


Determination or failure to



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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


Teachers Registration Act 2000, s29

Teachers Registration Board

Any decision that affects a person or a person employed by that person


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


Vermin Control Cat 2000, s13

Secretary or Inspector

Notices issued under Section 7 or Section 8


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


Water and Sewerage Industry Act 2008 s56V

Regulated EntityNotices to owners with respect to connections


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,



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Animals) Regulations 19

refusal to renew license Appeals Division)

Wildlife (Exhibited Animals) Regulations 33

SecretaryCancellation of travelling wildlife exhibition license



Secretary

Cancellation, suspension, refusal to renew wildlife display permit


Wildlife (Deer Farming) Regulations 2010, Section 4

SecretaryNo approval of deer farm location or fence


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


Work Health and Safety Regulations 2012, s683

RegulatorReviewable decision under Chapter 9 of Part 11.2



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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.


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http://www.magistratescourt.tas.gov.au/__data/assets/pdf_file/0003/300576/2013-2014_Annual_Report_.pdf

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.


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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.


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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.





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 Act1995, Section 65

Review Application Review Guardianship Order


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 Act 1995, Section 32D

Originating Application Production of materials of enduring guardian



Originating Application Revocation of enduring guardianship



Originating Application Enduring Guardian seeking advice or direction from Board



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Originating Application Application for consent to carry out medical or dental procedures



Originating Application Administration Order



Review Application Review Administration Order



Originating Application Advice or Direction by the Board for an Administrator



Originating Application or Of Its Own Motion

Emergency Orders



Originating Application Approval to open Will


Powers of Attorney Act 2000, Section 33


Appointment, variation, revocation of enduring powers of Attorney


Wills Act 2008, Section 30


Orders authorising the making of a will on behalf of a person



Originating Application Modifications to a Will made by the Board



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Originating Application Revocation of a Will made by the 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.


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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


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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.


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.


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)





Valuation of Land Act 2001, Section 34

Creates Land Valuation Court


Valuer General Objections regarding valuations

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).


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.)


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:





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 Act 2013, s37

Originating Application

Treatment Order Mental Health Tribunal



Interim Treatment Order



Establishes the Mental Health Tribunal



Any decision made under the Act

Supreme Court


Various, broad range of review powers

Review powers over orders, admissions, transfer, leave


Mental Health Act 2013, s180-192

Various, broad range of review powers

Lists specific types of reviews requirements



General Power of review

Able to review any decision for which express provision not otherwise made under this Division



39

Youth Justice Act 1997, s134B

Secretary, Chief Forensic Psychiatrist

Removal from secure unit

Mental Health Tribunal.


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


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


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).


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).


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.






Property Agents Board

Decisions regarding conduct complaints

Property Agents Tribunal


Creates Property Agents Tribunal



Any decision made by PAB








Decision as to either no compensation or amount


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.


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.


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:





Agricultural and Veterinary Chemicals (Control of Use) Act 1995, Section 57(1)

Registrar or Secretary

Decision regarding licenses, testing or restriction notices


Building Act 2000, Section 42

Director of Building Control

Review of any decision or action under Section 26 or 40



Originating application

Dispute as to costs of adjoining owner for protection word




Dispute as to compensation as a result of protection work




Any dispute arising under Division 2 and 3



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



47






Building Surveyor

Refusal to grant, or conditions upon, an occupancy permit



General Manager, permit authority or building surveyor

A person affected by an emergency order, building order or plumbing order



General Manager

Refusal or failure to grant an application for temporary occupancy or conditions on the permit



Building Surveyor

Determination in relation to protection work not carried out under an emergency order



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)



Permit Authority

Exercise of or failure to exercise any power under Act




Replacement of a Building Surveyor under Section 54



Chief Fire Officer or other decision maker under Regulations

Any exercise of power under the General Fire Regulations 2000


Building Act 2000, Section 218 and Section 218A


Applications to see dispensations regarding BCA and TPC and Disabled Access requirements



48





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


Environmental Management and Pollution Control Act 1994, Section 23

EPA Inclusion of trade secret information on register



EPA Assessment of activities which do not require a permit



EPA Requirement for an audit RMPAT (Appeal Tribunal)


EPA Requirement of lodgment of a financial assurance



EPA Claim on financial assurance



EPA Environmental Improvement Program



Director Requirement for information



49






EPA Environmental Protection Notice


Environmental Management and Pollution Control Act 1994, Section 74O

EPA Notice under Part 5A Division 3




Civil Enforcement Proceedings


Fire Service Act 1979, Section 133A

Chief Officer Any decision under the General Fire Regulations


Forest Practices Act 1984, Section 25

Forest Practices Authority

Forest Practices Plans decisions

FPT



Three Year Plan decisions FPT


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)



Minister Minister can refer the appeal to the Tribunal for determination


Gas Pipeline Act 2000, Section 83

Minister Any administrative review under Division 2 of the Act


Historic Cultural Heritage Act 1995 Section 27

Heritage Council

Listings on provisional and permanent register



Heritage Council

Determinations of applications



50







Enforcement of Heritage Agreements under the Act



Heritage Council

Stop work Notices RMPAT (Appeal Tribunal)

Inland Fisheries Act 1995, Section 58

Director of Inland Fisheries

Grants, refusals, transfers, renewals of licenses




Cancellation of registration RMPAT (Appeal Tribunal)

Land Use Planning and Approvals Act 1993, Section 61(3)

Planning Authority

Request for additional information



Planning Authority

Refusal to grant a permit or a permit subject to conditions



Planning Authority

Grant of a permit (3rd party appeal)



Planning Authority

Requirement to enter into a Part V agreement under the Act



Planning Authority (Originating Application)

Failure to make a decision within timeframes



Planning Authority

Enforcement Notices RMPAT (Appeal Tribunal)


Planning Authority

Cancellation of a permit RMPAT (Appeal Tribunal)

Land Use Planning and Approvals Act 1993, Section 64





51





Living Marine Resources Management Act 1995, Section 283

Minister or Secretary

Any decision made which has been subject to review under Section 282




Permission, revocation or conditions regarding works in highway


Local Government Act 1993, Section 178A

Local Council Appeal against decision to lease or dispose of public land


Marine Farming Planning Act, Section 75

Minister Lists the appeal rights available regarding leases



Panel/Minister Appeals regarding marine farming plans



Panel Planning Authority may appeal against withdrawal of a draft amendment plan




Enforcement Proceedings under the Act


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


Plumbing Regulations 2014, Section 54

General Manager, Permit Authority, Regulated Entity, Director of Building Control



Public Health Act 1997, Section 103

Local Council Cancellation of registration of premises



Local Council Places of Assembly licenses



Local Council Registration of Premises RMPAT (Appeal Tribunal)

Strata Titles Act 1998, Section 96


Enforcement of By Laws of Body Corporates



52







Orders for payment of penalties for breaches of By Laws


Strata Titles Act 1998, Section 144 (1)(a)

Recorder of Titles

Any application under the Act


Strata Titles Act 1998, Section 144 (1)(b)

Local Council Any application for approval




Stay of orders of Recorder of Titles until determination of an appeal


Threatened Species Act 1995, Section 14

Minister Amendments to List of Threatened Species (removal addition etc.)


Urban Drainage Act 2013, Section 5

Minister Order made to a local council to make provision for storm water infrastructure



Local Council Requirements over construction of drains



Public Authority responsible for land

Dispute with Councils over entitlements to do work or conditions of that work



General Manager

Requirement to connect to public storm water system



General Manager

Requirement to disconnect from public storm water system


Water Management Act 1999, Section 275, 276

Minister List of appealable decisions under Section 275, Section 276 establishes right of appeal


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



53





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



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


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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


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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).


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:





Anti-Discrimination Act 1998, Section 65

Anti-Discrimination Commissioner

Rejection of a complaint without investigation

Anti-Discrimination Tribunal


58







Dismissal of a complaint




Referral of a complaint to the Tribunal for investigation


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




Determination of Application under Section 70




Determination under Sections 75 or 77



Referral of question by compensable person, member of family or Commissioner

Questions related to expense payments



Referral of question by member of family

Questions as to apportionment of lump sum



59






Establishes 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)


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


60





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



Referral of a claim for compensation for determination

WRC Tribunal


Referral Question of Law to Supreme Court

Supreme Court

Workers Rehabilitation and Compensation Act 1988, Section 60A


Interim Orders

WRC Tribunal



Consent Orders with respect to Section 81A

WRC Tribunal


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


61






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


Originating Application by employer

Dispute as to liability for weekly payments

WRC Tribunal



Termination or Reduction of weekly payments by employer

WRC Tribunal


62






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


Work Cover Board

Right of appeal against license and permit decisions regarding Insurance

Supreme Court



Enforcement of orders made

WRC Tribunal


Originating Application, referral by worker, employer insurer

Review of Settlement by Agreement

WRC Tribunal



Application to bring action on

Supreme Court


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


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


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).


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.”


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).


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.


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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.


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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.


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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


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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.


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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.


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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


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http://www.tec.tas.gov.au/pages/LegislativeCouncil/LC_RedistributionMain.html





Residential Tenancy Act 1997, s16


Orders relating to inconsistency

Magistrates Court (Civil Division)

Residential Tenancy Act 1997, s23(5)


Review unreasonable increase in rent



Residential Tenancy Commissioner

Decision made under s29G (security deposits)




Dispute as to liability to reimburse for repairs


Residential Tenancy Act 1997, s36A


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.




Order of Termination




Order for Vacant Possession


Residential Tenancy Act 1997, s47A


Order declaring abandonment


Residential Tenancy Act 1997, s48(c)


Order permitting sale of abandoned goods


Residential Tenancy Act 1997, s48J


Orders made under s48I

Magistrates Court (Civil Division

Residential Tenancy Act 1997, s57(1B)


Order of compliance with Section 57(1) (locks and security devices)



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Residential Tenancy Act 1997, s57(3)


Order for variation to lock/security devices


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.


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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.


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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.


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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


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


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sanctions by Commissioner


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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.


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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,


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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.


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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.


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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.


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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


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- 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


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- 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


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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


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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.


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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.


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“. . . . 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


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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.


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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


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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


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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.


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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.


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https://www.courts.vic.gov.au/about-csv

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.


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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.


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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


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“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


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- 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


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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)


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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


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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)


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- 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.


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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


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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


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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


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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…


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http://www.acat.act.gov.au/

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.


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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


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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.


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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


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$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


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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.


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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


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http://www.ntcat.nt.gov.au/jurisdiction.shtml

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.


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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


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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.


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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.


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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


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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


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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


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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.


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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


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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


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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.


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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.


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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


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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.


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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


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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.


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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.


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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.


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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’


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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


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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.


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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


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http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWCATAP/2015/97.html?stem=0&synonyms=0&query=%22guiding%20principle%22%20

http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWCATAP/2015/97.html?stem=0&synonyms=0&query=%22guiding%20principle%22%20

http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWCATAP/2014/26.html?stem=0&synonyms=0&query=%22proportionate%20to%20the%20importance%20and%20complexity%20of%20the%20subject-matter%20of%20the%20proceedings%22%20




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


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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


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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.


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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.)


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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


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http://www.dpac.tas.gov.au/divisions/executive/cabinet_office/handbook/

[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.)


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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


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http://www.dpac.tas.gov.au/__data/assets/word_doc/0020/262433/Women_on_Boards_Strategy_2015-20_-_FINAL.DOCX



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.


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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


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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


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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


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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


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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


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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


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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.


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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


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Annexure 1: *List of Originating and Review (Civil and Administrative) Jurisdictions (Tas)* Tables of legislation from A - ZTable 1 - "A" Legislation





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


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,


Applications for access to land on a variety of bases

Magistrates Court (appeal rights to Supreme Court)

Adoption Act Secretary or Decisions Magistrates Court


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1988 Section 96A

Principal Officer (under the Act)

regarding applications and status of prospective adoptive parents


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


Registrar or Secretary

Decision regarding licenses, testing or restriction notices

Resource Management and Planning Appeal Tribunal


Inspectors appointed under the Act

Seizure of products, produce etc.



Secretary Review of Destruction Notices


Alcohol and Drug Dependency Act 1968


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



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Licenses

Anatomical Examinations Act 2006 Section 9

Head of Faculty Refusal for individual authorisation under Section 9


Anatomical Examinations Act 2006 Section 11

Head of Faculty Amend or revoke individual authorisation


Animal Farming (Registration) Act 1994 Section 15

Secretary Various rights concerning refusal, cancellation or conditions of registration


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


Animal Welfare Act 1993 Section 33

Minister Refusal, cancellation or conditions of a license


Animal Welfare (Domestic Poultry) Regulations 2013 Section 4

Minister Decisions regarding housing of fowls in cages




Rejection of a complaint without investigation




Dismissal of a complaint


Anti-Discrimination Act 1998,

Anti-Discrimination

Referral of a complaint to the Tribunal for



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Section 78 Commissioner investigation



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




Rejection of application


Asbestos Related Diseases (Occupational Exposure) Compensation Act 2011, Section 57(2)

Referral by Asbestos Compensation Commissioner

Refusal by applicant to assist medical professional




Determination of Application under Section 70




Determination under Sections 75 or 77


Asbestos Related Diseases (Occupational Exposure) Compensation

Referral of question by compensable person, member of family or

Questions related to expense payments



159





Act 2011, Section 126

Commissioner


Referral of question by member of family

Questions as to apportionment of lump sum



Establishes Asbestos Compensation Tribunal



Right of appeal in relation to any decision of the ACT

Supreme Court

Associations Incorporation Act 1964, Section 35


Cancellation of incorporation


Australian Consumer Law (Tasmania) Act 2010, Section 36

Minister Interim bans and recall notices


Table 2 - "B" Legislation





Birth, Deaths and Marriages Registration Act 1999 Section 53

Registrar Any decision in performance or purported performance under the Act




Review of any decision or action under Section 26



160





or 40



Right of review against a decision of the Tribunal under Section 44(1) or (2)



None, originating application

Dispute as to costs of adjoining owner for protection work




Dispute as to compensation as a result of protection work




Any dispute arising under Division 2 and 3



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



Building Surveyor

Refusal to grant or conditions upon an occupancy permit



General Manager, permit authority or building surveyor

A person affected by an emergency order, building order or plumbing order



General Manager

Refusal or failure to grant an application for temporary occupancy or conditions on the permit



Building Surveyor

Determination in relation to protection work not carried out under an



161





emergency order


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)



Permit Authority Exercise of or failure to exercise any power under Act




Replacement of a Building Surveyor under Section 54



Chief Fire Officer or other decision maker under Regs

Any exercise of power under the General Fire Regulations 2000


Building Act 2000, Section 218 and Section 218A

None, originating jurisdiction

Applications to see dispensations regarding BCA and TPC and Disability Access requirements


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


Building and Construction Industry Security of Payment Act 2009, Section 36

Adjudicator appointed under Section 22(4)

Decision regarding disqualification



162





Building Regulations 2014 Section 56

Permit Authority, engineer, building surveyor, Director of Building Control, Chief Officer (Fire), General Manager



Burial and Cremation Act 2002 Section 14


Closure of a crematorium

Magistrate

Burial and Cremation Act 2002 Section 28


Closure of a cemetery

Magistrate

Table 3 - “C” Legislation





Cat Management Act 2009, Section 33

Secretary Decisions under Part Seven of the Act


Cat Management Regulations 2012, Section 12

Secretary Decisions under Part Two of the Regulations


Child Care Act 2001, Section 50

Secretary License decisions (approval, refusal, suspension), Fines, letters of censure, any decision under Act, Regs or Standards


Community Housing Providers National Law (Tasmania) 2013, Section 6



163





– vests appeal rights with Magistrates Court

Commercial Arbitration Act 2011, Section 34A

Arbiter appointed under the Act

Supreme Court

Conveyancing Act 2004, Section 42


Decisions regarding licenses, appointment of receivers/managers, orders made under Section 39


Conveyancing and Law of Property Act 1884, Section 84F

Recorder of Titles

Decisions under Part XVA of the Act

Supreme Court



Refusal or failure to register a cooperative

Magistrate



Refusal or failure to alter rules

Magistrate



Refusal or failure to register alterations to rules

Magistrate


Board of a Cooperative

Cancellation of membership

Supreme Court

Cooperatives Act 1999, Section 343, 350, 364


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


Crown Lands Act 1976,

Minister Forfeiture of land to Crown due to



164





Section 23 breach of contract Appeals Division)

Crown Lands Act 1976, Section 32

Minister Reassessment of rent



Minister Appeal against assessment of amount of payment for improvements to land disputed


Crown Lands Act 1976, Section 35B

Minister Compensation for vesting land to Aboriginal Land Council disputed



Minister Compensation for improvements disputed



Minister Rights, titles and interest in land extinguished by Minister or cancellation of Lease by minister


Crown Lands (Shack Sites) Act 1997, Section 27

Valuer General Valuation of land of lessee or licensee’s shack site


Table 4 - “D” Legislation





Dairy Industry Act 1994, Section 42

Tasmanian Dairy Industry Authority

License decisions (refusals, revocation, conditions)


Disability Services Act 2011, Section 40(4)

Secretary Restrictive Interventions made under Section 38




Approvals to carry out restrictive interventions



165






Secretary or authorised person under the Act

Individual plan decisions (approval, refusal), Restrictive Interventions, Notices of Noncompliance under Section 23


Dog Control Act 2000, Section 19A


Review of decision to seize and destroy dangerous dog


Dog Control Act 2000, Section 31


Declaration of dog as dangerous




Transfer of ownership of dangerous dog




Destruction of dog if not enclosure not suitable




Abatement notices


Dog Control Act 2000, Section 59


License decisions (refusal to grant or renew, or cancellation)


Table 5 - “E” Legislation





Education Act 1994, Section 62

Registration Board

Decisions regarding registration of schools (refusal, renewal, cancellation)


Electricity Industry Safety and

Secretary Person directly affected by a decision under



166





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


Electoral Act 2004, Section 49

Electoral Commission

Registration of a party

Supreme Court


EPA Inclusion of trade secret information on register

RMPAT


EPA Assessment of activities which do not require a permit

RMPAT


EPA Requirement for an audit

RMPAT


EPA Requirement of lodgment of a financial assurance

RMPAT


EPA Claim on financial assurance

RMPAT


167






EPA Environmental Improvement Programme

RMPAT


Director Requirement for information

RMPAT


EPA Environmental Protection Notice

RMPAT

Environmental Management and Pollution Control Act 1994, Section 74O

EPA Notice under Part 5A Division 3

RMPAT




RMPAT

Explosives Act 2012, Section 69

Secretary or authorised officer under the Act



Table 6 - “F” Legislation





Fertilizers Act 1993 Section 27

Inspector, Minister, Secretary

Forfeiture/disposal of fertilizer, samples and publication of analysis


Fertilizers Act 1993 Section 28A

Secretary Complaint decisions, certificates of exemptions


Firearms Act 1996, Section

Commissioner of Range of decisions regarding



168





141 Police licensing, permits, conditions,

Appeals Division)

Fire Service Act 1979, Section 56


Formation of firebreak on private land


Fire Service Act 1979, Section 60I

Chief Officer Bush Fire Management Plans accreditation


Fire Service Act 1979, Section 66

Fire Officer Decisions regarding fire permits


Fire Service Act 1979, Section 133A

Chief Officer Any decision under the General Fire Regulations


First Home Owners Grant 2000, Section 27


Review of decision of Commissioner with respect to objections under Section 25


Fishing (License Ownership and Interest) Registration Act 2001, Section 16


Licensing and registry decisions


Food Act 2003, Section 83E

Director of Public Health/Body acting under delegation of the Director

Approvals, variations, refusals, conditions under Part 6A


Forestry (Fair Contracts Code) Act 2001, Section 16(3)

Minister Determination of whether a person is an interested party




Forest Practices Plans decisions

Forest Practices Tribunal



Three Year Plan decisions



169






Forest Practices Officer appointed under the Act

Failure to comply with Certified Forest Practices Plan


Table 7 - “G” Legislation





Gaming Control Act 1993, 112C(8)


Exclusion orders from gaming


Gaming Control Act 1993, 112F

Specified License Holder or person authorised by such



Gaming Control Act 1993, 112GB




Gaming Control Act 1993, Section 173


Decisions regarding licenses, gaming endorsements, entering names on the Roll

Supreme Court


Responsible Authority

Entry onto Public Land to do works (dispute with gas entity)

RMPAT


Regulator, Director of Gas Safety or other authorised officer


Minister


Minister Minister can refer the appeal to the Tribunal for determination

RMPAT

Gas Pipeline Act 2000, Section

Minister Any administrative

RMPAT (Appeal


170





83 review under Division 2 of the Act

Tribunal)

Genetically Modified Organisms Control Act 2004, Section 30

Secretary Decisions regarding permits, personal exemptions,




Guardianship Order


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 Act 1995, Section 32D


Production of materials of enduring guardian




Revocation of enduring guardianship




Enduring Guardian seeking advice or direction from Board




Application for consent to carry out medical or dental procedures




Administration Order


Guardianship and


Advice or Direction by the

Guardianship and


171





Administration Act 1995, Section 61

Board for an Administrator

Administration Board



Emergency Orders


Guardianship and Administration Act 1995 Section 76

Board Any decision arising from a hearing of the Board

Supreme Court



Approval to open Will


Table 8 - “H” Legislation





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



Supreme Court

Health Service Establishments Act 2006, Section 28

Secretary A decision of the Secretary as defined by Section 27


Health Service Establishments Act 2006, Section 30

Secretary Cancellation of License


Heavy Vehicle National Law (Tasmania) Act 2013

Establishes Magistrates Court (Administrative Appeals Division)


172





as relevant body for appeals under National Law


Heritage Council

Listings on provisional and permanent register

RMPAT


Heritage Council

Determinations of applications

RMPAT



Enforcement of Heritage Agreements under the Act

RMPAT


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





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



Grants, refusals, transfers, renewals of licenses

RMPAT



Cancellation of registration

RMPAT


173

Table 10 - “L” Legislation





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


Planning Authority Request for additional information

RMPAT


Planning Authority Refusal to grant a permit or a permit subject to conditions

RMPAT


Planning Authority Grant of a permit (3rd party appeal)

RMPAT


Planning Authority Requirement to enter into a Part V agreement under the Act

RMPAT


Planning Authority (Originating Application)

Failure to make a decision within timeframes

RMPAT


174






Planning Authority Enforcement Notices

RMPAT


Planning Authority Cancellation of a permit

RMPAT

Land Use Planning and Approvals Act 1993, Section 64



RMPAT

Land Valuers Act 2001, Section 17


Any decision made under the Act by Director


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


Living Marine Resources Management Act 1995, Section 283

Minister or Secretary

Any decision made which has been subject to review under Section 282

RMPAT



Closure of a highway or part of a highway




Orders for removal of vegetation of land holders



175







Permission, revocation or conditions regarding works in highway

RMPAT



Review of cost of levy contributions to construction of a street


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



Local Council Refusal of application to declare land Urban Farm Land



Local Council Revocation of declaration of urban farmland



General Manager Review of rates notices


Local Government Act 1993, Section 178A

Local Council Appeal against decision to lease or dispose of public land

RMPAT


Local Council Appeal against abatement notices regarding nuisance

Magistrate


176






General Manager Appeal against action taken by GM under Section 201

Magistrate


Local Council Review of refusal to correct map



General Manager Review decisions in relation to nomination, electoral roll and adjustments to roll



Returning Officer Nomination refusals

Tasmanian Electoral Commission


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


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



177

Table 11 - “M” Legislation





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)


Marine and Safety ByLaws

Unclear if they exist.


Minister Lists the appeal rights available regarding leases

RMPAT


Panel/Minister Appeals regarding marine farming plans

RMPAT


Panel Planning Authority may appeal against withdrawal of a draft amendment plan

RMPAT



Enforcement Proceedings under the Act

RMPAT

Mental Health Act 2013, Section 37


Treatment Order Mental Health Tribunal



Interim Treatment Order



Establishes Tribunal




Supreme Court


Various Review powers over orders, admissions,



178





transfer, leave

Mental Health Act 2013, Sections 180-192

Various Lists specific types of reviews requirements



General Power of review

Able to review any decision for which express provision not otherwise made under this Division


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


Motor Accidents (Liabilities and Compensation) Act 1973, Section 12


Motor Accidents (Liabilities and Compensation) Act 1973, Section 28(2) (3)

Motor Accidents Insurance Board

Rights as to payment of scheduled benefits


Motor Accidents (Liabilities and Compensation) Act 1973, Section 28(6)


Review of decision

Supreme Court

Table 12 - “N” & “O” Legislation





National Parks and Reserves

Director, Originating

Before Management

RMPAT


179





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


Occupational Licensing 2005, Section 81

Administrator of Occupational Licensing or Authorised Officer

Review of any decision listed in Section 79


Occupational Licensing 2005, Section 82


Review of Decision under Section 81


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





Passenger Transport Services Act 2011, Section 59

Various All decisions made under the Act


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


180





(Submerged Lands) Act 1982, Section 90

Fee

Petroleum Products Emergency Act 1994, Section 10

Minister Refusal or cancellation of a permit


Pharmacy Control Act 2001, Section 60

Tasmanian Pharmacy Authority

Any decision of the TPA


Plumbing Regulations 2014, Section 54

General Manager, Permit Authority, Regulated Entity, Director of Building Control


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



Originating Application or own motion

Appointment, variation, revocation of enduring powers of Attorney



GAB Referral of Question of Law to Supreme Court

Supreme Court



Decision of the GAB

Supreme Court

Primary Produce Safety Act 2011, Section 22

Chief Inspector Decisions regarding accreditation or food safety programs


Primary Produce Chief Inspector Prohibition Magistrates Court


181





Safety Act 2011, Section 52

orders, compensation


Primary Produce Safety Act 2011, Section 62

Chief Inspector Approvals of Food Safety Auditors


Property Agents and Land Transactions Act 2005, Section 110


Decisions regarding conduct complaints






Any decision made by PAB








Decision as to either no compensation or amount



Local Council Cancellation of registration of premises

RMPAT


Authorised officer Seizure of items under Section 30


Public Health Act 1997, Section 160A


Decisions regarding tobacco sellers licenses



Local Council Places of Assembly licenses

RMPAT


182






Local Council Registration of Premises

RMPAT


Local Council Decisions regarding Regulated Systems



Director of Public Health or Local Council

Any order made by either entity under the Act


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





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


Any decision with a review notice under the Act


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


Decisions set out in Section 53



183





53

Relationships Act 2003, Section 25

Registrar of Births Death and Marriages

Any decision made in performance or purported performance of powers under Act


Residential Tenancy Act 1997, Section 16


Orders relating to inconsistency


Residential Tenancy Act 1997, Section 23(5)


Review unreasonable increase in rent




Decision made under Section 29G (security deposits)




Dispute as to liability to reimburse for repairs


Residential Tenancy Act 1997, Section 36A


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




Order of Termination




Order for Vacant Possession


Residential Tenancy Act 1997, Section 47A


Order declaring abandonment



184





Residential Tenancy Act 1997, Section 48(c)


Order permitting sale of abandoned goods


Residential Tenancy Act 1997, Section 48J


Orders made under Section 48I


Residential Tenancy Act 1997, Section 57(1B)


Order of compliance with Section 57(1) (locks and security devices)


Residential Tenancy Act 1997, Section 57(3)


Order for variation to lock/security devices


Resource Management and Planning Appeal Tribunal Act 1993

Establishes RMPAT

Retirement Villages Act 2004, Section 34


Any decision or order made


Roads and Jetties Act 1935, Section 52CE

Minister Refusal to grant compensation


Security and Investigations Agents Act 2002, Section 37


Decisions regarding licenses


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




Enforcement of By Laws of Body Corporates

RMPAT



Orders for payment of penalties for

RMPAT


185





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



Stay of orders of Recorder of Titles until determination of an appeal

RMPAT

Surveyors Act 2002, Section 37


Determination or Order made before the Commencement of the Magistrates Court (Administrative Appeals Division) Act 2001

Magistrate

Surveyors Act 2002, Section 38


Determination or Order


Table 15 - “T” & “U” Legislation





Tasmanian Qualifications Authority Act 2003, Section 60


Taxation Administration Act 1997, Section 89


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



186





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


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


Minister Order made to a local council to make provision for storm water infrastructure

RMPAT


Local Council Requirements over construction of drains

RMPAT


Public Authority responsible for land

Dispute with Councils over entitlements to do work or conditions of that work

RMPAT


General Manager Requirement to connect to public storm water system

RMPAT


General Manager Requirement to disconnect from public storm water system

RMPAT


187

Table 16 - “V”, “W”, “Y” Legislation






Establishes Land Valuation Court.


Valuer General Objections regarding valuations

Land Valuation Court (unsure if any rules exist pursuant to Section 62)



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


Vermin Control Cat 2000, Section 13

Secretary or Inspector

Notices issued under Section 7 or Section 8


Veterinary Surgeons Act 1987 , Section 53


Refusal to Register, delay in decision, cancellation of entry Section 22, determination of the board Section 46


Veterinary Surgeons Act 1987 , Section 53(2)


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


188





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


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


Secretary Cancellation, suspension, refusal to renew license



Secretary? Cancellation of travelling wildlife exhibition license

Magistrates Court (Administrative Appeals


189





Division)


Secretary Cancellation, suspension, refusal to renew wildlife display permit


Wildlife (Deer Farming) Regulations 2010, Section 4

Secretary No approval of deer farm location or fence



Originating Application or of Board’s own motion

Orders authorising the making of a will on behalf of a person




Modifications to a Will made by the Board




Revocation of a Will made by the Board


Witness Protection Act 2000, Section 20


Discontinuance of witness protection

Ombudsman

Witness Protection Act 2000, Section 22


Restoration of previous identity of person under protection

Ombudsman


Certifying Medical Officer

Issuance of a medical certificate

Medical Referee appointed under Section 14


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


190





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


Work Health and Safety Regulations 2012, Section 683

Regulator Reviewable decision under Chapter 9 or Part 11.2


Workers Rehabilitation and Compensation Act 1988

WRC Tribunal


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


Originating Application, referral by either party to dispute

Determination of validity of claim (timeframes)

WRC Tribunal



Referral of a claim for compensation for determination

WRC Tribunal

Workers Rehabilitation

Referral Question of Law to Supreme Court


191





and Compensation Act 1988, Section 58

Supreme Court



Interim Orders WRC Tribunal



Consent Orders with respect to Section 81A

WRC Tribunal


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


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


Dispute as to liability/reasonableness of, particular expenses by employer

WRC Tribunal


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


192





Rehabilitation and Compensation Act 1988, Section 77G

Board accreditation, or revocation/suspension



Dispute as to liability for weekly payments

WRC Tribunal



Termination or Reduction of weekly payments by employer

WRC Tribunal


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


Work Cover Board

Right of appeal against license and permit decisions regarding Insurance

Supreme Court



Enforcement of orders made

WRC Tribunal


Originating Application, referral by worker, employer insurer

Review of Settlement by Agreement

WRC Tribunal

Workers Originating Application to bring Supreme Court


193





Rehabilitation and Compensation Act 1988, Section 136

Application by employer

action on


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



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


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.


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


197

- Ability and willingness to learn and develop professionally and to adapt to change


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


199

- Ability to manage change effectively- Ability to manage available resources


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


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.


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.


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


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- 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


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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


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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.


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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


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http://www.sat.justice.wa.gov.au/_files/sat_report.pdf



http://www.nt.gov.au/justice/policycoord/documents/lawmake/review_of_administratrive_decisions_&_tribunal.pdf

http://www.nt.gov.au/justice/policycoord/documents/lawmake/review_of_administratrive_decisions_&_tribunal.pdf

http://www.parliament.nsw.gov.au/prod/parlment/committee.nsf/0/D7563A349D93087DCA2579C8007B50C6?open&refnavid=CO5_1

http://www.justice.act.gov.au/publication/view/2001/title/options-for-reform-of-the

http://www.justice.act.gov.au/publication/view/2001/title/options-for-reform-of-the

http://www.austlii.edu.au/au/journals/UQLJ/2013/4.html

http://www.austlii.edu.au/au/journals/UQLJ/2013/4.html

http://www.pc.gov.au/inquiries/completed/access-justice/report

http://www.pc.gov.au/inquiries/completed/access-justice/report

http://www.coat.gov.au/publications/papers.html?searchword=independence&search=Go&limit=100&ordering=date



http://ses.library.usyd.edu.au/bitstream/2123/621/1/adt-NU20050104.11271602whole.pdf



http://www.justice.tas.gov.au/community-consultation/previous_consultations/admin_appeals_processes_review_report_-vines_june_03

http://www.justice.tas.gov.au/community-consultation/previous_consultations/admin_appeals_processes_review_report_-vines_june_03


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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

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