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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
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SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (16:58): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The South Australian Civil and Administrative Tribunal Bill 2013 seeks to establish in South Australia a new tribunal, with jurisdiction to review certain administrative decisions and to act with respect to certain disciplinary, civil or other proceedings; to confer powers on the tribunal; and for other purposes.

The purpose of the South Australian Civil and Administrative Tribunal ('the Tribunal') is to make and review a range of administrative decisions in one tribunal. Its objectives in exercising its jurisdiction are to be accessible to all, especially people with special needs, to ensure efficient and cost effective processes for all parties involved, to act with as little formality and technicality as possible and to be flexible in the way in which it conducts its business. The Tribunal will also be transparent and accountable, headed by a President who will hold concurrent office as either a Judge of the Supreme or District Court.

Currently in South Australia merits review functions are conferred on a wide array of decision making bodies including Ministers, commissioners, ombudsman, courts and other specialist boards and tribunals. Each merits review body has limited jurisdiction and undertakes the review of selected decisions under a host of individual legislative schemes. A further complication is that these bodies each have their own administrative structure, procedural processes and infrastructure, resulting in inconsistency and unnecessary duplication. These factors all contribute to creating an inefficient and confusing barrier to members of the public attempting to enforce their rights.

The introduction of this Bill constitutes a significant reform in the field of administrative law in the State of South Australia, the beginnings of which trace back to 1984, when the South Australia Law Reform Committee recommended the establishment of a General Appeals Tribunal to streamline and simplify the review of administrative decisions in this State.

Thereafter, in 2006, the merits review processes in the State, that is, the processes for review of administrative decisions made by government, were again reviewed by the Attorney-General's Department with the South Australian Law Society's Administrative Law Committee. The idea of a civil and administrative tribunal was proposed as a consolidated body for adjudication of administrative decisions. This committee identified a number of problems with the existing merits review system, most of which related to the fragmentation of the system.

In August 2011, the Government publicly announced a review of the feasibility and desirability of establishing a general administrative tribunal. Accordingly, the review project was established to investigate potential efficiencies and improved decision making opportunities. This project was overseen by a Steering Committee, comprised of members from the Attorney-General's Department, the Crown Solicitor's Office and the Courts Administration Authority, the then President of the Law Society and chaired by the Member for Light, the Hon. Tony Piccolo MP.

The review project explored the benefits of a single, easy to find, easy to use body for fair and independent resolution of disputes relating to administrative decisions, and more broadly investigated whether the use of such a body could improve access to justice if extended to other areas. It did not aim to introduce a general right to review all administrative decisions or otherwise propose law reform. It was evident, however, that minor amendments to specific review and appeal decisions would be necessary for consistency.

The Steering Committee concluded that there are various benefits to be gained from altering the current administrative review system and made a number of recommendations in support of the establishment of a generalist Tribunal. As evidenced by this brief chronology, the establishment of a South Australian Civil and Administrative Tribunal in South Australia is a long overdue and significant reform regarding accessibility to justice.

South Australia is one of the last jurisdictions to address the ad hoc tribunal system. The Commonwealth was the first to do so in 1976 with the Administrative Appeals Tribunal (AAT), established under the Administrative Appeals Tribunal Act 1975 (Cth). From a State and Territory perspective, Victoria was the first to follow in the Commonwealth's footsteps by establishing the Victorian Civil and Administrative Tribunal (VCAT) under the Victorian Civil and Administrative Tribunal Act 1998(Vic), with NSW following suit in 1997 with the Administrative Decisions Tribunal established under the Administrative Decisions Tribunal Act 1997(NSW). I note, however, that NSW is currently undertaking further reforms to consolidating these tribunals with the recent passage of the Civil and Administrative Tribunal Act 2013(NSW) and further reforms to shortly follow.

Western Australia followed suit in 2005 when the State Administrative Tribunal (SAT) commenced operations under the State Administrative Tribunal Act 2004(WA). The Australian Capital Territory Government established the Civil and Administrative Tribunal (ACAT) under the ACT Civil and Administrative Tribunal Act 2008(ACT). The most recent jurisdiction to create a single generalist body to conduct merit review functions of government was Queensland, establishing the Civil and Administrative Tribunal (QCAT), under the Queensland Civil and Administrative Tribunal Act 2009(Qld).

As already foreshadowed, establishing the Tribunal requires the introduction of at least two separate Bills, the first being the current Bill, which sets out the structure, membership, constitution and other provisions that are required to facilitate the establishment of the Tribunal. This Bill does not however confer any jurisdiction on the Tribunal. Conferral of jurisdiction and other related matters will be the subject of a separate Bill or Bills. The 'Statutes Amendment' Bill or Bills will be needed to amend the many various Acts that presently confer jurisdiction on courts, tribunals, boards and other persons or bodies to deal with the disciplinary and other administrative decisions and reviews proposed to be transferred to the Tribunal.

The introduction of legislation required to support the Tribunal is being done in separate phases so as to allow the Government to undertake extensive consultation with existing tribunals and other bodies or matters that could be included. Targeted consultation with these tribunals and other bodies is necessary for a number of reasons. Firstly, to inform the drafting of the Statutes Amendment Bill or Bills and to ensure there is minimal disruption during the transition and implementation, once all legislation has been passed. The second reason for the Government introducing legislation in separate phases, commencing with this current Bill, is to enable the appointment of the President of the Tribunal. Appointing the President shortly after the passage of this Bill will ensure that she or he plays an integral part in overseeing, assisting and informing the nature, extent and scope of the integration of existing tribunals, boards and other bodies into the Tribunal.

The staged implementation of legislation to implement the Tribunal is not without precedent. New South Wales is currently in the process of establishing the NSW Civil and Administrative Tribunal, where more than 20 of the State's tribunals will be integrated into NCAT, which will provide a single gateway for tribunal services to the people of NSW. With the first Bill, the Civil and Administrative Tribunal Act 2013(NSW) having passed both Houses of Parliament without amendment in February 2013, a separate Civil and Administrative Tribunal Amendment Bill, which sets out NCAT's jurisdiction, powers and functions, is reported to be under preparation.

Turning now to the main features of the Bill.

Members of the Tribunal

The Bill proposes that the Tribunal be led by a President, supported by one or more Deputy Presidents, Magistrates, Senior Members, Ordinary Members and Assessors.

In order to be eligible for appointment, the President must hold concurrent office as either a Supreme or District Court Judge. The process of appointment to the role of President is by means of appointment by the Governor, by proclamation, in consultation with the Chief Justice or Chief Judge.

The President, aside from participating as a member of the Tribunal, has primary responsibility for its administration and will not be subject to the direction or control of a Minister. The President's functions are expressly prescribed in the Bill to include both administrative and managerial responsibility, which are as follows:

managing the business of the Tribunal, which includes ensuring it operates efficiently and effectively;

providing leadership and guidance to the Tribunal and ensuring a collective cohesiveness amongst the members and staff;

giving directions about practices and procedures to be followed by the Tribunal;

developing and implementing performance standards and benchmarks;

being responsible for promoting the training, education and professional development of members;

overseeing the provision of proper use of resources; and

providing advice about the membership and operation of the Tribunal.

There will be at least one Deputy President. In order to be eligible to be appointed to the role of Deputy President, the person must be either a judge of the District Court or eligible for appointment as a judge of the District Court.

Aside from participating as a member of the Tribunal, the Deputy President, will assist the President in the management of business and members of the Tribunal.

In order to provide maximum flexibility, the Bill provides a mechanism to temporarily appoint Supplementary Deputy Presidents, upon the Attorney-General receiving a request from the President, in relation to a particular matter or matters or for a specified period, irrespective of whether there is any vacancy in the office of Deputy Presidents. Magistrates will also have a role in the Tribunal, as and when required.

Senior and ordinary members

The Bill proposes that the Tribunal should be comprised of senior and ordinary members who may be legally qualified, but may also be experts from different fields or vocations. Legally qualified members must be practitioners of not less than five years standing and for other members must have, in the Minister's opinion, extensive knowledge, expertise or experience relating to a class of matter for which functions may be exercised by the Tribunal.

The Bill makes provision for the Minister to appoint a panel of persons who will, at the request of the Minister and after consultation with the President, recommend the selection criteria for the senior members and ordinary members of the Tribunal. This same panel of persons may also be requested by the Minister to assess a candidate or candidates for appointment as either a senior or ordinary member and provide advice to the Minister about this.

All members should be assessed by a panel against selection criteria and appointed by the Governor, after consultation between the President and the Minister, for a term of office, of between three and five years. A senior or ordinary member will be eligible for reappointment at the expiration of a term of office. Both senior and ordinary members will be appointed on conditions specified in the instrument of appointment.

The Bill proposes mechanisms for removal and suspension of senior and ordinary members of the Tribunal, in addition to specifying the grounds upon which a senior or ordinary member ceases to be a member of the Tribunal.

In order to manage unforeseen spikes in workloads, the Bill provides a mechanism to temporarily appoint senior and ordinary members for a particular matter or for a specified period, either at the request or with the agreement of the President of the Tribunal.

Assessors

The Bill proposes that there be panels of assessors as may be necessary for the purposes of any relevant Act. Assessors will be appointed by the Governor on recommendation of the Minister.

To be eligible for appointment as an assessor, the person must be qualified, by reason of his or her knowledge, expertise and experience, to provide specialist knowledge in a field or fields in which the Tribunal exercises jurisdiction.

An assessor will sit on a sessional basis and will be appointed for a term of office, not exceeding five years, but will be eligible for reappointment at the expiration of the five year term.

Constitution of Tribunal and its decision-making processes

Subject to the provisions in the Bill, the President may determine, in relation to particular matters, or particular classes of matters, which member or members of the Tribunal will constitute the Tribunal. Unless the conferring Act states otherwise, the Tribunal is not to be constituted by more than three members.

The Bill also clarifies which member in what circumstance will be considered the presiding member in the hearing of matters and the order of precedence generally, amongst all members of the Tribunal.

Clarification is also provided about how the Tribunal resolves cases that come before it. For questions that do not amount to a determination of a question of law, the opinion of the majority will apply. Where there is no majority, the opinion of the presiding member prevails. There is also a mechanism for the member of the Tribunal, or if there is more than one member, the presiding member, to refer a question of law to a Presidential Member for determination.

A range of other matters related to the constitution of the Tribunal are set out to assist the day to day operations of the Tribunal, these include:

permitting the listing of matters into various steams that reflect the areas of jurisdiction

validating the acts of the Tribunal

setting out requirements of Tribunal members to disclose interests (pecuniary or otherwise)

authorising of the President of the Tribunal to delegate a function or power under the Bill.

Jurisdiction

The Tribunal will be the primary forum for the review of administrative decisions, including reviews currently conducted by ministers (departmental reviews and appeals), courts (administrative reviews and appeals) and appellate tribunals (including boards and committees). The Tribunal will also make specific original administrative and civil decisions currently made by a range of disciplinary boards and tribunals.

Original jurisdiction of the Tribunal

The Tribunal exercises its original jurisdiction if the matter that a relevant Act gives the Tribunal to deal with does not involve a review of a decision, which in other words means the Tribunal is the original decision-maker.

The Bill provides that where jurisdiction to make original decisions is conferred upon the Tribunal, wherever possible the original hearing should be conducted in accordance with the processes already provided for in the existing legislation.

There will then be an internal right of review from an original decision of the Tribunal. As the internal reviews may be conducted by the President or Deputy President sitting alone or with others, an appeal would then lie, with permission, to the Full Court of the Supreme Court against the decision of the Tribunal from its internal review jurisdiction.

Review jurisdiction of the Tribunal

The Tribunal will exercise its review jurisdiction if the matter that a relevant Act gives the Tribunal jurisdiction to deal with is a matter that expressly or necessarily involves a review of a decision. The Tribunal will examine the decision of the original decision-maker by way of re-hearing.

In order to assist the Tribunal in exercising its review jurisdiction, the Bill imposes obligations upon the original decision-maker for the purposes of assisting the Tribunal so that it can make its decision on the review. The Bill also confirms the effect of the review proceeding on the decision being reviewed.

The Bill also allows for the Tribunal, at any stage of a proceeding for the review of a reviewable decision, to invite the decision-maker to reconsider the decision. Upon being invited to do so by the Tribunal, the original decision-maker may either affirm, vary or set aside the decision and substitute a new decision.

Principles, powers and procedures

Principles

The Bill sets out the principles that are to guide the Tribunal in the hearing of any proceeding for which it has jurisdiction. In summary, these principles include: minimising any formality, dispensing with rules of evidence and informing itself as it thinks fit and finally, acting according to equity and good conscience, without regard to legal technicalities.

Evidentiary Powers

To discharge its various functions as an administrative tribunal, the Tribunal will need powers to establish processes, obtain evidence, control parties and make adequate and appropriate determinations. Certain powers are proposed for inclusion in the Bill, whereas others will be located in the Regulations or Rules.

First, the Tribunal will be equipped with the power to require the production of evidentiary material or to require an individual to give evidence, which may be exercised by the Tribunal upon the application of a party or by means of its own initiative. This power will be exercised by the issuing of a summons. Failure to comply with this provision of the Bill without reasonable excuse will amount to an offence, which will attract a maximum penalty of a $25,000 fine or imprisonment for one year.

Second, a member of the Tribunal will have the power to enter any land or building and carry out any inspection that the Tribunal considers relevant to a proceeding before a Tribunal. Obstruction of a member of the Tribunal, or a person authorised by the Tribunal who is exercising this power, will be guilty of an offence, attracting a maximum penalty of $10,000 or 6 months imprisonment.

Finally, there is a power for the Tribunal to refer any question arising in any proceedings for investigation and report by an expert in the relevant field. However, the Tribunal must seek submissions from the parties to the proceedings, prior to making such a reference.

Practice and procedures

The Bill outlines a number of obligations upon the Tribunal in terms of practices and procedures generally, and regarding the conduct of proceedings and interaction of parties to proceedings. More specifically, it confirms the Tribunal's ability to give directions, consolidate proceedings, split proceedings, move a proceeding to a more appropriate forum and finally to dismiss or strike out a proceeding that is frivolous, vexatious or an abuse of process. There is also a mechanism for the Tribunal to manage proceedings being conducted to cause disadvantage to a party, either by the application of a party or on its own initiative.

Conferences, mediation and settlement

An important emphasis is placed on the role of alternative dispute resolution and proceedings before the Tribunal. The Bill provides the Tribunal with the scope, at an initial directions hearing or at any other time, to require the parties to attend a compulsory conference, or refer the matter, or any aspect of the matter, for mediation by a person specified as a mediator by the Tribunal. The Bill also sets out the procedures for both conferences and mediation. The Tribunal itself may also endeavour to achieve a negotiated settlement of a matter before the Tribunal.

Parties and representation

The Bill defines who is considered a 'party' for the purposes of a proceeding before the Tribunal, confirms who may be joined as a party, and who can intervene in a proceeding before the Tribunal and on what grounds. Further, the Attorney-General may, on behalf of the State intervene in any proceedings before the Tribunal at any time. For all others however, leave of the Tribunal to intervene must first be obtained. The matter of representation before the Tribunal is also addressed.

Costs

Unless specified in the Bill, a relevant Act, or an order of the Tribunal, it is proposed that parties bear their own costs in any proceeding before the Tribunal. Nonetheless, the Tribunal may make an order for the payment by a party of all or any of the costs of another party, or of a person required to appear before the Tribunal or to produce evidential material. However, where the Tribunal dismisses or strikes out any proceeding in any prescribed circumstances, it is proposed that the Tribunal should also make an order for costs against the party against whom the action is directed unless there is good reason not to.

Further, the Bill provides that the power to make an order for the payment by a party of the costs of another party includes the power to make an order for the payment of an amount to compensate the other party for any expenses or loss resulting from any proceeding or matter. The Bill provides guidance to the Tribunal as to the relevant considerations in exercising this power.

Other procedural and related provisions

The Bill addresses a range of other miscellaneous, procedural and related provisions, which are summarised as follows:

the time and location of Tribunal sittings;

the requirement for hearings to be heard in public, unless the Tribunal is satisfied that it is desirable to either hear all or part of a hearing in private or there is a need for example to prohibit/restrict publication of the name and addresses of persons appearing before the Tribunal and/or evidence given at the Tribunal;

the power to make any order that may be necessary to preserve the subject matter of proceedings or interests of a party;

security as to costs;

the power to make interlocutory orders;

the power to make conditional and alternative orders;

the power to refer questions arising in a proceeding to a special referee;

the power to provide relief from time limits for doing anything in connection with a proceeding or the commencement of any proceeding;

equipping the Tribunal with the capacity to undertake electronic hearings and proceedings without hearings (on the basis of documents);

privilege against self-incrimination; and

other claims of privilege.

Reviews and appeals

As already stated, there is a mechanism to review an original decision of the Tribunal and the Bill sets out measures for this to occur. Also set out in the Bill is an avenue to appeal:

to the Full Court of the Supreme Court of South Australia, if the Tribunal was constituted for the purpose of making the order by the President or a Deputy President, whether with or without others; or

to a single judge of the Supreme Court in any other case.

The requirement for leave to appeal is designed to ensure that appeals that do not raise points of importance are not unnecessarily maintained. The Bill then sets out what orders can be made by the Supreme Court on appeal.

Further, the Bill confirms that a Presidential member of the Tribunal may reserve any questions of law arising in any proceedings for determination by the Full Court of the Supreme Court. If a question of law is reserved, the Supreme Court may determine the question and give any consequential orders or directions considered by the Court to be appropriate to the circumstances of the case.

Staff of the Tribunal

The President and members of the Tribunal will be assisted by staff. It is proposed that the Tribunal have one principal registrar, supported by one or more other registrars (to be known as 'Deputy Registrars').

The functions of the Registrar will be:

to assist the President of the Tribunal in the administration of the Tribunal;

to be responsible for the registry and records of the Tribunal;

to undertake responsibility for the day-to-day case management of the Tribunal;

to constitute the Tribunal to the extent specified under this Act; and

to fulfil other functions assigned to the Registrar by the President or under the rules of the Tribunal.

The Bill also confirms that there will be other staff of the Tribunal, consisting of persons employed in a public sector agency and made available to act as members of the staff of the Tribunal. Further the Tribunal may, by arrangement with the relevant body, make use of the facilities, staff or equipment of an administrative unit in the Public Service, or the State Courts Administration Council or another public agency or authority.

Miscellaneous

Finally, the Bill contains a number of miscellaneous measures relating to the operation and functions of the Tribunal.

The Bill contains a regulation making power and confirms that the Minister must appoint one or more independent persons to conduct a review to undertake an assessment of the performance of the Tribunal, whether the Tribunal's objectives are being met and the extent to which it would be advantageous to extend the jurisdiction of the Tribunal. The review must be incorporated into a report and submitted to the Minister for tabling before both Houses of Parliament.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

3—Interpretation

This clause contains definitions of words and phrases used in the Bill, including applicant, decision-maker, evidentiary material, legally qualified member and Tribunal.

4—Relevant Acts prevail

A 'relevant Act' is defined in clause 3 to mean 'an Act which confers jurisdiction on the Tribunal'. There will be numerous relevant Acts that confer jurisdiction on the Tribunal. In the event of an inconsistency between a relevant Act and this Act, the relevant Act prevails.

Part 2—South Australian Civil and Administrative Tribunal

Division 1—Establishment of Tribunal

5—Establishment of Tribunal

This Bill establishes a new tribunal called the South Australian Civil and Administrative Tribunal ('the Tribunal').

6—Jurisdiction of Tribunal

This clause provides that Tribunal's jurisdiction is set out in proposed Part 3.

7—Tribunal to operate throughout State

This clause provides that the Tribunal is to facilitate access to its services throughout South Australia and may sit at any place. The President after consultation with the Minister will determine where Registries of the Tribunal will be located.

Division 2—Main objectives of Tribunal

8—Main objectives of Tribunal

This clause sets out the Tribunal's primary objectives. These will enable the Tribunal to be an accessible 'one-stop shop' that can resolve disputes quickly, with minimal formality and costs and utilise Tribunal members who have the appropriate experience and expertise.

The objects of the Tribunal are—

to promote the best principles of public administration;

to be accessible and be responsive to parties, especially people with special needs;

to ensure that applications are processed and resolved as quickly as possible while achieving a just outcome;

resolving disputes through high-quality processes and the use of mediation and other alternative dispute resolution procedures where appropriate;

to keep costs to parties involved in proceedings before the Tribunal to a minimum;

to use straight forward language and procedures;

to act with as little formality and technicality as possible;

to be flexible in the way in which the Tribunal conducts its business.

Division 3—Members of Tribunal

Subdivision 1—The members

9—The members

The proposed section provides for membership of the Tribunal. This clause specifies that the Tribunal is to have judicial members (including a President, at least one Deputy President, and magistrates who are designated as members) and other members (either senior members, ordinary members or assessors).

Subdivision 2—The President

10—Appointment of President

This clause provides for the appointment of the President of the Tribunal. The Tribunal President must be a judge of the Supreme Court or the District Court appointed by the Governor, by proclamation. Appointment to the position of President of the Tribunal is subject to conditions determined by the Governor. Appointment as the President does not affect that person's tenure, status, rights or privileges as a judge, and service as President is to be taken for all practical purposes as service as a judge. The appointment of a judge as the President of the Tribunal will be for a term of 5 years and the person will be eligible for reappointment at the expiration of a term of office. This clause also sets out the circumstances in which the person may cease to be the President of the Tribunal.

11—President's functions generally

This clause outlines the functions of the President of the Tribunal.

12—Acting President

This clause provides for the appointment of an Acting President of the Tribunal if there is a vacancy in the office of President or the President is absent or unable to perform the functions of office.

Subdivision 3—The Deputy Presidents

13—Number of Deputy Presidents

The proposed section provides that there will be at least 1 Deputy President of the Tribunal.

14—Appointment of Deputy Presidents

This clause provides for the appointment and removal of the Deputy Presidents of the Tribunal. It also specifies that a Deputy President must be a District Court Judge or a person who is eligible to be appointed as a District Court judge. The appointment of a judge as a Deputy President of the Tribunal will be for a period of 5 years and the person is eligible for reappointment at the expiration of a term of office.

15—Deputy President's functions generally

This clause outlines the functions of a Deputy President of the Tribunal.

16—Acting Deputy Presidents

This clause provides for the appointment of an Acting Deputy President of the Tribunal if there is a vacancy in the office of Deputy President or a Deputy President is absent or unable to perform the functions of office.

17—Supplementary Deputy Presidents

Under this clause, even if there is no vacancy in the office of Deputy President, the Attorney-General may on the request of the President of the Tribunal, temporarily appoint a person to act as a supplementary Deputy President of the Tribunal.

Subdivision 4—Magistrates

18—Magistrates

Under this clause, magistrates may be designated by the Governor as members of the Tribunal. Before the Governor makes such a proclamation, the Attorney-General must consult with the President of the Tribunal and the Chief Magistrate. Appointment as a magistrate of the Tribunal does not affect that person's tenure, status, rights or privileges as a magistrate.

Subdivision 5—Senior members and ordinary members

19—Appointment of senior members and ordinary members

The proposed section provides for the appointment of non-judicial members to the Tribunal. Senior and ordinary members must be legal practitioners with at least 5 years experience, or have extensive or special knowledge or experience involving a class of matter which can be dealt with by the Tribunal. Before these members are appointed by the Governor, the Minister must consult with the President of the Tribunal. Members of the Tribunal may be appointed on a full-time, part-time or sessional basis. The Minister may also appoint a panel of persons from time to time, at the Minister's request, to recommend the selection criteria for members. This panel may also at the request of the Minister, assess candidates for appointment as senior and ordinary members.

20—Member ceasing to hold office and suspension

This clause contains standard provisions regarding the removal or suspension of members of the Tribunal.

21—Supplementary members

This clause allows the Attorney-General, after consultation with the President of the Tribunal, to temporarily appoint a person to act as a supplementary senior member or a supplementary ordinary member of the Tribunal in relation to particular matters or for a specified period.

Subdivision 6—Assessors

22—Assessors

The proposed section provides for the appointment of assessors. An assessor must be a person, in the opinion of the Minister, who is qualified by reason of his or her knowledge, expertise and experience, to provide specialist knowledge in a particular field in which the Tribunal exercises jurisdiction.

Division 4—Constitution of Tribunal and it's decision-making processes

23—Constitution of Tribunal

This clause provides for the constitution of the Tribunal. Generally, the composition of the Tribunal is to be determined by the President. Under the proposed section, the Tribunal is to be constituted by not more than 3 members. A person who made the original decision cannot also be a member of the appeal Tribunal. Under the measure, the President of the Tribunal will have discretion to organise the Tribunal's business and regulate proceedings before the Tribunal.

24—Who presides at proceedings of Tribunal

This clause makes provision for who will preside over proceedings in the Tribunal where the Tribunal is constituted by 2 or more members.

25—Decision if 2 or more members constitute Tribunal

If the Tribunal is constituted by 2 or more members to resolve a question, it is resolved according to the majority opinion. If the opinion on how to resolve a question is split between members, it is resolved according to the opinion of the presiding member.

26—Determination of questions of law

This clause provides that the member of the Tribunal, or if there is more than 1 member, the presiding member, may refer a question of law to a Presidential member of the Tribunal.

Division 5—Related matters

27—Streams

Under the measure, the President of the Tribunal will be able to establish various streams or lists that reflect the areas of jurisdiction of the Tribunal.

28—Validity of acts of Tribunal

Acts or proceedings of the Tribunal are not invalidated by reason of a vacancy or defect in appointment.

29—Disclosure of interest by members of Tribunal

The proposed section provides procedures for disclosure where a member has a pecuniary interest or conflict of interest in proceedings before the Tribunal.

30—Delegation

This clause provides for delegations by the President of the Tribunal.

Part 3—Jurisdiction

Division 1—Preliminary

31—Sources of jurisdiction

This clause provides that the Tribunal will have the jurisdiction conferred on it by or under this measure or any other Act.

32—Kinds of jurisdiction

The Tribunal will have original and review jurisdiction.

Division 2—Original jurisdiction

33—Original jurisdiction

In exercising its original jurisdiction, the Tribunal will act as the original decision-maker in the matter in accordance with this measure and the relevant Act.

Division 3—Review jurisdiction

34—Decisions within review jurisdiction

In exercising its review jurisdiction, the Tribunal will examine the decision of the decision-maker by way of rehearing in accordance with this Act and the relevant Act. On a rehearing the Tribunal must reach the correct or preferable decision, but in doing so, must have regard to, and give appropriate weight to, the decision of the original decision-maker. A rehearing will include an examination of the evidence or material before the decision-maker and any further evidence or material that the Tribunal decides to admit.

35—Decision-maker must assist Tribunal

In review proceedings, the decision-maker for the reviewable decision must use his or her best endeavours to help the Tribunal so that it can make its decision on the review.

36—Effect of review proceedings on decision being reviewed

This clause provides that the commencement of a review does not affect the operation of the original decision unless provided for by the relevant Act, or the Tribunal or decision-maker makes an order for a stay of the decision.

37—Decision on review

The Tribunal may on a review affirm, vary, or set aside the decision of the original-decision maker. If the Tribunal sets-aside the decision it may substitute its own decision or send the matter back to the original decision-maker for reconsideration. Any decision made upon reconsideration is open to review by the Tribunal. Once the Tribunal has decided to affirm, vary, or substitute the original decision then this reviewed decision is to be regarded and given effect as a decision of the original decision-maker. The reviewed decision has effect from the time of the original decision, unless the relevant Act allows or the Tribunal orders otherwise.

38—Tribunal may invite decision-maker to reconsider decision

At any stage the Tribunal may invite the original decision-maker to reconsider the decision the subject of review. Upon reconsideration the decision-maker may affirm, vary, or set aside their decision and substitute a new decision.

Part 4—Principles, powers and procedures

Division 1—Principles governing hearings

39—Principles governing hearings

This clause provides the general principles that the Tribunal will uphold in the performance of its functions. The main principles are that the Tribunal:

will act subject to the relevant Act;

will conduct itself with minimal formality;

is not bound by the rules of evidence;

will act according to equity, good conscience and the substantial merits of the case;

will act without regard to legal technicalities and forms.

Further, this clause makes clear that nothing in this measure affects any rule or principle of law relating to legal professional privilege, 'without prejudice' privilege or public interest immunity.

Division 2—Evidentiary powers

40—Power to require person to give evidence or to provide evidentiary material

The proposed section provides powers for the Tribunal to order persons to appear before the Tribunal or to produce to the Tribunal documents or materials relevant to the Tribunal's proceedings. In addition it contains provisions relating to the giving of evidence on oath or affirmation. The clause also creates an offence relating to refusal to comply with the requirements of the proposed section, the maximum penalty being $25,000 or imprisonment for 1 year.

41—Entry and inspection of property

Under this clause, a member of the Tribunal may enter any land or building, or authorise an officer of the Tribunal to enter any land or building, that the member considers relevant to a proceeding before the Tribunal. In addition, the clause creates an offence of obstructing a member or authorised officer of the Tribunal while exercising powers under the proposed section, the maximum penalty being $10,000 or imprisonment for 6 months.

42—Expert reports

The proposed section enables the Tribunal to appoint experts to assist the Tribunal and to require the parties to proceedings to contribute to the costs of engaging such a person.

Division 3—Procedures

43—Practice and procedure generally

This clause indicates that the Tribunal is bound by rules of natural justice except to the extent that legislation otherwise provides. The Tribunal can inform itself on any matter as it sees fit and is to determine its own practice and procedures except where these matters are prescribed by legislation. The Tribunal is to assist the parties by, for example, explaining procedures and enabling them the opportunity to be heard or otherwise have their submissions received. The Tribunal must ensure that all relevant material is available to it and may require documents to be served outside of the State.

44—Directions for conduct of proceedings

This clause enables the Tribunal to give directions and do other things to enable the proceedings to be fair and expeditious. These directions can require the production of a document or material or provision of information.

45—Consolidating and splitting proceedings

The Tribunal may consolidate proceedings into one proceeding or require proceedings to be heard together. The Tribunal may also direct that proceedings commenced by 2 or more persons jointly be split into separate proceedings or that any aspect of proceedings be heard and determined separately.

46—More appropriate forum

This proposed section enables the Tribunal to strike out a proceeding or part of a proceeding if another tribunal, court or person can more appropriately deal with the matter.

47—Dismissing proceedings on withdrawal or for want of prosecution

This clause sets out provisions relating to the ability of a party to withdraw proceedings. The Tribunal will also have power to dismiss or strike out proceedings for want of jurisdiction.

48—Frivolous, vexatious or improper proceedings

This clause allows the Tribunal to make an order that a proceeding is dismissed or struck out, if the Tribunal considers that the proceeding is frivolous, vexatious, misconceived or lacking in substance, or involves a trivial matter or amount, or is being used for an improper purpose. If a proceeding is dismissed or struck out under the proposed section, another proceeding of the same kind in relation to the same matter cannot be commenced before the Tribunal without the leave of a Presidential member.

49—Proceedings being conducted to cause disadvantage

This clause enables the Tribunal to dismiss or strike out proceedings if a party is conducting proceedings in a way which unnecessarily disadvantages another party to the proceedings. A list of examples of such conduct is provided. This can be done on the Tribunal's own initiative or following an application by a party to the proceedings.

Division 4—Conferences, mediation and settlement

50—Conferences

The proposed section empowers the Tribunal to hold compulsory private conferences to identify and clarify issues and promote settlement of disputes.

51—Mediation

This clause enables the Tribunal to refer the matter, with or without the parties' consent, for private mediation by a person approved by the President to resolve the matters in dispute.

52—Settling proceedings

The proposed section allows the Tribunal to make an order giving effect to parties written agreement to settle proceedings where the Tribunal would otherwise have power to make a decision in accordance with that settlement. A settlement under the proposed section must not be inconsistent with a relevant Act.

Division 5—Parties

53—Parties

This clause outlines that parties to the Tribunal's proceedings include the applicant; persons subject to disciplinary proceedings under relevant acts; decision-makers in review proceedings; persons joined as a party by order of the Tribunal; intervener and other persons specified in legislation. The decision-maker is to be described by their official description, not their personal name.

54—Person may be joined as party

The proposed section enables the Tribunal, in specified circumstances, to join persons as parties to proceedings and may make an order on the application of any person.

55—Intervening

The clause indicates the Attorney-General may intervene at any time in the Tribunal's proceedings. In addition, any other person may be given leave to intervene if the Tribunal thinks fit.

Division 6—Representation

56—Representation

The proposed section enables parties to the Tribunal's proceedings to appear in person and represent themselves or be represented by a lawyer. With leave of the Tribunal, parties may be represented by persons who are not lawyers. Unless specified by the Tribunal, a party appearing may be assisted by another person as a friend. Nothing in this clause, however, authorises a person who is not a lawyer from acting for fee or reward in relation to proceedings before the Tribunal. The clause also makes it clear that a legal practitioner who has been suspended, struck off or would be acting contrary to disciplinary proceedings is not permitted to act as a representative in proceedings before the Tribunal.

Division 7—Costs

57—Costs

This clause makes provision for costs liability between parties to the proceedings in the Tribunal. In general, parties are to bear their own costs, unless there are reasons for the Tribunal to order otherwise.

58—Costs—related matters

This clause provides that the power of the Tribunal to make an order for the payment by a party of the costs of another party may include the power to make an order for the payment of an amount to compensate the other party for any expenses or loss resulting from the proceedings. The rules of the Tribunal may deal with the effect of certain offers to settle (and any response to such an offer) on an order for the payment of the costs of another party.

Division 8—Other procedural and related provisions

59—Sittings

The Tribunal will sit at such times and places as the President of the Tribunal may direct.

60—Hearings in public

This clause provides that hearings are to be public unless the Tribunal specifies (for reasons outlined in the Act) that the hearing or part of the hearing is to be private. In exercising its powers, the Tribunal can also place restrictions on the publication of all or any part of proceedings where the Tribunal considers it is necessary to do so.

61—Preserving subject matter of proceedings

Under this clause, the Tribunal may make any orders it considers necessary to preserve the subject matter of proceedings.

62—Security as to costs etc

This clause allows the Tribunal to order a party to proceedings to give security for costs or an undertaking in relation to payment of costs. An order under the proposed section may be made by a legally qualified member or a non-legally qualified member with the concurrence of a legally qualified member.

63—Interlocutory orders

The proposed section gives the Tribunal the power to make interlocutory orders.

64—Conditional, alternative and ancillary orders and directions

The Tribunal may make orders and give directions on conditions the Tribunal considers appropriate. The Tribunal will, by ancillary order, be able to provide that a decision of the Tribunal is to be implemented by a third party.

65—Special referees

The proposed section enables the Tribunal to refer questions to a special referee for the referees decision or opinion and to require parties to contribute to the costs.

66—Relief from time limits

The rules may provide for the Tribunal to extend or abridge a time limit for doing anything in connection with a proceeding.

67—Electronic hearings and proceedings without hearings

This clause enables the Tribunal to have proceedings using telephones, video links or other communication systems. It also allows the Tribunal to conduct proceedings solely on the basis of documents without need for a hearing.

68—Completion of part-heard matters

Under the proposed section, persons who no longer hold office as members of the Tribunal may continue to act in the relevant office for the purposes of completing part-heard proceedings (other than where the member has had his or her appointment revoked or has been removed from office).

69—Privilege against self-incrimination

The proposed section provides that persons are not excused from answering questions or producing documents or materials on the ground that this might incriminate them or render them liable to a penalty. However, any answer given or document or material produced in response to a requirement to answer or produce is not admissible in criminal proceedings against that person other than perjury proceedings or the offence of providing false or misleading answers.

70—Other claims of privilege

A person may not be compelled to answer a question or produce a document or other material in proceedings before the Tribunal, if the person could not be compelled to do so if the proceedings where before the Supreme Court.

Part 5—Reviews and appeals

Division 1—Internal reviews

71—Internal reviews

This clause makes provisions for the application for a review of a decision of the Tribunal in the exercise of its original jurisdiction. On a review, the Tribunal will examine the decision of the Tribunal at first instance on the evidence before the Tribunal at that time. However, the Tribunal may, as it thinks fit, allow further evidence or material to be presented to it. The Tribunal must reach the correct or preferable decision, whilst having regard and giving appropriate weight to the Tribunal's original decision. The clause also inserts definitions necessary for the purposes of the proposed section.

Division 2—Appeals

72—Appeals

Under the proposed section, appeals from decisions of the Tribunal lie to the Supreme Court. This clause outlines the procedure in relation to appeals. Generally, the Supreme Court may, for example, affirm, vary, or set-aside the Tribunal's decision or make any decision that the Tribunal could have made, or send the matter back to the Tribunal for reconsideration. The clause also provides that the regulations may prescribe scales of costs that are payable in respect of proceedings before the Supreme Court on an appeal under this clause.

Division 3—Related matters

73—Reservation of questions of law

This clause enables a Presidential member of the Tribunal to refer any question of law arising in proceedings to determination by the Full Court of the Supreme Court.

74—Effect of review or appeal on decision

The proposed section enables the Supreme Court or the Tribunal to stay the operation of a Tribunal's decision while the Supreme Court decides whether to grant leave to review or appeal and, if so, while it decides the review or appeal. If the Supreme Court or Tribunal does not make such an order, the review or appeal does not affect the Tribunal's decision or prevent implementation of that decision.

Part 6—Staff

Division 1—Registrars

75—Registrars

The proposed section provides that there will be a principal registrar of the Tribunal (to be known as the Registrar), as well as 1 or more Deputy Registrars.

76—Functions of registrars

This clause outlines the functions of the Registrar of the Tribunal.

77—Delegation

This clause provides for delegations by the Registrar of the Tribunal.

Division 2—Other staff of Tribunal

78—Other staff of Tribunal

This clause makes provision for the Tribunal to use persons employed in a public sector agency who are made available to act as staff of the Tribunal.

Division 3—Use of services or staff

79—Use of services or staff

This clause allows the Tribunal to use the services, facilities or staff of a government department, agency or instrumentality.

Part 7—Miscellaneous

80—Immunities

This clause provides for the protection of members of the Tribunal, and other persons, who must perform functions under this Act or who are parties, legal representatives or witnesses.

81—Protection from liability for torts

A member of the Tribunal, or a member of the staff or an officer of the Tribunal, will be protected from liability in tort for anything done in the performance, or purported performance, of a function under this Act or a relevant Act.

82—Protection from compliance with Act

No liability will attach to a person for compliance, or purported compliance, in good faith, with a requirement under the Act.

83—Alternative orders and relief

This clause empowers the Tribunal to grant any form of relief that it considers appropriate, notwithstanding that another form of relief may be sought by an applicant.

84—Power to cure irregularities

It also allows the Tribunal to dispense with the fulfilment of conditions stipulated by the Act, or any other Act or law to the extent necessary for the purpose.

85—Correcting mistakes

This clause allows the Tribunal to correct its decisions or statement of reasons so as to rectify, for example, clerical mistakes or formal defects.

86—Tribunal may review its decision if person was absent

Under the proposed section, persons who did not appear and were not represented at hearings before the Tribunal may apply to the Tribunal for a review of the decision. The Tribunal must be satisfied that the applicant for the review had a reasonable excuse for not attending or being represented at the relevant hearing. The Tribunal may, on such a review, revoke or vary its decision. As far as is practicable, the Tribunal should be constituted by the same members who made the original decision.

87—Tribunal may authorise person to take evidence

The Tribunal will be able to authorise a person (whether or not a member of the Tribunal) to take evidence on behalf of the Tribunal. The Tribunal may authorise evidence to be taken under this section outside the State.

88—Miscellaneous provisions relating to legal process and service

This clause is a standard provision setting out how notices and documents may be served.

89—Proof of decisions and orders of Tribunal

Generally, an apparently genuine document purporting to be a copy of a decision or order of the Tribunal and certified as such by a registrar will be accepted in any legal proceedings as a true copy of a decision or order of the Tribunal.

90—Enforcement of decisions and orders of Tribunal

If the Tribunal makes a monetary order, the amount specified may be recovered in an appropriate court by a person recognised by the regulations for the purposes of this subsection, as if it were a debt.

91—Accessibility of evidence

This clause outlines the procedures that will apply where an application or member of the public seeks to inspect or obtain documentary material.

92—Costs of proceedings

The Tribunal will be able, in limited circumstances, to order that a party pay for all or a part of proceedings before the Tribunal.

93—Annual report

The President of the Tribunal will prepare an annual report, which will be tabled in both Houses of the Parliament.

94—Additional reports

The Attorney-General will also be able to request the President of the Tribunal to provide a report on a matter relevant to the administration of the Tribunal.

95—Rules

The proposed section enables the President and a Deputy President of the Tribunal to make rules for the Tribunal.

96—Regulations

This clause makes provision for the Governor to make regulations for the purposes of the measure.

97—Review

A review of the operation of the measure is to be conducted by 1 or more independent persons appointed by the Minister as soon as practicable after the expiry of 2 years from the commencement of Part 3 of this Act. The Minister must table a copy of the report resulting from the review in Parliament within 6 sitting days of receiving the report.

Debate adjourned on motion of Hon. J.S.L. Dawkins.

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